Heathcock v. State

179 So. 2d 93, 170 So. 2d 93, 43 Ala. App. 26, 1965 Ala. App. LEXIS 287

• Court: Alabama Court of Appeals
• Decided: August 17, 1965
• Status: Published

Opinion

CATES, Judge.

This appeal from denial of coram nobis' was submitted here February 18, 1965.

Heathcock was indicted for the carnal knowledge of a girl under twelve, his own daughter. Code 1940, T. 14, § 398.

The original minutes show that, attended by counsel on trial, he was found guilty. The record shows the jury fixed his punishment at twenty years in the penitentiary.

The only question presented on the cor-am nobis trial was whether Heathcock did or did not agree to a plea of guilty in open court.

The evidence was conflicting. Undisput■edly, as a technicality, Heathcock did not ■open his mouth to so plead. However, his then attorney testified, as did others, that Heathcock after prolonged negotiations agreed to the change of plea on the twenty-year sentence.

The settlement was given to the trial judge, outlined by him and counsel for the State and defense to the jury, the jury ratified with an explicit verdict of both guilt and punishment. The trial judge found Heathcock guilty, and after allocutus pronounced sentence.

That he stood by and let his attorney so demean himself in his behalf, entitled the trial judge to find that, on coram nobis, Heathcock was estopped- — in'the absence of a clear and convincing explanation. Invited error was seldom so blatant.

This record shows only a choice of credit: the State or Heathcock. Since he had the burden, we cannot say his testimony unbalanced the probabilities of the State’s counter evidence.

The judgment below is

Affirmed.