Jim GODWIN v. STATE, 43 Ala. App. 165

CATES, Judge. The opinion heretofore filed on August 18, 1964, is withdrawn and the following becomes the opinion of the court. Godwin appeals from a judgment on a verdict finding him guilty of possessing a still for making prohibited liquor. Code 1940, T. 29, § 131. He also moved for new trial — unsuccessfully. Though indicted in 1961, Godwin was not brought to trial until March 20, 1963. Meanwhile, he seems to have run afoul of Federal law, for we find the circuit court granted the State a writ of habeas corpus ad prosequendum to bring him from the Maxwell Field Prison Camp at Montgomery.

This writ was addressed to the Superintendent of the Camp. Immediately on being brought into court —on the day before the trial — counsel moved for a continuance. Among other grounds he argued, “ * * * here is a man who was brought up here in custody, and has no opportunity to get ready for the trial of his case.” More seriously the undisputed evidence— borne out in brief and argument — shows that the United States marshals remained in the room at the Jackson County Courthouse when Godwin’s counsel sought to confer with him that morning. Thus Godwin testified in support of the motion: “And during the time John B.

Tally, your Attorney, has been representing you he has only conferred with you a short while this morning here in the Court House while you were in the custody of two Federal Marshals? “A. Yes, sir.” The trial judge considered there had been time enough for Godwin to have talked to counsel. This view ordinarily would have been dispositive of the motion for continuance. However, the United States marshals, by remaining in the consultation room, interfered with a fundamental right assured Godwin by both State and Federal Constitutions. The right of counsel implies the right of private audience.

When the Attorney General of the United States, through his prison wardens, brings a defendant to a state court, that defendant, until convicted, is presumed innocent. He is entitled to — and-may be in more need of— all the rights afforded by our organic acts. The federal government in making such an ad hoc surrender must do so completely even though it can later take the prisoner up again. Code 1940, T. 41, § 223j provides: “§ 223.

No officer or person having the custody and control of the body or liberty . of any person under arrest, shall refuse permission to such arrested person to communicate with his friends or with an attorney, nor subject any person under arrest to any form of personal violence, intimidation, indignity, or threats for the purpose of extorting from such person incriminating statements or a confession. Any person violating the provisions of this

section shall be guilty of a misdemeanor.” It would be farcical indeed if the badge of his office were to stand between a United States marshal (or indeed any peace officer) bringing a prisoner to be tried by a state court and his lawyer. Under this Code

section (§ 223, supra), the marshals should have accorded the prisoner his full rights — or have turned him over to the state court in open court so that the sheriff could have made him accessible to his attorney within the meaning and spirit of the Constitution and statute. Pertinently, the appellant in brief says: “To deny a defendant the right to private consultation with his employed attorney is tantamount to denying him the right to counsel.” This situation was properly presented to1 the trial judge and was at a critical time in and hence prejudicial to Godwin’s trial. Hamilton v.

State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114. See Sawyer v. State, 42 Ala.App. 386, 166 So.2d 511. We quote from Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921: “Petitioner’s additional attack upon the hearing afforded him centers upon the denial of his motion for a continuance which is said to have deprived him of his constitutional right to engage counsel and to defend against the charge.

Ij< * j]i “The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4. * * * ” ■ The State’s application for rehearing is overruled.

The judgment below is due to be reversed and the cause remanded for new trial. Reversed and remanded. After Remandment PER CURIAM. On authority of Godwin v. State (279 Ala.Sup., 286 Ms.), 184 So.2d 374, (8 Div. 194) the judgment below is Affirmed.