Opinion
6 Div. 582.
March 3, 1953. Rehearing Denied March 24, 1953.
Appeal from the Circuit Court, Jefferson County, Alta L. King, J.
Kelvie Applebaum, Chas. McVea and M.B. Grace, Birmingham, for appellant.
The right of a defendant on trial for burglary and grand larceny, who is ignorant as to procedure, evidence and principles of law is deprived of due process and a fair trial when the trial court neglects to see that he is afforded counsel. If he is not able to employ counsel, it is the duty of the court to appoint counsel who is qualified and experienced. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; Peagler v. State, 110 Ala. 11, 20 So. 363; Bramlett v. State, 21 Ala. App. 334, 109 So. 116; Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686; Const.1901, § 6; U.S.C.A. Const. Amend. 14. Any separation of the jury after trial is entered upon creates cause for a reversal, unless the State shows affirmatively that defendant was not injured thereby. Mitchell v. State, 244 Ala. 503, 14 So.2d 132; Seekers v. State, 35 Ala. App. 40, 44 So.2d 628.
Si Garrett, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the State.
A trial court need only appoint counsel for a defendant who is indicted for a capital offense who is unable to employ counsel. Code 1940, Tit. 15, § 318; Mackreth v. Wilson, 31 Ala. App. 191, 15 So.2d 112; Id., 244 Ala. 649, 15 So.2d 114; Cook v. State, 32 Ala. App. 168, 22 So.2d. 924; Id., 247 Ala. 153, 22 So.2d 925; Smith v. State, 34 Ala. App. 194, 38 So.2d 287; Gilchrist v. State, 234 Ala. 73, 173 So. 651; Green v. State, 27 Ala. App. 209, 170 So. 72; Id., 233 Ala. 49, 170 So. 74; Bethune v. State, 26 Ala. App. 72, 153 So. 892; Id., 228 Ala. 422, 153 So. 893. Defendant has not shown there was in fact a separation of the jury.
The indictment in this case charges burglary and grand larceny. The trial resulted in a conviction under the burglary count.
At the trial in the circuit court the appellant was not represented by counsel. There were no rulings by the court during the progress of the proceedings.
After the judgment of conviction and within the time permitted by law, the appellant employed counsel and filed a motion for a new trial. There was no evidence introduced in support of the grounds of the motion.
The insistence is made that a reversal of the judgment below should be ordered because the accused was tried without the aid of counsel.
For aught appearing in the record, the defendant did not request the aid of counsel, but rather chose to conduct his defense according to his own ideas.
The record does establish that the trial judge was very careful and cautious to see that every legal right of the indictee was protected. There is no evidential indication or inference that the defendant's privileges under the Fourteenth Amendment to the United States Constitution were denied.
We had this question for review in the fairly recent case of Smith v. State, 34 Ala. App. 194, 38 So.2d 287. Judge Harwood authored the opinion for the court. He went into the matter with considerable care.
See also, Title 15, § 318, Cumulative Pocket Part, Code 1940; Griffin v. State, 30 Ala. App. 194, 2 So.2d 921; Gilchrist v. State, 234 Ala. 73, 173 So. 651; Green v. State, 27 Ala. App. 209, 170 So. 72; Mackreth v. Wilson, 31 Ala. App. 191, 15 So.2d 112; Bethune v. State, 26 Ala. App. 72, 153 So. 892; Cook v. State, 32 Ala. App. 168, 22 So.2d 924.
In brief appellant's counsel urges that a reversal should be ordered because the jury was permitted to separate during the trial proceedings. There is no ground in the motion for a new trial posing this position. Neither is there any conclusive proof that the jury did separate.
The other matters which are pressed in brief of appellant's counsel are either without merit or not properly before this court for review.
The judgment below is ordered affirmed.
Affirmed.