before the court he was not represented by counsel, found guilty, and given a ten year sentence in the state prison.
The Constitution of the State of Alabama provides: 'That in all criminal prosecutions, the accused has a right to be heard by himself and counsel * * * .' Article 1, § 6, Constitution of Alabama 1901. The Code of Alabama, 1940 Ed., Title 15, § 318, Laws of 1943, p. 221; Laws of 1947, p. 61, permits forma pauperis counsel only in capital cases. The courts of Alabama have construed the constitutional provision and the code to hold that no affirmative duty rests upon the courts to appoint counsel for indigents in non-capital cases. Gilchrist v. State, 234 Ala. 73, 173 So. 651; Cook v. State, 32 Ala.App. 168, 22 So.2d 924, certiorari denied 6 Div. 379, 22 So.2d 925.
Failure to appoint counsel in non-capital cases where the defendant is indigent normally is not a violation of the provisions of the United States Constitution, Gibbs v. Burke, 337 U.S. 773, 69 S. Ct. 1247; Bute v. Illinois, 333 U.S. 640, 68 S. Ct. 763, 92 L. Ed. 986; Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595. However, in Gibbs v. Burke, supra, the United States Supreme Court said that: 'Our decisions have been that where the ignorance, youth, or other incapacity of the defendant made a trial without counsel unfair, the defendant is deprived of his liberty contrary to the Fourteenth Amendment. Counsel necessary for his adequate defense would be lacking.' (Italics supplied.)
When consideration is given to the age of the petitioner at the time of his sentence, the fact that he was an illiterate youth in the State of Alabama in the custody of 'a dominant group in positions of authority', Harris v. South Carolina, 60 S. Ct. 1354, 1356, 1357, and the serious nature of the penalty facing him for the crime with which he was charged, the failure to supply counsel rendered 'criminal proceedings without counsel so apt to result in injustice as to be fundamentally unfair.' Uveges v. Pennsylvania, 335 U.S. 437, 441, 69 S. Ct. 184, 186. Cf. Wade v. Mayo, 334 U.S. 672, 684, 68 S. Ct. 1270, 92 L. Ed. 1647; De Meerleer v. Michigan, 329 U.S. 663, 67 S. Ct. 596, 91 L. Ed. 584; Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158, 84 A.L.R. 527.
No contradiction is offered against the assertions of the petitioner herein. The authorities of Alabama did not choose to refute his statements although opportunity was afforded them to do so. The inconsistencies in his testimony do not destroy the credible nature of the chief and important portions of it. Although his testimony lacked corroboration in many instances, it carried conviction when fitted into the pattern of the realities as they are known. It is evident beyond reasonable doubt that the alleged police procedure, the beatings prior to obtaining the confession, the lack of representation by counsel, the county camp labor system, the indignities accorded colored men in the State of Alabama, are conditions to which this colored youth of 15 years was exposed to his irreparable injury. In their composite they spell out cruel and unusual punishment within the scope of Johnson v. Dye, supra, and demonstrate a violation of his rights protected by the Fourteenth Amendment of the United States Constitution.
Recently this court dealt with a similar application for a writ of habeas corpus made by an escapee from Georgia. In the Matter of the Application of James Marshall for a Writ of habeas corpus, In re Marshall, D.C., 85 F.Supp. 771. The writ there was discharged and the petitioner remanded. However, that case is distinguishable in that there the petitioner was an adult several times convicted of crime and the Georgia authorities appeared at the hearing, vigorously contested certain of the allegations and offered testimony to show that the perpetrators of the cruelties charged by the petitioner had been tried, convicted and were no longer in the employ of the authorities.
An order will be signed discharging the petitioner from custody.