*1 CHESSMAN, Appellant, Caryl Warden, TEETS, California
Harley O. Quentin, Prison, Cali- San State fornia, Appellee. 15092.
No. Appeals Court of States
United Circuit. Ninth
Oct. 1956.
Rehearing Denied Nov. Rehearing
Opinions on Denial of and Nov. Nov. 27
Denman, Judge, Chief dissented.
Denman, Judge, Chief dissented petition.
from denial 162; also 9
See F.2d P.2d
Cal.2d
lenging
accuracy
completeness
transcript
of the
va-
and the
lidity
proceedings
it had
been settled.2 Most of these
revolved around
fact
that after
trial,
the court
died
com-
before
pleting
transcript
testimony.
transcript
completed by
another
reporter,
and certified after
hear-
ing
permitted
whch
was not
attend.
part, appellant
For the most
un-
George
Cal.,
Francisco,
Davis,
T.
San
early
successful in these
efforts
invali-
Asher, Sacramento, Cal., Caryl
S.
Rosalie
augment
did,
date or
transcript. He
Chessman,
appellant.
pro. per.,
however, obtain inclusion in the tran-
Brown, Atty. Gen.,
Edmund
Clar-
G.
script of the voir dire examination of
*5
Linn,
Atty. Gen.,
ence A.
Smith,
Arlo E.
Asst.
jurors
opening
and the
statement
Atty. Gen.,
Cal.,
Deputy
State of
prosecuting attorney.
People
v.
appellee.
Chessman,
455,
769,
35 Cal.2d
218 P.2d
1084,
19
DENMAN,
Judge,
A.L.R.2d
certiorari
Before
and
denied 340
Chief
840,
Judg-
29,
HAMLEY,
71 S.Ct.
LEMMON and
Circuit
es.
judgments
and order were af-
HAMLEY,
Judg-e.
Circuit
by
firmed on the merits
the California
appeal
deny-
This is an
from an order
supreme
18,
court on December
1951.
ing Caryl
applica-
eleventh
Chessman’s
People Chessman,
166,
v.
38 Cal.2d
corpus.
tion for a writ of habeas
1001,
P.2d
915,
certiorari denied 343 U.S.
650,
May
1330, petition
21, 1948,
S.Ct.
96 L.Ed.
He was convicted on
rehearing
937,
seventeen felonies.1 Two
denied
sentences of
72 S.Ct.
imprison- 773,
death and fifteen
sentences
cussed,
did
we
the court
conclude
unnecessarily
prepare
so
unrea
deprive appellant of a full and fair hear
sonably curtailed or interfered with as
narrowly restricting,
ing by
too
ex
hearing.
deprive him of fair
full and
sought
cluding, the evidence which he
produce.
deputy
attorney
who tried
district
*9
original
appeared
case
as one of the
general
Returning
question
to the
appellee
counsel for
in the instant habeas
appel-
district court denied
whether the
hearing.
Appellant asserts that
hearing
kind of
ordered
lant the
Supreme
judge
the trial
abused its discretion in
argues
Court, appellant
next
permitting this to be done.
adequate
not allowed
that he was
time
any
spectfully
delatory
resist
tactics or
Civ.Proc. Rule
11. See Fed.Rules
any attempted delays
unnecessary
U.S.C.A.
purposes in this
Mr. Chessman
case.
45(d),
Civ.Proc. Rule
Fed.Rules
jail
years.
has been in
seven
We are
U.S.C.A.
ready
proceed;
we are—we want ac-
* must
I
ro-
tion.”
13. Counsel stated:
hearing, ap
party
At the outset of
A
one
to an action is
pellant
deputy
against
relief,
a motion
resisted
that this
who seeks
relief
whom
sought.16
attorney
practice
admitted
in
district
be
When
who
held
one
partici
custody pursuant
judgment
so
could
before
that he
of a
to the
pate
objec
corpus,
as
state
counsel
the case. The
court seeks a writ of habeas
properly rejected,
right
against
tion
mo
was
and the
he asserts a
to relief
his
correctly granted.
against
custodian,
tion
The fact
and not
the state.
deputy
attorney participated
Hendricks,
this
United
district
States ex rel. Elliott v.
original
disqual
in the
trial in no sense
215 33; Cir., sup- Lipscomb S., argument F.2d in U. 8 33 advanced final The Mesta, F.2d 668. he was Skirvin v. 10 141 port appellant’s assertion corpus habeas and fair full denied a remaining in The four reasons set out upon alleged personal to relates the the affidavit are based observations judge, Honor- prejudice and bias rulings judge and trial made the Louis E. Goodman. able considering while the case. 1955, 30, when the November On rulings The trial conduct and proceeding corpus first habeas manded judge provide in no the case itself basis Judge Goodman, counsel for came before appellant prejudice. an Ex for parte of bias or affidavit judge suggested vol- the Company, Barrel American Steel Judge untarily disqualify Good- himself. 230 U.S. 57 33 S.Ct. the Later same to so. man declined day, do Lansing Drop 1379; L.Ed. Refior v. appellant advised the counsel Forge Co., Cir., 444, 440, F.2d cer- 124 discussing that, the matter after 671, tiorari denied 316 U.S. 62 S.Ct. nothing say client, to he desired with his 1047, 86 As in L.Ed. 1746. stated disqualification. question of more on the case, Company American Steel Barrel hearings authorizing filing Thereafter, pretrial the statute of an several prejudice result, affidavit of a several orders bias or had. As were “ * * * entered, 30 to De- from November were never intended to en- execution, 1955, staying 22, is- cember suing litigant a able discontented to oust relating corpus, a writ habeas rulings judge because of adverse custody, impounding appellant’s sten- to rulings made, for such are review- providing notes, ographic for confer- otherwise, prevent able to but his counsel, appellant ences between fixing pending future action continuing trial, date of cause.” of trial. date judge, therefore, The trial did 1955, appellant 29, Later, on December declining disqualify not err in to him 144, an affidavit under 28 U.S.C.A. § filed self. required supported certificate Judge good disqualify faith, Goodman Quite apart efficacy from trying the Five reasons for case. prejudice, however, from affidavit of prejudice existed that bias or appellant the belief whether had a given in this affidavit.19 were trial a fair fair before tribunal. This is requirement process. a basic due In first of the reasons stated Murchison, 133, 623, re upon affidavit was based facts in the 99 L.Ed. As stated in the recent 942. appellant 30, November known Knapp Kinsey, Cir., case of 232 F.2d 1955, habeas when remanded 458, 465: Judge assigned proceeding was Good rights “One of the fundamental reason, this As to affidavit man. litigant judicial sys- aof under our 1955, 29, too came late. on December filed laundry got given (1) to use this care of take follows: reasons as are ”; (4) . intemperate this matter. . . asserted fail- observations Asserted previouly petition arbitrary denying ure enforce entered order action concerning arrangements originally conferences filed. it was See re when counsel; Ms F.Supp. 600; D.C., (2) between Chessman, grant (5) long refusal as pretrial continu- order concern to enter failure keeping ance custody had re- ing appellant’s with quested. expressed in views parte hearing; pretrial (3) ex earlier page 44, page at S.Ct. at by Judge Goodman, made the observation 1010, page at We need not pretrial hearing December at original whether order decide of Jan- “ . . should be . denying uary the writ was an California, until ruling” but meaning State there “adverse within the change statutes, we have this rule. is some *11 rights.” purpose ration of of the- is to a fair One tem is that he entitled tribunal, application appellant’s, and that was to establish trial in a fair unpublished novel, to an “The requires of ac- Kid an absence fairness Killer,” by appellant. prejudice of Was a written the trial tual bias or manuscript This had been seized and case.” by alleged held It was warden. mind, have examined With this in we necessary manuscript sale respect the record with to the incidents appellant pay expenses, to enable rulings during of the and the course corpus in the habeas case. hearing, appellant of which com- makes plaint purpose in his application A affidavit. second validity towas establish the a con- by Some remarks at made appellant tract between one his. parte hearing pretrial may an ex have contract, appellant,, counsel. Under this appellant led to believe that more favor- payment attorney’s fee, as substantial agreed on concerning custody con- able orders biography write a the attor- arrangements ference would be made. ney. alleged It was warden sides, judge, That the changed after both appellant had refused to allow to write- concerning his mind these mat- biography. not, however, person- ters does indicate against prejudice appellant. al was denied on the- bias ground declaratory may Nor was the relief not observation made sought judge, corpus proceeding, in a habeas to the effect should not that there jurisdiction judicial and that the court had no be federal in such intervention regulations security cases, pris- picturesque over or his at the reference to his “laundry,” per- on. court as a indicative of against appellant. spe- sonal bias corpus, The writ of habeas rulings complaint cific made is solely legality is concerned with the specifi- have been examined under other prisoner's restraint time at the error, upheld. cations of filing petition issue its Declaratory We conclude none of the relief of the kind here rulings, sought criticized actions and scope nor all is not within the such a together, anything ap proceeding. was, them therefore, evidence The court proaching personal prejudice jurisdiction bias or ap without plication, to entertain which process. correctly would amount to a denial of due so ruled. specification
One
of error remains to
considered,
be considered.
haveWe
now
found
merit,
objections
without
all of the
Appellant
permitted
was not
to be
by appellant
raised
as to the conduct present
reporter’s
at the
time
tran-
hearing.
of the habeas
Accord-
script
original
trial was settled
ingly,
we hold that
not
represented
and certified. Nor was he
hearing,
a full
denied
and fair
im-
hearing,
counsel at that
since he had
pliedly
ordered
Court.
litigating
propria persona.
insisted on
argued that, by
reason of these
specification
error,
Under another
facts, appellant
was denied due
argued
ruling,
that the court erred in
protection
equal
of law and the
jurisdictional grounds,
that it could
laws
connection with his
to the
rights
appellant’s
not declare
under 28
supreme
Accordingly,
California
court.
2201 and
U.S.C.A.
§§
appellant contends,
court,
in this
January 24, 1956,
day
On
corpus proceeding,
one
before habeas
erred in corpus hearing,
ordering
the habeas
appellant discharged
the end'of
from cus-
“application
tody.
filed an
for decla-
Dunlap
Swope,
Cir.,
v.
103 F.2d
and Smith S.Ct.
Johnston,
citing McNally
Hill,
217
repeatedly
was
appli-
he
In the trial court
This issue was tendered
**
*.
corpus.
counsel
offered and refused
habeas
for writ of
cation
cannot
he
In
complain
circumstances
these
not, however,
which con-
the issue
was
prejudiced
Supreme
he
been
has
the United States
(cid:127)cerned
by
not,
remanding
has
since
reversing
he
a hear-
fact that
in
ing
and
appear
conviction,
above,
allowed to
application.
noted
As
on the
People
personally
v.
in court.”
opinion
Court directs
of the
467,
455,
charge
Chessman,
218 P.
Cal.2d
only
35
to the undenied
attention
769,
settling
2d
preparing
the tran-
776.
in
and
fraud
(cid:127)script.22
question was be-
When
identical
against
1953,
court,
we held
fore this
in
this,
on re
court
Because
saying:
Chessman,
mand,
limited its consideration
question
ex
of fraud. The
in the eonten
case_
no merit
“There is
opinion
court con
the trial
tensive
process provisions
tion
due
that the
issue
discussion of the
which
tains no
Amendment were
of the Fourteenth
speciñca
.appellant presents
this
under
gives no
The Constitution
vioiated.
any find
there
tion of error. Nor are
ings
right
person
appear in
or
of law which
of fact
conclusions
appeal.
criminal
counsel on
with
issue.
deal
grant
appeal,
Whether to
deciding,
assume,
that,
granted
without
We
upon
will
be
terms
which
indicated,
just
(cid:127)despite the circumstances
purely
local law over
are
matters
may
present the
here
have no control.
courts
federal
[Citing
now under discussion.23
quoting
v.
Andrews
Swartz,
274-275,
272,
15
156 U.S.
however,
precise question,
has
That
* *
*
389,
L.Ed. 422.]
S.Ct.
39
considered, and
heretofore been
decided
And
can be no denial of
that there
.adversely
appellant, by
both
Cali-
process
procedure
due
used to
supreme
and this court.24
fornia
court
,
,
,,.
,,
appeal,
Dowdell
.
settle
record on
see
.
i holding against appellant on a sim-
(cid:127)j.
In
v
. United
U. S.
221
States,
contention,
supreme
ilar
the California
590;
325, 328-329,
55 L.Ed. 753.”
31 S.Ct.
n cour
sai
.
People,
128,
205 F.2d
Chessman v.
“ * * *
reason, public
Neither
231.
any express provision
policy, nor
requires
personal
law
defendant’s
decisions should not
These
holding
presence at
to determine
construed as
the Fourteenth
* * *
accuracy
transcript.
apply
to settlement
Amendment does
charge
128,
ple,
22. The
was “undenied”
be
F.2d
de
9
205
certiorari
summarily
petition
California,
cause the
dis
nied
v.
346 U.S.
Chessman
hearing.
charges
916,
278,
missed before
Similar
98 L.Ed.
74
412.
S.Ct.
repeatedly made,
supreme
of fraud had been
de
later
re-ex
California
rejected
prior proceedings,
nied,
question,
amined the same
and adhered
previous
ruling. People
as noted and documented
In re Chess
its
v. Chess
man,
645,
man,
166,
43 Cal.2d
274 P.2d
238 P.2d
38 Cal.2d
People
California,
v.
certiorari
denied Chessman
Chessman v.
certiorari
denied
Cal.,
650,
83,
915,
864,
State of
348
S.Ct.
S.Ct.
U.S.
75
343 U.S.
72
96 L.Ed.
aspect
same
system undecipherable by another Judge (dissenting). porter, DENMAN, a witness at the restoration trial. Chief The order for the determination the Supreme holds due Since the Court the testimony record is based on the of wit- Fourteenth Amendment Angeles County nesses before the Los Angeles applies trial in the Los to the they Court of what heard and remem- Superior to create a record of producing bered said what was the there, happened what appeal as the basis of an by parties’ death sentence the witnesses sentence, from death Chessman’s judge’s jury to the and of statements Superior Court’s admitted refusal to during the his final trial and of instruc- trial, permit participate in him to jury. to the the trial tions What before process. Hence him due the Su- denied produced was this record at creating perior order the record Court’s 2,000 pages testimony. least and the must be set aside California Su- request present preme affirmation based on Chessman’s that he be Court’s 2,000 pages determination of the must be set aside and record also depended on which life or death for the the rec- trial determination Angeles though court, proceed Los anew the denied ord Su- 393, 334, 319; Alabama, 45, 67, 388, 287 U.S. 58 82 L.Ed. Powell v. 53 U.S. S.Ct. 158; Snyder 55, v. Bell Tel. Co. v. Public Utilities 77 L.Ed. Mas Ohio S.Ct. sachusetts, Commission, 97, 105, 54 291 U.S. 301 U.S. 57 S.Ct. S.Ct. 674; 1093; 724, 330, Shaw, Saunders 81 L.Ed. Standard Oil Co. v. L.Ed. 78 318, 638, Missouri, 406, 317, 32 L.Ed. U.S. S.Ct. 1163; Gas, v. Pacific Railroad Comm. pro- require present in an to cross-examine the witnesses accused to be attorney appellate prosecuting repre- where duced court he Angeles produce Los sented counsel and seek where ju- function of the other witnesses the clerks and to determine from prejudicial trial, who es- whether there rors heard the is of the error process. No case below.” sence due clearer litigant’s majority presence opinion could be had for a Likewise relies e., Berggren, vicinage trial, Los An- on Schwab i. again geles County, where where witnesses could ruling directly summoned examined and Court confined its depositions questions consideration of law before cross-examined and distant appellate suggests necessary. court and *15 questions where there are other involved United It will be that the remembered might stating: otherwise, the rule sitting Court, in the States District public neither nor at “But reason Northern District California San policy require per- Francisco, that he shall be it wit- held could summon sonally Angeles, present pending miles dis- nesses from Los 400 only appellate an court whose tant. whether, is determine one that No can Chessman function in the transcript them, if submitted to to a reversal would have been entitled appears any there error law he to maintain conten- able his prejudice accused, espe- jury the the that tion instructed cially, where, case, they he had as in this that if found he had committed charged represent they in the counsel to him offense must render ver- although penalty, do not mean to Sec- court say review. We dict for the death may not, appellate court that the tion 209 of the California Penal Code require provides they circumstances, under the discretion to some that personal presence; imprisonment his but that choose life between presence Reinforcing is its penalty. his not essential to this is the death jurisdiction proceed with the claim that the true record would his added.) (Emphasis grossly prejudicial case.” statements show ignores majority by attorney opinion prosecuting The further made Supreme judge. subsequent presiding cases distinguishing clearly ear these Court opinion majority is forced ad- The Among them is- re decisions. lier Supreme Court has held mit that Arkansas, 333 U.S. cent case of Cole v. process of the Fourteenth that the due 644, 514, 517, 196, 201, 92 L.Ed. 68 S.Ct. pro- applies the claimed Amendment curing Supreme ruled that: Court where testimony perjured but it “* ** pro Arkansas proc- since due claims another violation appeal proceeds piecemeal to the Su for State on a vides preme does ess not. appeal con and on that Court the Fourteenth Amend- ' questions raised under the Dowdell siders In this it relies on v. ment. Constitution, proceed 325, 590, States, Federal 31 S.Ct. U.S. United ings in court are a 753, that in but omits state L.Ed. peti testimony process under which of law crim- case all the up living stand or convictions must tioners’ written inal trial was Mangum, v. 237 U.S. fall. Frank 309, porter had counsel 582, 327, 587, point during appeal. is 35 S.Ct. sum- his Holohan, Mooney following 969. Cf. headnote marized 340, 113, 342, 103, U.S., 55 S.Ct. page 31 S.Ct. 590: 325 of (Emphasis added.) L.Ed. 791.” “Although-due process law re- Oliver, In re is 333 U. present Nor considered to be at quires accused trial, 68 S.Ct. 92 L.Ed. stage every does not S. Rehearing Upon Petition for af- where the State judgment contempt appeal a firmed on PER CURIAM. having record seen the ever “without testimony” rehearing af- [appellant’s] petition and the his is denied. ground that aside on firmation set Judge liberty DENMAN, (dissenting). Chief denied had been process the Four- law of without due peti- I dissent from the denial of the Amendment. teenth rehearing. tion for opinion Frank consider Nor does the clearly This is a case where the court Mangum, page at first finds that the clause of due page the court 587 where at applies the Fourteenth Amendment appeals states: all created state law and then appeal, in this a matter of life or death to 14th Amendment “And while the appellant, says inapplicable that it is require shall a state does not to a trial to determine the text of the provide appellate review’ for an ** upon record which the death sentence *, per- it is criminal cases fectly to be determined as valid invalid. such an that where obvious for, pris- provided and the Rehearing. For On Denial Of Petition *16 it, of the had the benefit oner has appellate proceedings tribunal in the Judge. LEMMON, Circuit regarded the as a to are be Judge view Chief Denman’s in- process is under which he lawof process that sistence the due clause custody by state, to the and held in guarantees the Fourteenth Amendment determining any in be considered personal appearance the of the defendant alleged deprivation of at settlement to determine contrary liberty the to his life accuracy transcript, the of a I deem it (Emphasis Amendment.’’ add- H.th give my I desirable that should reasons ed.) concurring Judge Hamley with in denying petition apparent Chessman’s From these later cases it is hearing. Supreme itself had con- that if the Court 2,000 pages in which the Judge ducted the trial persists ignor- Chief Denman in by the memo- ing of record were established ry opinion Supreme the Court in witnesses, it would have been a vio- which is deny process lation of due to Chessman’s plot not the chart which we must participate proceedings. request to course, our but which marks the extreme fortiori, A it a denial of due is jurisdiction limits of our in this cause. proceed- excluded from the where he was Although Supreme opinion the Court’s Angeles Superior ing in the Los Court. Judge part by quoted Hamley in in his opinion 18,1956, able October in which of the Northern The District Court unreservedly heartily concur, I and by merely ignor- District of California Judge persistent view of Chief Denman’s right ing contention of Chessman’s his ignoring jurisdiction our limited Angeles participate County in the Los case, might I that help- believe hearing, restoration cannot cre- evidence enlarge quotation. the ful right in ate in itself the San Francisco Speaking Curiam, what the record should or determine Per should not contain. said: questioned reporter “The official not that Chess- Since it is had participate completing died before
man was denied the tran- Angeles proceeding, scription stenographic of his Los this court *17 Appeals of reversed and the case is January of United on tives the States is remanded to the District Court for 19, 1956, passed pro- H.R. which hearing.” [Emphasis supplied.] a Supreme “A vides that Justice of the English language any- means If the Court, judge a circuit or a district court ihing all, opinion of at judge or shall entertain an n Court n Court n charges conveyed a command the District to corpus for a writ of habeas in behalf inquire that it into Chessman’s custody person pursuant judg- in a to a arrange- “corrupt of “fraud” and court, only ground of a ment State on a nothing Beyond that, ment”, and more. presents a substantial Federal con- nor neither the District Court this Court question (1) stitutional which was not jurisdiction. particle of Fas a determined, (2) raised and theretofore opinion states, pursuant adequate which there was no fair main and As the opportunity Supreme Court, theretofore to of the a raise and mandate to this determined, (3) by was issued which cannot of habeas writ consuming Court, thereafter be raised and determined District in proceeding court, days by in had, the State an the District order :seven n Court subject findings judgment opinion, fact, filed review law, Supreme Court of the United conclusions the effect States on n Chessman support writ of certiorari.” had failed to the al- application. legations of his From the hearty I am in spirit accord with the discharging judgment Court’s District bill, which of this I understand has not present appeal writ, taken. yet passed by the United States major- Judge Hamley Even in the states in the Senate. absence of As such a although however, herein, law, I am the Four- ity opinion firm conviction prohibits no United States should, at Amendment teenth in fraud cogent litigation, stage absence of .any it does follow the not rea- Constitutional wholly guarantees personal appear- case, sons absent in interfere process proceedings the lawful in to with the defendant courts ance n settle any appeal. State. record on Judge Judge Equally Hamley unfair case has been before Chessman’s gave Lemmon’s the United criticism he consid- courts of California contention, many years. “law’s de- eration to Chessman’s second States jurisdiction lay” a national when in has the court had this case become no so delay are act. scandal. The details of majority opin- carefully spelled in the out agree Judge Nor do I Lemmon with supereroga- ion, and it would be a work litigant’s that a right claim ato constitutional tion for me to trace it further. case, in an be con- instant step to There remains one more way prior strued one if he has no con- in of Cali- taken the case of State opposite way victions and the if has he Caryl step That fornia versus Chessman. priors. dozen carry sen- will be to out one the two against of death entered Chess- tences Two different claims denial of due ago. eight years man and half presented by process were Chessman’s- application to the district court. One is Chessman has been accorded all due the contention of “fraud” on Chessman long except process process overdue preparation transcript, of a false By execution, of his execution. such at the trial as a result perhaps, upon the blot the California’s rulings of which were omitted and state- juristic be, wholly if escutcheon will true, which, ments of the trial if erased, partly at least dimmed. would warrant a reversal. The second process such denial of due is the denial DENMAN, Judge. Chief requested partici- of Chessman’s pate proceeding which, in ac- on No better illustration could be had of reporter, count of the death of the 2000' aphorism law,” -the “hard cases make bad pages up of the record had to Judge be made opinion deny- Lemmon’s than ing testimony witnesses, who should petition rehearing Chessman’s subject have been to his cross-examina- concurring this case. After first Further, present tion. had he been Judge Hamley’s considering opinion Angeles Los he would have been able to- denials of due two claimed produce jurors evidence Chessman, from opinion in this on the re- present others in the courtroom to rehearing sus- quested he asserts that *18 respecting tain his contention the claimed Supreme Court’s decision in 350 U.S. rulings. omitted contentions, made one of the S.Ct. Judge Hamley’s opinion, decided in so be- The difference between the two kinds- yond jurisdiction. this court’s of denial of due is so obvious stating that, Judge seen, Hamley gave Chessman has been de- ait prived recognized by so separate opinion. consideration in his Judge Hamley, Judge appears Supreme Lemmon passed That the Court fact, it, to moved as he apparent states the fraud contention is from quoted Judge that “Chessman’s case has been before the opinion. matter in Lemmon’s- the courts of California deny the Unit- Nowhere does it the Dis- many years. jurisdiction ed States for The ‘law’s trict Court the to consider delay’ in this case presented has become a national the second contention in Chess- scandal.” man’s for the writ. agree Though may with I do not the contention that well be a matter of life- Chessman, Judge the same of law is to be decided or death to Lemmon- way beginning if considered Supreme in one at the it that would Court in prosecution, way opinion overruled, and in a of a different silentio, its sub its- holdings any for if it is consideration after important seven several ap- prosecution ye'ars proceeding pellate the same case. is a of the due- process of the Fourteenth Amendment.1 making pages up tes-
Here the of 2000 timony largely by appeal, tes- for the they timony of as to what witnesses
heard, importance hence vital participated
that Chessman should have it, in.
'- opinion In neither our Chessman v.
Teets, Cir., 221 F.2d nor in the Supreme opinion in 34, mentioned, much less of, disposed Chessman’s contention. argue any case, is absurd to Court, on a mere silence presented it,
contention decides adversely party contention
making absurdity it. A is the fortiori capital
of such a contention in a case. individually FAHS, and as Unit- L. John Dept, Carolyn Just, Atty., Div., R. Tax of Internal Revenue ed States Collector Justice, Washington, C., Florida, Appellant, D. E. David the District of for Rosen, Atty., Miami, Fla., U. S. Asst. Rice, Atty. Gen., Charles K. Asst. Lee A. TAYLOR,Appellee. DeWitt E. Jackson, Atty., Washington, C., James D. No. 15946. Guilmartin, Atty., Miami, Fla., U. L. S. Appeals States Court United Prescott, Stanley Wagman, A. Attys., P. F. Fifth Circuit. Dept, Washington, Justice, D. 30, Nov. C., appellant. Paine,
Philip Miami, Fla., ap- E. *19 pellee. RIVES, JONES, Before TUTTLE and Judges.
Circuit Judge. TUTTLE, Circuit This is an the Internal Rev- enue Director for the State of Florida judgment taxpayer from a following favor of the recovery a suit of in- years come for the 1942 and taxes question presented is whether 322, 582, Arkansas, 309, 35 U.S. S.Ct. 59 L.Ed. v. Cole 644; Oliver, fully 969, more considered in re Chessman Teets, L. F.2d Mangum, 237 and in Frank Ed. notes a hundred miles that beyond tend testify would trial bring One the under here sub- them we cannot brought him appellant told would be poena.” when the transcript was set- Civ.Proc. § 2246; U.S.C.A. Fed.Rules bring be tled. would asked to mi- One 28 U.S.C.A. Rule the copies crofilmed records in con- negotiations nection with the for the testify would they them Two services of the substitute reporter. at courtroom present were judge give original and heard See United States v. Pacific Fruit & comment Produce and make F.2d 367. Co., instruction would not undertake to sion of an effect that it erroneous instruction ability improper jury. Appel- test the substitute comment to the porter, accuracy argues that, questioned lant or the of the now at the cor- habeas pus transcript. hearing, improperly the court limit- testimony ed to these two matters the kind, General statements of this to omissions and inaccuracies. rulings specific unassociated exclud with general did The court make a ing proffered evidence, present ques no statement effect tion for review. omissions to considered be were those only specific exclusion of testimo- alleged application. Actually, ny appellant to which calls attention re- however, testimony was not so lim require lates to the court’s refusal to Appellant permitted ited. was to testi transcribe, reporter substitute from fy as to numerous other omis asserted stand, particular page the witness event, any sions and inaccuracies. In reporter’s the deceased notes. The wit- objection presents here raised noth that, ness stated because interven- ing consideration, for our since ing years matter, worked on the since he specific refers to no instance in which study he would time to the notes need testimony of character this was offered attempting transcription. before rejected. ques doWe not reach the The court offered to general tion of whether the court’s state overnight, do witness this an ad correctly scope ment defined the of ad joining prog room the trial while was testimony. missible ress. These reasonable were alterna appellant’s Fourth. It was contention appellant’s proposal. Appellant tives to throughout reporter the substitute rejected suggestion overnight misrepresented ability to tran- study, and failed to avail himself reporter. scribe the notes of the deceased suggestion study that the in an made upon This contention based was the alle- adjoining appel It follows that room. gation that, long-continued because position complain lant nowis in no be beverages, excessive use of alcoholic cause such a test not made. mentally substitute physically incompetent to transcribe the Second. Counsel for notes. deputy attorney asked the district who prove allegation, ap- order to original tried the case whether the trial pellant, January 9, 1956, applied judge had told the witness that the tran requiring pro- an order the immediate script would be delivered to Chessman Angeles duction of the records Los Objection “in court.”
Notes
notes
trial,
petitioner alleges
record
should order that the
there creat-
and
prosecuting attorney
aside and
ed should be set
likewise the
and
affirming judgment
on
based
it.
the substitute
selected
arrangement,
majority
goes
corrupt
opinion
had, by
further
him
transcript.
points
prepared
found
out
the District Court
fraudulent
us,
no
that there was
for Chess-
there is
no factual basis
On the record before
allegations.
allegation
transcript
petitioner’s
man’s
denial of
fraudulently
Court,
prepared,
without
issu
The District
ing
show
also states
does not
or an order to
that Chessman
the writ
directly
findings.
challenge any
application
cause,
as
of those
dismissed
stating
F.
action. 128
not
a cause of
findings
holdings,
With the above
Appeals
Supp.
600. The Court
jurisdiction
the District Court
District
affirmed the order of the
industria,
of this Court ends. Ex
how-