MR. JUSTICE BUTLER, dissenting.
The Court, putting aside — they are utterly without merit — all other claims that the constitutional rights of petitioners were infringed, grounds its opinion and judgment upon a single assertion of fact. It is that petitioners "were denied the right of counsel, with the accustomed incidents of consultation and opportunity of preparation for trial." If that is true, they were denied due process [p74] of law and are entitled to have the judgments against them reversed.
But no such denial is shown by the record.
Nine defendants, including Patterson, were accused in one indictment, and he was also separately indicted. Instead of trying them en masse, the State gave four trials, and so lessened the danger of mistake and injustice that inevitably attends an attempt in a single trial to ascertain the guilt or innocence of many accused. Weems and Norris were tried first. Patterson was tried next on the separate indictment. Then five were tried. These eight were found guilty. The other defendant, Roy Wright, was tried last, and not convicted. The convicted defendants took the three cases to the state supreme court, where the judgment as to Williams was reversed and those against the seven petitioners were affirmed.
There were three painstaking opinions, a different justice writing for the court in each case. 224 Ala. 524, 531, 540, 141 So. 215, 195, 201. Many of the numerous questions decided were raised at the trial, and reflect upon defendants' counsel much credit for zeal and diligence on behalf of their clients. Seven justices heard the cases. The chief justice, alone dissenting, did not find any contention for the accused sufficient, in itself, to warrant a reversal, but alluded to a number of considerations which he deemed sufficient, when taken together, to warrant the conclusion that the defendants did not have a fair trial. The court said (p. 553):
We think it a bit inaccurate to say Mr. Roddy appeared only as amicus curiae. [This refers to a remark in the dissenting opinion.] He expressly announced he was there from the beginning at the instance of friends of the accused; but not being paid counsel asked to appear not as employed counsel, but to aid local counsel appointed by the court, and was permitted so to appear. The defendants were represented as shown by the record and pursuant to appointment of the [p75] court by Hon. Milo Moody, an able member of the local bar of long and successful experience in the trial of criminal, as well as civil, cases. We do not regard the representation of the accused by counsel as pro forma. A very rigorous and rigid cross-examination was made of the state's witnesses, the alleged victims of rape, especially in the cases first tried. A reading of the records discloses why experienced counsel would not travel over all the same ground in each case.
The informality disclosed by the colloquy between court and counsel, which is quoted in the opinion of this Court and so heavily leaned on, is not entitled to any weight. It must be inferred from the record that Mr. Roddy at all times was in touch with the defendants and the people who procured him to act for them. Mr. Moody and others of the local bar also acted for defendants at the time of the first arraignment, and, as appears from the part of the record that is quoted in the opinion, thereafter proceeded in the discharge of their duty, including conferences with the defendants. There is not the slightest ground to suppose that Roddy or Moody were by fear or in any manner restrained from full performance of their duties. Indeed, it clearly appears that the State, by proper and adequate show of its purpose and power to preserve order, furnished adequate protection to them and the defendants.
When the first case was called for trial, defendants' attorneys had already prepared, and then submitted, a motion for change of venue, together with supporting papers. They were ready to, and did at once, introduce testimony of witnesses to sustain that demand. They had procured, and were ready to offer, evidence to show that the defendants Roy Wright and Eugene Williams were under age. The record shows that the State's evidence was ample to warrant a conviction. And three defendants each, while asserting his own innocence, testified that he [p76] saw others accused commit the crime charged. When regard is had to these and other disclosures that may have been, and probably were, made by petitioners to Roddy and Moody before the trial, it would be difficult to think of anything that counsel erroneously did or omitted for their defense.
If there had been any lack of opportunity for preparation, trial counsel would have applied to the court for postponement. No such application was made. There was no suggestion, at the trial or in the motion for a new trial which they made, that Mr. Roddy or Mr. Moody was denied such opportunity, or that they were not, in fact, fully prepared. The amended motion for new trial, by counsel who succeeded them, contains the first suggestion that defendants were denied counsel or opportunity to prepare for trial. But neither Mr. Roddy nor Mr. Moody has given any support to that claim. Their silence requires a finding that the claim is groundless, for if it had any merit, they would be bound to support it. And no one has come to suggest any lack of zeal or good faith on their part.
If correct, the ruling that the failure of the trial court to give petitioners time and opportunity to secure counsel was denial of due process is enough, and with this, the opinion should end. But the Court goes on to declare that
the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth Amendment.
This is an extension of federal authority into a field hitherto occupied exclusively by the several States. Nothing before the Court calls for a consideration of the point. It was not suggested below, and petitioners do not ask for its decision here. The Court, without being called upon to consider it, adjudges without a hearing an important constitutional question concerning criminal procedure in state courts. [p77]
It is a wise rule, firmly established by a long course of decisions here, that constitutional questions — even when properly raised and argued — are to be decided only when necessary for a determination of the rights of the parties in controversy before it. Thus, in the Charles River Bridge Case, 11 Pet. 420, the Court said (p. 553):
Many other questions of the deepest importance have been raised and elaborately discussed in the argument. It is not necessary, for the decision of this case, to express our opinion upon them, and the Court deem it proper to avoid volunteering an opinion on any question involving the construction of the constitution where the case itself does not bring the question directly before them, and make it their duty to decide upon it.
And see Davidson v. New Orleans, 96 U.S. 97, 103, et seq. Haguenstein v. Lynham, 100 U.S. 483, 490. Blair v. United States, 250 U.S. 273, 279. Adkins v. Children's Hospital, 261 U.S. 525, 544.
The record wholly fails to reveal that petitioners have been deprived of any right guaranteed by the Federal Constitution, and I am of opinion that the judgment should be affirmed.
MR. JUSTICE McREYNOLDS concurs in this opinion.