State Ex Rel. Woods v. Thrower , 272 Ala. 344 ( 1961 )

GOODWYN, Justice

(dissenting).

I concurred in the opinion on original deliverance but, after further consideration on rehearing, I am convinced my concurrence was laid in error.

In deciding the case, I think it is necessary to consider only § 60, Constitution 1901, which provides, in pertinent part, as follows:

“No person convicted of * * * infamous crime, shall be * * * capable of holding any office of trust or profit in this state.” [Emphasis supplied.]

It is my view that the nature of the plea, whether it be one of “guilty”, “not guilty”, or “nolo contendere”, including the entering of a plea of “not guilty” when the accused stands mute, is immaterial in determining whether there has been a “conviction” within the meaning of the constitutional proscription. It is the fact of being convicted which the Constitution lays down as a ground for disqualification and not the nature of the plea made by the accused. In view of the obvious purpose and unrestricted wording of the disqualifying provision I do not think we would be warranted in saying it is applicable to convictions had on one kind of a plea and not applicable to convictions had on another kind. The Constitution says that no person who is “convicted” of an infamous crime is capable of holding office. And what is the meaning of the word “convicted” ? It means, I think, a final judgment in a criminal trial that the accused is guilty as charged. Such was the judgment held to be inadmissible in evidence in this case.

It appears that the holding of the majority is based principally on the cases of Fidelity-Phenix Fire Ins. Co. of New York v. Murphy, 231 Ala. 680, 166 So. 604, and Wright v. State, 38 Ala.App. 64, 79 So.2d 66, certiorari denied 262 Ala. 420, 79 So. 2d 74. The Court of Appeals in the Wright case followed the Murphy case, which was controlling on that court. Code 1940, Tit. 13, § 95. The question of present concern was not dealt with in the certiorari proceeding. So, in reality the Murphy case is the principal authority relied on by the majority. Involved in that case was a statute prescribing the disqualification as witness- . es of persons convicted of certain criminal offenses. In the case now before us, there is not only a statute involved but also a provision of the Constitution. This is the first time the constitutional provision has been before this court on the question here presented. I would either restrict what was said in the Murphy case as being applicable only to the statute there under consideration or, preferably, would overrule what was there said on the question before us as not being supported by the better-reasoned authorities.

The position taken in this dissent is amply supported by respectable authorities. See: Ballurio v. Castellini, 1954, 29 N.J. Super. 383, 102 A.2d 662; Neibling v. Terry, 1944, 352 Mo. 396, 177 S.W.2d 502, 152 A.L.R. 249; State ex rel. McElliott v. Fouselc, 1932, 91 Mont. 457, 8 P.2d 795, 81 A.L.R. 1099; 43 Am.Jur., Public Officers,. § 200, p. 44; Annotation 81 A.L.R. 1100; Annotation 152 A.L.R. 253; Annotation 71 A.L.R.2d 593, 598.

I would grant the application for rehearing.