This is an original application to this court for leave to file a petition for the common-law writ of error coram nobis in the Circuit Court of Mobile County, wherein petitioner was tried and convicted of a capital felony and sentenced to suffer death by electrocution, which said judgment was affirmed here on the 24th day of April, 1947, the style of the case being Taylor v. State, ante, p. 130, 30 So.2d 256.
The defendant's petition alleges that he was arrested by police officers of Prichard, Alabama, at 11:30 p. m. on June 29, 1946, and at the time of his arrest three other men, towit, Lawrence H. Franklin, Johnnie Kimbrough and Calvin Jones, were also arrested and incarcerated in the city jail of Prichard, Ala. That before they were "docketed" or placed in a cell, police officers on duty at that time whose names are unknown to petitioner "beat, kicked and bruised your Petitioner and said three men in an effort to obtain a confession of a robbery. That after Petitioner and the three other prisoners were docketed they were taken by said police officers one at a time in a small room in said jail. That all four of said men were brutally beaten, kicked and bruised in an effort to obtain said confession. That your Petitioner did, in fact, confess to said robbery but that after he had made this confession, he was retained in said room in the Prichard, Alabama, jail by said police officers and told that he must make a confession of the rape for which he was later convicted and sentenced by the Circuit Court of Mobile County as aforesaid. That he was further beaten, kicked and bruised by said police officers but refused to make a confession of said rape. That he was thereafter returned to his cell in the said City Jail at Prichard, Alabama, by said police officers at an early hour in the morning of Sunday, June 30, 1946. That he was not further molested throughout the day of said Sunday but that during the late hours of Sunday night, June 30, 1946, and early morning July 1, 1946, he was further beaten, bruised, threatened and intimidated by the police officers of the City of Prichard, Alabama, and was told he must confess to said rape. That your Petitioner still refused to make a confession of said crime although he was beaten, bruised and threatened as aforesaid. That said mistreatment and questioning by the police officers of the City of Prichard continued for a period of several hours and upon Petitioner's failure to confess to said crime he was again returned to his cell where he was left unmolested throughout the day of Monday, July 1, 1946. That on the night of Monday, July 1, 1946, and the early morning of Tuesday July 2, 1946, Petitioner was again subjected to "similar mistreatment and questioning as on the previous night. Again your Petitioner maintained his innocence of said crime and after several hours was returned to his cell where he was left unmolested until the night of Tuesday, July 2 and early morning of Wednesday, July 3, 1946. On that night he was again visited by the police officers of the City of Prichard as aforesaid and was subjected to more brutal and cruel beatings and mistreatment. He was told unless he did confess to the crime of rape as aforesaid he would be continually subjected to such brutal mistreatment and intimidation until he did, in fact, confess to said crime. That your Petitioner was so fearful for his life, health and safety that he made a confession of said crime in the early morning hours of Wednesday, July 3, 1946. He was told by said police officers of the City of Prichard that if he made any mention of the fact that he was beaten and mistreated as aforesaid that he would be subjected to even more cruel beatings and mistreatment. That at approximately 3 o'clock in the morning of July 3rd, 1946, Petitioner was *Page 672 brought in to a carefully selected and arranged group for a formal confession of said crime of rape. That none of the persons who witnessed said formal confession which was later introduced in evidence on the trial of said cause as aforesaid, had any knowledge of the fact that Petitioner had been beaten, threatened, abused and mistreated by the police officers of the City of Prichard as aforesaid, in order to obtain said confession, with the exception of Prichard Police Sergeant 'Buster' Wilkes who had participated in the beatings of Petitioner since his arrest on Saturday, June 29, 1946. That said Sergeant 'Buster' Wilkes perjured himself on the trial of said cause by falsely testifying that Petitioner was not subjected to any mistreatment in connection with making said confession. Attached hereto and made a part hereof, marked 'Exhibit A', is an affidavit of Johnnie Kimbrough, substantiating the above facts. Attached hereto and made a part hereof, marked 'Exhibit B' is an affidavit of Lawrence Franklin, substantiating the above facts. Attached hereto and made a part hereof, marked 'Exhibit C', is an affidavit of Calvin Jones, substantiating the above facts.
"That your Petitioner was put in such great fear for his future safety after having been subjected to such mistreatment as aforesaid, and after having been threatened with even worse physical mistreatment by the police officers of the City of Prichard as aforesaid if your Petitioner did mention said beatings to any person, that he failed and refused by reason of such fear to mention this mistreatment and extortion of said confession from him to his attorney who was appointed by the Court to defend him on the trial of said cause in the Circuit Court of Mobile County as aforesaid. That your Petitioner at that time was ignorant of his rights and was wholly ignorant of court procedure and had no knowledge of his rights or how to protect his interests. That when your Petitioner was asked by his said attorney who represented him on the trial of said cause as aforesaid if he was mistreated or beaten in any fashion by the law enforcement officers in connection with the giving of said confession he replied in the negative, being uneducated and ignorant as aforesaid, and fearful of further reprisals by said police officers. That while he (was) ably represented on the trial of said cause in the said Circuit Court of Mobile County, Alabama, by said attorney, his attorney was unaware of the facts averred above relating to said confession, and after having been told by your Petitioner that he was not subjected to any mistreatment, said attorney had no reason to inquire into the above facts and could not have through diligence discovered the above facts."
The petition further alleges that the attorney now representing petitioner had no connection with the case until after petitioner's conviction and the affirmation of the case by the Supreme Court of Alabama. And alleges that his "imprisonment, conviction and sentence of death and his present imprisonment is the result of a deprivation of due process of law and of his rights guaranteed to him by the Constitution of the State of Alabama and his conviction, sentence of death and his present imprisonment is the result of deprivation of rights guaranteed to your Petitioner by the Constitution of the United States of America, in that the law enforcement officers of the State of Alabama obtained his conviction by the introduction in evidence at the trial of said cause a confession which was forcibly extorted from your Petitioner as aforesaid, thereby denying to him due process of law and the rights guaranteed to him by and under the Constitution of the State of Alabama and the Fourteenth Amendment of the Constitution of the United States of America."
This application for leave to file the petition for writ of error coram nobis was submitted on the motion of the attorney general to dismiss the petition on numerous and sundry grounds, among others, that the "allegations of said petition are not sufficient as a matter of law to cause this court to grant the relief therein prayed for," together with affidavit of Nelson E. Grubbs, Associate Toxicologist, and photographs of the petitioner exhibited, which were taken on the 3d day of July, 1946, at "5:37 P.M. o'clock," without countervailing evidence by affidavit or otherwise. *Page 673
The effect of the motion to dismiss is to confess the truth of the allegations of the petition for the purpose of said motion.
The petition sets up facts extraneous of the record and is supported by the oath of petitioner and affidavits of three witnesses who claim to have knowledge of the facts and the affidavit of Nelson E. Grubbs, the Toxicologist, and the photographs taken according to his affidavit on "3rd day of July, 1946, at 5:57 P.M. o'clock." The verified petition, said affidavits and photographs will be treated as evidence. Ex parte Green, Superintendent of Banks, 221 Ala. 298, 129 So. 72.
It seems to be well settled that the writ of error coram nobis will not reach facts actually determined in the original proceeding nor will it lie when a proper remedy is afforded by appeal or ordinary writ of error nor for false testimony at the trial. The function of a writ of error coram nobis is limited to error of fact for which the statute provides no other remedy, which fact did not appear or was unknown to the court when judgment was pronounced and if known would have prevented the judgment and which was unknown and could not have been known to the petitioner by the exercise of reasonable diligence in time to have been otherwise presented to the court,unless he was prevented from so presenting them by duress, fearor other sufficient cause. This court is not called upon to determine the truth of the allegations of the petition for leave to file application for writ of error coram nobis in the circuit court. But will examine the petition in connection With the record in this court on appeal of said cause. The question presented to us is whether or not the allegations of the petition make adequate showing of substantiality of the petitioner's claim to enable the court to determine whether the facts alleged would afford prima facie just grounds for application to the circuit court, whether the allegations of the petition supported by the affidavits and other evidence show a probability of the truth thereof. Ex parte Burns,247 Ala. 98, 22 So.2d 517; Chambers et al. v. State, 113 Fla. 786,152 So. 437; Ex parte Lee, 248 Ala. 246, 27 So.2d 147.
It is well settled in Alabama that extra-judicial confessions alleged to have been made by a defendant charged with crime are presumed to be involuntary and the burden is upon the state to show that they are voluntary. Jackson v. State, 226 Ala. 72,145 So. 656. In Redd v. State, 69 Ala. 255, 259, it was observed:
"* * * The settled rule of this court is, that all such confessions are prima facie involuntary, and they can be rendered admissible only by showing that they are voluntary and not constrained —, or, in other words, free from the influence of fear or hope, applied to the prisoner's mind by a third person. Murphy v. State, 63 Ala. 1; Johnson v. State, 59 Ala. 37; Porter v. State, 55 Ala. 95; Clark's Man. Cr.Law, § 2480; Clark's Cr.Dig. § 326; 1 Brick.Dig. p. 509, § 859. It is no sufficient objection that they are elicited by mere adjurations to speak the truth, for this may be properly construed as advice to assert innocence, as well as to confess guilt. Aaron v. State, 37 Ala. 106; King's case, [King v. State], 40 Ala. 314; Whart.Cr.Ev. §§ 647, 672. Nor are confessions rendered inadmissible by the mere fact of being made to sheriffs, constables, jailors, or other officers of the law having the legal custody of the prisoner. Aaron's case, supra; Whart.Cr.Ev. §§ 647, 649. The true test is, whether, under all the surrounding circumstances, they have been induced by a threat or promise, express or implied, operating to produce in the mind of the prisoner apprehension of harm or hope of favor. If so, whether true or false, such confessions must be excluded from the consideration of the jury as having been procured by undue influence. Whart.Cr.Ev. § 673; Porter v. State, 55. Ala. 95. * * *
" 'So when a confession has been once obtained through theinfluence of hope or fear, confessions of a similar charactersubsequently made, as is uniformly held, may be inferred tohave originated from the same motive, and in the absence ofevidence to the contrary showing that the original influencehad ceased, or been dispelled, they are inadmissible.' Redd v. State, supra (69 Ala. 255); Note *Page 674 6 Am.St.Rep. 249." [Italics supplied.] Jackson v. State, supra.
The record on petitioner's appeal shows that on the trial of the petitioner the state was allowed to prove alleged confessions made by the defendant by Mayor Dismuke, Ben Dixon, G. M. Porter and Chief of Police E. C. Anderson on predicates that at the time the confession was made in their presence, commencing on July 3d at 3 o'clock A.M. and at other times subsequently thereto, no abuse was administered, no threats made nor promises of reward or other inducements were made or offered to induce the defendant to confess. While it appears that the attorney appointed by the court to represent the defendant on the trial strenuously cross-examined some of these witnesses as to what had previously occurred, the only admission that he obtained from any of them was from G. M. Porter, who gave the following answers to the following questions:
"Q. Had you been talking to him (the defendant) about this case? A. I had not.
"Q. Had anyone else to your knowledge been talking to him about this case? A. Not to my knowledge. I couldn't say. I know they had but I couldn't swear. * * *"
The witness Dismuke testified that the defendant when making his confession of the crime was friendly and was smiling.
Sergeant Wilkes of the Police Department was examined by the state, his testimony going to show that he was on duty at the time of defendant's arrest and in charge of police headquarters and jail wherein petitioner was incarcerated after his arrest, and that the prosecuting attorney came to the jail at the time when the prosecutrix was present and five Negro prisoners, including the petitioner, were brought in and lined up and carried into the office of the sergeant, apparently for the purpose of forcing the defendant to identify his alleged victim and give evidence against himself. Smith v. State, 247 Ala. 354, 24 So.2d 546. Sergeant Wilkes was not interrogated by the solicitor in respect to whether or not the defendant was abused, corporal punishment inflicted on him or whether he was made any offer of reward or hope of benefit to induce him to confess prior to the morning of July 3d at 3 o'clock A.M. On cross-examination by defendant's attorney, Wilkes (referring to defendant) testified that the occasion on which the case was broken was 3 o'clock in the morning of July 3, 1946, and defendant's attorney asked the witness:
"Had you been, let us say, interrogating this boy prior to that time? A. I talked to him previous, about 9 o'clock that night."
The witness was then asked:
"Q. And along about three he saw the light and decided he wanted to talk to you, is that right? (The solicitor objected to this question, was sustained and defendant's counsel withdrew the question.)
"Q. Was it about 3 o'clock in the morning when he decided to talk to you about this case? A. Yes, sir.
"Q. And that was when you realized that the case had been broken, was it? A. That is right. * * *"
The photographs show marks on the defendant's body on his right side, on his neck, on his thigh and across his breast. Two of the photographs were taken when he exposed the right side of his body to the camera; two exposed the front of his body; one exposed his back with the exception of his head from the ears up and his legs from the rump down. In the pictures taken from his exposed left side, the top of his head from the hairline up was not shown and the last picture (Exhibit 8) was taken with two men standing belly to belly with the prisoner, the expressions on their faces indicating hostility with the prisoner apparently forcing his face into a smile. This photograph gives character to the testimony of the witness Dismuke that when petitioner was brought into his presence at 3 o'clock in the morning of July 3d, he was smiling and very friendly. This, although he was at the time confessing his guilt of a crime that was calculated to send him to the electric chair.
The prisoner did not take the stand and testify in his own behalf. He could only become a competent witness at his own election, and by virtue of the statute his failure to so elect created no presumption "against him on his trial or other criminal proceedings." Code of 1940, Title 15, § 305. *Page 675
The petition considered in the light of the record shows a reasonable probability of the truth of the allegations in the petition and entitles petitioner to leave to seek relief in the trial court. Brown v. State, 32 Ala. App. 500, 27 So.2d 226; Chambers et al. v. State, 113 Fla. 786, 152 So. 437; Chambers v. State, 136 Fla. 568, 187 So. 156. If the petitioner in his application must affirm his innocence and make proof rebutting the implications of guilt arising from the judgment of conviction procured by use of coerced confessions before he can obtain leave to file a petition for the writ of error coram nobis to establish want of due process under the constitution, as the majority opinion holds, the guarantees of the constitution become as "sounding brass and tinkling cymbal" — mere platitudes — without force or substance and a defendant put on the "rack" and forced to confess his guilt is without remedy or hope. Chambers et al. v. State of Florida,309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716.
I am, therefore, of the opinion that leave should be granted to petitioner to file his application for writ of error coram nobis in the Circuit Court of Mobile County wherein he was tried, convicted and sentenced to death and respectfully dissent.