Swain v. State

274 So. 2d 305, 290 Ala. 123, 1973 Ala. LEXIS 1286

• Court: Supreme Court of Alabama
• Decided: March 8, 1973
• Docket: 7 Div. 796
• Status: Published

Opinions

ON REMANDMENT FROM THE SUPREME COURT OF THE UNITED STATES

BLOODWORTH, Justice.

Robert Swain was convicted of rape and sentenced to death by electrocution by a jury in Talladega County, Alabama. Judgment and sentence imposing the death penalty were entered accordingly.

This court affirmed the conviction and sentence in Swain v. State, 275 Ala. 508, 156 So.2d 368 (1963), rehearing denied September 26, 1963.

The Supreme Court of the United States affirmed in 1965. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, rehearing denied 381 U.S. 921, 85 S.Ct. 1528, 14 L.Ed.2d 442.

Swain’s application for writ of error coram nobis was denied by the Circuit Court of Talladega County, the trial court. This court affirmed. Swain v. State, 285 Ala. 292, 231 So.2d 737 (1970).

Swain then applied to the United States Supreme Court for certiorari. Certiorari was granted.

On June 29, 1972, the United States Supreme Court, 408 U.S. 936, 92 S.Ct. 2860, 33 L.Ed.2d 753, entered an order which vacated the judgment, insofar as it leaves undisturbed the death penalty imposed and remanded the case to this court for further proceedings. We received this order on July 26, 1972.

The question presented in this case is identical to that presented in Wade Hubbard v. State of Alabama [1973] 290 Ala. 118, 274 So.2d 298, decided by the court this day, except that upon a conviction for rape the punishment is death or imprisonment in the penitentiary for not less than 10 years. Title 14, § 395, Code of Alabama 1940.

The dissenting justices would have this court order a new trial for this defendant on the issue of punishment only. In effect, they contend that this solution is compelled because the United States Supreme Court mandated out the death sentence, and they reason the punishment to be imposed by a jury can vary from a minimum of ten years up to any number of years imprisonment in the penitentiary, and we cannot know what sentence a jury might impose.

No statutory nor common law power exists in Alabama authorizing such a bifurcated jury trial. Any attempt to construct such a system (as the dissent suggests), novel to our jurisprudence, would create problems well nigh insoluble either by this court' or by the trial court to which we might remand the matter.

Is it not reasonable and logical to assume that if the jury (which tried this defendant and imposed the most extreme penalty of all — death) had been instructed that the death penalty would be an impermissible punishment, then the jury would have imposed the next most severe penalty?

In Hubbard, we quoted from the case of Anderson v. State, Fla., 267 So.2d 8:

“We are aware of the many problems involved, when it is necessary to transport a large number of convicted murderers from the State prison to the trial court for the purpose of sentence. The safety of the law-abiding citizen is a matter of paramount concern to the Court. Also many hours of manpower would be consumed by law enforcement officers in transporting the prisoners. Some local jail facilities are crowded and inadequate. Since the death sentence has been outlawed, there is a greater possibility of murder for the sake of escape, particularly when the penalty to be imposed for the taking of an additional human life can be no greater than that previously imposed by the Court. The above factors are sufficient to create an exception to Rule 3.-180, F.R.Cr.P., requiring the presence of the defendants at sentencing. Their absence deprives them of no rights.

“Every court has inherent powers to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, subject to, or not in conflict with valid existing laws and constitutional provisions. See 5 F.L.P., Courts, § 14, and cases cited.

“Under the circumstances of these particular cases, it is our opinion that we should correct the illegal sentences previously imposed without returning the prisoners to the trial court.”

It is our judgment that all of these reasons and others compel the solution we reach, which is to correct the sentence to impose a life sentence in lieu of the death penalty.

This is the conclusion reached by the Louisiana Supreme Court in State v. Williams, 263 La. 284, 268 So.2d 227; the Georgia Supreme Court in Sullivan v. State, [M.S.1972] Ga., 194 S.E.2d 410; and the North Carolina Supreme Court in State v. Waddell, 282 N.C. 431, 194 S.E.2d 19.

We agree with the Louisiana Supreme Court, which held in State v. Williams, supra:

“We construe the Mandate of the United, States Supreme Court to require the imposition of a sentence other than death. * * *”

Thus, the sentence of death imposed upon the defendant, Robert Swain, is vacated and set aside. In lieu and instead thereof, the sentence is corrected to provide that the said Robert Swain be imprisoned in the State penitentiary for the term of his natural life. The clerk of this court shall furnish a certified copy of this order to the clerk of the Circuit Court of Talladega County, and the clerk of that court shall issue a commitment in this case based upon this sentence of life imprisonment and shall forward the commitment to the Board of Corrections.

A copy of this opinion shall also be transmitted to the Court of Criminal Appeals because that court acquired jurisdiction of criminal matters after the instant case fyas originally decided by this court.

It follows that except as to the death sentence, the judgment of the circuit court is affirmed. With regard to the death sentence, the judgment of the circuit court is modified and the sentence is reduced to life imprisonment, and as modified, the judgment is affirmed.

Modified and affirmed.

MERRILL, HARWOOD, MADDOX and JONES, JJ., concur. HEFLIN, C. J., and COLEMAN, McCALL and FAULKNER, JJ., dissent.