170 P.2d 626 | Kan. | 1946
The opinion of the court was delivered by
This is an original proceeding in which petitioner seeks a writ of habeas corpus to secure his release from the state penitentiary, to which he had been committed by the judgment of the district court of Hamilton county on October 26, 1942, for the, crime of larceny from a dwelling house as defined in G. S. 1935, 21-537.
The petitioner, in his own behalf, filed his application for the writ, alleging in substance that he was confined to the Oregon State Mental Hospital at Salem, Ore., in the last part of May or first part of June, 1938, and that he escaped July 5, 1938, and had not as yet been apprehended, and that the records would show he was incarcerated in the Federal Hospital for Mental Cases at Springfield, Mo.; that he could not have been responsible for the crime alleged to have been committed in Syracuse, Kan., because he was insane at the time; and he alleged further that he had no attorney, was denied counsel, begged the court to hire his own counsel and was refused that right, was forced to make a confession by the duress and coercion of the officers of Hamilton county, Kan., and was forced to plead guilty. He also filed with his application a statement of facts, to which reference will be made later, as well as a motion that this court appoint counsel to assist him in preparing and presenting his application. This motion was allowed and David H. Fisher, a reputable and competent attorney at law, was appointed to assist the petitioner and has so acted.
Briefly stated, the answer of the respondent denied the allegations of the application for the writ and alleged that petitioner was lawfully in his custody by reason of a valid judgment and sentence of the district court of Hamilton county rendered October 26, 1942, and copies of the information, judgment, commitment, statement of the district judge, statement of the county attorney, all being records of the Kansas State Penitentiary, were attached. The answer further stated that during the progress of an attempted j ail break on October 23, 1942, some force was exercised upon petitioner in the process of quelling a riot and attempted jail break of the petitioner and some other prisoners in Hamilton county as shown by affidavits of
To this answer of respondent petitioner filed a reply, reiterating in more extended form the allegations of his application and statement, and attaching certain certificates and letters concerning his commitment to the Oregon State Hospital and the Medical Center for Federal Prisoners at Springfield, Mo., reference thereto being later made.
The respondent prepared an abstract including the pleadings and some of the records and affidavits referred to and the petitioner filed a counter abstract including others.
The cause is submitted to the court on the pleadings and record thus made, and on the written briefs of the petitioner and respondent.
Limits of space do not permit a full review of the record thus presented. We shall take up the various contentions of the petitioner and refer sufficiently to the record to dispose of them.
The petitioner first contends that he was insane at the time of the commission of the offense in Hamilton county, Kansas, on or about October 11, 1942. We first notice his own proof that he was insane. With respect to his commitment in the Oregon State Hospital, there is no specific showing of any finding ef insanity, but by certified copies of various documents it is shown Melvin Elliott, who was admitted from Marion county (Oregon) on May 9, 1938, escaped July 5, 1938, and was discharged December 16, 1938. A letter addressed to petitioner’s attorney, written under date of March 22, 1946, by C. E. Bates, M. D., a member of the medical staff of the hospital, states Elliott was committed May 9, 1938, escaped July 5, 1938, was not apprehended and was given a full discharge December 16, 1938, “condition not insane.” Attached to the letter is a certificate that the information is taken from the hospital records.
With respect to his later confinement or imprisonment a letter addressed to petitioner’s counsel, and written in response to a letter from him, is attached. It is from the Supervisor, Classification and Parole, of the Medical Center for Federal Prisoners at Springfield,
The respondent produced an affidavit of the chief of police of Garden City and attached were copies of written reports made at the time by the officers arresting petitioner and two companions. None of these documents make any reference to any claim by Elliott that he was ever or then insane. The affidavit does state that Elliott was not refused counsel or the right to communicate with members of his family (his wife was arrested with him) and that Elliott was told why he was arrested. R. S. Field, who was appointed to defend Elliott at his trial, states that after his appointment he conferred with Elliott and his companion Nash, and explained the charge to Elliott and asked if he understood it and was answered in the affirmative; and that Elliott exhibited a fair degree of intelligence and appeared to fully understand all matters explained to him.
On the whole evidence adduced we conclude that petitioner was not insane either at the time of the crime or at the time of trial. It is not necessary that we treat the question of petitioner’s sanity further, nor discuss any propositions of law that might be applicable if he were insane at either of those times.
We shall treat together petitioner’s allegations that he begged the court to hire his own counsel and was refused that right; that he was forced to make a confession by duress and coercion of the officers of Hamilton county, and that he was forced to plead guilty. As has been noted, when petitioner filed his application for the writ, he also filed a statement which we treat as his deposition. Summarized, the petitioner states that he was arrested just west of Garden City and placed in the city jail there and although he repeatedly asked he was kept in ignorance of the charge against him; that he demanded that he be allowed to consult counsel which resulted in his being transferred to the Hamilton county jail, where he was held three days before being told by the deputy county attorney Frazee and sheriff Bray that he was held on a larceny charge; that he had previously been convicted of a felony and they would see he got twenty-one years in the state penitentiary if he did not plead guilty. He refused to agree and his refusal brought about ten days of abusive treatment upon the culmination of which sheriff Bray and his deputy Davis assaulted him and beat him with a blackjack and their fists and warned him he had better plead guilty; that he pleaded with them not to beat him and that he desired counsel to tell him what he should do; that he sought to communicate with members of his family; that he tried to tell them of his mental condition, and that later he was forced by the threats of Frazee, Bray and Davis to sign a statement that the brutality upon him was inflicted upon him in an attempted jail break and he now repudiated that statement; that when he was taken into court he was told, in the presence of the district judge and others that he had
In a general way it may be said the respondent’s proof denied each of petitioner’s assertions. No good purpose will be subserved by making an analysis of all the evidence. It may be first observed that when the petitioner and one Nash, who was jointly charged with him, were arraigned the trial court inquired if they had counsel and each replied he had not and had no means to employ any, whereupon the court appointed R. S. Field, an attorney of Syracuse, to represent them and continued the cause until such time as counsel was ready for arraignment. Later arraignment was had and each defendant pleaded guilty. The state moved for judgment and sentence on the pleas of guilty and the court inquired of each of them if they had a legal cause why judgment and sentence should not be pronounced on their pleas of guilty, and no reason being given by them or- their counsel, the court pronounced judgment and sentenced them.
The affidavit of Richardson, chief of police of Gai’den City, entirely refutes any claim of deprivation of any right of petitioner while he was in jail at Garden City. It may here be said that at the time of his arrest an officer in Finney county made an inventory of goods found in possession of the petitioner, who now argues he was not guilty because all of the articles he was charged with having stolen were not listed thereon. At least the field glasses were, and as the value of the goods stolen was not material to the offense with which petitioner was charged, we shall not discuss that point further. However, in the affidavit of sheriff Bray, it is shown the defendant had the goods in possession when arrested and the same were later identified by the owner from whom they were stolen. The sheriff further testified to a conversation with petitioner’s wife, and that due to other property being found in
We note that among other affidavits is one made at the time of the arrest by the wife of the petitioner, and another recently made by her repudiating the first. Petitioner objects to the first ■for claimed incompetency of the wife as a witness against her husband (G. S. 1935, 60-2805, Third). Without any concession the contention is good, we ignore the affidavit.
Mention has been made of an attempt by Elliott, Nash who was arrested and tried with and for the same offense as Elliott, and one Mead, to assault Bray, the sheriff of Hamilton county, and of Elliott’s testimony as to brutality inflicted upon him, as well as evidence of the sheriff and others giving their version. This opinion need not be encumbered with the details. We have read all of the record, and conclude that no brutality was inflicted upon Elliott or the other prisoners, but only such force was exerted by the sheriff and his deputy as was necessary to prevent an escape.
This being an original proceeding the burden is on this court to determine the facts. Upon consideration of the whole record, only a part of which is recited above, we find that petitioner was not insane at the time of the commission of the offense to which he pleaded guilty or at the time of his trial; that he was not denied counsel; that he did not beg the trial court for counsel of his own choosing but informed the trial court that he had no counsel and no money to hire any and the court, as required by statute, appointed counsel for him, who duly represented him; that the petitioner was not deprived of any right of counsel nor to communicate with anyone of his own choosing; that he was not coerced or forced in any manner to make any confession of the crime with which he was charged nor .to enter a plea of guilty thereto, and that at his trial all statutory requirements were had and met.
The writ prayed for is denied.
