On Rehearing after Remandment
The Attorney General would have us. withdraw our last opinion and judgment for two reasons.
First j he would have us treat Davis, v. Holman, op. cit., supra, as being solely Davis’s case. The denial of certiorari by the Supreme Court of the United States is; not a decision on the merits. See House v. Mayo, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739; Louisville & N. R. Co. v. Bayles, 275 Ala. 206, 153 So.2d 639.
With this generalization we agree in theory. Practically, however, we know that the Fifth Circuit has considered the law of case in its decision in Davis.
Though the Attorney General may want to tilt at windmills, we prefer a less quixotic; *315role. We see no reason why the only adjustments in our legal structure must come from on high.
Along with Bland and Davis, we think the operative law — which opens or shuts prison doors — is settled. Morrison v. State, 258 Ala. 410, 63 So.2d 346. The taxpayers should be spared the cost of further jousting.
Second, the State suggests — dehors the record — that Strickland completed his sentence April 3, 1966, and dismissed an action for habeas corpus in the United States District Court for the Middle District of Alabama.
There are two reasons to reject this ground. One, review of coram nobis on appeal is on the basis of the record annexed to the judgment under review.
Strickland first filed in July, 1963, and had a hearing in March, 1964. Hence, his release in 1966 is not before this appellate court.
Two, the Attorney General mistakes the nature and purpose of the writ of error coram nobis..
Analyzing the result of a judgment of conviction beyond the immediate consequence of incarceration (or mulcting or both), we note the following incidental consequences :
1. The loss of political and civil rights, •e. g.,
a) Code 1940, T. 17, § 16, provides:
“Any person who is disqualified from voting by reason of conviction of any of the offenses mentioned in section 15 of this title, except treason and impeachment, whether the conviction was had in a state or federal court, and who has been pardoned, may be restored to his ■or her citizenship with right to vote by the state board of pardons and paroles when specifically expressed in the par■don.”
b) Constitution 1901, § 60, provides:
“No person convicted of embezzlement of the public money, bribery, perjury, or other infamous crime, shall be eligible to the legislature, or capable of holding any office of trust or profit in this state.”
2. The legal consequence of a pardon’s implying guilt, whereas coram nobis (at least where there is a breach of right to counsel) can lead to expunging conviction, ab initio. Mason v. State, 39 Ala.App. 1, 103 So.2d 337; Lyons v. Goldstein, 290 N.Y. 19, 47 N.E.2d 425, 146 A.L.R. 1422; State v. Lindsey, 231 Ind. 126, 106 N.E. 2d 230.
3. Restrictive statutes and ordinances applying to ex-convicts, e. g., Code 1940, T. 14, § 174. Mason, supra, aff’d 267 Ala. 507, 103 So.2d 341 (pardon is forgiving, not forgetting) ; Lambert v. People of State of California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228; Birmingham City Code §§ 42-1-42-6, incl.; Montgomery City Code, §§ 33-1-33-6, incl.
4. Punishment for some crimes can depend on whether or not the conviction is a second or subsequent one for the same offense, e. g., liquor and narcotics offenses.
5. Multiple or habitual offender laws in some states adapt the principle of geometric progression to punishment of recidivists. See People v. Richetti, 302 N.Y. 290, 97 N.E.2d 908.
We think United States v. Morgan, 346 U. S. 502, 74 S.Ct. 247, 98 L.Ed. 248 is a sound expression of the ramifications of coram nobis as we have received it at common law. There the lower court, 2 Cir., 202 F.2d 67, per Augustus Hand, J., said:
“In 1939 Robert Morgan pleaded guilty and was sentenced in the Northern District of New York to four years imprisonment on each of the eight counts in an indictment involving the theft of three letters from the United States mail. He served the time under these sentences, *316which ran concurrently. In 1950 he was convicted in the County Court of Onondaga County, New York, and was sentenced as a second offender to serve from seven to ten years. New York Penal Law § 1941. He is currently confined in Attica Prison, Attica, New York, pursuant to that sentence. On February 11, 1952, application was made to the District Court for the Northern District of New York for a common law writ of error coram nobis, seeking an order vacating and setting aside his conviction in that court on the ground that he was not given the assistance of counsel and did not waive his constitutional right to such assistance. If his federal conviction were set aside he would presumably be entitled to be resentenced in the New York court as a first offender. * * *
“ * * * If Morgan can establish that he was deprived of his common law right to be represented by counsel at the trial in the Northern District and he in no way waived that right, there would be a proper case for allowing a writ of error coram nobis, since such a denial is an error of fundamental character rendering the trial invalid. See United States v. Mayer, 235 U.S. 55, 35 S.Ct. 16, 59 L.Ed. 129. Judge Brennan’s order dismissing his application should accordingly be reversed.”
The Supreme Court affirmed, Reed, J., concluding (346 U.S. 502, 512, 74 S.Ct. 247, 253) :
“Although the term has been served, the results of the conviction may persist. Subsequent convictions may carry heavier penalties, civil rights may be affected. As the power to remedy an invalid sentence exists, we think, respondent is entitled to an opportunity to attempt to show that this conviction was invalid.”
See also Anno. 1 L.Ed.2d 1876, § 7, and cases there cited.
We think the reasons ascribed in Morgan supra, outweigh the conclusory opinion in Browning v. State, Okl.Cr.App., 337 P.2d 755, particularly since the cases cited in the Browning opinion afford but tenuous parallels.
State v. Huffman, 207 Or. 372, 297 P. 2d 831, by a divided court, seems to have been reconsidered in State v. Endsley, 214 Or. 537, 331 P.2d 338. See Greene, The Oregon Approach to Post Conviction Relief, 27 Ohio State Law Journal 274, 276-277.
The general line of reasoning in Huffman is in accord with that in Morgan, though some difficulty presented itself to the Oregon court as to the practicality of the sort of judgment which might be entered in the trial court.
The Florida District Court of Appeals, in McCormick v. State, 164 So.2d 557, recognizes the rule of the Morgan case in coram nobis though not applying it under Criminal Rule 1, F.S.A., ch. 924, Appendix.
We are in no position to speculate as to what occurs when this cause returns to the Tuscaloosa Circuit Court.
The appellant may dismiss his suit for the writ. Should he persist, then he is due to be rearraigned. State ex rel. Lopez v. Killigrew, 202 Ind. 397, 174 N.E. 808, 74 A.L.R. 631. If he then pleads not guilty and is acquitted, he stands justified as wholly innocent of the charge.
Should he be reconvicted, it would seem that on allocutus (and before being re-sentenced) he should, as in the case of pardon, inform the court that he has obeyed and endured its former sentence and been discharged from custody of the penitentiary.. This is in the nature of a motion in arrest of judgment, iv. Bl.Com. 375; Clellans v. Commonwealth, 8 Barr, Pa., 223; Sanders v. State, 129 Ala. 69, 29 So. 841.
On principles of elementary justice, we do not consider that upon such reconviction that the court’s judgment could extend beyond a notation of the prior con*317finement and execution for costs, if any, as appropriate.
The opinion of the Supreme Court of Indiana in State ex rel. Lopez v. Killigrew, supra, is apropos:
“We see no reason why one who obtains a new trial by a writ of error coram nobis does not waive his constitutional protection against second jeopardy just as effectively as one who obtains a new trial by the more common procedure. Nor do we think it is material that the relator in this case has paid the fine of $10 and served the thirty days in jail. In Jeffries v. State (1867), 40 Ala. 381, the defendants secured a reversal of sentence and judgment, but after they had served several months of their term of imprisonment. When arraigned on the second trial they pleaded former conviction. After stating the general rule that one who procures a reversal of his conviction ‘waives his constitutional immunity against being a second time placed in jeopardy,’ Walker, C. J., continues:
“ ‘The fact that the prisoner had suffered a portion of the prescribed imprisonment, before the reversal of this case, cannot change the principle. The failure of the court to delay the punishment, pending the proceedings in the supreme court, may give the prisoner a strong claim on the executive clemency, for a reduction of the period of imprisonment; but it does not present any legal bar to another trial, after he has procured a reversal.’
“Since we conclude that the legal consequence of granting a writ of error coram nobis is to place ‘the parties in the same position as if no trial had been had,’ it follows that if the criminal court of Lake County, after a hearing on the merits of relator’s petition, should grant a writ of error coram nobis, the relator will not be able, in the new trial, to get any advantage from the fact that he has discharged the judgment of the original trial. Neither the law, nor the relator by his conduct, can wipe out the fact that he has been tried and convicted, and has suffered the punishment imposed as a result of his conviction. But there is no inherent difficulty in avoiding or changing the legal consequences that ordinarily attend that fact. The state must accept the legal consequence that one who has suffered punishment, even under a void judgment, cannot be compelled to undergo a second punishment for the same offense. But there is no greater legal difficulty in allowing the relator to avoid the legal consequences of having suffered punishment than there would have been in allowing him to avoid the legal consequences of having been tried, convicted, and sentenced. In both cases the avoidance of legal consequences would rest upon the desire and consent of the relator, and he must be considered as consenting to an avoidance of all legal consequences of his former trial, including the legal consequences of having discharged the judgment. We are not unfamiliar with situations in which one may, in fact, suffer punishment twice for the same act. In many states one who manufactures intoxicating liquor is subject to prosecution and punishment both by the state and by the United States. In this situation we say that by reason of our dual form of government the accused has committed two offenses, one against each sovereignty, and consequently he is not punished twice for the same offense. This, however, is just saying that a second punishment in fact may be a first punishment in law. We find no difficulty in deciding that the relator, if put on trial a second time, cannot avail himself of the fact that he has discharged the judgment of the original trial.
“The suggestion of the defendants that the relator waived any right he might *318otherwise have had to open up the original cause by paying the $10 fine and by serving the thirty days’ imprisonment is not tenable. The defendants do not insist that the mere paying of the fine and the serving of the term constituted a waiver, but do insist that these acts, taken in connection with the fact that the court could have imposed a larger fine and a longer term of imprisonment, amounted to an acceptance of a benefit under the judgment and constituted a waiver. If the relator had accepted a remission of the fine, or a suspension of the part of the sentence imposing imprisonment, there would be merit in the defendants’ contention. The cases cited by the defendants involve the acceptance of a benefit under the judgment in the sense of an actual mitigation of the penalty imposed by the judgment.
"This somewhat extended discussion of the legal effect of granting a writ [of error] coram nobis must not be understood as deciding, or even intimating, that the relator’s petition entitles him to the writ and its attendant relief. We are deciding: (1) That the relator is entitled, as a matter of right, to file his petition in, and have the same passed on by, the criminal court of Lake County; and (2) that the writ of mandate will not be ineffectual and nugatory, in view of our preliminary conclusions : (a) that a new trial of the relator, if granted, will not present a moot case; (b) that the relator cannot, after obtaining a new trial by writ [of error] coram nobis, interpose a plea of former jeopardy, or former punishment; (c) that the criminal court of Lake County will not be without jurisdiction to retry the original cause; (d) that relator has not waived any right he may otherwise have to a retrial of the original cause by discharging the judgment in the original cause. * * * ”
This is not a case where laches would apply.
Application overruled.