*1 рellant previously dismiss the' which was indictment raised in the tion cáse Alabama, by appellant 202, was be- heard the court while Swain v. 85 S. and ably reрresented by Messrs. Hall ing Ct. L.Ed.2d and case was the consideration, Billingsley. Nothing careful affirmed. new that After we can see or supported by competent the motion to is the trial court overruled evidence presented which quash Consequently, certain demurrers is here. as wеll as find we interposed. Arraignment assignment no merit in also of error 5. followed, Billingsley, Hall and Messrs. exception nothing fur- taking after an said It is our сonsidered the action regarding
ther court’s overrul- amply evidence sup sufficient request proceeded the motion but port judgment. the verdict and The trial independent grant appellant court to court did in denying appellant’s not err trial psychiatric court examination. quash motions to the indictment and to ex ex- "grant appellant’s request did for said clude the state’s nor was there procеedings continued amination. grant error court’s appel refusal to appellant requesting the with the court Likewise, lant the charge. affirmative plead. Appellant by pleaded not stated, for the reasons the trial did court insanity. guilty guilty by and not reason of denying apрellant’s err in motion for By agreement trial date parties, a new trial. set. The decision of the court is due lower be, is, affirmed. Appellant that under fed insists question eral a federal law the assertion of Affirmed. therefore, and, question, is itself a federal procedural be defeated state bars. cannot LAWSON, MERRILL and HAR- Although this a correct statement of the WOOD, JJ., concur. law, we know of no U. Court S. mandatory decision which makes question asserting
motion a federal
heard twice. appellant benefit of a quash
motion indictment on based grounds subsequent
same as his motion grounds dismiss indictment. new Eugene SQUARE, and, the trial were shown to court with Freddie Jr. motion, existing the first no known fed or eral or state constitutional was shown STATE Alabama. law, As a violated. matter of proper. trial court’s action was Ac 1 Div. 461. cordingly, find еrror in sustaining court’s action in mo state’s strike, appellant’s tion to to dismiss motion Nov. 1968. indictment. Rehearing Denied 1969. Appellant’s assignment of error 5 Rehearing Denied March Second by Negroes grand states service petit juries arbitrarily limited state County. officials evi Jefferson аppellant’s
dence fails to substantiate by ap-
claims. Similar issues here raised *2 statute, appeal
Under the automatic appeals from conviction for first degree murder with sentence death. of
Counsel for defendant raise the admitting court erred in over objection, alleged defendant’s con- police fession made of- ficers after police he had been A arrested. officer warning testified that a to his- rights constitutional against self-incrimina- given tion was to defendant as follows: was it What was read your presence? him in copy just I have a it of one like 'Up top was read him. at the says, your rights, date, place, and time. you any questions you Before ask your rights. must understand You have Coleman, B. Kahn and Gordon Irwin W. Anything you remain silent. Jr., Mobile, appellant. fоr against you can be used in Court. You have the to talk to a you any ques- advice before we ask tions, you during and to him with have questioning. You hаve this advice and of even you cannot afford to hire one. haveWe giving you no but of you wish, If wish now without present, you stop have the an- swering questions any at time. You also Gallion, Atty. Gen., MacDonald and Da- stop answering have Atty. vid Clark, Gen., W. Asst. lawyer. time until talk to Waiver. State. rights my read the statement I have my
shown I understand what above. willing ques- are. I am to answer tions I and make do lawyer. I understand and know want doing. promises what I am or threats pressure me and have made to against me. been used kind has deprived his freedom the au- time wise with the signed and It is witnessed subjеcted thorities and date. against self-incrimination privilege to him in read “Q. All safeguards must jeopardized. Procedural Nocky? your presence, privilege, and employed protect the *3 fully are unless effective means other “A. Twice. adopted notify person to it? “Q. appear Did he to understand that the exercise silence and assure to honored, scrupulously be of the will Yes, “A. sir. required. He following measures are at- demand for an Did make he a questioning prior warned must be to torney ? silent, remain that he has the to against says anything thаt can used be No, sir.” law, that he has the him in a court of warning is says attorney, the so-called Defendant to of an that is not advised defeсtive in if afford an he cannot lawyer provide appointed prior that the state will him to to pres- Opportunity if questioning resent and advise defendant and to be he so desires. prior questioning de- afforded ent at and to the if must be to exercise these lawyer at that time. Af- interrogation. desires a throughout him to given, warnings ter such well taken. Defendant’s him, the in- opportunity such afforded only does warning read to dеfendant not intelligently may knowingly and dividual the state will not to defendant agree rights and waive these any ques- provide prior him un- questions But or makе tioning, but does state: warnings and waiver less and until such prosecution at are demonstrated “ giv- . . . . We have no trial, as a result no evidence obtained ing you be but one will against him.” interrogation can used be v. Ari- (Emphasis Supplied) Miranda (Em- to Court.....” zona, 436, 86 S.Ct. phasis Supplied) A.L.R.3d 16 L.Ed.2d 10 1009, and 1014. suggests italicized clause provided only goes will be States, Recently, in Lathers v. United negates court and the idea that a 524, 535, Cir., court said: F.2d any question- “prior will ing.” warning must effective- “The Miranda Court of the United States ly convey accused that he is en-
has said: government-furnished titled to “ Thus, . . . . need for coun- subject are and now. If the words here protect privi- sel to Fifth Amendment counsel will such construction lege comprehends merely future, only Miranda be available consult with counsel obeyed.....” has not been present during but also have counsel any questioning if the defendant so opinion, extending this further Without sires. defend- hold un- insufficient
ant in the instant case was in ad- and the court erred der Miranda summarize, “To that whеn an we hold mitting the custody confession. individual is taken or other- probably not arise Court.” will Other situation is different trial. instant another case. rеmanded. Reversed Opinion extended. Application overruled.
LIVINGSTON, J.,C. and HARWOOD KOHN, JJ., concur. All the concur. Justices REHEARING ON *4 application rehearing,
In brief on State, Ala.
state cites McCants v.
justices
of this
So.2d
where six
court,
writer, agreed
including the
Phyllis
WALKER,
Russo
as Admrx.
confession had been admitted into evidence
against a defendant without error.
SOUTHERN TRUCKING CORPORATION
McCants,
warning given
In
et al.
confessing
sub-
was
stantially same as the in the and contained the fol- instant case
lowing statement:
“ ‘ * * * We have no you
giving but one will be if and ’ ” * * * when
(282 page page Ala. at So.2d
878) case,
In the instant in- was
digent and represented by court-
appointed counsel in court and in McCants,
this court. In indigent. indicates that on August 20th, defendant’s mother had told
Detective Bell that she had contacted represent defendant, who did both appeal, trial and on and hаd left a
fee at attorney’s office. The confession August
was made on 22nd, after the warn- again been read to defendant and signed
after he had the waiver when mem- family bers of his present. His sis- signed
ter a as witness. Where defendant’s
family already employed counsel to him,
resent scarcely could
mislead the statement
would be “if go