Hamilton v. Alabama Brief for the Petitioner

    I n  t h e

Supreme Cmtrt nt %  Intted States
October Term, 1961 

No. 32

Charles Clarence H amilton,
Petitioner,

—v.—

S tate oe Alabama,
Respondent.

ON WRIT OE CERTIORARI TO THE SUPREME COURT OE ALABAMA

BRIEF FOR THE PETITIONER

Orzell B illingsley, J r.
P eter A. H all

1630 Fourth Avenue, North 
Birmingham, Alabama

T hurgood Marshall 
J ack Greenberg 
J ames M. Nabrit, III 

10 Columbus Circle 
Suite 1790
New York 19, New York

Attorneys for Petitioner



TABLE OF CONTENTS

PAGE

Opinion Below............................. „.......... .... .............. 1

Jurisdiction __      1

Questions Presented................. ................................. . 2

Constitutional and Statutory Provisions Involved__  3

Statement ............................     4

Summary of Argument............... ......... ...... ................  15

Argument ......................      17
I. The right of counsel during all stages of crim­

inal proceedings where the death penalty may be 
imposed is so fundamental that it should not 
be limited at. any point by a rule requiring 
demonstration of the amount of prejudice result­
ing from denial of representation at a particular 
stage ......... ............ .................... ......................... 17

II. Even if, arguendo, showing of “disadvantage” is 
required such amply appears of record.............. 25

Conclusion .................................. ........ ........................  36

Appendix A ................ ......... .............................. .......... la

Appendix B 11a



11

T able op Cases

page

Abel v. United States, 362 U. S. 217, 341.....................  32
Aiola v. State, 39 Ala. App. 215, 96 So. 2d 816 (1957) 33 
Arrington v. State, 253 Ala. 178, 43 So. 2d 644 (1949) 22

Batchelor v. State, 189 Ind. 69,125 N. E. 773 (1920) .... 12a,
Betts v. Brady, 316 U. S. 455 ................................19, 20, 21
Bibb County v. Hancock, 211 Gfa. 429, 86 S. E. 2d 511

(1955) ........................................................................ 13a
Bienville Water Supply Co. v. City of Mobile, 186 U. S.

212 ........................................................................... 11,27
Blackburn v. Alabama, 361 U. S. 199............................  24
Boyd v. United States, 116 U. S. 616............................  24
Brandt v. Hudspeth, 162 Kan. 601, 178 P. 2d 224

(1947) ........................................................................ 11a
Bute v. Illinois, 333 U. S. 680 ......... ............................  20
Bryant v. State, 218 Md. 151,145 A. 2d 777 (1958)......  14a
Ex parte Burns, 247 Ala. 98, 22 So. 2d 517 (1945)...... 11, 27

Calhoun v. Commonwealth, 301 Ky. 789, 193 S. W. 2d
420 (1946) ................................................................ . 12a

Canizio v. New York, 327 U. S. 82 .........................20, 21, 35
Cash v. Culver, 358 U. S. 633 .......................................  20
Cassell v. Texas, 339 U. S. 282 ................................ . 24
Council v. Clemmer, 177 P. 2d 22 (D. C. Cir. 1949) ....21, 35 
Crooker v. California, 357 U. S. 433 ............................  21

Edwards v. Nash, 303 S. W. 2d 211 (Kansas City C. A.
1957) ...................................................................... . 11a

Eubanks v. Louisiana, 356 U. S. 584 ............................. 24
Ex parte Pennell, 261 Ala. 246, 73 So. 2d 558 (1954)....11, 27

Friedbauer v. State, 51 Wash. 2d 92, 316 P. 2d 117 
(1957) 12a



I l l

Garett v. State, 248 Ala. 612, 29 So. 2d 8 (1947) ..........  30
Glasser v. United States, 315 U. S. 60 ................. .......22, 25
State ex rel. Grecco v. Allen Circuit Court, 238 Ind.

571, 153 N. E, 2d 914, 916 (1958) ............................  12a

Hawkins v. State, 247 Ala. 576, 25 So. 2d 441 (1946) .... 33
Hill v. State, 310 S. W. 2d 588 (Tex. Cr. 1958) ...........  12a
House v. Mayo, 324 U. S. 42 .............. ........... ............20, 29

Jackson v. State, 102 Ala. 167,15 So. 344 (1893) ........... 33
Johns v. Smyth, 176 F. Supp. 949 (E. D. Ya. 1959) .... 32 
Johnson v. State, 79 Okla. Crim. 363, 155 P. 2d 259

(1945) ........................................................................ 11a
Johnson v. Williams, 244 Ala. 391,13 So. 2d 683 (1943) 27

McNeal v. Culver, 365 U. S. 109 .................. .............  34
Moore v. Michigan, 355 U. S. 155............... ................  20
Morrell v. State, 136 Ala. 44, 34 So. 208 (1903) ..........  30

Palmer v. Ash, 342 U. S. 134....... ....... ...................  20
Parker v. Ellis, 362 U. S. 574 ................   33
Patton v. United States, 281 U. S. 276 ....... .   25
People v. Dolac, 160 N. Y. S. 2d 911 (1957).....  21
People v. Havel, 134 Cal. App. 2d 213, 285 P. 2d 317

(1955) .................. ................. .................................. 11a
People v. Matera, 132 N. Y. S. 2d 117 (1954) ............. 21
People v. Moore, 405 111. 220, 89 N. E. 2d 731 (1950) .... 21 
People v. Williams, 225 Mich. 133, 195 N. W. 695

(1923) ........................................................................ 13a
Poindexter v. State, 183 Tenn. 193, 191 S. W. 2d 445

(1946) ................................................................. ...... 13a
Ex Parte William Powell, Civil Action No. 1563-N,

March 4,1960, reversed 287 F. 2d 275 (5th Cir. 1961) 9
Powell v. Alabama, 387 U. S. 45 .......15,19, 20, 21, 22, 32

PAGE



IV

Eeece v. Georgia, 350 U. S. 85 .....................................  27
Reynolds v. Cochran, 365 U, S. 525 ........................... .23, 33
Roberts v. State, 219 Md. 485, 150 A. 2d 448 (1959) 14a
Rohn v. State, 186 Ala. 5, 65 So. 2d 42 (1914) ........... 30

Ex parte Seals,----- Ala.------, 126 So. 2d 474 (1961)..11, 26
Commonwealth ex rel. Shelter v. Burke, 367 Pa. 152,

79 A. 2d 654 (1951) _____ ______ _____ ___ ____ 14a
Simpson v. State, 81 Fla. 292, 87 So. 920 (1921) ........... 33
Smith v. State, 245 Ala. 161, 16 So. 2d 315 (1944) .. 26
Snyder v. Massachusetts, 291 IT. S. 97 .....................  25
Spano v. New York, 360 U. S. 315............................19, 21
State v. Allen, 174 Mo. 689, 74 S. W. 839 (1903) ........... 11a
State v. Cartwright, 81 Ohio L. Abs. 226, 161 N. E. 2d

456 (1957) ................................... ........................ .....  13a
State v. Dechman, 51 Wash. 2d 256, 317 P. 2d 527

(1957) ___________________________________  12a
State v. Jameson, 77 S. D. 340, 91 N. W. 2d 743 (1958) 12a 
State v. Poglianich, 43 Idaho 409, 252 Pac. 177, 181

(1927) ..... .................................................................. 11a
State v. Sullivan, 227 F. 2d 511 (10th Cir. 1955) ......  21
State v. Swenson, 242 Minn. 570, 65 N. W. 2d 657

(1954) ........ ............. ...... ....... .................................... 21
In the Matter of the Application of Sullivan and

Braash, 126 F. Supp. 564 (I). Utah 1954) ..........  35
Swagger v. State, 227 Ark. 45, 296 S. W. 2d 204 (1956) 1.1a 
Sweet v. Howard, 155 F. 2d 715 (7th Cir. 1946) ..........  22

Taylor v. Alabama, 249 Ala. 667, 32 So. 2d 659 (1947),
affirmed 335 U. S. 252 ................................................. 27

Tomkins v. Missouri, 323 U. S. 485 ............ ................ 20
Tumev v. Ohio, 273 U. S. 510 ......... .......................... 25

PAGE



V

United States v. California Co-Op. Canneries, 279
U. S. 553 ......................... .......................................11,27

United States v. Morgan, 346 U. S. 102.....................  26
United States v. Pink, 315 U. S. 203 .........................11, 27
United States v. Ragan, 166 F. 2d 976 (7th Cir. 1948) .. 22
Urie v. Thompson, 337 U. S. 163 ................................ 28
Uveges v. Pennsylvania, 335 U. S. 437 .....................19, 20

Von Moltke v. Gillies, 332 U. S. 708 ________ 20, 21, 28, 32

State ex rel. Welper v. Rigg, 254 Minn. 10, 93 N. W.
2d 198 (1957) ............................................................. 13a

Wicks v. State, 44 Ala. 398, 400 (1870)................... .....  29
Wilcher v. Commonwealth, 297 Ky. 36, 178 S. W. 2d

949 (1944) .................... ............................................  12a
Williams v. Kaiser, 323 U. S. 471 ............................ 20, 29

U nited States Constitutional and Statutory 
P rovisions :

United States Constitution, Sixth Amendment ..........  13a
United States Constitution, Fourteenth Amendment,

Sec. 1 ................... ............ ........... .... ............ ............ 3
28 U. S. C. Section 1257(3) .......................................  2

S tate Constitutions:

Alaska Const., Art. 15, §1 ...................................  Ha
Ga. Const., Art. 1, §5 ....... ............. ..................... 13a
Ind. Const., Art. 1, §13 ...... .... ......................... . 12a
Ky. Const., Art. 1, §11...... .................................... 12a
Tenn. Const., Art. I, §9 ........ ...... ............... ......... I3a

State Statutes and R ules :

Code of Alabama 1940, Tit. 14, §85 ................. ....4, 29
Code of Alabama, Tit. 14, §395 ............................  29

PAGE



Code of Alabama, Tit. 15, §259, form 29 ...... . 29
Code of Alabama, Tit. 15, §259, form 89 .... 29
Code of Alabama 1940, Tit. 15, §279 .....   30
Code of Alabama 1940, Tit. 15, §318 ..........3, 23,11a
Code of Alabama, Tit. 15, §423 ......................... 30
Alaska Code (1948), §66-10-3 ......... ........... ....... 11a
Arizona Rules of Criminal Procedure, Rule 39(b) 12a
Ark. Stat. Ann., §43-1203 .................................... 11a
Calif. Penal Code, §987 ................................ ....... 11a
Del. Code Ann., §5103 ........... .............................. 14a
Del. Superior Court Rules, Rule 44 ............. ........ 14a
Ga. Code Anno., §2-105...... ............ ..... .................  13a
Ga. Code Ann., §27-3001 (A) ........... ............... . 13a
Idaho Code Ann., §§19-1512, 19-1513 ...... ..........  11a
111. Criminal Code, §730, 111. Rev. Stat., §101.26(a) 11a
111. Supreme Court Rules, Rule 26(2) ..............  11a
Iowa Code Ann., §775.4 ....................................... 11a
Gen. Stat. of Kansas (1959 Supp.), §62-1304 .... 11a 
Md. Rules of Procedure, Criminal Causes, Rule

723(b) ....... ................... .................................... 14a
Mich. Stats. Ann., §28.1253, as amended, Public

Acts 1957, No. 256 ........................................... 13a
Minn. Stat. (1957), §611.07, as amended, Minn.

Laws 1959, c. 383 ........... ...................................  13a
Mo. Rev. Stat. 1949, §545.820 ......... ...................... 11a
Rev. Code of Montana, §94-6512 .......... ..............  11a
Nev. Rev. Stat., §174.120 ........ .......................... 11a
New Jersey Rev. Rules, §1:12-9 ........ ................ 12a
N. Y. Code of Criminal Procedure, §308 ..........  11a
N. D. Century Code, §29-01-27 ............................  11a
N. D. Century Code, §29-13-03   ..... ........... .....  11a
Ohio Rev. Code, §2941.50 ......................... ...... ....... 13a

vi

PAGE



22 Okla. Stat., §464 ................................................ 11a
Ore. Rev. Stat,, §135.320 ..........._............... ...........  11a
Purdons Pa. Stat., Tit. 19, §§783, 784 ............... . 14a,
S. D. Code, §34.1901 (1960) ...... ......................... 12a
S. D. Code, §34.3506 (1960) ................ ...............11 a -12a
Term. Code, §§40-2002, 40-2003 ........................... 13a
Vernon’s Texas Code of Criminal Procedure, 

§§491, 494, as amended by Acts 1959, c. 484 .... 12a
Utah Code Anno., §77-22-12 _______ _________ 12a
Code of Va., §19.1-241 ......................................... . 12a
Rev. Code of Wash., §10.01.110 .............. ............  12a
Rev. Code of Wash., §10.40.030 .............. ............ . 12a
W. Va, Rules of Practice for Trial Courts, Rule

IV(a) ..........       13a
Wis. Stat. Ann., §957.26(2) ___ ______ ___ __  12a
Wyo. Stat., §7-7 ......................................    13a

Other Authorities :

Ann. Cases 1913C, p. 517 ........................................... 33
Knapp, “Why Argue an Appeal? If So, How”, 14 The 

Record 415 (November 1959) ...... .............. ...........  23
Op. Mich. Att. Gen., Oct. 7, 1957 ................................ 13a
Orefield, Criminal Procedure Prom Arrest to Appeal 

425 .............................................................................  28
Webster’s New International Dictionary (2d ed. un­

abridged, 1953) ............................................ ..........  30

Y l l

PAGE



1st the

Bupumt fernt nf %  Mnxtzb Butts
October Term, 1961 

No. 32

Charles Clarence H amilton,
Petitioner,

State of Alabama,
Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF AT.ARATVTA

BRIEF FOR THE PETITIONER

Opinion Below

The opinion of the Supreme Court of Alabama is re­
ported at ----- A la.------ , 122 So. 2d 602 and appears at R.
27. A prior opinion of the Supreme Court of Alabama in 
this case is reported at 270 Ala. 184, 116 So. 2d 906 and 
appears in Appendix A to Petitioner’s brief, infra p. la. 
This Court’s denial of certiorari on a prior petition seeking 
review of the judgment affirming the conviction is reported 
at 363 U.S. 852.

Jurisdiction

The judgment of the Supreme Court of Alabama denying 
leave to file a writ of error coram nobis was entered on Au­



2

gust 15, 1960, B. 36. By order of Mr. Justice Black entered 
on November 15, 1960, execution of the death sentence im­
posed upon the petitioner has been stayed pending issu­
ance of the mandate by this Court. The jurisdiction of 
this Court is invoked pursuant to Title 28 Section 1257(3), 
petitioner having asserted below and asserting here depri­
vation of rights, privileges and immunities secured by the 
Constitution of the United States.

Questions Presented

I
Whether, petitioner, sentenced to death for “burglary 

with intent to ravish”, and not represented by court ap­
pointed counsel at arraignment as required by Alabama 
law, had to demonstrate disadvantage flowing from the 
denial to secure reversal of the conviction under the Four­
teenth Amendment to the United States Constitution.

II
Whether petitioner, an indigent, ignorant, unstable 

Negro, completely untutored in the ways of the law, 
charged with a capital sex crime against a white woman 
in Alabama, in open conflict with his court appointed at­
torney during trial which otherwise was marked by peti­
tioner’s bungling efforts to defend himself at the Court’s 
invitation, was deprived of due process secured by the 
Fourteenth Amendment by lack of court appointed counsel 
at arraignment, the appropriate time under Alabama law 
to raise certain defenses, and the only time prior to trial 
that the Court practicably could have made provision to 
reconcile counsel and client or appoint another attorney.



3

Constitutional and Statutory Provisions Involved

This ease involves the following constitutional and statu­
tory provisions:

1. Section 1 of the Fourteenth Amendment to the Con­
stitution of the United States.

2. Code of Alabama 1940, Tit. 15, §318, which provides:
When counsel appointed for defendant in capital 

case.—When any person indicted for a capital offense 
is without counsel and the trial judge, after due in­
vestigation, is satisfied that the defendant is unable 
to employ counsel, the court must appoint counsel for 
him not exceeding two, who must be allowed access to 
him, if confined, at all reasonable hours, and as com­
pensation for said defense the attorney or attorneys 
so appointed shall be entitled in each case to a fee 
fixed by the judge presiding at said trial, which fee 
shall be not less than fifty ($50.00) dollars, nor more 
than one hundred ($100.00) dollars, to be paid on the 
warrant of the state comptroller from the general 
funds in the state treasury. Said presiding judge in 
the case shall certify to the comptroller that “The at­
torney or attorneys appointed by the Court in the case
of Alabama vs....... ........ (name of defendant) has (or
have) performed the service required of him (or them) 
in representing the said defendant and that the fee
therefor has been fixed in the sum o f________ dollars
(designate amount of fee).” Whereupon a warrant 
shall be drawn in favor of the attorney or attorneys 
upon the general funds of the treasury of the state of 
Alabama in payment therefor.



4

3. Code of Alabama 1940, Tit. 14, §85, which provides:
Burglary in the first degree. —Any person who, in 

the nighttime, with intent to steal or to commit a felony, 
breaks into and enters any inhabited dwelling house, or 
any other house or building, which is occupied by any 
person lodged therein is guilty of burglary in the first 
degree, and shall on conviction be punished at the dis­
cretion of the jury, by death or by imprisonment in 
the penitentiary for not less than ten years.

Statement

This cause now is here for the second time and before re­
counting the facts in detail, petitioner first briefly relates 
the reason for successive applications. Petitioner was sen­
tenced to death April 23, 1957 upon an indictment charg­
ing burglary with intent to ravish.1 He appealed to the 
Alabama Supreme Court, alleging, among other things, that 
he had been denied due process of law secured by the 
Fourteenth Amendment in that he did not have effective 
representation of counsel at trial. See Hamilton v. State, 
270 Ala. 184, 116 So. 2d 906 (1959), and see this peti­
tioner’s Petition for Writ of Certiorari, Oct. Term 1959, 
No. 1026 Misc. The Alabama Supreme Court affirmed, 
Hamilton v. State, supra, whereupon petitioner brought 
the cause here on certiorari (No. 1026 Misc. Oct. Term 1959) 
making the same constitutional allegations. One of peti­
tioner’s particular allegations here was that he did not 
have any counsel at all at arraignment, concerning which 
the Alabama Supreme Court had held on his appeal that 
“the right of accused to assistance of counsel includes the 
right to assistance from the time of arraignment until be­
ginning and end of trial.” 270 Ala. 188, 116 So. 2d 909

1 The same indictment also charged burglary with intent to steal 
but petitioner was not found guilty of this count (R. 7).



5

(1959). Moreover, the Alabama Coart acknowledged that 
this right was secured by the Fourteenth Amendment to the 
United States Constitution as well as the laws of the State 
of Alabama. But it held that “the principle is without ap­
plication to the record before us,” reading the record as 
demonstrating that petitioner indeed was represented by 
counsel at arraignment. Petitioner’s effort to demonstrate 
that this was not so by reference to other portions of the 
record was rejected because state law precluded impeach­
ing minute entries. 270 Ala. 188, 116 So. 2d 909 (1959).

The October, 1959 Term Petition for Writ of Certiorari 
had urged this Court to find as a constitutional fact that 
petitioner did not have counsel at arraignment, that this 
denial deprived him of due process of law, and that the 
conduct of the trial, in view of the representation by court 
appointed counsel, among other things, fell below Four­
teenth Amendment due process requirements.* 1 2 But Ala­
bama argued in opposition that

2 The questions presented in the first petition were:
1. Whether indigent Negro petitioner, unable to employ counsel, 

having been indicted for a capital offense regarded with especial 
horror in this community (i.e., nighttime burglary with intent to 
steal and with intent to ravish a white woman) and having been 
incarcerated for approximately five months prior to arraignment, 
was deprived of due process of law as secured by the Fourteenth 
Amendment to the Constitution of the United States, by being 
arraigned and required to plead to said capital indictment without 
benefit of the advice, guidance, assistance, or presence of counsel 
in his behalf.

2. Whether petitioner was denied the fundamentals of a fair 
trial including effective assistance of counsel, contrary to the due 
process clause of the Fourteenth Amendment, by the trial of a 
capital case involving difficult legal and factual issues, in which 
conviction entirely depended upon inferences from circumstantial 
evidence that petitioner acted with a specific criminal intent, and 
in which punishment was determined in the discretion of the jury, 
where:

a. The attorney appointed to defend petitioner sought to with­
draw from the ease immediately before trial, and petitioner indi­



6

“[t]he burden is not on the State of Alabama to ex­
plain the fancied inconsistency as to why the minute 
entry of record shows that the defendant did have 
counsel at his arraignment and yet his trial counsel 
was apparently appointed three days later. Actually, 
the counsel in this particular case was appointed quite 
sometime prior to the official judgment entry to defend 
the petitioner on a previous indictment and remained 
assigned as counsel to the defendant throughout and 
including the day of arraignment on the second indict­
ment. The two entries of judgment are not in conflict 
and the statement by the petitioner that the defendant 
was deprived of counsel at the time of his arraign­
ment is pure conjecture on the part of the petitioner’s 
counsel.”

Respondent pointed out that
“The petitioner, however, still has available to him 
another remedy to attack the validity of the judg­
ment entry in this case with extrinsic matter. That 
method is the writ of error coram nobis. See, for 
example, Taylor v. Alabama, 249 Ala. 667, 32 So. 2d 
659, affirmed 335 U. S. 252. But the petitioner may 
not attack the validity of a judgment entry on appeal.”

cated to the court his dissatisfaction with the appointed attorney, 
all in the presence of the venire, and the trial judge denied the 
attorney’s request to withdraw, without inquiring of him or peti­
tioner concerning the reasons for or nature of their apparent 
incompatibility, but instead proceeded to trial.

b. The trial judge, under these circumstances, encouraged and 
permitted petitioner to attempt to supplement the appointed attor­
ney’s presentation, even though petitioner at the outset and there­
after plainly demonstrated that he was not versed in law or tutored 
in courtroom decorum, thereby necessitating repeated reprimands 
of defendant and lectures by the court in the presence of the jury, 
prior to and throughout the trial as petitioner clumsily endeavored 
to examine witnesses and argue points of law.



7

Brief in Opposition, pp. 5, 6. Certiorari was denied by 
this Court.

Petitioner now has pursued the suggested course via 
coram nobis and has amplified the record to demonstrate 
that in fact he did not have counsel at arraignment. But 
on this application, the Supreme Court of Alabama while 
reaffirming his right to counsel at arraignment again has 
rejected his plea:

“Hamilton should have been represented by counsel 
at the time of his arraignment. We construe the peti­
tion and the papers filed in support and in opposi­
tion thereof to show, as we have indicated above, 
that he was not so represented.”

Nevertheless, because “ [tjhere [was] no showing or effort 
to show that Hamilton was disadvantaged in any way by 
the absence of counsel when he interposed his plea of 
not guilty,” B. 35, the court rejected his petition.

Petitioner now returns to this Court on petition for writ 
of certiorari, granted on January 9, 1961. The Petition for 
Writ of Error Coram Nobis (R. 1), denial of which occa­
sions the instant Petition alleged:

Petitioner first had been indicted November 9, 1956 for 
burglary in the night time with intent to steal. He was 
arraigned January 4, 1957, at which time counsel, Mr. Clell 
I. Mayfield, was appointed and entered a plea of not guilty. 
Trial was set for January 14, 1957, but was passed four 
times until April 24, 1957 when the case was nolle prossed 
on recommendation of the solicitor.

February 12, 1957, the grand jury indicted petitioner 
for burglary “with intent to ravish” and for burglary with 
intent to steal. March 1, 1957 petitioner was arraigned 
in this cause—the one now before this Court. He pleaded



not guilty. At this time no counsel had been appointed 
to defend on this indictment and no counsel was present. 
The affidavit of Mr. Mayfield, subsequently appointed to de­
fend petitioner, appended to the petition for Writ of Error 
Coram Nobis, states:

That said attorney states to the best of his knowl­
edge, information and belief that he was not present 
at the arraignment of said Charles Clarence Hamilton 
on March 1, 1957. Said attorney further states that 
he did not advise or consult with said defendant at 
the arraignment of March 1, 1957 (R. 4).

March 4, 1957 Mr. Mayfield who was the court appointed 
attorney on the prior indictment (burglary with intent to 
steal) was appointed to defend petitioner on the two-count 
indictment of February 12, 1957.

The Petition for Writ of Error Coram Nobis then stated 
that on appeal the Court had held that the minute entry, 
which recited that petitioner had counsel at arraignment, 
could not be impeached by the Judge’s bench notes. Here, 
however, the minute entry had been categorically disproved 
by counsel’s affidavit. In view of the fact that the Court 
had agreed that petitioner possessed state law and Four­
teenth Amendment rights to counsel at arraignment, the 
petition prayed for an order permitting filing of the Writ 
of Error Coram Nobis.

In opposition to the petition for Writ of Error Coram 
Nobis, the State alleged that the petition “lackfed] a proba­
bility of truth,” that petitioner was represented by coun­
sel at the time of his arraignment on March 1, 1957, and 
that:

3. Non-representation of counsel at the time of arraign­
ment is not per se a denial of due process. The peti­
tioner must make some showing or allegation of in­



9

jury or prejudice to this cause. [See Exhibit C at­
tached hereto and made a part hereof.]3

4. The petitioner has alleged no showing of prejudice 
and such affirmatively appears of record (E. 12).

An affidavit by Mr. Mayfield submitted by the State as­
serted that he had been appointed to represent Hamilton 
on the prior indictment (for burglary with intent to steal) 
later nolle prossed; that his appointment on the indictment 
charging burglary with intent to ravish and burglary with 
intent to steal was not made until three days after it was 
handed down; that he “knew of the second indictment prior 
to its being returned by the Grand Jury”, was “aware of” 
the second indictment and arraignment; “considered him­
self” as representing defendant, and that the arraignment 
“was done with his consent although he was not present.” 
Furthermore, “he would not have entered any different 
plea.” He considered “the arraignment a mere formality 
since the same plea woiild be entered that had been entered 
on the first arraignment to the first indictment which oc­
curred on the 4th day of January, 1957, and that was his 
reason for not attending the second arraignment” (E. 13).

The Deputy Circuit Solicitor who prosecuted the case 
deposed (E. 14) that he spoke with Mr. Mayfield informing 
him that a new indictment wTas being procured and later 
told him that the new two count indictment had been re­
turned and that defendant would be rearraigned. None 
of the affidavits indicates whether Mr. Mayfield saw this 
indictment. The prosecutor gave as reason for the appoint­

3 This exhibit is the opinion of the United States District Court 
for the District of Alabama, Northern Division, in Ex Parte Wil­
liam Powell, Civil Action No. 1563-N March 4, 1960, in which the 
petitioner in that case raised the issue of right to counsel. That 
ease now has been reversed on the ground of state suppression of 
evidence. 287 F. 2d 275 (5th Cir. 1961).



10

ment of March 4, that it was necessary to assure that the 
lawyer would receive a fee for the second case:

. . . realizing further that the record would have to 
show in order for Mr. Mayfield to receive his fee from 
the State of Alabama for representing the defendant, 
Mr. Deason requested Judge King to let the record 
reflect the fact that Mr. Mayfield had been formally 
appointed in the second case so there would be no 
question about his receiving his fee for representing 
the defendant and this occurred on March 4,1957 (B. 5).

The Supreme Court of Alabama, held that petitioner 
had followed the proper procedure (B. 27), but denied the 
petition for leave to file an application for writ of error 
coram nobis. It found that Hamilton was not represented 
by counsel at the time of the second arraignment:

We hold that it is made to appear in this proceeding 
that Hamilton was not represented by counsel at the 
time he was arraigned on the indictment on which he 
was subsequently tried and convicted. We are not 
here controlled by the minute and judgment entries, as 
was the situation on appeal from the judgment of con­
viction—Hamilton v. State (Ala.), 116 So. 2d 906 
(B. 28-29).

Alabama law “places upon the trial court the responsi­
bility of seeing that an accused indicted for a capital offense 
has a lawyer before he is arraigned and called upon to 
plead to the indictment” (B. 29). Moreover,

Hamilton should have been represented by counsel 
at the time of his arraignment. We construe the peti­
tion and the papers filed in support and in opposition 
thereof to show, as we have indicated above, that he 
was not so represented (B. 29).



11

But, the petition for leave to file application for Writ of 
Error Coram Nobis was denied on the ground that Hamilton 
did not show that he had been prejudiced by this lack of 
representation (R. 30). The Court concluded:

We are, of course, not unmindful of the severity 
of the punishment in this case, but we cannot say that 
a prima facie case for the filing of a petition for writ 
of error coram nobis has been made. We must, there­
fore, deny the petition (R. 35).

The record now brought here on certiorari from denial 
of leave to file an application for Writ of Error Coram 
Nobis amplifies the record brought here earlier which 
this Court may judicially notice, United States v. Pink, 315 
U. S. 203, 216; United States v. California Co-Op Canneries, 
279 U. S. 553, 555; Bienville Water Supply Co. v. City of 
Mobile, 186 U. S. 212, 217, as might the Supreme Court of
Alabama, Ex parte Seals, -----  Ala. ----- , 126 So. 2d 474
(1961); Ex parte Fewell, 261 Ala. 246, 73 So. 2d 558 (1954); 
Ex parte Burns, 247 Ala. 98, 22 So. 2d 517 (1945).

At the first trial the evidence indicated that on the night 
of October 12, 1956 (R.# 55, 77)4 and on the morning of 
October 13, 1956 (R.# 21, 39) in Ensley, Alabama, peti­
tioner,5 a Negro, was found in the bedroom of Mrs. Mary

4 R# refers to the Record filed with the petition for writ of cer­
tiorari, No. 1026 Misc., October Term, 1959.

5 According to a report of the State Board of Pardons and 
Paroles, petitioner left school after reaching the eleventh grade 
in 1950. Following a dishonorable discharge in 1956 he did only 
casual or part time work. The State Board report concluded that 
he and his family were indigent (R.® 8). Affidavits of his mother 
and cousin urge that the petitioner was mentally ill (R.# 9, 10) and 
that court appointed counsel had been told that the family believed 
petitioner was not sane (R.# 11). Counsel believed, however, that 
petitioner was sane, although, following trial, the affidavit relates, 
counsel concluded that petitioner had demonstrated that he was not 
sane (R.# 11).



12

Giangrosso (R.# 26, 56, 71) by her granddaughter’s hus­
band (R.# 26). The grandmother was elderly, ill, almost 
blind, and spoke indistinctly with a broken accent (R.* 24). 
Petitioner testified he could not understand her (R.* 67, 
70). His testimony, in fact, was incoherent, but was gen­
erally, that he thought she had summoned him to the room 
(R.# 56), possibly because someone had robbed her (R.* 
57). The grandchildren called the police (R.* 27). There 
was some testimony concerning the condition of the lock, 
although it was not demonstrated that it had been broken 
(R.* 42). While the windows and doors had been secured 
prior to retiring, the door from the porch to the grand­
mother’s bedroom was open (R.# 37).

There was testimony that petitioner was indecently ex­
posed (R.* 35), but Mrs. Giangrosso (the alleged intended 
victim of rape) did not testify, although counsel for peti­
tioner (the same man who had been appointed on March 
4, and had not attended the arraignment) called for her 
testimony during the trial; since she had not been sub­
poenaed, she did not testify and he made no effort to secure 
her attendance (R.# 42, 43).

There was no evidence that any rape, violence, or physical 
injury of any kind occurred to Mrs. Giangrosso or anyone 
else, nor evidence that petitioner had any weapons, bur­
glary tools, or the like.

The trial was brief. Taking of testimony commenced at 
11:00 and the trial terminated at 4 :10 P.M., with an hour 
and forty minutes recess for lunch (R.# 19, 54, 85).

The trial was marked by constant clashes between peti­
tioner and his court-appointed counsel and between peti­
tioner and the court, with petitioner challenging the right 
of the court to try him on the second indictment and in­
sisting that he did not want the court-appointed counsel



13

to represent him. As the trial commenced, the Court ad­
monished petitioner: “Let me say this to you: You are 
represented by counsel. You are not going to disturb this 
court. I have tried to be courteous to you and explain the 
law to you, but you are not going to wrangle. You just be 
quiet.” Thereupon, petitioner disavowed his counsel:

The Defendant: Before you go on, let me say this: 
This lawyer is not my lawyer. He was appointed by 
the Court.

The Court: The law provides the Court appoint you 
counsel. You were appointed the lawyer so that you 
may get your constitutional rights (R.* 16).

At this point at the beginning of trial the court-appointed 
attorney requested permission to withdraw; this was de­
nied (R.* 16)—all in the presence of the jury.

Apart from court-appointed counsel petitioner had no 
other lawyer. The Court provided that petitioner might 
conduct examinations of witnesses himself after counsel 
completed examination (R.* 18).

Petitioner’s first effort at cross-examination came at the 
Court’s renewed invitation: “Hamilton, due to the fact you 
stated you did not employ Mr. Mayfield as your attorney, 
I told you that, after examination by the state and Mr. May- 
field, if you thought of any additional questions you wanted 
to ask, I would allow it. Can you think of any additional 
questions to ask this lady?” (R.* 31). Petitioner, appar­
ently addressing himself to the charge of intent to steal, 
asked, in part “would they say I intended to steal, with my 
clothes off” (R.* 32). There was an objection to which the 
Court stated “You may not argue or harass the witness.” 
The Court then inquired “do you have any further ques­
tions?” Petitioner replied “No, sir” (R.# 32).



14

Following testimony of another prosecution witness, the 
Court addressed petitioner, “Now, Hamilton, do you think 
of any additional questions, in view of what was stated 
before, that should be asked this gentleman?” (R.* 37). 
Petitioner replied “There is nothing I could ask, you would 
allow.” The Court stated “In other words, you just want to 
ask him why the Grand Jury did so and so?” Petitioner 
stated “There is nothing I could, that wouldn’t show re­
flection on him.” The Court replied “You ask it.” Peti­
tioner stated: “There is one of them, right there (indicat­
ing).” The Court then stated “I told you you can’t ask 
him about the Grand Jury doing* something. If you have 
other questions, you may ask them” (R.* 37-38). Petitioner 
stated, “No questions, sir” (R.# 38).

Similar colloquies between the court and petitioner oc­
curred following testimony of Police Officer Cope (R.* 40) 
and Police Officer Boyd (R.* 42).

Court-appointed counsel after inquiring whether Mrs. 
Giangrosso was in court, calling her and, upon no re­
sponse abandoning the thought of having her testify, called 
the witness, Marisette (R.# 43). He described having spent 
time with petitioner on the evening of the alleged offense 
until sometime between 10 :Q0 and midnight. The state cross- 
examined, and then the Court stated to petitioner, “Hamil­
ton, when these witnesses are put up here on your behalf, 
if you want to ask them anything, you may do so.”

The Defendant: The defendant will make his own 
testimony.

The Court: Do you want to ask this last witness 
anything?

The Defendant: No, sir (R.# 48).

The trial concluded with a lengthy charge to the jury 
which nowhere defined “intent to ravish”, and to which no



15

objections were taken. Petitioner himself argued to the 
jury, but said he did not understand the charge. The ver­
dict was guilty and petitioner was sentenced to death.

Summary of Argument

Petitioner was denied due process of law secured by the 
Fourteenth Amendment because he was not represented 
by counsel at arraignment on a capital charge; i.e., burglary 
with intent to ravish. This Court has without qualification 
held that in a capital case the accused requires the guiding 
hand of counsel at every step in the proceeding against him. 
Alabama itself has held that this much is required by its 
own law and by the Fourteenth Amendment. The refusal 
to issue the writ of error coram nobis on the alleged ground 
that petitioner did not demonstrate “disadvantage” would 
introduce a corrosive influence into the settled rule which 
has been the view of this Court since Powell v. Alabama. 
The appointment and physical presence of a lawyer at 
arraignment and other judicial proceedings in a capital 
case is the minimum objective procedural protection due 
to a defendant which the courts can enforce.

But, even if, arguendo, disadvantage need be shown it 
has been demonstrated fully. It is prejudicial per se not 
to have counsel at arraignment in a capital case involving 
difficult and subtle legal questions of, among other things, 
criminal intent, which turn on inferences from circumstan­
tial evidence. Arraignment was the only point at which 
petitioner had an absolute right to raise such defenses as 
jury discrimination and insanity and an appropriate time 
perhaps to negotiate a plea to a lesser charge if that were 
to be deemed advisable. Beyond this, the trial was marked 
by clashes between petitioner and his court appointed 
counsel, neither of whom wanted this lawyer-client rela­



16

tionship and so expressed themselves before the jury. Peti­
tioner was chastised by the court before the jury and at 
the court’s invitation repeatedly made bungling efforts to 
examine witness and argue points of law. Obvious ques­
tions concerning the sufficiency and the indictment of the 
charge were not raised. A crucial witness, the possible 
subject of the intent to ravish, was not subpoenaed by de­
fense counsel, who merely called for her in the courtroom 
and when she did not appear abandoned the thought of 
having her testify.

But even more fundamental, the theory by which respon­
dent and the Court below expiate the failure to provide 
court-appointed counsel at arraignment is that any failures 
which might have occurred then because of the absence of 
counsel were curable by subsequent representation at the 
trial. This justification simply does not apply where the 
trial, considered as a whole, including representation af­
forded at it, was so grossly damaging and unfair to what­
ever rights petitioner might have protected even at the trial 
itself. Also, earlier exposure of petitioner to counsel in 
the presence of the Court at arraignment well might have 
led to their reconciliation or the appointment of new coun­
sel prior to the trial in chief.



17

ARGUMENT

I.
The right of counsel during all stages of criminal pro­

ceedings where the death penalty may be imposed is so 
fundamental that it should not be limited at any point 
by a rule requiring demonstration of the amount of 
prejudice resulting from denial of representation at a 
particular stage.

Petitioner, an indigent, not represented by counsel when 
arraigned on a capital indictment, was tried, convicted, 
and sentenced to death by electrocution. Lack of repre­
sentation at arraignment violated Alabama law and the “al­
most uniform” practice in the Alabama circuit courts. The 
court below a t -----Ala. — —, 122 So. 2d 602, 603-4 held:

We hold that it is made to appear in this proceeding 
that Hamilton was not represented by counsel at the 
time he was arraigned on the indictment on which he 
was subsequently tried and convicted. We are not here 
controlled by the minute and judgment entries, as was 
the situation on appeal from the judgment of convic­
tion.—Hamilton v. State, Ala., 116 So. 2d 906.

Section 318, Title 15, Code 1940, as amended, pro­
vides in pertinent parts as follows: “When any per­
son indicted for a capital offense is without counsel and 
the trial judge, after due investigation, is satisfied 
that the defendant is unable to employ counsel, the 
court must appoint counsel for him not exceeding two, 
who must be allowed access to Mm, if confined, at all 
reasonable hours, . . . ” We think this section places 
upon the trial court the responsibility of seeing that an 
accused indicted for a capital offense has a lawyer be­
fore he is arraigned and called upon to plead to the in­



18

diriment. We have found no Alabama case expressly 
so holding, but this has been the almost uniform prac­
tice of the circuit courts of this state for many years 
and the very purpose of the statute seems to dictate 
such action.

* =* # # #
Hamilton should have been represented by counsel 

at the time of his arraignment. We construe the peti­
tion and the papers filed in support and in opposition 
thereof to show, as we have indicated above, that he 
was not so represented. (Emphasis supplied.)

Notwithstanding this holding and that he had no coun­
sel, his petition for a coram nobis hearing was rejected 
on the ground that Hamilton was not “disadvantaged” :

There is no showing or effort to show that Hamilton 
was disadvantaged in any way by the absence of coun­
sel when he interposed his plea of not guilty. Counsel 
was appointed for him three days after arraignment 
whose competence is not questioned and who asserts 
in an affidavit filed in this proceeding that “he would 
not have entered any different plea than the plea that 
was entered by the defendant on March 1,1957.” There 
is no suggestion that the not guilty plea interposed 
at the arraignment in absence of counsel prevented 
the filing of any other plea or motion. (122 So. 2d 602, 
607).

The Court explained away its earlier opinion on appeal 
which had seemed to agree without qualification that denial 
of counsel at arraignment denies rights protected by federal 
and state law.6 Instead it required petitioner to show how

6 In the earlier opinion the Supreme Court of Alabama had said 
at 270 Ala. 184, 188, 116 So. 2d 906, 909:

Appellant insists that in capital cases where defendant is 
unable to employ counsel the court must appoint effective coun­



19

he was harmed by denial of counsel, thus qualifying the 
right to counsel in a capital case.

While some procedural protections (including the right 
to counsel in non-capital cases) have indeed been qualified 
by considerations of this kind, cf. Betts v. Brady, 316 U. S. 
455, heretofore the right to counsel at all stages of capital 
cases has been regarded as absolute. In a capital case the 
accused “requires the guiding hand of counsel at every 
step in the proceeding against him” and the need for coun­
sel is so “vital and imperative” that failure to afford counsel 
offends due process. Powell v. Alabama, 287 U. S. 45. Only 
“when a crime subject to capital punishment is not in­
volved,” some Justices have held, does “each case depend 
on its own facts.” Uveges v. Pennsylvania, 335 U. S. 437, 
441. This view was only recently once more expounded by 
Mr. Justice Stewart in Spano v. New York, 360 U. S. 315, 
327:

sel for him, and failure to do so denied defendant a fair trial 
and violates the equal protection and due process clause of 
the Fourteenth Amendment to the Constitution of the United 
States and the Constitution and laws of the State of Alabama; 
and the right of accused to assistance of counsel includes the 
right to assistance from time of arraignment until beginning 
and end of the trial.

We have no quarrel with the above insistence of counsel for 
appellant, but the principle is without application to the record 
before us.

In the opinion denying the coram nobis petition the Court said at 
122 So. 2d 602, 607:

In the opinion written on the appeal from the judgment of 
conviction (Hamilton v. State (Ala,), 116 So. 2d 906) we did 
not intend to convey the impression that we entertained the 
view that absence of counsel at the time of arraignment in and 
of itself would vitiate the judgment of conviction. We simply 
did not take issue with the assertions made by counsel for 
Hamilton in that regard because the minute and judgments 
entries showed that Hamilton was represented by counsel at 
arraignment.



20

Under our system of justice an indictment is sup­
posed to be followed by an arraignment and a trial.
At every stage in those proceedings the accused has 
an absolute right to a lawyer’s help if the case is one 
in which a death penalty may be imposed. Powell v. 
Alabama [supra]. (Emphasis supplied.)

This Court frequently has considered the principles 
governing the Fourteenth Amendment protection of the 
right to counsel7 and has made basic distinctions between 
capital and non-capital eases. While non-capital cases have 
turned on the particular facts of each case and special cir­
cumstances regarding disadvantage to the uncounselled 
defendant, this rule has not been applied in capital cases. 
See, Betts v. Brady, supra: Bute v. Illinois, 333 U. S. 640, 
676; Uveges v. Pennsylvania, 335 U. S. 437, 441; Palmer v. 
Ashe, 342 U. S. 134, 135; Tomkins v. Missouri, 323 U. S. 
485, 487.

The importance of representation during all stages of a 
capital prosecution is manifest, Powell v. Alabama, supra; 
Moore v. Michigan, supra; the “guiding hand of counsel” 
should be offered before an accused is required to plead to 
an indictment. Williams v. Kaiser, 323 U. S. 471, 475; House 
v. Mayo, 324 U. S. 42, 45-46; and “arraignment is too im­
portant a step in a criminal proceeding to give . . . wholly 
inadequate representation,” Von Moltke v. Gillies, 332 U. S. 
708, 723.

The court below cited several decisions in support of its 
conclusion. Some must be distinguished because they in­
volved only non-capital offenses, see, e.g., Canisio v. New 
York, 327 U. S. 82.8 Moreover, unlike Canisio, supra, de­

7 Many of the cases are collected in Moore v. Michigan, 355 U. S. 
155,159, n. 7, and Cash v. Culver, 358 U. S. 633, 636, n. 6.



21

nial of counsel here violated Alabama’s own state law.8 9 
The other state and lower federal precedents cited below, 
see, e.g., People v. Moore, 405 111. 220, 89 N. E. 2d 731 
(1950); People v. Matera, 132 N. Y. S. 2d 117 (1954), 
Council v. Clemmer, 177 F. 2d 22 (D. C. Cir. 1949), to the 
extent they seem to support the court’s view, are at variance 
with the rulings of this Court and, if recognized, would 
introduce a corrosive influence into the settled, salutary 
rule which has been the view of this Court since Powell.

The holding below extends the Betts v. Brady, supra 
limitations on right to counsel to the capital area. Without 
mentioning that non-capital case, the court below applied its 
theory, making the right in this capital case depend on 
analysis of the unfairness resulting from lack of counsel. 
Similarly, without mentioning Crooker v. California, 357 
U. S. 433, the court below applied to arraignment (following 
indictment) Crooker’s view that the right to counsel prior to 
indictment depends upon circumstances. In Spano v. New 
York, 360 U. S. 315, one issue was whether Crooker should 
govern following indictment; while the majority found it 
unnecessary to reach this issue, several Justices concurred 
in the view that deprivation of counsel after indictment 
denied due process, thereby invalidating a confession and 
conviction. See 360 U. S. at 324, 326.

Occasionally, but rarely, when an attorney is actually 
present, a criminal defendant can demonstrate qualitative 
unfairness of ineffective representation. Cf. Von Molke v.

8 A ls o People v. Dolac, 160 N. Y. S. 2d 911 (1957) (non-capital). 
See State v. Swenson, 242 Minn. 570, 65 N. W. 2d 657 (1954) (law­
yer actually present at arraignment) ; State v. Sullivan, 227 F. 2d 
511 (10th Cir. 1955) (counsel denied prior to indictment), both 
capital cases.

9 Apparently only the dissenting Justices regarded the procedure 
as violating state law in Canizio, 327 U. S. 82, 89.



22

Gillies, 332 U. S. 708; Glasser v. United States, 315 U. S. 
60, 69-70, and Powell v. Alabama, supra. But unless qual­
itative ineffectiveness is so flagrant that the trial is a sham 
efforts to demonstrate that an attorney did his job poorly 
are futile. See, for example, United States v. Ragen, 166 
F. 2d 976, 980 (7th Cir. 1948); Sweet v. Howard, 155 F. 2d 
715, 717 (7th Cir. 1946) (illiteracy of counsel, if proven, 
still insufficient to establish incompetency). Alabama’s rule 
is equally strict, Arrington v. State, 253 Ala. 178, 43 So. 
2d 644, 646 (1949). Precisely because to show qualitative 
inadequacy of representation is so difficult as to be virtually 
impossible, it is all the more important to require as a 
minimum objectively determinable procedural protection, 
that at least some attorney he appointed and present to 
counsel defendant at every stage of criminal proceedings 
which may culminate in the imposition of a death penalty.

The State seems to regard appointment of counsel on 
the second indictment (which added the charge, with “in­
tent to ravish,” upon which petitioner was convicted) as a 
“mere formality.” The affidavit by the lawyer appointed 
to defend Hamilton against a prior indictment and ap­
pointed again after the arraignment in question, stated his 
opinion that the arraignment was a “mere formality” (B, 
13). The deputy solicitor stated that following arraign­
ment he requested the fresh appointment only to assure 
that the defense attorney would receive his fee from the 
State (B, 14). But the fresh indictment obviously was not 
a mere formality; it charged a wholly different and more 
reprehensible crime.

Neither the retrospective opinion by defense counsel that 
nothing different would have occurred if counsel had been 
appointed before and been present at, arraignment, nor the 
prosecutor’s explanation about his concern over his ad­



23

versary’s fee,10 changes the fact that counsel and Court 
did not follow Alabama law as interpreted by its courts 
and the “almost uniform” practice, which required that the 
Court see that “an accused indicted for a capital offense 
has a lawyer before he is arraigned and called upon to
plead to the indictment” -----  Ala, ----- , 122 So. 2d 602,
603-4). In any event, what lawyer can say with assurance 
what he would have done if he had been present in court 
on an occasion as important as arraignment in a capital 
case. In a capital case, when a lawyer’s diligence and de­
votion may save his client’s life at any stage of the proceed­
ings, no stage properly may be regarded as a “mere for­
mality.” As the opinion of the Court held in Reynolds v. 
Cochran, 365 U. S. 525, 532-533.

“ . . . even in the most routine-appearing proceedings 
the assistance of able counsel may be of inestimable 
value.” 11

But here no lawyer had been appointed at the time of ar­
raignment and made responsible for exercising whole­
hearted diligence and devotion. Hamilton did not have the 
benefit of counsel prior to entry of the plea.

The appointment and physical presence of a lawyer at 
arraignment and other judicial proceedings in a capital 
case is the minimum procedural protection due to a defen­
dant which the courts can enforce. The ruling below to 
the contrary again demonstrates the wTay that “illegitimate 
and unconstitutional practices get their first footing . . .

10 Under Ala. Code, Tit. 15, §318, supra, defense counsel is en­
titled to a fee of $50 to $100, to be fixed by the court.

11 And see Knapp, “Why Argue an Appeal? If So, How,” 14 The 
Record 415, 426 (November 1959) in which the author writes “And 
don’t miss any opportunity for communication between you and the 
Court. If there is a long calendar call, don’t send a junior to answer 
it. Be there yourself.”



24

by silent approaches and slight deviations from legal modes 
of procedure” in hard cases involving “the obnoxious thing 
in its mildest and least repulsive form,” Boyd v. United 
States, 116 U. S. 616, 635. If counsel may be dispensed 
with at arraignment in a capital ease with the rationaliza­
tion that nothing different would have occurred had he been 
present, can counsel’s presence next be dispensed with dur­
ing part of the trial on the ground that defendant was not 
flagrantly over-reached in his absence, or during the charge 
to the jury on the same theory!

The right to counsel in a capital case is but one of the 
areas covered by Fourteenth Amendment due process in 
which a rule placing on the defendant the burden of show­
ing prejudice would lead to erosion of basic standards of 
integrity in the administration of criminal justice. For 
example, the right not to have Negroes systematically ex­
cluded from a jury which tries a Negro defendant is never- 
qualified by demanding that he demonstrate prejudice from 
having been tried by the all-white jury. Indeed, where a 
Negro defendant has been indicted by a grand jury con­
stituted in a racially discriminatory manner, and later 
convicted by a petit jury concerning which no such charge 
is even made, the conviction will be reversed. Cassell v. 
Texas, 339 U. S. 282; and see Justice Jackson’s dissenting 
opinion at 298, 303. This Court continues to adhere to this 
position. Eubanks v. Louisiana, 356 U. S. 584. In cases of 
forced confessions defendants need not show that but for 
the coerced confession which was introduced into evidence, 
they would have been acquitted. Blackburn v. Alabama, 
361 U. S. 199. As this Court held in that case:

In cases involving involuntary confessions this Court 
enforces the strongly felt attitude of our society that 
important human values are sacrificed where an agency 
of the government, in the course of securing a convic-



25

tion, wrings a confession out of an accused against 
his will. 361 U. S. 206-207.

Similarly, this Court has held that an accused may not 
be tried by a tribunal financially interested in the outcome, 
Turney v. Ohio, 273 U. S. 510, 535, even though there was no 
demonstration that the financial interest played a role 
in the decision and the evidence clearly indicated guilt. 
Chief Justice Taft wrote “No matter what the evidence 
was against him, he had the right to have an impartial 
jury.” And cf. Snyder v. Massachusetts, 291 IT. S. 97, 116; 
Patton v. United States, 281 U. S. 276, 292.

The right to counsel at all stages of a case in which the 
death penalty can be (and was) inflicted is the same kind 
of bedrock right. The Court’s opinion in Glasser v. United 
States, 315 U. S. 60, 76, while dealing with a different 
aspect of the denial of counsel, is nonetheless apposite:

“The right to have the assistance of counsel is too funda­
mental and absolute to allow courts to indulge in nice 
calculations as to the amount of prejudice arising from 
its denial.”

II.
Even if, arguendo, a showing of “disadvantage” is 

required, such amply appears of record.
Petitioner’s claim that he has been denied effective as­

sistance of counsel in this capital case in violation of the 
Fourteenth Amendment is sustained even under a view 
which requires that there be some demonstration of dis­
advantage. The claim was made in petitioner’s October 
1959 Term petition that he was denied effective assistance 
of counsel in that he did not have a lawyer at arraignment; 
that he was denied such assistance in that his was a capital



26

case involving difficult legal and factual issues in which 
conviction entirely depended upon inferences from circum­
stantial evidence that petitioner acted with specific criminal 
intent; and in which punishment was determined in the 
discretion of the jury ; that court appointed counsel sought 
to withdraw from the case immediately before trial; that 
petitioner indicated to the court his dissatisfaction with the 
appointed attorney, and the trial judge denied the request 
to withdraw without inquiring concerning the reasons for 
the incompatibility; that the trial judge encouraged peti­
tioner to attempt to supplement his appointed lawyer’s pres­
entation even though petitioner demonstrated that he was 
unversed in law and courtroom decorum, necessitating re­
peated reprimands in the presence of the jury; that peti­
tioner clumsily endeavored to examine witnesses and argue 
points of law.12

The coram nobis petition was filed following denial of 
the first petition for writ of certiorari in an effort to eluci­
date a factual aspect of the proceedings concerning which 
the parties disagreed (although petitioner contended the 
record was utterly clear), i.e. whether court appointed coun­
sel appeared at arraignment on the two-count indictment 
charging burglary with intent to steal and “ravish.” The 
coram nobis aspect of the case was “a part of the proceed­
ing in the case to which it refer [red] . . . ” Smith v. State, 
245 Ala. 161, 16 So. 2d 315, 316 (1944), or, as this Court 
has held is “a step in the criminal case, not like habeas 
corpus where relief is sought in a separate case and record 
. . . ” United States v. Morgan, 346 U. S. 102, 105, note 4. 
Consonant with this view, Alabama repeatedly has noticed 
the record on appeal when it has passed on coram nobis 
applications. Ex parte Seals, —— Ala. ----- , 126 So. 2d

12 See Petition for Writ of Certiorari, October Term 1959, No. 
1026, p. 1 (Questions Presented).



27

474 (1961); Ex parte Fennell, 261 Ala. 246, 73 So. 2d 558 
(1954); Ex parte Burns, 247 Ala. 98, 22 So. 2d 517 (1945); 
Johnson v. Williams, 244 Ala. 391, 13 So. 2d 683 (1943); 
Ex parte Taylor, 249 Ala, 667, 32 So. 2d 659 (1947); af­
firmed 335 U. S. 252. In the latter ease, this Court held:

“The Supreme Court of Alabama . . . read this peti­
tion and these affidavits, as we must read them, in 
close connection with the entire record already made 
in the case” (at 264-265).

But apart from the customary Alabama practice of read­
ing coram nobis petitions in light of the entire record, re­
spondent itself invoked consideration of the record as a 
whole and the question of prejudice by its answer to the 
coram nobis petition :

“3. Non-representation of counsel at the time of 
arraignment is not per se a denial of due process. 
The petitioner must make some showing or allegation 
of injury or prejudice to this case . . .

4. The petitioner has alleged no showing of preju­
dice and such affirmatively appears of record” (R. 12). 
(Emphasis supplied.)

This Court too, apart from the question of disadvantage 
brought here on this second petition, may examine the ques­
tion in the light of the full record filed in the October 1959 
Term which may be noticed. United States v. Fink, 315 
U. 8. 203, 216; United States v. California Co-Op Canneries, 
279 U. S. 553, 555; Bienville Water Supply Co. v. City of 
Motile, 186 U. S. 212, 217, as Alabama may have noticed 
it. See cases cited supra.

As stated in Reece v. Georgia, 350 U. S. 85, 87:
“We have jurisdiction to consider all of the substantive 
federal questions determined in the earlier stages of 
the litigation. . . ”



See also TJrie v. Thompson, 337 U. S. 163.
On appeal the right to effective assistance of counsel 

issue was treated and disposed of by the Supreme Court of 
Alabama in sweeping terms:

Appellant insists that in capital eases where defen­
dant is unable to employ counsel the court must appoint 
effective counsel for him, and failure to do so denied 
defendant a fair trial and violates the equal protec­
tion and due process clauses of the Fourteenth Amend­
ment to the Constitution of the United States and the 
Constitution and laws of the State of Alabama; and 
that right of accused to assistance of counsel includes 
the right to assistance from time of arraignment until 
beginning and end of the trial. 270 Ala. 188, 116 So. 
2d 909.

While agreeing with petitioner in theory the decision was 
adverse to him.

The question of prejudice, or disadvantage, now before 
this Court for the second time, resolves conclusively on 
three distinct levels, each demonstrating that the judgment 
below should be reversed.

(1) Absence of counsel at arraignment must have been 
by any reasonable appraisal of the nature of arraignment, 
and the issues posed by this case, prejudicial in and of itself. 
“The entering of a plea is one of the most critical stages in 
the proceedings.” Orefield, Criminal Procedure From Ar­
rest to Appeal 425. Indeed, arraignment is so crucial a 
stage of criminal litigation that state law concerning ap­
pointment of counsel generally provides that the right 
attaches at or before arraignment. See Appendix B. As 
stated in Von Malike v. Gillies, 332 U. S. 708, 723, “ar­
raignment is too important a step in a criminal proceeding



29

to give such wholly inadequate representation to one 
charged with crime.” See also, House v. Mayo, 324 U. S. 
42, 45-46. Petitioner alone could hardly have been ex­
pected to know that he might have, for example, negotiated, 
in exchange for a plea of guilty to a lesser offense, a lighter- 
sentence. See Williams v. Kaiser, 323 U. S. 471, 475-476.

The nature of the charge emphasized petitioner’s in­
ability to cope with the situation he faced. The crucial issue 
to be tried was the nature of petitioner’s intent, for intent 
was the gravamen of the offense, cf. Wicks v. States, 44 Ala. 
398, 400 (1870), and a serious issue of fact in this case. 
TAced with an indictment charging burglary with intent to 
“ravish”, petitioner could not assess the nature and weight 
of the proof relevant to prove or rebut the alleged intent. 
Indeed petitioner could hardly be expected to understand 
even what was meant by “intent to ravish” or the elements 
of the offense.13 Petitioner could not be presumed to know

13 The court’s charge, astoundingly, did not at all define ravish. 
Any uncertainty is not merely a matter of speculation about 
petitioner’s vocabulary. Considering the following, what does 
“to ravish” mean even to a lawyer who examines the Alabama 
criminal code?

(1) The burglary statute prohibits burglary “with intent to 
steal: or “with intent to commit a felony” (Ala. Code Tit. 
14, §85).

(2) The Code lists no felony called “to ravish” (Tit. 14, pas­
sim) ; though it does forbid “rape” (Tit. 14, §395).

(3) Only in another Title of the Code does any verbal connec­
tion between “rape” and “ravish” appear in the Form of 
Indictment for Rape—Tit. 15, §259, form 89, which pro­
vides: “A.B. forcibly ravished C.D., a woman, etc.” The 
rape statute does not use the word “ravish”.

Query: (1) Does the indictment even charge an offense when 
it charges intent “to ravish”, while the burglary statute (and 
also the form for burglary indictments, Tit. 15, §259, form 29) 
calls for intent to commit a “felony?”

(2) If the indictment really charges intent to commit the 
felony of rape, is it sufficient, failing to mention the elements 
of force, or even the name of the intended victim of rape (par­



30

that he had any alternative to pleading “guilty” or “not 
guilty.” He could not know that his absolute right to plead 
“not guilty by reason of insanity” under Ala. Code Tit. 15, 
§423, is lost if not entered at the time of arraignment. 
Morrell v. State, 136 Ala. 44, 34 So. 208 (1903). While there 
is a discretionary power to allow later entry of the plea this 
discretion is “not revisable” on appeal and may be reversed 
only for abuse of discretion. Bohn v. State, 186 Ala. 5, 65 
So. 42 (1914); Garett v. State, 248 Ala. 612, 29 So. 2d 8
(1947). When petitioner’s lawyer was appointed after ar­
raignment, petitioner had already lost an absolute right 
under Alabama law and he retained merely a right to ap­
peal to the discretion of the Court. Moreover, arraignment 
is the time to present various defenses under Alabama law. 
Code of Ala. 1940, Tit. 15, §279.

(2) But beyond this, the trial itself was riddled with ex­
plosions caused by petitioner’s conflict with the court, his 
awkward efforts to conduct his defense, petitioner’s clashes 
with his counsel, counsel’s efforts to withdraw, the court’s 
censure of petitioner. The conflict between defendant and 
defense counsel was openly displayed to the venire of pros­
pective jurymen before the trial commenced (R.* 15-16), 
accompanied by the Court’s expression of regret (R,* 17) 
in holding appointed counsel to his assigned task. This con­

ticularly when the only aggrieved person named in the indict­
ment is a man) 1

Moreover, the dictionary definition of “ravish” gives primacy 
to the sense of abduction; rape is but a subsidiary meaning, 
among several. Webster’s New International Dictionary (2d ed. 
unabridged, 1953).
These queries are all obviously questions of state law never 
raised in the trial court and not directly before this Court; 
but this is not the point. The point is that, unaided, petitioner 
could not even be presumed to know that indictments don’t 
always properly state an offense. A lawyer would know to read 
an indictment with this in mind prior to entry of a plea on the 
merits.



31

flict was re-emphasized as the trial progressed, by the 
court’s repeated restatement of its reason for allowing de­
fendant to cross-examine witnesses (R.# 31, 37).

Defendant’s inept attempts to represent himself led the 
trial into chaos and confusion from which defendant 
emerged the loser, a victim of his own ignorance and be­
wilderment, The perception and insight of the Court at the 
outset (R.# 19) in warning defendant about his conduct 
should have served as sufficient notice that defendant was 
unlikely to be able to conduct a cross-examination, present 
evidence, or argue the law according to the usages of the 
law.

The Court never inquired as to the basis for, or nature of, 
the dissension between defendant and appointed counsel— 
although from the start it must have been plain that some­
thing was amiss. Defendant’s ambiguous statement—“This 
lawyer is not my lawyer.” (R.# 116)—might have concealed 
beneath it either a real impediment and conflict or merely 
a confused mind. A few questions might have cleared the 
air. The defense attorney’s motion to withdraw from the 
case was left similarly unexplained. It is reasonable to as­
sume that Court appointed counsel knew the rule, enunci­
ated by the court below, and familiar to the point of being 
a cliche, that:

“In the first place, attorneys at law are officers of 
the Court. An attorney assigned as counsel ought not 
to ask to be excused for any light cause” (R.# 111).

He may have fully believed that he had more than a 
“light cause” for seeking to withdraw in this capital case. 
But the Court denied the motion summarily without dis­
cussion or inquiry.

The request to withdraw comprised the first words 
uttered by Mr. Mayfield in the record. Was this motion a



32

spur of the moment reaction to petitioner’s statement that 
Mr. Mayfield was not his lawyer, or counsel’s planned first 
move at the beginning of the case, the product of reflection 
and lingering doubts? How long in advance of trial did 
counsel decide that he would prefer not to try the case? 
How did it affect his preparation? Was the reluctance the 
product of an inhibiting conscientious belief in his client’s 
guilt, cf. Johns v. Smyth, 176 F. Supp. 949 (E. D. Va. 1959), 
a conflict of interest, or other serious impediment? We can 
only speculate futilely. The jury, too, was left to speculate.

Such an arrangement inevitably resulted in a pro forma 
representation of a kind condemned by the Fourteenth 
Amendment. Powell v. Alabama, supra, and Von Moltke v. 
Gillies, supra, emphasize respectively denial of real rep­
resentation, where responsibility is divided and where coun­
sel is reluctant.

The fact that the Court may have hoped to grant peti­
tioner greater protection by permitting him to examine 
witnesses and act as his own co-counsel, pales in the light of 
the actuality that petitioner wTas given merely an implement 
of further self-destruction. At the end of the trial the 
Court asked if defendant had any objection to the charge, 
and the answer (defendant’s last words, save two, before 
the jury retired) obviously applies beyond the specific 
question, to the entire proceeding:

“I didn’t understand it, sir” (R.# 92).

A reading of the trial record will confirm that the evi­
dence contains more than a few mysteries as to what 
actually transpired, and what petitioner actually intended 
on October 13,1957. One thing is apparent: this is no stark 
record of a ghastly crime; this is not the case of a ‘‘notorious 
criminal” where “guilt permeates a record.” 14 This is a

14 Abel v. United States, 362 U. S. 217, 241 (dissenting opinion).



33

case where guilt depended upon a determination of what 
was in the defendant’s mind, upon whether or not he had 
the intent to commit all the elements of a substantive 
felony, i.e., rape; and where decision must have been made 
not on the basis of an inference from a finding of breaking 
and entering (for this would not support a logical con­
clusion that defendant had any particular felony in mind) 
but rather from bits of facts, circumstances and inferences. 
This Court does not sit to review the sufficiency of the evi­
dence, or the adequacy of the court’s charge to the jury,15 
but it must necessarily observe the overall record in as­
sessing the prejudice to the petitioner which flowed from 
the series of events claimed to have resulted in a denial of 
effective assistance of counsel.16

The complex issues in the case called for the utmost 
diligence on the part of counsel. In this respect the case 
resembles Reynolds v. Cochran, 365 U. S. 525, 532-533, where 
it also was argued that absence of counsel was “harmless.” 
To this the Court replied:

We of course express no opinion as to how this 
question of statutory construction should eventually 
be decided by the Florida courts. But its mere exist­

16 The court’s charge on “intent to ravish” is certainly unin­
formative. For example what does “ravish” mean? Is it not 
necessary to know the elements of the crime of rape to be able to 
discover an intent to rape? Is not the intention to employ force 
or coercion an essential element of the proof? These questions 
should probably all be answered in the affirmative. See: Aiola v. 
State, 39 Ala. App. 215, 96 So. 2d 816 (1957); Hawkins v. State, 25 
So. 2d 441 (1946) ; Jackson v. State, 102 Ala. 167, 15 So. 344 (1893) ; 
Compare: Simpson v. State, 81 Fla. 292, 87 So. 920 (1921) and note, 
Ann. Cases 1913C, p. 517. But could the jury be presumed to know 
these answers, or the petitioner be presumed capable of raising 
them in his capacity as “co-counsel” for the defense.

16 Cf. Parker v. Ellis, 362 U. S. 574, 577, note 3 (dissenting opin­
ion) (May 16, 1960).



34

ence dramatically illustrates that even in the most 
routine-appearing proceedings the assistance of able 
counsel may be of inestimable value. Plainly, such 
assistance might have been of great value to petitioner 
here.

And, in view of the record and issues which counsel 
might have raised, much of what was said on the counsel 
issue in McNeal v. Culver, 365 U. S. 109, 116, might be said 
of the same question here:

These complex and intricate legal questions were ob­
viously “beyond the ken of a layman.” Cash v. Culver, 
supra, at 638.

Indeed, it is questionable whether such a crime as 
the one upon which petitioner was charged, tried and 
convicted—“Assault to Murder,” not “Assault with In­
tent to Commit Felony”—actually exists under the 
Florida law, Williams v. State, supra, and it is equally 
uncertain whether the verdict, convicting petitioner of 
“Assault to Murder in the Second Degree,” is sufficient 
to support the judgment in the light of 2 Fla. Stat. 
1957, p. 2957, §921.03, which contains the provision 
that “no judgment of guilty shall be rendered on a 
verdict unless the jurors clearly express in it a finding 
against the defendant upon the issue.” See also French 
v. State, 96 Fla. 657, 118 So. 815.

Moreover, the record contains facts which would 
have instantly suggested to counsel that petitioner 
might have a good insanity defense. “ [WJhen there is 
testimony of insanity sufficient to present a reasonable 
doubt of sanity the presumption [of sanity] vanishes. 
The defendant is then entitled to an acquittal if the 
state does not overcome the reasonable doubt.” Far­
rell v. State (Fla. 1958), 101 So. 2d 130, 133. It is too



35

much to expect this mentally ill petitioner effectively 
to raise and establish the defense of his own insanity, 
and, so far as this record shows, neither the prosecutor 
nor the trial court took any notice of the matter.

Moreover, as a practical matter, the problem of incom- 
patability between counsel and client very well could have 
been resolved earlier if counsel had been at arraignment. 
Obviously the matter of representation was one on which 
the petitioner had brooded long. His first words to the 
Court were: “This lawyer is not my lawyer.” R.* 16. While 
it is perhaps futile to speculate on what might have been, 
as court appointed counsel’s affidavit has (he “would not 
have entered any different plea . . .” R. 13 if he had been 
present), we reasonably may assume that the incompatibil­
ity which caused the eruption marking the outset of the 
trial might have been discovered by the Court if counsel 
and client had been brought together earlier at arraign­
ment. At such time the Court well could have identified 
the difficulties and either resolved them or secured new 
counsel. If this be mere speculation, it further demonstrates 
the problems of applying a rule of “prejudice” to capital 
proceedings.

(3) In any event, looking at the cause solely from the 
vantage of arraignment and in the light of subsequent oc­
curences at the trial, even under the rule proposed by the 
Court below the judgment below should fall.

Without denying the importance of arraignment or the 
value of counsel at this initial stage of the case, the Court 
below relies on a number of cases, including Counsel v. 
Cremmsr, 177 F. 2d 22 (D. C. Cir. 1949); Canizio v. New 
York, 327 U. S. 82; and In the Matter of the Application of 
Sullivan and Braasch, 126 F. Supp. 564 (D. Utah 1954), R. 
30-34, for the proposition that representation afforded sub­



36

sequent to arraignment demonstrates that had opportunities 
for defense at arraignment been overlooked, counsel might 
have asserted them at later stages. While this overlooks 
the fact that, as indicated above, the opportunity to assert 
such defenses as jury discrimination and insanity became 
discretionary rather than absolute after arraignment, the 
record here demonstrates a defect in the reasoning even 
more fatal.

The shambles into which the trial collapsed, the pre­
judicial conflict between petitioner and his counsel and the 
court, petitioner’s inept efforts to defend himself, spurred 
on by the Court, the failure of counsel to explore crucial 
legal issues, and even to subpoena Mrs. Giangrosso whose 
testimony he clearly desired, compel the conclusion that 
here was a situation from which no cure could emerge for 
earlier failure.

CONCLUSION

Wherefore, for the foregoing reasons, it is respect­
fully submitted that the judgment below should be 
reversed.

Orzell B illingsley, J r.
P eter A. H all

1630 Fourth Avenue, North 
Birmingham, Alabama

T hitrgood Marshall 
J ack Greenberg 
J ames M. Nabrit, III 

10 Columbus Circle 
Suite 1790
New York 19, New York

Attorneys for Petitioner



APPENDIX A
Sep 17 1959

T he State o f  Alabama—J udicial Department 

SUPREME COURT OF ALABAMA 
Special Term 1959

6 Div. 164

Charles Clarence H amilton

T he State of Alabama

APPEAL FROM JEFFERSON CIRCUIT COURT

L ivingston, Chief Justice:

The appellant, Charles Clarence Hamilton, was indicted 
by the Grand Jury of the Tenth Judicial Circuit of Ala­
bama for burglary in the first degree under the provisions 
of Sec. 85 of Title 14, Code of Alabama 1940, which reads 
as follows:

“§85. Burglary in the first degree.—Any person 
who, in the nighttime, with intent to steal or to com­
mit a felony, breaks into and enters any inhabited dwell­
ing house, or any other house or building, which is 
occupied by any person lodged therein is guilty of 
burglary in the first degree, and shall on conviction be 
punished at the discretion of the jury, by death or by 
imprisonment in the penitentiary for not less than ten 
years.”



2a

The indictment contained two counts. Connt 1 charged 
the defendant with breaking and entering into the inhabited 
dwelling house of Jacob C. Milko in the nighttime with in­
tent to steal, etc. Count 2 of the indictment charged the 
defendant with breaking and entering into the inhabited 
dwelling house of Jacob C. Milko in the nighttime with in­
tent to ravish, etc.

The jury returned a verdict of guilty as charged in 
Count 2 of the indictment and fixed the punishment at death. 
Judgment was rendered accordingly. Appellant’s motion 
for a new trial was overruled. This appeal comes to this 
court under the Automatic Appeal Statute, Title 15, Sec. 
382, Code of Alabama 1940, Cumulative Pocket Part. The 
Honorable Clell I. Mayfield was appointed by the trial court 
to, and did, defend the appellant on his trial in the court 
below. On appeal, it appears that the appellant is repre­
sented by four other and different attorneys at law.

The evidence for the state tended to prove the following:
On the night of October 13, 1956, Mr. and Mrs. Jacob C. 

Milko were occupying a dwelling house designated at 1501 
Avenue G. Ensley, Jefferson County, Alabama. Living 
with Mr. and Mrs. Milko were the grandparents of Mrs. 
Milko. The grandparents were Jake Giangrosso and Mary 
Giangrosso, each of whom occupied separate rooms. The 
grandmother, Mrs. Mary Giangrosso, occupied a room ad­
joining that of Mr. and Mrs. Milko, connected by a door 
between the two rooms. Mr. Giangrosso’s room also had a 
door leading out to the front porch of the dwelling house. 
Jake Giangrosso occupied a room in another part of the 
dwelling.

During the early morning hours, sometime between 2 :00 
and 3:00 o’clock of October 13, 1956, Mr. and Mrs. Milko 
heard the grandmother in the adjoining room making a 
loud noise or groaning. Mr. Milko got out of bed and 
opened the door leading into Mrs. Giangrosso’s room,



3a

where he found the defendant, Charles Clarence Hamilton, 
standing near the door between the two rooms. His shoes 
were off, one being under the bed of Mrs. Giangrosso, and 
the other near the front door. His pants were off and were 
on the bed of Mrs. Giangrosso, and he was in his undrewear, 
and as expressed by Mr. Milko, “His downstairs was hang­
ing out, and he didn’t have no shoes on and he had an old 
corduroy shirt on, and he was staring me straight in the 
face. That was all he had on.” The front door of Mrs. 
Giangrosso’s bedroom leading to the porch was open. Mr. 
Milko went back in his bedroom and procured a revolver, 
returned to Mrs. Giangrosso’s bedroom where the appel­
lant was still standing, turned on the light, held his gun on 
appellant, and told his wife, Mrs. Milko, to call the law. 
Mrs. Giangrosso was standing between the bed and the door 
leading into Mr. Milko’s room. Upon turning the lights on, 
the front door was seen to be wide open. Mr. Milko held 
the appellant until two police officers arrived, which was 
only a few minutes. Mr. Milko further testified that he was 
employed by the Tennessee Coal, Iron and Land Company 
in the Transportation Division, and that on the day in 
question, his working hours were from 3:00 P.M. until 
11:00 o’clock; that when he got home his wife had retired 
and his wife’s grandmother and grandfather had also re­
tired; that he unlocked the front door leading into Mrs. 
Giangrosso’s beroom and went through her bedroom into 
his own bedroom, and Mrs. Giangrosso was in bed at that 
time, as was also his wife.

Testimony further shows that Mrs. Giangrosso is of 
Italian birth, speaks English with difficulty, is partially 
blind, more or less feeble, and suffers with a heart condi­
tion. Testimony further shows that the front door leading 
from Mrs. Giangrosso’s bedroom to the outside was locked 
prior to the defendant’s entry, and after apprehension of 
the defendant marks of a forcible entry were found on the



4a

door leading from the porch into Mrs. Giangrosso’s bed­
room.

Mrs. Milko testified that she had seen the defendant at 
previous times walking in front of the Milko dwelling and 
at those times he made certain obscene motions with his 
hands.

The appellant testified, in substance, that Mrs. Giangrosso 
came out of her house on the night in question and began 
to yell at him, and grabbed him by the arm and forced him 
to accompany her into her room; that she made him sit 
down by her bed for about an hour and take off his shoes; 
that her son-in-law came in and pulled his pistol on him 
and held him for the police. The appellant further testified 
that he was indicted November 9, 1956, by the Grand Jury 
for nighttime “burglary with intent to steal.” (This testi­
mony will be referred to later.) Appellant further testified 
that there was no telephone in the (Milko) house, and that 
Milko went outside the house to get the police.

In rebuttal, both Mr. and Mrs. Milko reiterated their 
testimony to the effect that there was a telephone in the 
Milko home and that Mrs. Milko called the officers while 
Mr. Milko held the appellant. The evidence further tends 
to show that the Milko home is located within two or three 
blocks of the police station.

Appellant insists that in capital cases where defendant 
is unable to employ counsel the court must appoint effective 
counsel for him, and failure to do so denied defendant a 
fair trial and violates the equal protection and due process 
clause of the Fourteenth Amendment to the Constitution 
of the United States and the Constitution and laws of the 
State of Alabama; and that right of accused to assistance 
of counsel includes the right to assistance from time of ar­
raignment until beginning and end of the trial.

We have no quarrel with the above insistence of counsel 
for appellant, but the principle is without application to the



5a

record before as. The record discloses that Hon. Clell I. 
Mayfield was appointed by the coart to defend, and did 
defend, the appellant on his trial in the coart below. Bat 
coansel who now represent appellant on this appeal insist 
that Mr. Mayfield was not appointed antil after appellant 
was arraigned and had entered a plea of not gailty. Pres­
ent coansel attached to their brief a certified copy of the 
bench notes of the trial judge in this case. The argument 
is that the bench notes show that appellant was arraigned 
on March 1, 1957, and also show that Mr. Mayfield was 
appointed counsel for appellant on March 4, 1957. The 
record contains the following minute entry:

“Arraignment

Indictment for Burglary 
with intent to Steal, Burg­
lary with Intent to Ravish

Honorable Wallace Gibson, Judge Presiding
“This the 1st day of March, 1957, came Emmett 

Perry, Solicitor, who prosecutes for the State of Ala­
bama, and also came the defendant in his own proper 
person and by attorney, and the said defendant being 
now in open Court, and being duly arraigned upon the 
indictment in this cause, for his plea thereto says that 
he is not guilty.”

Also, the judgment entry of the 23rd day of April, 1957, 
the date on which appellant was tried, is to the same effect 
as the minute entry upon arraignment.

A minute entry constitutes the final record of a judg­
ment. It cannot, in a court of record, be impeached by the 
judge’s bench notes or memoranda, which operate only as a 
direction to the clerk as to what judgment and orders shall 
be entered on the court’s records. Ex parte Haynes v. State

“T he State 

vs.
Charles Clarence H amilton



6a

of Alabama, 39 Ala. App. 349, 98 So. 2d 670; Lockhart v. 
State, 30 Ala. App. 297, 39 So. 2d 40.

In Du Pree v. Hart, 242 Ala. 690, 8 So. 2d 183, 186, it is 
stated:

“It is said in Briggs v. Tennessee C., I. & By. Co., 175 
Ala. 130, at page 142, 57 So. 882, that there is no law 
requiring a judge to make bench notes, and because 
such notes do not include rulings which appear in the 
judgment entry is not good ground to hold that such 
rulings were not made. Bench notes were not necessary 
to sustain a judgment entered on the minutes during 
the term of court, against attack made on the judgment; 
and the judgment entry prevails over the bench notes 
when they conflict. Lockwood v. Thompson & Buch- 
mann, 198 Ala. 295(3), 301, 73 So. 504. But they were 
always necessary to justify an order nunc pro tunc. 
During the term prior to the Code of 1923 the judge 
had control of the entry and could add to, strike out or 
alter its records. Wilder v. Bush, 201 Ala. 21, 75 So. 
14’3. Under section 6670, Code of 1923, the judge had 
such power for thirty days after the judgment was ren­
dered. Code of 1940, Title 13, section 119.”

Counsel for appellant nest insist that to constitute burg­
lary in the first degree “there must be a breaking and enter- 
tering of the dwelling house of another with an intent to 
commit a felony therein.” This argument presents purely 
a question of fact in that the evidence was amply sufficient 
to prove a breaking and entering of the dwelling of another 
in the nighttime with the intent to commit a felony therein, 
and is without merit.

The appellant testified in his own behalf. After appellant 
had been cross-examined by the solicitor for the state, he, 
as distinguished from re-direct examination by his attor­
ney, requested the court to allow him to testify further.



7a

Tlie trial court granted the request. The appellant then 
proceeded to testify to the effect that he had been indicted 
twice for the same offense, and made certain other irrele­
vant and immaterial statements. The trial court inter­
rupted the appellant and explained to him that he was 
entitled to testify only to matters that were relevant and 
material to the matters involved in the indictment upon 
which he was then on trial. We have carefully examined the 
proffered testimony, which is our duty under the Automatic 
Appeal Statute, and are clear to the conclusion that no 
error intervened in reference to the proffered testimony, 
nor did error intervene as to the manner or method in which 
the trial court conducted this part of the trial, nor as to the 
colloquies which ensued between the trial court and appel­
lant with reference thereto.

Mention is made in brief of other colloquies between the 
court and the defendant during the trial in the court below. 
Suffice it to say, that no objections were made nor excep­
tions reserved to any remarks made by the court.

It was stated in Washington v. State, 259 Ala. 104, 65 
So. 2d 704:

“ * * * Only review of rulings on trial with respect to 
matters of evidence are within the scope of the statute 
obviating the necessity of interposing seasonable ob­
jection and exception. Code 1940, Title 15, §382(10), 
1951 Cum. Pocket Part, Vol. 4, p. 103; Broadway v. 
State, 257 Ala. 414, 60 So. 2d 701(4); Townsell v. 
State, 255 Ala. 495(4), 52 So. 2d 186; James v. State, 
246 Ala. 617, 21 So. 2d 847.”

See, also, Jackson v. State, 260 Ala. 641, 71 So. 2d 825.
At the beginning of the trial of appellant on April 23, 

1957, defendant stated to the court that the lawyer ap­
pointed to defend him by the court was not his lawyer, and 
the court-appointed attorney asked permission to withdraw



8a.

from the case. On this occasion, the court asked the appel­
lant if he had other counsel, and he replied that he did not. 
Thereupon, the court explained the purposes and duty of 
the court to appoint capable counsel to represent those 
defendants charged with capital offenses who were unable 
to employ counsel, and declined to allow the court-appointed 
counsel to withdraw.

See. 318, Title 15, Code of 1940, as amended by Act No. 
176, Acts of Alabama 1947, p. 61, provides that:

“When any person indicted for a capital offense is 
without counsel and the trial judge, after due investiga­
tion, is satisfied that the defendant is unable to employ 
counsel, the court must appoint counsel for him not ex­
ceeding two, who must be allowed access to him, if 
confined, at all reasonable hours, * * * ”

In the first place, attorneys at law are officers of the 
court. An attorney assigned as counsel for an indigent 
prisoner ought not to ask to be excused for any light cause. 
Code of Ethics of Alabama State Bar Association. In the 
second place, the appellant did not indicate to the court 
that he wished the court-appointed attorney to withdraw 
from his defense, nor that he was unfaithful or incompetent. 
He merely stated, without more, that the court-appointed 
attorney was not his lawyer. The record before us does 
not indicate to the slightest degree that the appellant was 
seeking to discharge his attorney in order to exercise his 
right to conduct his own defense. At most, the statement 
made by the appellant indicated only that he did not ap­
prove of the court-appointed attorney. But present counsel 
insist that under these circumstances representation could 
be nothing more than pro forma. But in their brief, with 
commendable candor, they stated: “We do not mean to 
reflect upon the capabilities of counsel representing de­
fendant.”



9a

Even conceding that appellant requested the dismissal 
of his court-appointed attorney, to yield to such a request, 
where the defendant has not made it clear that he really 
wishes to conduct the defense in propria persona gives far 
too great a chance to delay trials and otherwise embarrass 
effective prosecution of crime. United States v. Gutterman, 
147 F. 2d 540, 157 A. L. E. 1221; United States v. Mitchell 
(2d Cir.), 137 F. 2d 1006, Id. (2d Cir.), 138 F. 2d 831.

We have carefully examined the record with reference 
to the conduct of the trial by the court-appointed attorney, 
and are of the opinion that he did his full duty under the 
circumstances. And as was stated in Arrington v. State, 
253 Ala. 178, 43 So. 2d 644:

“While an attorney must see that the rights of his 
client are protected, he cannot be subjected to censure 
because he does not manufacture evidence.”

There is no merit in this contention of the appellant.
The trial court refused six written charges duly re­

quested by the appellant. Charge 1 relates only to Count 
1 of the indictment. The defendant was convicted under 
Count 2 of the indictment, therefore, reversible error could 
not intervene because the verdict of the jury was, in effect, 
and acquittal under Count 1 of the indictment. Charge 2 
is in the following language:

“2. The court further charges that intent to ravish 
must be accompanied by violence or force towards the 
person before it can be distinguished as such, and if 
the jury does not find from the evidence such dements 
(sic) of force or violence, they must acquit the de­
fendant under the 2nd Count in the indictment.”

Charge No. 2 is an incorrect statement of the law. The 
breaking and entering the house with intent to ravish is 
the gravamen of the offense charged in Count 2 of the in­



10a

dictment, and it is not required that the intended act be 
consummated. L. Whart., Grim. Law, 8th Ed., Sec. 818; 
Wicks v. State, 44 Ala. 398; Wolf v. State, 49 Ala. 359; 
Barber v. State, 78 Ala. 19; Holland v. State, 247 Ala. 53, 
22 So. 2d 519. The charge is also inaptly drawn and is 
confusing in its tendencies. For like reasons, Charges 5 
and 6 were properly refused.

Charge No. 3 was substantially covered in the oral 
charge and its refusal was without error.

Eefused Charge 4 is misleading and incorrect under the 
evidence presented in this case. There is no evidence that 
the dwelling house entered and occupied by Jacob C. Milko 
and family was effectively divided into portions, rather, the 
evidence is uncontroverted that the house was occupied 
by Mr. Milko and his family as a unit.

We have examined the record with care and find no error 
to reverse.

Affirmed.
Lawson, Simpson, Stakely, Gfoodwyn and Merrill, JJ.,

concur.



11a

APPENDIX B

A large number of states have concluded that arraign­
ment is so essential a stage of criminal proceedings that 
the right to counsel attaches at that point. The Supreme 
Court of Alabama has, in the present case, recognized 
that the right to counsel in capital eases attaches at the 
arraignment stage. See E. 29; Code of Ala., Tit. 15, §318 
(appointment of counsel for indigents in capital cases). 
The legislatures of nineteen states have implemented this 
policy in statutes which require courts to appoint counsel 
for indigents in virtually all felony prosecutions: Alaska 
Code (1948) §66-10-3 (no specific mention of duty to ap­
point) ; see Const. Art. XV, §1 (continuance of laws after 
statehood). Ark. Stat. Ann. §43-1203 (See Swagger v. 
State, 227 Ark. 45, 296 S. W. 2d 204 (1956)). Calif. Penal 
Code §987 (See People v. Havel, 134 Cal. App. 2d 213, 285 
P. 2d 317 (1955)). Idaho Code Ann. §19-1512 (See State 
v. Pogiianich, 43 Idaho 409, 252 Pae. 177, 181 (1927)— 
right-to-counsel provisions); (See also §19-1513). 111. Su­
preme Court Rules, Eule 26(2), 111. Eev. Stat. §101.26(a ) ; 
(See also 111. Criminal Code §730). Iowa Code Ann. §775.4. 
Gen. Stat. of Kansas (1959 Supp.) §62-1304 (See Brandt 
v. Hudspeth, 162 Kan. 601, 178 P. 2d 224, 227 (1947)— 
provision mandatory). Mo. Eev. Stat. (1949), §545.820 
(See State v. Allen, 174 Mo. 689, 74 S. W. 839 (1903) and 
Edwards v. Nash, 303 S. W. 2d 211, 215 (Kan. City C. A. 
(1957)—capital case). Eev. Code of Montana, §94-6512. 
Nev. Eev. Stat. §174.120. N. Y. Code of Criminal Proce­
dure §308. North Dakota Century Code, §29-13-03. See 
N. D. Century Code, §29-01-27 (assignment of counsel). 
22 Okla. Stat. §464 (Cf. Johnson v. State, 79 Okla. Crim. 
363, 155 P. 2d 259, 260 (1945) (Syllabus by the court— 
capital cases); Ore. Eev. Stat. §135.320. South Dakota



12a

Code §34.3506 (1960) (See State v. Jameson, 77 S. D. 
340, 91 N. W. 2d 743, 745 (1958)) (See also 34.1901). Utah 
Code Anno. §77-22-12. Code of Va. §19.1-241 (appointment 
of counsel before accepting plea). Rev. Code of Wash. 
§10.40.030 (See State v. Dechman, 51 Wash. 2d 256, 317 
P. 2d 527 (1957), Friedbauer v. State, 51 Wash. 2d 92, 316 
P. 2d 117 (1957)) (See also §10.01.110); Wis. Stat. Ann. 
§957.26(2).

The judicial rules of two states require that counsel be 
appointed for indigents at the arraignment stage: Arizona 
Rules of Criminal Procedure, Rule 39(b); cf. New Jersey 
Rev. Rules, §1:12-9, with Author’s Comment (at arraign­
ment whenever practicable).

Texas requires that indigents charged with capital of­
fenses have counsel appointed at arraignment. See Vernon’s 
Texas Code of Criminal Procedure §494, as amended by 
Acts 1959, 56th Leg., p. 1061, c. 484, §1, with §491 and 
Hill v. State, 310 S. W. 2d 588 (Tex. Cr. 1958).

Courts of two states have interpreted their state con­
stitutions to require that one charged with crime is en­
titled to representation of counsel at every stage of litiga­
tion. If the accused is indigent the courts are required 
to appoint effective counsel. Ind. Const. Art. I, §13. See 
State ex rel. Greeco v. Allen Circuit Court, 238 Ind. 571, 
574, 153 N. E. 2d 914, 916 (1958) (at every stage); Batche­
lor v. State, 189 Ind. 69, 125 N. E. 773 (1920) (Ind. Const. 
Art. I, §13 applies to early stages of litigation); Ky. 
Const. Art. I, §11, See Calhoun v. Commonwealth, 301 Ky. 
789, 193 S. W. 2d 420 (1946) (counsel must be appointed 
for indigents); Wilcher v. Commonwealth, 297 Ky. 36, 178 
S. W. 2d 949 (1944) (right to counsel at each stage of the 
trial).

Statutes or court rules of four states provide for the 
appointment of counsel to represent indigents after in­
dictment, the implication being that appointment is to be



13a

before arraignment: Minn. Stat. (1957), §611.07, as
amended by Minn. Laws 1959, c. 383 (See the unamended 
statute which speaks specifically of the right to counsel 
at arraignment, and see State ex rel. Welper v. Rigg; 
254 Minn. 10, 14, 93 N. W. 2d 198 (1958)); Ohio Rev. Code 
§2941.50 (see State v. Cartwright, 81 Ohio L. Abs. 226, 
161 N. E. 2d 456, 457 (1957)—“both before arraignment 
and at all subsequent stages of the case.”) ; W. Va. Rules 
of Practice for Trial Courts Rule IV(a) ; Wyo. Stat. §7-7.

Three other states, which have provided for the ap­
pointment of counsel to represent indigents, appear to 
have endorsed the practice of appointing counsel at very 
early stages of litigation; Ga. Const. Art. 1, §5 (Ga. Code 
Anno. §2-105). See Bibb County v. Hancock, 211 Ga. 429, 
436, 86 S. E. 2d 511, 517 (1955) (the constitutional pro­
vision requires appointment of counsel to represent all 
in digents accused of an offense), and Ga. Code Ann. §27- 
3001 (A) (capital cases—“[w]hen ever it shall appear,” 
that indigent accused is without counsel). Mich. Stats. 
Ann. §28.1253 as amended by Public Acts 1957, No. 256 
(“Whenever any person charged . . . shall be unable to 
procure counsel.”) See Op. Mich. Att. Gen., Oct. 7, 1957 
(provision interpreted to mean that counsel should be ap­
pointed for indigents after they are bound over for trial). 
But see, People v. Williams, 225 Mich. 133, 195 N. W. 818 
(1923) (no general right to counsel at public expense). 
See Tenn. Code §40-2002 [“counsel in all matters necessary 
for his defense”] with §40-2003 [appointed counsel for 
indigents]. See also: Poindexter v. State, 183 Tenn. 193, 
191 S. W. 2d 445 (1946) [murder charge—counsel ap­
pointed after arraignment and given little opportunity to 
confer—violation of United States Constitution, Amend. 
VI and Tenn. Const. Art. I, §9],

Two states provide that in capital (and other serious) 
cases if an indigent defendant appears in court without



14a

counsel, counsel shall be appointed apparently at early 
stages. See Del. Code Ann. §5103 with Superior Court 
Rules, Rule 44 (“to represent him at every stage”). Pur- 
don’s Pa. Stat. Tit. 19, §§783, 784. See Commonwealth ex 
rel. Shelter v. Burke, 367 Pa. 152, 79 A. 2d 654 (1951) 
(the extent of the right at arraignment).

Maryland provides that an accused must at least be in­
formed of his right to counsel at arraignment. See Md. 
Rules of Procedure, Criminal Causes, Rule 723(b); Roberts 
v. State, 219 Md. 485, 150 A. 2d 448 (1959), and Bryant v. 
State, 218 Md. 151, 145 A. 2d 777 (1958).



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