Marcus v. State

280 So. 2d 793 (1973)

In re Jerry MARCUS
v.
STATE of Alabama.
Ex parte STATE of Alabama, ex rel. ATTORNEY GENERAL.

SC 431.

Supreme Court of Alabama.

July 12, 1973.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

No brief for respondent.

BLOODWORTH, Justice.

Petition of the State by its Attorney General for certiorari to the Court of Criminal Appeals to review and revise the judgment and decision in Marcus v. State, 50 Ala. App. 526, 280 So. 2d 786 on grounds that the decision is in conflict with prior decisions of this court, viz: McCants v. State, 282 Ala. 397, 211 So. 2d 877 (1968); Embrey v. State, 283 Ala. 110, 214 So. 2d 567 (1968); and Braggs v. State, 283 Ala. 570, 219 So. 2d 396 (1969).

The court is of the opinion that the same is due to be denied because there is no conflict with these three prior decisions of our court. Moreover, the petition fails to quote "that part of the prior decision of this court with which the conflict is alleged."

We agree with the Court of Criminal Appeals that the predicate laid under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) for the admission of the defendant's confession is inadequate because it does not warn defendant "that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Miranda v. Arizona, supra; Square v. State, 283 Ala. 548, 219 So. 2d 377; Wilson v. State, 44 Ala. App. 570, 216 So. 2d 741; Dueitt v. State, 44 Ala.App. 22, 201 So. 2d 405. We express no opinion as to other aspects of the decision.

It is thus that we agree with the Court of Criminal Appeals that the case is due to be reversed and remanded.

The writ is due to be denied.

Writ denied.

HEFLIN, C. J., and COLEMAN, McCALL and JONES, JJ., concur.