Opinion
Opinion Filed February 10, 1939.
A writ of error to the Circuit Court for Dade County, H.F. Atkinson, Judge.
C.A. Avriett and E.C. Rutledge, for Plaintiff in Error;
George Couper Gibbs, Attorney General, and Lawrence A. Truett and Tyrus A. Norwood, Assistant Attorneys General, and G.A. Worley, State Attorney, for the State.
The plaintiff in error, Franklin Pierce McCall, through his counsel, has presented to us a motion in the form of an Extraordinary Petition for Recall of Mandate heretofore issued in this case and for a rehearing.
In that petition he has set up eighteen (18) numbered paragraphs. The sum total of all the allegations contained in the petition is that this Court in rendering its opinion and judgment filed herein on the 3rd day of January, 1939, overlooked the rule of law that the plaintiff in error had the right, under the 5th, 6th and 14th Amendments to the Constitution of the United States, to be represented by counsel at his trial and that such right was in substance denied.
The conditions assumed by the petitioner in his petition to have existed are not shown by the record to have existed, but the contrary is shown.
We have in our opinion, supra, set out in detail what the record shows occurred at and concerning the trial. The record shows affirmatively that when the defendant appeared at the bar of the court with counsel previously appointed to represent him the trial judge asked the defendant and his counsel if they had any motions to present. Counsel replied in effect that they had no motions to present and were ready to proceed. When the State had introduced its evidence before the trial judge, upon being interrogated by his counsel, McCall stated that he had entered a plea of guilty to the indictment charging kidnaping to hold for ransom, and he reasserted that such was his plea. He then clearly, intelligently and deliberately told in detail each step of his perpetration of the crime charged. He made no contention that he was not guilty of the crime charged in the indictment, nor did he make any contention of any sort that if given all the time of the future he could prepare any defense to the charge then pending against him.
Counsel appointed for him by the Court is recognized by this Court as an able, active and conscientious lawyer of many years of experience in the trial of criminal cases. We recognize the rule laid down in the cases of Powell v. Alabama, 287 U.S. 45, 77 Law Ed. 158, and Johnson v. Zerbst, as Warden, 58 Sup. Ct. Rep. 1019, but we find that the rules stated in those cases have no application in the instant case because of the controlling differences in factual conditions.
We also have before us a petition filed by one T.H. Crowson, on behalf of plaintiff in error in which he petitions this Court to reverse the judgment and to award a new trial upon the ground that McCall now has asserted as follows:
"(1) That I do hereby assert my innocence of the crime alleged and do protest that my plea of `guilty' in the court was obtained from me by torture, duress and fraudulent misrepresentation of the facts involved; and
"(2) That I do request that this be considered as a full repudiation of the aforesaid former `plea' of `guilty,' and that all concerned to whom this may come take due notice thereunto and act as the law provides and according to justice; and," etc.
This alleged repudiation can have no more force and effect than such action would have in any other case where a man has freely and voluntarily fully admitted his guilt and then, when about to be executed for the crime, decides to tell some other story with the hope of escaping punishment.
Both petitions are denied.
So ordered.
TERRELL, C.J., and WHITFIELD, BROWN, BUFORD, CHAPMAN, and THOMAS, J.J., concur.