State Ex Rel. Baker v. UtechtState Ex Rel. Baker v. Utecht
Uрon relator’s appeal from an order of the district court discharging a writ of habeas corpus issued in his behalf, respondent moves to quash said writ “upon the ground that the record shows no reason for allowing said writ of habeas corpus herein or for the discharge of the petitioner, and that the judgment of conviction under which the petitioner is now held a prisoner in the state prison cannot be collaterally attacked in a habeas corpus proceeding.”
Relator was convicted of the crime of sodomy on May 21, 1940, and sentenced to the state prison at Stillwater, where he is now confined.
“By a letter dаted November 26, 1942, relator requested the issuance of a writ of
habeas corpus
from this court to determine the legality of his imprisonment in the state penitentiary. Although on its face his application for a writ showed that he was not entitled to it, we nevertheless requested a member of our bar to make an impartial investigation as to the facts Avith reference to relator’s incarceration. Upon his report, it appeared that he was not un
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justly or unconstitutionally restrained of Ms liberty, and, since his-application did not state grounds for relief, we refused to issue the writ.” State ex rel. Baker v. Utecht,
On July 21, 1944, relator petitioned the district court of Washington county for a writ of
habeas corpus
on the ground, among others not here pertinent, that he had been denied a public trial, as guaranteed by
In connection with the aforesaid аppeal, relator, petitioned this court for an assignment of counsel. His request for the appointment of counsel was denied. State ex rel. Baker v. Utecht,
A motion to quash a writ of
habeas corpus
serves only four purposes: (1) To set aside a writ obtained through fraud; (2) to determine whether there has been substantial compliance with the procedural requirements of the statute governing the issuance of the writ; (3) to determine if the matter is
res judicata;
and (4) to serve as a demurrer to test the sufficiency of the allegations of relator’s petition. 25 Am. Jur., Habeas Corpus, §§ 130 and 136; State ex rel. Chase v. Calvird,
Obviously, in the instant case, the motion to quash brings before us only the question as to whether the allegations of relator’s petition, admitted as true for the purposes of the motion, are sufficient to justify the issuance of the writ. Although relator’s petition is crudely drawn, consisting for the most part of argumentative statements and mere conclusions of law, nevertheless it does, in our opinion, raise the issue of whether he was accorded a public trial.
“Questions growing out of an alleged illegal restraint of a person’s liberty * * * impose upon the judiciary the duty of instituting a careful and painstaking investigation into the cause of the detention, and, if it be shown to be illegal, the courts should not be too astute in finding technical objections to the manner in which the legality of the restraint is called in question.” Simmons v. Georgia Iron and Coal Co.
Relator alleges that he has been denied a public trial as guaranteed by
We need only consider whether there has been a denial of public trial as guaranteed by
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Bobeas corpus
“may not be used as a substitute for a writ of error or appeal, or as a cover for a collateral attack upon a judgment of a competent tribunal which had jurisdiction of the subject matter and of the person of the defendant. Nor does the fact that petitioner has permitted the time to elapse for an appeal or writ of error give him a right to
habeas corpus
as a substitute.” State ex rel. Dunlap v. Utecht,
In State ex rel. Dunlap v. Utecht,
“If the trial court had jurisdiction of the offense аnd of the defendant, it is only where extraordinary circumstances surrounding the trial make it a sham and a pretense rather than a real judicial proceeding that habeas corpus will lie on the ground that the judgment is a nullity for want of due process, and this is true even though there is a claim of denial of сonstitutional rights.”
See, State ex rel. Baker v. Utecht,
In the absence of a denial of due process' of law, whereby the court has lost its jurisdiction and its judgment is void and not merely voidable, a judgment, though otherwise erroneous, cannot be attacked collaterally under a writ of
habeas corpus.
See, In Matter of Horner, 19 Wash. (2d) 51,
It is not every denial of constitutionаl rights that violates the due process clause of the Fourteenth Amendment so as to deprivé the trial court of its jurisdiction to proceed and thereby render its judgment void and subject to a collateral attack in a
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habeas corpus
proceeding. The denial of certain constitutional rights,
where the right to due process of law is left unimpaired,
is not fatal to the jurisdiction of the court, and the error rеsulting from such denial is to be corrected through appeal and not by resorting to the extraordinary remedy of
habeas corpus.
Do we have here a denial of a constitutional right involving a violation of the. due process clause of the Fourteenth Amendment? It is not enough to determine thаt the right to a public trial has been denied. We must ascertain if such denial also constituted, or was accompanied by, a deprivation of due process of law. Certain constitutional guarantees by their very nature are intertwined with the due process clause and nоrmally cannot be separated. Other constitutional guarantees stand on a different footing, and their denial does not necessarily result in a violation of due process. In the instant case, assuming that there was in fact a denial of the right to a public trial, relator, who by his petition admits that he was represented by counsel, nevertheless had available an effective remedy through appeal. Regardless of what error, if any, had been made as to the requirements of public trial, relator still enjoyed the benefits of due process of law through the timely and proper exercise of his right to appeal. The doors to the corrective processes of our judicial system were open to him as a guarantee that he should not, against his own free will, be denied of any of the necessary incidents of a fair trial. If he had been denied the constitutional right to the benefit of counsel, as in the case of Johnson v. Zerbst,
In his brief on this appeal, relator frаnkly states that the record of the trial court shows that his counsel and the county attorney conferred with the judge immediately prior to the judge’s order temporarily excluding the public from the trial. It is significant that neither relator nor his counsel made any objection to the court’s order. Although the record is not before us in this proceeding, the presumption of regularity which envelopes a judgment would justify (although not necessary here to a determination of this matter) the inference that relator’s counsel consented to the court’s order of еxclusion. Whatever his counsel in fact did do, relator admits by his pleading that he made no objection during the trial, and he made no effort thereafter to appeal. The corrective processes, as part of his right to due process of law, were his for the asking. It is tо be presumed that relator, acting, through a duly authorized and competent attorney of his own choice, acted advisedly for his own best interest. See, Graham v. Squier (9 Cir.) 132 F. (2d) 681. Relator, having of his own volition elected not to avail himself of the right of appeal, cannot now, when the time for appeal has expired, resort to the extraordinary remedy of
habeas corpus
as a substitute. He has advanced no legitimate reason why he did not pursue the remedy at hand in a timely and proper manner. See, In re Lincoln,
Motion to quash writ is granted.
Notes
But see, Betts v. Brady,
5 Minn. L. Rev. 554; 14 Am. Jur., Criminal Law, § 141; Rottschaefer, Constitutional Law, § 326, pp. 794, 795; State v. Callahan,
Bowen v. Johnston,