UNITED STATES еx rel. AULD v. WARDEN OF NEW JERSEY STATE PENITENTIARY.
No. 10238.
United States Court of Appeals Third Circuit.
Argued Oct. 17, 1950. Decided Jan. 26, 1951.
187 F.2d 615
We further find no merit in the argument that even though the deceased was guilty of contributory negligence, under Louisiana law the case should nevertheless have been submitted to the jury under the “last clear chance” doctrine. See Rottman v. Beverley, 183 La. 947, 165 So. 153; Jackson v. Cook, 189 La. 860, 181 So. 195; 20 R.C.L., Section 16, page 141. Under the evidence presented, the doctrine is not here applicable. The trial court found and the evidence reveals that deceased created his own peril by driving his motor-bike onto the highway into the path of the truck in such manner as to make it practically impossible for the driver of the truck to avoid the accident.
The judgment is affirmed.
lage. The sign, I understood, was down the highway between the settlement and the service station, and the evidence is that it was in open country with only one building. Now, it isn‘t my understanding that merely because someone calls it a village that makes it so.”
Eugene T. Urbaniak, Trenton, N. J., Mitchell H. Cohen, Camden, N. J. (Theodore D. Parsons, Atty. Gen. of New Jersey, on the brief), for appellee.
Before BIGGS, Chief Judge, and KALODNER, and HASTIE, Circuit Judges.
BIGGS, Chief Judge.
Auld was convicted of first degree murder, without recommendation of mercy, and sentenced to death by the Camden County Court, Criminal Division, New Jersey. The judgment of conviction was reversed for error and he was tried a second time. He was again convicted and sentenced as before and again appealed to the Supreme Court of New Jersey. That Court affirmed thе conviction, State v. Auld, 2 N.J. 426, 67 A.2d 175, two Justices dissenting. Auld then sought reargument which was denied by the Supreme Court of New Jersey on September 7, 1949. He next filed an application for commutation of sentence to the Court of Pardons of New Jersey. He was denied any commutation of his sentence on December 2, 1949.
The time for filing a petition for certiorari to the Supreme Court of the United States expired ninety days after September 7, 1949, when the Supreme Cоurt of New Jersey denied reargument, viz., on December 6, 1949, in accordance with Rule 38 1/2 of the Supreme Court of the United States, 28 U.S.C.A., 335 U.S. 915, and
On March 7, 1950, a petition for writ of habeas corpus was filed in the court below and amended three days later. The petition alleges in substance that within forty-
The petition also alleges that after the jury had retired to consider its verdict, a note was sent by the jurymen to the trial judge requesting information as to the five possible verdicts that the jury could return, and that the trial judge wrote out these five verdicts on a piece of paper having had them read to him by the court reporter from his charge to the jury. The paper apparently was then sent to the jury with the еxpress consent of Auld‘s attorney and of the Prosecutor of the Pleas. It seems to be admitted that the acts complained of in the petition did take place.
Auld asserts that because of the foregoing he was denied due process of law guaranteed to him by the Fourteenth Amendment. The court below, having before it the record of Auld‘s second trial and the opinion of the Supreme Court of New Jersey on Auld‘s appeal, cited supra, ruled that it was without jurisdiction to grant a writ of habeas corpus to the petitioner and also that the amended petition did not show denial of due process of law. The appeal followed.
The acts complained of by Auld, as we have indicated, were brought to the attention of the Supreme Court of New Jersey on Auld‘s appeal. That Court held that though the resubmission of the five possible verdicts to the jury by the trial court‘s nоte was error, it was not of such gravity as to require reversal of the judgment of conviction. The Supreme Court found that the testimony of the three psychiatrists was properly admitted to prove that Auld was legally sane and not in an amnesic state when he committed the crime as he had asserted.
The petition at bar is based on
Auld contends that he has exhausted all remedies available to him under the law of New Jersey and conversely that under that law he cannot raise now by way of application for habeas corpus any question relating to the alleged deprivation of his rights under the Fourteenth Amendment. Auld did not exhaust his state remedies for he failed to make application to
The principle expounded, however, is subject to the exception of “exceptional circumstances of peculiar urgency“, referred to in so many of the cases, which may authorize the issuance of the writ by a United States court. See United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 18-19, 46 S.Ct. 1, 3, 70 L.Ed. 138. The petitioner here insists that the circumstances are extraordinary and of peculiar urgency because he cаnnot test the legality of his sentence by habeas corpus in New Jersey and because he has been sentenced to death. The fact that Auld has been sentenced to death will not in itself alone sustain the qualification of extraordinary circumstances of peculiar urgency in the eye of the law. If that fact had such standing every defendant sentenced to death would be entitled to test the validity of his sentence in the federal cоurts. If on the other hand the remedy of habeas corpus is not now available to Auld in the New Jersey Courts, that fact plus his death sentence, in our opinion would sustain the burden of the condition imposed by the Supreme Court decisions and the statute. But the possibility that the Supreme Court of New Jersey may take the precise position enunciated by it in State v. Auld, supra, assuming the writ to be available in a New Jersey State Court, is not a ground for the issuance of the writ by the court below as Auld asserts. We make this statement because it is clear that the avenue of certiorari to the Supreme Court of the United States would be open.
It would seem that the validity of Auld‘s conviction may not now be tested by the issuance of a writ of habeas corpus in a New Jersey State Court. A statute,
In this connection we point out that Auld urges on us the same issues which he raised in the Supreme Court of New Jersey. They are stated in the forepart of this opinion. Only one of these warrants discussion here, viz., the written communication by the trial Judge with the jury. Auld‘s counsel refers to this as a “privy” communication with the jury as does the Supreme Court of New Jersey. We do not quarrel with this technical term but it is not aptly descriptive. What actually happened seems to be as follows. The jury had retired to consider its verdict. About an hour passed. The jury informed the trial Judge by a court constable that they desired instruction as to the five possible verdicts which they could render. The Judge had already charged the jury as to these verdicts. He summoned the court reporter, had the latter read to him his oral charge on this point, and wrote the possible verdicts in his own hand verbatim, on a piece of paper. Auld‘s counsel stated, “I am willing for them [the jury] to have that piece of paper.” The Judge‘s message was delivered to the jury which thereafter brought in a verdict of guilty as previously stated.
Auld contends that he was deprived of due process of law because he was entitled to be present at every stage of the proceeding and he was absent when the Judge‘s note was sent to the jury. In United States v. Johnson, 3 Cir., 129 F.2d 954, 960, 144 A.L.R. 182, affirmed on other grounds, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704, we laid down the rule for this circuit that a defendant in a criminal trial must be present in the courtroom “at every stage of the proceeding which requires the presence of the jury.” We said, “This is an absolute right.” In that case Johnson had been tried in the District of New Jersey on the charge of income tax evasion. We were there dealing with a defendant‘s rights under the Fifth and Sixth Amendments in a trial which had been conducted in a court of the Unitеd States. Here we are concerned with a defendant‘s rights under the Fourteenth Amendment in a State criminal trial. The reach of the Fourteenth Amendment is not coextensive with that of the Fifth. It may in fact be broader or narrower but it is not identical. See Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903. The area is not a tidy one for history has been a bad housekeeper and there is some disparity between what the framers intended by the Amendment and what it accomplished.
It is, however, the weight of authority at present, and has been since Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97, that the pervasive function of the Fourteenth Amendment is to exact from the States observance of basic liberties. See the concurring opinion in the Adamson case, 332 U.S. at page 66, 67 S.Ct. at page 1682. Due process under the Fourteenth Amendment “is not an equivalent for the process of the federal courts or for * * * any particular state“. See Bute v. Illinois, 333 U.S. 640, 649, 68 S.Ct. 763, 768, 92 L.Ed. 986. In thе cited case Mr. Justice Burton also said that due process under the Fourteenth Amendment “has
Although Auld argues vigorously that he was prejudiced by the learned trial Judge‘s actions in sending the written message to the jury prejudice is not shown. We think therе was none. The Supreme Court of New Jersey in Auld‘s case, 2 N.J. at page 434, 67 A.2d at page 179, in fact adopted the rule laid down in Snyder v. Massachusetts, 291 U.S. 97, 114, 54 S.Ct. 330, 335, 78 L.Ed. 674. In that case Mr. Justice Cardozo said, “A defendant in a criminal case must be present at a trial when evidence is offered, for the opportunity must be his to advise with his counsel * * * and cross-examine his accusers“. He said also that the presence of a defendant at his trial is a condition of due process only “to the extent that a fair and just hearing would be thwarted by his absence“. See, 291 U.S. at page 108, 54 S.Ct. at page 333. Here there was no thwarting of a fair and just hearing. The note sent to the jury room only reiterated the judge‘s oral charge in haec verba and Auld‘s counsel expressly consented to this course of action. We cannot say that the sending of the note to the jury in Auld‘s absence was such error that his rights were violated. The Supreme Court of New Jersey, examining this very question with meticulous care, concluded that he had had a fair trial. In our opinion Auld received due process of law under the Fourteenth Amendment.
The order of the court below denying the writ will be affirmed.
HASTIE, Circuit Judge (concurring).
I agree that petitioner‘s complaint of denial of due process should be considered on its merits and that, for the reasons stated by Chief Judge Biggs, the complaint is groundless and the judgment of the district court should be affirmed. Therefore, I associate myself fully with what to me appear to be the essentials of Judge Biggs’ opinion. But the path I follow in reaching the merits of the petition diverges from that taken by Judge Biggs.
I prefer to express no opinion whether New Jersey courts can entertain a collateral attack upon petitioner‘s conviction or whether petitioner has exhausted his state remedy. Judge Biggs has indicated that the reach of habeas corpus in the courts of New Jersey is not clear. Therefore, I think we should avoid that question, if possible, until we get new light from New Jersey. Similarly, I would avoid passing upon the more general question of what constitutes exhaustion of state remedies. In certain aspects that question has recently divided and redivided the Supreme Court. It is now here in rather unusual aspect in a complicating context of uncertainty as to what the state law permits.
I think we are not required to decide these questions now. More particularly, it is unnecessary to consider whether, regardless of the merits of the present petition, Section 2254 of the Judicial Code precludes the granting of affirmative relief at this stage of the litigation.
The general grant of jurisdiction in habeas corpus which appears in
Ҥ 2254. State custody; remedies in State courts
“An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that therе is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
“An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, thе question presented.”
In terms, that Section is no more than a statutory prohibition against granting relief in certain habeas corpus proceedings absent a showing of exhaustion or lack of state remedy. Both the Code revisers to whom we owe the text of this Section and the Supreme Court tell us that Section 2254 does no more than codify certain principles of public policy in the field of intergovernmental relationships which the сourts of the United States had already invoked as a matter of appropriate self-restraint. Historical and Revision Notes to
It should not be implied that Congress has gone any further than the Code revisers indicated in limiting the flexibility and adaptability to the exigencies of the particular claim which properly characterize the administration of the Great Writ. Therefore, I would construe Section 2254 strictly, limiting its effect on judiciаl power to its express terms and indicated intendment, and ruling that judicial power to dismiss a petition on its merits is not destroyed by the statutory limitation on the granting of affirmative relief.
Once it is concluded that there is power to dismiss this petition on its merits, common sense dictates that course. We are agreed that petitioner‘s claim of unfairness in his trial is groundless. The alternative to dismissal on the merits is a dismissal which sends the petitioner back to the statе court to institute a collateral attack, without any assurance that the state courts have power to entertain the suit, but with the understanding that if the state courts and the Supreme Court do not help petitioner in that proceeding he may come again to us via the district court to be told then what is clear to us now, that his petition had no merit in first instance. However desirable such deference to the state courts may be where оn the record there appears at least a doubtful question whether due process has been accorded a petitioner,2 I think there is no point to circuitous rerouting of litigation in such circumstances as this case presents. I am satisfied that we have properly avoided requiring it.
Notes
“An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.”
The Reviser‘s Notes, attached to 28 U.S.C.A., state in pertinent part, “This new section is declaratory of existing law as affirmed by the Supreme Court. (See Ex parte Hawk, 1944, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572).” The Notes are to be regarded as authoritative in interpreting the meaning of the Code. United Statеs v. National City Lines, 337 U.S. 78, 81, 69 S.Ct. 955, 959, 93 L.Ed. 1226 (1949).