After concurring in the opinions and judgments reversing the judgment of the Court of Appeals in these cases, I became doubtful of the correctness of the judgments of reversal entered by this court and therefore had these cases placed on rehearing in order that I might have the benefit of further study and deliberation.
As a result of this further study and deliberation, I have reached the conclusion that the judgments of affirmance entered by the Court of Appeals without opinions should be affirmed.
My reasons therefor are as follows:
The opinion of this court, prepared by Judge COLEMAN, relies heavily upon the majority opinion of the United States Supreme Court in Douglas v. People of State of California,372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811.
The factual situation in Douglas is so variant from the facts present in the cases now under consideration as to renderDouglas inapplicable.
In Douglas the appellant was jointly tried with a co-defendant on an information charging the two defendants with 13 felonies, which included robbery, assault with a deadly weapon, and assault with intent to commit murder. A jury found the defendants guilty of all 13 charges.
The majority opinion in Douglas recites at its beginning that the public defender at the start of the trial moved for a continuance stating that "the case was very complicated." This motion for a continuance was denied and a full trial was apparently had resulting in a verdict of guilty under all 13 charges.
In the two cases now before us for review the appellant Caton, being an indigent, was provided with counsel.
At his arraignment in each respective case, accompanied by counsel, he entered a plea of not guilty.
Some two and a half months after his arraignment in each case, and as each case was called for trial, the appellant, accompanied and represented by counsel, withdrew his plea of not guilty, waived a jury trial, and entered a plea of guilty in each case.
After allocutus the court imposed a sentence of two years in each case.
Thereafter the appellant duly perfected an appeal in each case to the Court of Appeals. The appeals were of course upon records proper, no evidence having been received. That is, each record contained copies of the indictment, arraignment, and judgment which recited the withdrawal of the plea of not guilty, and the defendant's plea of guilty.
The indictment, arraignment, and judgment in each case are in due and proper form, and the sentences imposed are well within the limits fixed by statute for the respective offenses. No rational attack *Page 492 could be made upon any portion of the record in either case now before us.
The basis of the reasoning of the majority of the Justices inDouglas appears to be that unless an indigent is furnished counsel on appeal, there can be no equal justice since in the kind of appeal such indigent appellant would enjoy would depend on the money he has. For, the court observes, "The indigent,where the record is unclear or the errors hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal." (Emphasis ours.)
By the same token, if a record is an uncomplicated record proper, and it is obvious that no error infects the record, and that no point could be validly or sensibly presented by the most competent counsel, then to go through the form of having counsel appointed on appeal in such a case is not only meaningless but amounts to merely an exercise in utter futility.
It is common knowledge that often appeals are perfected after a plea of guilty, and that usually such appeals are merely to delay the ultimate and inevitable imprisonment of the appellant. If an appellant has the means to afford this useless extravagance such a course is his right. Whether represented by counsel for not, the result necessarily would be an affirmance of the judgment. If an indigent desires to appeal, he has the same right in perfecting an appeal as if he were rich.
We know of no constitutional basis, however, requiring that the state be compelled to furnish him with counsel and to pay the costs thereof when, at the outset, it is perfectly clear and obvious from an uncomplicated record, that the furnishing of counsel would be only a gesture pure and simple. We can read no invidious distinction between justice accorded the rich and that accorded the poor in such a situation.
Under the provisions of Section 318(4), Title 15, Code of Alabama 1940, set out in full in the original opinion, the Presiding Judge of the court to which an appeal is taken has the authority to appoint counsel to assist an indigent on appeal, in the event a trial court fails to appoint such counsel, and in the event it becomes necessary to provide such counsel.
Implicit in the affirmance by the Court of Appeals of the judgments in the present cases is that the Presiding Judge of that court, examining the two records, concluded, and correctly so, that no attorney could have presented anything in argument and brief that would not amount to trifling with his own intelligence and the intelligence of any reviewing court. No attorney should be forced into such a position merely for the sake of futile form.
Section 389, Title 15, Code of Alabama 1940, provides that in appeals in criminal cases the appellate court to which an appeal is taken must consider all questions apparent on the record or reserved by bill of exceptions (now transcript of the record which includes a transcript of the evidence, if evidence be taken) and must render such judgment as the law requires.
This codal provision in and of itself would strongly tend to protect all the constitutional rights of an appellant. This court and the Court of Appeals have through the years conscientiously met the duty cast upon them by the requirements of this statute, whether or no counsel appear for the appellant and whether or no briefs be filed in his behalf.
Admittedly under recent federal decisions it is doubtful that the provisions of Section 389 are now sufficient in all cases, and counsel must be furnished an indigent appellant "where the record is unclear or the errors are hidden." We take this to mean that where an accused pleads not guilty, and a trial results, then there is a possibility of an unclear record or of hidden errors, and in all such cases *Page 493 the indigent appellant should be furnished counsel.
In this light, we have no quarrel with the doctrine enunciated in Douglas, involving as it did a trial on a plea of not guilty to 13 charges, several of which were of a serious nature. There the trial was a complicated one, and undoubtedly the ruling of the court must have been often invoked. This was a fertile ground for the production of hidden errors, and the appellant would be in real need of counsel on appeal and undoubtedly counsel in such a situation would be of assistance to the reviewing court.
But where, as here, the judgments were entered on pleas ofguilty by a defendant who had the benefit of counsel in every stage of the proceedings below with no exceptions being taken, and where no evidence was introduced, and the appeal record consists only of an uncomplicated record proper, which is in every way in due and legal form, it is the view of the writer that such factual situation entirely removes the consideration of the present appeal from the influence of Douglas in the aspect of the requirement of counsel for an indigent appellant. "Out of the facts the law arises."
I would grant the rehearing, and affirm the judgments of the Court of Appeals.
Rehearing granted; judgment of reversal set aside; judgment of Court of Appeals affirmed.
LIVINGSTON, C. J., and SIMPSON, GOODWYN, and MERRILL, JJ., concur. cur.
COLEMAN, J., adheres to his original opinion and dissents from the opinion on rehearing.
LAWSON, J., joins with COLEMAN, J., in his dissent.