Boykins v. Alabama Brief and Argument of Respondent

    In The

Supreme Court of the United States
OCTOBER TERM, 1968 

NO. 642

EDWARD BOYKIN, JR.,

PETITIONER

vs.

STATE OF ALABAMA,

RESPONDENT

ON WRIT OF CERTIORARI TO THE 
SUPREME COURT OF ALABAMA 

BRIEF AND ARGUMENT OF RESPONDENT

MacDONALD GALLION 
Attorney General 
State of Alabama

DAVID W. CLARK 
Assistant Attorney General 
State of Alabama

State Administrative Building 
Montgomery, Alabama 36104
Counsel for Respondent



1

INDEX 

Subject Index

Opinions of the Court Below.............

Jurisdiction ..........................................

Questions Presented............................

Constitutional Provisions Involved ...

Statement ----------------------------- ----

Summary of Argument .......... .............

Argument ------ -------- -------------------

Conclusion ............................................

Page

...... 1
2

2

2

3

. 3 

13 

.13Certificate



ii

TABLE OF CASES CITED

Page

In Re Robert Page Anderson, Sup. Ct. of Calif.,
Crim. 11572 .................................................................. —  6

Boykin v. State, 207 So. 2d 412, 416....................................1, 4

Bullock v. Harpile, 233 Miss. 486, 102 So. 2d 687 ............... 10

Cobern v. State, 273 Ala. 547, 142 So. 2d 869 .......................  8
Dickinson v. State, 202 Miss. 804, 32 So. 2d 881................... 11

Franklin v. Brown, 73 W. Va. 727, 729, 81 S.E.
405, L.R.A. 1915C, 557 ....................................................  4

Giaccio v. Pennsylvania, 382 U.S. 399, 15 L. Ed. 2d
447, 86 S. Ct. 518.................................... .......................... 6

Howard v. State, 194 So. 2d 834 .............................................11

Hulsey v. United States, 369 F. 2d 284(1966) ...................9

Miranda v. Arizona, 384 U.S. 436 .......................................... 12

People v. Tanner, 3 Cal. 2d 279, 298 .................................. ....  6
People v. Keller, 245 Cal. App. 2d 711, 714-715.....................  6
In Re Frederick Saterfield, Sup. Ct. of Calif.,

Crim. 11573 ...................................................................... g

Trop v. Dulles, 356 U.S. 86, 89 ............................................  g

Yates v. State, 251 Miss. 376, 169 So. 2d 792 ....................... 11
U.S. v. Sorcey, 151 F. 2d 899, Cert. Den. 66 S. Ct.

821, 327 U.S. 794, 90 L. Ed, 1021 ................................... 5

Weems v. United States, 217 U.S. 459, 54 L. Ed. 793
30 S. Ct. 544 ...................................................................... 4



Ill

STATUTES CITED

Page

Code of Alabama 1940, Title 14, Section 415................. 3

Code of Alabama 1940, Title 15, Section 382(1-13) .....12

Code of Alabama 1940, as amended, Title 15, Section
318 (1-12) ..........................................................................12

Code of Alabama 1940, Title 15, Section 277 .................10

Code of Alabama 1940, Title 1, Section 3 ......................  4

United States Code: Title 28, Section 1257 ( 3 ) ....................... 2



In The

Supreme Court of the United States
OCTOBER TERM, 1968 

NO. 642

EDWARD BOYKIN, JR.,

PETITIONER

vs.

STATE OF ALABAMA,

RESPONDENT

ON WRIT OF CERTIORARI TO THE 
SUPREME COURT OF ALABAMA

BRIEF AND ARGUMENT ON THE MERITS 
BRIEF AND ARGUMENT OF RESPONDENT

I

OPINIONS OF THE COURT BELOW

The opinion of the Supreme Court of Alabama is re­
ported as follows:

Edward Boykin, Jr., v. State, 1st Div. 403, 207 So. 2d 
412, 416. The decision of the Honorable Court granting 
Certiorari is reported at 21 L. Ed. 2d 93.

II

JURISDICTION

The petitioner has been granted a writ of certiorari from 
the Supreme Court of the United States to review the judg-



2

ment of the Supreme Court of Alabama, rendered on Febru­
ary 8, 1968; rehearing was denied March 7, 1968, 207 So. 2d 
412, 416. Petitioner applied under the provisions of Title 28, 
Section 1257(3), United States Code.

I ll

QUESTIONS PRESENTED

1. Does imposition of the death penalty upon conviction 
for robbery violate the Eighth and Fourteenth Amendments?

2. Did the trial court fail to protect petitioner’s right 
to due process with regard to his plea of guilty?

3. Does the finding of guilty and punishment within the 
limits set by the statute violate due process in the absence of 
a statute providing for separate juries to render verdicts 
and assess punishment?

IV

CONSTITUTIONAL PROVISIONS INVOLVED

Section 1 of the Fourteenth Amendment to the Constitu­
tion of the United States.

Eighth Amendment to the Constitution of the United 
States.

V

STATEMENT

The petitioner was tried and convicted in the Circuit 
Court of Mobile County, Alabama, of robbery.

The record discloses that defendant was represented by 
court-appointed counsel and pleaded guilty to five separate 
indictments charging him with committing five separate



3

robberies respectively. Jury verdict was guilty of robbery, 
as charged in the indictment, on his plea of guilty and finding 
that he suffer death by electrocution. Sentence of death by 
electrocution was pronounced by the Court (R. pp. 6-8).

VI

SUMMARY OF ARGUMENT

Imposition of the death penalty upon conviction for 
robbery is not cruel and unusual punishment violative of the 
Eighth and Fourteenth Amendments when the sentence is 
within the limits set by State statute.

There is no requirement of affirmatively showing that 
the trial judge did not accept a plea of guilty until after 
determining that the plea was voluntarily and knowingly 
entered by the defendant and that the defendant fully re­
alized and was competent to know the consequences of such 
a plea.

The finding of guilty and setting punishment by the 
same jury, in the absence of a statute providing for separate 
juries for each of these functions, does not violate due process.

VII

ARGUMENT

Petitioner argues at some length that the imposition of 
the death penalty upon conviction of robbery is cruel and 
unusual punishment violative of the Eighth and Fourteenth 
Amendments.

Title 14, Section 415, Code of Alabama 1940, provides 
that “any person convicted of robbery, shall be punished, at 
the discretion of the jury, by death, or by imprisonment in 
the penitentiary for not less than ten years.”

Robbery is a common law crime and is the felonious 
taking of money, or goods of value from the person of another,



4

or in his presence, by violence to his person, or by putting 
him in fear. There is no statutory robbery in Alabama, and 
the State of Alabama adopted the common law of England, 
where not inconsistent with the Constitution, laws and insti­
tutions of this State, to continue in force until altered or 
repealed by the Legislature (Title 1, Section 3, Code of 
Alabama 1940).

The Supreme Court of Alabama in affirming the case 
now on certiorari to this Honorable Court, Edward Boykin, 
Jr., v. State of Alabama, 207 So. 2d 412, 416, held:

“Robbery, from the earliest times, has always been re­
garded a crime of the gravest character. At common law 
the punishment for robbery was death, with or without 
benefit of clergy, according to varying statutes. Franklin 
v. Brown, 73 W. Ya. 727, 729, 81 S. E. 405, L.R.A. 1915C 
557. In Laws of Alabama, 1823, page 207, the punish­
ment for robbery was death. In the Code of 1852, § 3104, 
page 563, punishment was ten years’ imprisonment. 
Since the Revised Code of 1867, § 3668, any person con­
victed of robbery, must be punished, at the discretion of 
the jury, either by death, or by imprisonment for not 
less than ten years; or, as in Code 1886, § 3742, by death 
or by imprisonment for not less than five years; or, as 
in Code 1896, § 5479, and subsequent codes, by death or 
by imprisonment for not less than ten years.”

This Honorable Court in Weems v. United States, 217 
U.S. 349, 54 L. Ed. 793, 30 S. Ct. 544, discussed cruel and 
unusual punishment, holding:

“What constitutes cruel and unusual has not been exactly 
decided. It has been said that ordinarily the terms imply 
something inhuman and barbarous,—torture and the 
like.

“This court’s final commentary was that ‘difficulty would 
attend the effort to define with exactness the extent of



5

the constitutional provision which provides that cruel 
and unsual punishments shall not be inflicted; but it is 
safe to affirm that punishments of torture, such as those 
mentioned by the commentator referred to, and all others 
in the same line of unnecessary cruelty, are forbidden by 
that Amendment to the Constitution. Cooley, Const. Lim. 
4th ed. 408; Wharton, Crim. Law, 7th ed. § 3405.’

“That passage was quoted in Re Kemmler, 186 U.S. 436, 
447, 34 L. ed. 519, 524, 10 Sup. Ct. Rep. 930, and this 
comment was made: ‘Punishments are cruel when they 
involve torture or a lingering death; but the punishment 
of death is not cruel, within the meaning of that word 
as used in the Constitution. It implies there something 
inhuman and barbarous, and something more than the 
mere extinguishment of life.’ The case was an applica­
tion for habeas corpus, and went off on a question of 
jurisdiction, this court holding that the 8th Amendment 
did not apply to state legislation. It was not meant in 
the language we have quoted to give a comprehensive 
definition of cruel 371] and unusual *punishment, but 
only to explain the application of the provision to the 
punishment of death. In other words, to describe what 
might make the punishment of death cruel and unusual, 
though of itself it is not so. It was found as a fact by the 
state court that death by electricity was more humane 
than death by hanging.”

As was pointed out earlier the statutory punishment in 
Alabama upon conviction of robbery is punishment, at the 
discretion of the jury, by death, or imprisonment in the 
penitentiary for not less than ten years.

Where the sentence imposed is within the limits pre­
scribed by statute for the offense committed, it ordinarily 
will not be regarded as cruel and unusual. U. S. v. Sorcey, 
151 F. 2d 899, Cert. Den. 66 S. Ct. 821, 327 U.S. 794, 90 L. 
Ed. 1021.



6

It is noted that the cases set out in Appendix “B” of 
amicus curiae brief, In Re Robert Page Anderson, Crim. 11572 
and In Re Frederick Saterfield, Crim. 11573, disagree with 
the petitioner’s contentions. There the majority opinion held:

“ ‘The fixing of penalties for crime is a legislative function. 
What constitutes an adequate penalty is a matter of 
legislative judgment and discretion and the courts will 
not interfere therewith unless the penalty prescribed is 
clearly and manifestly cruel and unusual.’ (People v. 
Tanner, 3 Cal. 2d 279, 298; People v. Keller, 245 Cal. App. 
2d 711, 714-715.) In Trop v. Dulles, supra (1958) 356 
U.S. 86, 99 (plurality opinion), which concluded that 
denationalization for wartime desertion constituted a 
cruel and unusual punishment within the meaning of 
the Eighth Amendment, it was stated, ‘ [L] et us put to 
one side the death penalty as an index of the constitu­
tional limit on punishment. Whatever the arguments 
may be against capital punishment, both on moral grounds 
and in terms of accomplishing the purposes of punish­
ment-—and they are forecful—the death penalty has been 
employed throughout our history, and, in a day when it 
is still widely accepted, it cannot be said to violate the 
constitutional concept of cruelty.”

The same case held that, “Since every person charged 
with the offense has the same chance for leniency as well as 
the same possibility of receiving the maximum sentence, 
there is nothing discriminatory in the statute.”

Respondent respectfully submits that this adequately 
explains away any possible contention that a code section is 
unconstitutional because of vagueness in allowing the jury 
to assess punishment without mention of standards for the 
exercise of that discretion.

Petitioner places some reliance on Giaccio v. Pennsyl­
vania, 382 U.S. 399, 15 L. Ed. 2d 447, 86 S. Ct. 518, wherein



7

a statute permitting a jury to assess costs against an 
acquitted defendant was held constitutionally invalid because 
of vagueness and the absence of any standards sufficient to 
enable a defendant to protect himself against arbitrary and 
discriminatory imposition of costs. However, this Honorable 
Court held in footnote 8 :

“In so holding we intend to cast no doubt whatever on 
the constitutionality of the settled practice in many states 
to leave to juries finding defendants guilty of a crime 
the power to fix punishment within legally prescribed
limits.”

Alabama has had the practice in robbery trials of the 
jury finding the verdict and fixing the punishment within 
the limits set out by the Code for many years. Respondent 
submits that such procedure is not violative of any constitu­
tional rights of the accused.

What group is better able to arrive at the correct amount 
of punishment than the jury which heard the evidence, had 
been afforded the opportunity to see and hear the witnesses 
and pass on their credibility, and from the evidence determine 
the gravity of the crime and whether the accused is guilty. 
It is obvious that the same jury which heard the evidence and 
returned the verdict is in better position to fix the punish­
ment as befits the gravity of the offense than a jury who 
merely is called in to fix punishment.

As usual in cases where the defendant is a Negro, effort 
has been made to show racial discrimination in the giving of 
the death penalty in cases of robbery convictions. Figures 
are cited which disclose that 5 Negroes were executed for 
robbery in Alabama from 1932 to 1962 and another set that 
5 Negroes were executed from 1932 to 1967 and no whites. 
Respondent points out that only one person has been executed 
in Alabama for robbery in the last six years. James W. 
Cobern, a white man, was executed on September 4, 1964. 
No Negroes were executed for robbery during that period.



8

The principal objectives served by punishing an indi­
vidual for commission of a crime are (1) punishment of the 
individual for commission of the crime (2) rehabilitation 
where in order, and (3) deterrence of others from commission 
of such crime.

Granted that the death penalty is the maximum punish­
ment, and, of course, does away with any rehabilitation of 
that particular criminal, the deterrent factor is very im­
portant.

This case now before this Honorable Court is a fine 
example of such conviction and legal sentence serving as a 
deterrent to robbery in a city. Mobile had just experienced 
a series of such robberies and storekeepers were aroused and 
were arming themselves to defend their property and put an 
end to this reign of terror by lawless individuals. After the 
trial and conviction of Edward Boykin, Jr. the deterrent 
effect was a cessation of such robberies.

Petitioner, in his brief, has pointed out that there was 
a violent death as a result of the robbery in Cobern v. State, 
273 Ala. 547, 142 So. 2d 889. That is true. Cobern killed his 
victim. The State of Alabama had two indictments against 
Cobern—one for murder and one for robbery. Because the 
victim was the girl friend of Cobern, a married man, there 
was a possibility that a good trial attorney would get Cobern 
off with a second degree murder or manslaughter conviction. 
The State prosecuted the robbery case and Cobern was con­
victed, sentenced to death and executed on September 4, 1964.

The people of Alabama and most of the rest of the people 
of the United States regard robbery as a very serious crime. 
Alabama regards it as a capital offense.

Respondent disagrees with petitioner that legislation 
should be enacted to change the sentence imposed upon the 
one convicted of robbery.



9

The present law provides a minimum punishment of ten 
years and permits a greater sentence up to the death penalty 
in aggravated cases where there is serious injury or dis­
regard for human life. Boykin shot one little girl and showed 
a flagrant disregard for human life by firing into the stores 
when leaving. He and the people of Mobile are fortunate 
that he did not kill anyone.

Seldom does one encounter a weaker case than this one 
on behalf of abolition of the death penalty. He should be 
punished. Rehabilitation is out of the question. His legal 
execution will serve as a deterrent to those who regard such 
things as robbery, arson, looting, etc. as a way of life and 
an exercise of their “rights.”

Petitioner argues that the trial court erred in accepting 
the guilty plea without first ascertaining whether or not a 
guilty plea was voluntarily made.

“Rule 11 of the Federal Rules of Criminal Procedure pro­
vides that the court ‘may refuse to accept a plea of guilty, 
and shall not accept the plea without first determining 
that the plea is made voluntarily with understanding of 
the nature of the charge.’ While no particular ritual 
need be observed by the trial court, such as a formal 
finding or recitation that the plea was entered with 
understanding, an affirmative duty nonetheless exists on 
the part of the trial court to advise the accused fully and 
not merely perfunctorily as to what acts are necessary 
to establish guilt, and to do all it can to make reasonably 
certain that a plea of guilty represents the free and 
voluntary act of one who fully understands the nature 
of the charge and the consequences of his plea. . . 
Hulsey v. United States, 369 F. 2d 284 (1966).

97 A. L. R. 2d, pages 556, 557, state that the trial court 
is not relieved of the duty of ascertaining the consequences 
of his plea and of advising him of such consequences if he is



10

not so informed, even if the defendant is represented by 
counsel. Among the cases cited thereunder is Bullock v. 
Harpole, 233 Miss. 486, 102 So. 2d 687, which held:

“ [2,3] In answer to that contention, we say that it was 
the duty of the Circuit Court of George County, before 
accepting the appellant’s plea of guilty in this case, to 
determine that the applicant entered the plea of guilty 
freely and voluntarily, and that he was competent to 
know and understand the consequences of his act. But 
we have no statute which requires that the judgment of 
the court contain a finding that these rules of procedure 
have been complied with before such plea of guilty can 
be accepted and final judgment entered thereon. The 
judgment itself raises a presumption that what ought to 
have been done by the trial judge with respect to re­
ceiving such plea was done; and, in the absence of any 
showing to the contrary, we must assume that the trial 
judge saw to it that the plea was voluntary, and that 
the defendant fully realized, and was competent to know 
the consequences of such plea. State v. Hill, 81 W. Ya. 
676, 95 S.E. 21, 6 A.L.R. 687. . . .”

Alabama has no explicit statutory requirements as to 
the trial court’s duty to admonish the defendant of the con­
sequence of his plea of guilty as have Colorado, Illinois, 
Texas and others. The duty of the trial court in Alabama is 
set out in Title 15, Section 277, Code of Alabama 1940, as 
follows:

“§ 277. When prisoner pleads guilty.—If he pleads 
guilty, no special venire need be drawn, but the court 
must cause the punishment to be determined by a jury, 
except where the punishment is by law required to be 
fixed by the court, and may, in all cases which a plea of 
gulty is entered, cause witnesses to be examined, to 
ascertain the character of the offense.”



11

Justice Lawson, concurring specially in this case, held 
as follows:

“I am not familiar with any holding of this court to the 
effect that when a defendant pleads guilty in a capital 
case the record must affirmatively show that the trial 
judge did not accept the guilty plea until after determin­
ing that the plea was voluntarily and knowingly entered 
by the defendant and that the defendant fully realized 
and was competent to know the consequences of such a 
plea. And such is not, in my opinion, the holdings of 
the Mississippi Supreme Court in Dickinson v. State, 202 
Miss. 804, 32 So. 2d 881, and Yates v. State, 251 Miss. 
376, 169 So. 2d 792, cited and relied upon in the dissent­
ing opinion.

“In Howard v. State (Ala. Sup. Ct.), 194 So. 2d 834, in 
reviewing the action of a trial court in a post conviction 
proceeding, we observed: ‘An accused’s plea of guilty may 
be accepted only if it is made voluntarily and knowingly. 
If it appears that a guilty plea is the product of coercion, 
either mental or physical, or was unfairly obtained or 
given through ignorance, fear or inadvertence, it is void 
since it is a violation of constitutional safeguards.’ (194 
So. 2d, 837-838). In my opinion the language just quoted 
is to the same effect as that quoted in the dissenting 
opinion from Yates v. State of Mississippi, supra.

“Of course, a trial judge should not accept a guilty plea 
unless he has determined that such a plea was voluntarily 
and knowingly entered by the defendant. But neither 
the Howard case, supra, nor the Mississippi cases, supra, 
hold that the record must affirmatively show that the 
trial judge made such a determination. The effect of 
the dissenting opinion is to presume that the trial judge 
failed to do his duty.



12

“If the trial court did fail to make such an ascertainment, 
or if the appellant, Boykin, was not adequately repre­
sented in the court below, or if because of his youth or 
ignorance he was unable to fully comprehend the possible 
effect of having all five cases tried before the same un­
struck jury, he can raise any or all of those questions in 
a petition for writ of error coram nobis. In such a 
proceeding, of course, the petitioner would be required 
to produce evidence in support of his contentions. But, 
in my opinion, there is nothing in this record which 
would justify a reversal of any of those possible con­
tentions.”

It is respectfully pointed out that the petitioner had 
court-appointed counsel, Evan Austil (R. p. 3). The cases 
cited by petitioner having to do with waiver of counsel are 
inapplicable. Also, an attempt to put a Miranda tag on this 
case is not applicable. Miranda v. Arizona, 384 U.S. 436, had 
to do with constitutional warnings prior to questioning a 
suspect to get him to confess to a crime.

As the Supreme Court of Alabama pointed out if the 
trial court failed to ascertain the voluntariness of the plea, or 
if defendant failed to comprehend the effect of all five cases 
being tried before an unstruck jury, or if he considered 
counsel inadequate, he could raise these points on coram 
nobis. Title 15, Section 318 (1-12), Code of Alabama 1940, 
as amended, provides for appointed counsel on such hearings. 
Also, federal habeas corpus is available and the District 
Judge always appoints counsel for such hearings.

The Supreme Court of Alabama, under the Automatic 
Appeal Statute, Title 15, Section 382(1-13), Code of Alabama 
1940, as amended, is required to carefully examine record for 
any reversible error, whether called to their attention or not. 
They found none and affirmed the case.



13

VIII

CONCLUSION

For the foregoing reasons, respondent submits that 
petitioner was indicted, tried, convicted and sentenced 
properly and that neither the Eighth nor Fourteenth Amend­
ments to the Constitution was violated in the trial of the 
petitioner. Therefore, this case should be affirmed.

Respectfully submitted,

MACDONALD GALLION 
Attorney General of Alabama

DAVID W. CLARK
Assistant Attorney General 
of Alabama

State Administrative Building 
Montgomery, Alabama 36104

Counsel for Respondent

CERTIFICATE

I, David W. Clark, one of the attorneys for respondent, 
and a member of the Bar of the Supreme Court of the United
States, hereby certify that on the ...IS-...  day of December,
1968, I served a copy of the foregoing brief and argument of 
respondent on writ of certiorari on one of the attorneys for 
the petitioner, and one of the attorneys for N.A.A.C.P., Legal 
Defense and Educational Fund Inc. and National Office for 
the Rights of the Indigent, by mailing a copy in a duly



14

addressed envelope to said attorney of record, and amicus 
curiae as follows:

To: Honorable E. Graham Gibbons 
P. 0. Box 293 
Mobile, Alabama 36601

DAVID W. CLAKK
Assistant Attorney General 
of the State of Alabama 
Administrative Building

Montgomery, Alabama 36104

Honorable Jack Greenberg 
10 Columbus Circle 
New York, New York 10019