Ex Parte Aaron ( 1963 )

GOODWYN, Justice.

Petition of Drewey Aaron, Jr., a Negro, for leave to file in the circuit court of Montgomery County a petition - for a writ oí error coram nobis to review and vacate a judgment of that court sentencing him to death for the rape of a white woman.

On July 17, 1959, Aaron was indicted for this offense by a Montgomery County grand jury. Iiis trial by a petit jury resulted in a verdict of guilty, with death being fixed as his punishment. Judgment thereon was rendered on July 29, 1959. Aaron’s motion for a new trial was overruled on September 21, 1959. On appeal here, the judgment was reversed on July 14, 1960, and the cause remanded to the circuit court for another trial. Aaron v. State, 271 Ala. 70, 122 So.2d 360.

On Aaron’s retrial the verdict was the same.as on the first trial, and judgment thereon was rendered on November 29, 1960. His motion for a new trial was overruled on January 24, 1961. On appeal here, the judgment was affirmed on September 28, 1961, and Aaron’s application for rehearing was denied on April 5, 1962. Aaron v. State, 273 Ala. 337, 139 So.2d 309. His petition fror certiorari was denied by the Supreme Court of the United States on October 8, 1962, Aaron, petitioner, v. Alabama, 371 U.S. 846, 83 S.Ct. 81, 9 L.Ed.2d 82 (1962).

On December 3, 1962, the original petition now before us was filed here. An amended petition was filed on January 14, 1963, pursuant to an extension of time granted at Aaron’s request. The propriety of coram nobis is based on allegations that both the grand jury and the trial jury were illegally constituted, thus denying to petitioner “the due process of law and the equal protection of the laws guaranteed by the Constitution and laws of the State of Alabama and of the United States.”

Throughout both trials petitioner was represented by two Negro attorneys, neither of whom was court appointed and one of whom was a practicing lawyer in Montgomery County, where the trials were held. The records of the two trials do not disclose the source of their employment, but there is no indication or suggestion that their representation of petitioner-was lacking in diligence on their part in any way,, nor that petitioner was other than completely satisfied with their services as his attorneys. Indeed, they were successful in securing a reversal of petitioner’s first conviction, and tire record in the second trial discloses their able representation of petitioner.

At no time, and in no way, prior to the filing of the present petition, did the petitioner or his counsel'question the composition of the grand jury or either of the petit juries. In fact, according to the affidavit of the trial judge incorporated in the motion to dismiss the petition, the defendant’s attorneys were asked by the judge, prior to defendant’s arraignment, “in the presence of the defendant, whether they intended to file motions or pleas attacking either the Grand Jury or the Petit Jury venire because of the racial makeup of such Grand Jury or Petit Jury venire,” and that the attorneys, in defendant’s presence, advised the judge “that they did not intend to attack either the Grand Jury or the Petit Jury Venire on racial grounds.” In this connection, the trial judge’s affidavit also contains the following statements, viz: “I made this inquiry of the defendant and his attorneys because I am a member of the Montgomery County Board of Jury Supervisors and would have had to recuse myself should an attack be made on the jury system because of racial discrimination. The inquiry which I directed to the defendant’s attorneys and the defendant was made in open -Court at the conclusion of rulings on motions, appearing in the records of the first Aaron trial, and prior to actual arraignment.”

On authority of Ex parte Seals, 271 Ala. 622, 126 So.2d 474, cert. den. 366 U.S. 954, 81 S.Ct. 1909, 6 L.Ed.2d 1246, the petition is due to be denied.

Petition denied.

LIVINGSTON, C. J., and MERRILL and COLEMAN, JJ., concur. LAWSON and SIMPSON, JJ., dissent)