*1 the cause be reversed and will insurance, vehicle. carry a hired law to entry remanded for the lessee, had lessor, well as as Thus the opinion. both accordance with this protection of to it available however, rule, policies. is no There and remanded. Reversed extended not be insurance excess insured, and there an additional such to coverage pro- nothing in the extended suggests American which vision change character Surety intended to coverage afforded nature of the insured, Johnson policy named its coverage The extended Motor Lines. by implica- refer, provision even does not clause, and, tion, insurance the excess them, being between no conflict PARKER, Appellant, give must, both can, effect we them. Manager, ELLIS, Texas- B. General O. System, Appellee. Prison suggested that Finally, No. 17047. subrogation right here there is no by the caused because negligence the accident United States protec of one entitled to the Circuit. Fifth Surety’s policy, and tion American Aug. 1958. course, is, rule of Canal’s also. The Sept. Rehearing Denied company, applicable an insurance where derogation contract, seeks to be of its right subrogated of its named against insured assured additional clause, for addi under omnibus insured, except as limited
tional protec contract, the same is entitled to insured. The rule tion as the named right however, application, no right of John asserted is contractual Lines, in as an additional son Motor discharge sured, its that Canal to insist obligations, and the asser contractual right is not inconsistent tion of the obligations of the subro
the contractual many eases, gated resolv insurer. rights ing conflicting of insurers situations, comparable could not other not fall Losses should
wise have arisen. irrevocably upon first that insurer which neg
recognizes obligations, one while its escape. duty is allowed to lectful of its stated, we hold that For reasons pay required Amer- should be Canal Surety payment amount of its ican actions, judgments in the tort liability up in Canal’s limits to the costs, expenses
policy, and attor- investigation ney’s incurred in the fees claims. The tort
and defense *2 declining
ror in corpus1 to issue writ of upon appellant Parker’s based application claiming he was process due Fourteenth under law a before Amendment that he was tried rep- Texas State was not when he Court by counsel, unable resented was sick and to defend himself, evidence and the support insufficient conviction court the crime of The trial Ellis, appellee issued an order to General Manager, System, show Texas Prison granted why cause should not be bring pro- and to court the before the ceedings upon judgment of which the rendered. appellee response In this order brought copies court below before the indictment, capias, of the of the court, verdict, judgment, sentence along mandate, docket entries Sixty-ninth of the District Court Texas, District, County, Judicial Moore attaching prison and criminal also the appellant. He drew the court’s record of appellant had the fact attention appealed convic- from the tion, af- had been said firmed of Criminal the Court Appellee also exhibited of Texas. judge,2 the trial his return certificate of pe- copies proceedings in attached appellant corpus titiоn for habeas which had filed in Texas State Court order entered. ap- ordered below The court
plication of habeas be for writ (cf. upon affidavits, 28 U.S.C.A. heard upon appli- 2246) it was heard § other documents and the various cation upon appellant in his own behalf filed pro. per. appellee and the return Atty. Gen., Shivers, Linward Asst. trial, proceedings transcript Wilson, Atty. Gen., appellee. Will by appellant had been obtained which HUTCHESON, Judge, Chief Before through a firm оf the assistance of law- CAMERON, RIVES and Circuit yers and a doctor. Judges. presented to the court below The facts dispute Judge. CAMERON, without material Circuit point, be summarized as fol- presents appeal This lows: the court er- below committed whether seq. § U.S.C.A. 2. 28 2241 et
1. 28 U.S.C.A.
deposit.
Easley
sixty-six,
age
Sheriff
testified
Appellant Parker,
John
that the
Jury
Moore
accused
admitted to
indicted
the Grand
question.
wrote the
County,
forging
checks in
Texas,
name
Quattle-
Quattlebaum
Elzie
Phoebia
stand,
Parker did not takе the witness
*3
3,
November
baum on seven checks. On
called
but
who
seven witnesses
testified
hearing,
and
the
for
good
case came on
Easley
to his
character. Sheriff
ready
for
he stated
he
trial
that was
objection
testified in rebuttal without
by jury.3
desired to be tried
prior
he
con-
that
of seven
had evidence
forgery,
by
victions for
a
as shown
testimony of
the
offered
The State
report
F.B.I.
jury
The
in the sheriff’s office.
recog-
Quattlebaum
not
did
he
that
Elzie
guiity
a
returned
verdict of
account
nize the
drawn
checks
years
punishment
fixed the
seven
at
not
he did
Quattlebaum, that
Phoebia
sign
Penitentiary.
the State
The court’s
checks,
any
that
the
his name to
accordingly, but
was entered
defendant,
recognized the
knew and
the
for
sentence ordered incarceration
to
defendant
the
not authorize
but did
sign
not less than two nor more than seven
any man-
to
his
the checks
name
years.
23, 1955,
March
the
Court
The
Phoebia.
ner,
mother
nor did his
Appeals
Criminal
affirmed the
Bаnk
State
First
the
Vice-President
of the
District
State
Court.4
ap-
Texas,
the
that
Dumas,
testified
of
pellant
August
bank
appellant
appli-
that
opened
with
account
made
de-
question
were
to
cation
checks
Criminal Court
that
and
posited
corpus
A teller
Texas
account.
a writ of habeas
for
to this
appellant, where,
time,
that
for the
testified
first
raised the
bank
same
assistance, opened
representation
account
issue that he was denied
her
with
depositing
by
by
three
ill at
and that he was
the time
bank
petition
she
and that
her
with
of the trial.5 His
set
at
forth
checks
length
for
wrongfully
checks
appellant
endorse
convicted
saw
that
3. The
this
represent
resent
have
tainly
jury
hired ?
ry?
Grand
me,
Cause
outset
“The Court:
“Mr.
“The Court:
“Mr.
“The Court:
“Mr. Parker:
“The Court:
“Tlie Court:
“The Court:
“Mr.
“The Court:
“Mr. Parker:
“Mr. Parker:
this
jury
Court to
judge.
Court
following
to make
immaterial
No.
Jury
Parker:
Parker:
Parker:
year,
without
defendant
Are
Lee Parker.
of this
I don’t have
appoint an
charged
triаl:
yon ready
up
colloquy
defendant.
appoint
slyled
You
Do
Well,
Yes,
You
Yes,
Do
No,
Well, you
a
That
I am
to the
your
jury?
guess
law
county
you
you
sir, I don’t.
want a
sir.
sir.
The
with
is
took
mind.
calling
Is that
attorney
does
want
for trial?
is immaterial to
court.
right.
have
a
he has
State
attorney.
any the offense of
indicted
It
are
jury
attorney
place
trial
practice
a
It is cer-
July
a
for
going
of Texas
you?
trial
require
then.
lawyer
a
up
by ju-
at
by
trial
26th
rep-
trial
by
to
to
a
4. Parker v.
you
idead
he was under сare of
2d 533.
prior
not be
him to
Now,
and I
guilty?
get
to
procedure
suspended
a
suspended
pended
said
sentence, why, then,
“Petitioner would
“The Court: Mr.
Parker: Not
“Mr. “The
“Mr. Parker:
“The
“Mr. Parker:
“Mr.
suspended
get
[*]
some
you
only
to,
if
will
a
any
Parker: No.
sentence.
Court:
Court:
you
suspended
were,
arrange
at
lawyer
if
sentence but
sentence.
State, Tex.Cr.App.,
arrange
s
sense in
the time
you
are
filing
part only.
sentence,
indictment, guilty
ready
If
All
Yes,
I will not
eligible
to adviso
are
If
for
you
your
sentеnce,
[*]
for a
right.
for trial.
you
further
applying
sir.
of,
guilty.”
eligible
Ms own counsel.
the Court would
want to
you
doctors,
only
application
for a
are not
lawyer
you
apply
1 believe
[*]
let me
for
how
show
for
for
suspended
276 S.W.
about the
apply
and was
present,
qualified
to
or not
it.
do
a sus-
would
for a
know
[*]
part
help
you
you
forgery, admitting,
long
ap-
however,
record,
from
pellant
confused
passing
contention,
of the offense of
never
until
made
forged
applicаtion
Court,
instrument.6 The
his
re-
brief before this
that he
quested
was denied
a continuance of
case because
application
physical
was of
for certiorari
all other
condition.
In
Supreme
merely
the United States
instances he had
been content
Court,
350 U.S.
100 stress
bad.
the fact that his health was
transcript
proceedings
L.Ed. 843.
appellant
does not
ad-
show
ever
appeal
In
order
from the
of vised the
before whom he was be-
court
denying
the court below
issuance
ing
physically
tried that he
inca-
*4
corpus,7 appellant
of
relies pacitated,
any
or that he ever
con-
asked
points:
petitioner’s
on two
of
“because
any
tinuance or
other
based there-
relief
physical condition,
the
continuance of
place
on. He did
several
stand
promptly
requested
case was
was
which
lay witnesses for whom he
worked.
by
court;”
peti
trial
and
the
that
times,
Some said
he
that was ill at
others
judge
ap
tiоner “then asked the trial
to
sign
that he showed no
of illness. All of
attorney
point an
defend him as he
to
always put
them testified that he
in a full
lawyer;”
employ
funds
a
was without
to
day’s
working
work when he was
for
being
of these
it
contended that both
them.
by
trial court
actions taken
the Texas
judge
appellant
The state
who tried
appellant’s
in violation of
consti
were
possession
he
in full
argue
certified that
seemed
rights. He does
in
tutional
not
faculties,
otherwise,
that,
and
of
point
mo
in his
his brief the
stressed
proceeded
trial.8
not have
would
for
new
and in
various
tion
proceedings
a
the
by
him in the
conducted
us on the conten-
In his brief before
Courts,
was con
Texas
the
that
verdict
of
fur-
tion that the failure
the court to
point
trary
This
to the evidence.
last
attorney
nish him an
violated his consti-
further, therefore,
will not be considered
rights, appellant claims
that
tutional
palpably
without merit
because
appointment
requested
of an
the
attor-
abаndoned.
been
because
ney.
of the record fails
An examination
such a contention
reveal that
was
to
any show of merit
Nor is
pleadings, ar-
in the
other
made
various
physi
appellant’s
claim based
in
guments
made before the
and statements
we can
As far as
tell
cal condition.
process
law,
phys-
of
and it con-
strain,
due
without
therefore
under constant
a reversible error.”
stitutes
such that
was
and mental condition
ical
impossible
to intel-
for him
it would be
deсlined also to issue
The court below
himself,
ligently
if
even
defend
probable
but, after
of
cause
a certificate
operations of the
intricate
in the
versed
Court,
was filed in
the
record
the
panel
appeal
right of
denied his
He was
law.
sitting granted,
judges
on
of
then
proper pro-
know the
did not
since
a certificate.
such
December
**
entering
appeal
of
cedure
judge’s
of
cer-
the words
the
8. These are
tificate,
28 TJ.S.C.A.
2245:
cf.
been tried
not have
shоuld
6. “Petitioner
throughout
my opinion
“It
offense
of
the offense
pos-
in
forged
defendant
full
the
was
passing
the trial
instrument would
a
of
petitioner
mental
faculties
and well
proper,
of his
session
would
have
proceedings
charge
guilty
all
the
pled
understood
a
of that na-
have
any
any
passing
indication
not discern
Forgery
did
of a
ture.
might
separate,
physical ailment
handi-
in-
have
forged
are two
instrument
any way.
capped
penalties,
in
charges
If
I had ob-
with different
dividual
any
indicating
petitioner
evidence
served
tried
therefore
handicapped
points
either men-
(forgery)
all
defendant
one,
evidence
tally
physically,
or
the case would
not
that he was
effect
time,
irrespec-
tried at
in
have been
and no mention is made
any request
postponement
by
passing
a
tive
indictment
petitioner
defendant.”
instrument,
forged
was tried
trial,
conviction
of one
and incarceration
The record
Texas Courts.
pertinent
copied
com-
whose
offensive to
are
trial is
portions of which
fair-
mon and
fundamental ideas
not disclose
3, supra, does
footnote
in
right,
ness and
want
be
while
counsel
appellant
request
particular
re-
case
represent him.
appointed to
lacking
in a
such
sult
conviction
therefore, comes
question,
fairness,
fundamental
we cannot
Texas
State
whether
down to
bound,
say that
the amendment embodies
Amend
Fourteenth
under
an inexorable
no triаl
command that
represent
lawyer
ment,
provide
any offense,
court,
can
jury.
appellant
trial before
in his
fairly
justice
be
conducted
ac-
legal rep
furnishes
of Texas
The State
rep-
corded a
who is not
defendant
charged with
only
those
resentation
capital
resented
counsel.”
Texas is
That
offenses.9
Brady
The rule of Betts v.
recent
de
practice
is shown
in its
alone
ly
Supreme
considered
Unit
Supreme Court
cision
light
subsequent decisions,
of its
Brady, 1942, 316
Betts
ed States
majority
of the court adhered to
86 L.
concept
idea
process
that the
of due
Supreme
*5
case the
In that
1595.
Ed.
rigid
“less
and more fluid than
en
those
every
length whether
discussed at
Court
visaged
specific
in
particular
other
charged
offense
criminal
person
with a
provisions
Rights;”
of
Bill
the
of
legal rep
is entitled
court
in a state
that,
trial,
in a State Court
the absence
resentation, and answered
legal representation
of
is not fatal to a
еpito
negative.
conclusion is
Its
in
lacking
conviction unless the trial was
in
words:10
in these
mized
“that fundamental fairness essential to
that,
demonstrates
“This material
very
justice.”
concept
of
See Crook
states,
great majority of the
in the
1958,
er v. State of California,
357 U.S.
been
considered
it has
433,
1287,
78
1448,
S.Ct.
2 L.Ed.2d
representatives
people, their
Gay, 1958,
Cicenia v. La
504,
357 U.S.
appointment of
courts that
and their
1297,
78
2
1523,
S.Ct.
L.Ed.2d
and cf.
right,
fundamental
is not a
Gray
Ellis, Cir.,
5
F.2d
257
the con-
trial. On
to fair
essential
A careful examinаtion of the record of
generally
trary,
has
the matter
appellant’s
pro-
trial and
all of
of
legislative policy. In
of
deemed one
ceedings which have been had since its
light
un-
we are
evidence
entirely
conclusion fails
to disclose
concept
say
of due
able
speak
such unfairness
these cases
of.
incorporated
Four-
process
hand,
appel-
the other
is clear
On
obligates
Amendment
teenth
given
trial,
fair
ad-
lant
that no
statеs,
own
be their
whatever
vantage
him,
was taken
and that he
every
views,
in
furnish counsel
courtesy and
was treated with
consider-
Every
power,
court
such case.
ation.
of the court below
appoint
proper,
coun-
deems
if it
therefore,
is,
seems to be re-
course
sel
quired
of fairness.”
in the interest
Affirmed.
opin-
concluding paragraph of the
Judge
RIVES,
473,
(dissenting).
page
Circuit
S.Ct.
(316
62
at
U.S. at
ion
1262)
thus:
page
reads
3, 1954,
On
in
November
the District
County,
said,
Texas,
ap
of Moore
Four-
we have
“As
adjudg
pellant,
prohibits
Amendment
teenth
1771;
parte Hope,
Ex
494,
86
L.Ed.
154
Criminal
Tex.
Code
Vernon’s
9. Article
Texas;
State,
456, 228
C r.R.
S.W.2d 171.
Holton v.
Procedure
722,
415,
cer
158 S.W.2d
143 Tex.Cr.R.
pages
1311,
471-472,
703,
10.
944 got years corpus Missouri and and I proceed two be- the rule that in habeas serving paroled ings, lieve was some proceed after as well as in 2255 Section ings, “Where,
time.
is
here,
still that:
are substantial issues of fact as to events
“Q. And,
approximately
is
prisoner
in which
participated,
county.
when he came to
Is that
require
production
trial court should
his
right A.
?
I don’t know when Mr.
hearing.”
Hay
for a
United States v.
county.
Parker came to this
man, 1952,
342
U.S.
72 S.Ct.
“Q.
miscel-
Are there
other
263, 274,