Brief for Petitioner — Bushnell v. Ellis

Supreme Court brief1961

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IN THE SUPREME COURS UF THE UNITED

OCTOBER TERM, 100)

No. 561

“EAMES Mo BUSHNELL.

I’, ney ’

‘ \

B. ELLIS, Director, 1 Dapartinent of Corrections,”

WT / jel /

WRIT OF CRELICGRARDL To Jrbk eo \] Al’) \

7 kf TENAS

s vy

BRIEF FOR THE PETITIONER

a #

. . Perneye DD. Waerran

Be ( ‘dai / / /

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L000 Chal? ray

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. ENDEX

SUBJECT INDEX

\ : » Page

Brier row THR PeTIrioNnen:

Opinion Below “ ]

| Jurisdiction: | pare 7

| Question Presented biel aoe 2

_ Constitutional Provision and Statutes Involved 2

“Stateme ood rage cuaacietvsnateparsuvisv devas sorkengesecotsiatetindeys s

Summary of Arewne Sere are sadn ee: tek lee ae

) Argument: *-

The State court's Conviction of Petitioner on the —

charge of robbery ky assault, after the court's

refasal or failure to appoint defense counsel,

deprived Petitioner of due process of law because

| @ he was unable to protect himself at trial in view

of his yguth and ignorance, the conduct of the

1£ court ant the prosecuting attorney, and complex

. problems as to the admissibility and purpose of

MIE ios ices ccses screeners Nescestouitn ton: . 26

Comelusion ...9.ccccs.cessseesceeseeeee Mpasdetsakienccetenroetadias © Fass 39°

| * | CITATIONS |

| CASES: + ; $. |

|. Abston v. State, 182 Tex. Cr. R. 130, 102 S.W.

} * ‘ Te scsasccetnvinahiicnrcabtcaciccexsnnicniguahitamiah sciccisi hones 20

* Allgood v. State, 141 Tex. Cr. R. 327,148 S.W.

. | 2d 433 ..... Agienbnisne awenxolsauticoastnanihacthaaancivels vaieaes 30

} e “ Bingham y. Slate, 97° Tex. Cr. R. 594, 262 SW.

y . TIE scisnriss ves staaniatesistatonrasavmuactios tetas eceatiis 30

’Brooken v. State, aigt ex. } PP: in 1, »S.W. (30 27

' Brown v.Mississtppr, 297 U.S. 278 ..ccceceeeeeseees 29

- Cash v. Culver, 358 U.S. 683 .........ccccccccsccsssseeceees 39, 36

| eo Cavazos v. State, 143 Tex. Cr. R. 564, 160 S.W.

f seca tevievincthetscn oie viciastaiedasteestaiecgaoeaicnen 30

| | . .

ii.

IN DbsX

Priapre

Chambers vo Florida, SoU UWS, 227 av

Childress Vv. State, 92 Tex, Ce. R. 215, 241 De! W,

129 : . oe

Davis vo State, 105 Tex. Cr. R. 496, 308 SW. 2d

SS) beens Bu

Dayyv State, ‘ > Tex’ ( r. R.173, 338 SW. 2a Sil 82

Dean, Stal 2p x. Cig SAT THE SW. 974 30

Dennis vy. State, 141 Tex, (rr, R. 304, 148 S.W. 2a

LQ0S i ‘2 ol

Dimgrtv Sale, 136 Tex. Cr. Ro 197, 240 S.W.-

Sd 293 . Fe iksayi Se ; * gv

hen part Bush, 166 Tex, ¢ r. R. 399, 313,8.W. 2d 4

287 TV ESRERMS FAB. ye oe ste Oe sbedy oo

Kar parte Davis, a1 Tex. Cr. R. 608, 108 SAW. S894 27

1 Pi aphid Harrelson, Qi Okla. es. R. 399, 264 :.

Bibbs Vv. Burke, 837 US. 773 sicadcdpeeadouneinievist ioe Say

Gitbert v. State, 162 Tex. Cr. R. 200, 284 SW. 2d

A Cre a ear Sa. OS

Golemon v. State, I 57 Tex. Cr. R. 534, 247 SW, .

I sarap Ree hs

Huttoy NT OEC | ad Bee WH 6 SI xccncnccccctwaccovsvecsccxes ee a

In re Charles, 344 P.2d 1118 ........ ir ee ee ae 27

Kunz v. State, 166 Tex. Cr. R. 4, 310 S.W. 2d

SERN ee henner ee ee ees cc 2

Lisenba s. California, Ai Bap a 28

Mahoney vy. State, 33 Tex. Cr R. 288, 26 S.W. 622 3

Massie Vv. State, 27 Tex? App. 577, 11 S.W. 638 3

Moore v. State, 324-S.W. 2d 879.........:....¢.............. 31, 38

NVuvarvtte v. State, 103 Tex. Cr. R. 449, 281 SW.

Pak ae ee ee a ee 31

Parker 'v. State, ‘01 Tex. Cr. R. 68, 238 S.W.,, 943 3

Payne v. Arkansas, 366 U.S. 560 ck. WS, 29

Pettibane v. Nichols, 208 U.S. 192. coccccscoseccs ce. tae

Pierson v. State, 145 Tex. Cr. R. 388, 168 S.W,

See a ee oe 31

Pollard v. State, 33 Tex. Cr. R. 197, 26 S.W. 70 32

Roberts v. State, 44 Tex, Cr. R. 267, 708. W. 4233 of

Sexton v. State, 83 Tex. Cr. R. 416, YOS. Ww. $33 .. 31, 32

INDEX il

; » Pa

Stalery. State, 30 7Pex, Cr, Ro 167, ouS.W. 2d

py Se «RE 29-30

Stafford, Stete, Wy Tex . R. 174, 67 SW. 2d

Je) . ee ‘ pa oe s : ol

Thompson Ve State, 124 Tex. Cr. R. 440, 63 S.W.

Ld S49 : /

Tou UNE nil Vi Drink : oud [us, ib i

Vaughn ve State, Wo Tex. Cr R, Tle, loo SAW,

ee AO hae ge ER OD eer @

Ward ve Te ras, 316 U.S. 347 27, 28, 29

Williams “ooSTale, 88 ‘Tex. Cr. R. Si, 225 S.W.

liz eek po Reagan on a

We iloughby Sa State O87 Tex. Cr, Re 40, 219 SOW.

ee hil Aa beter athan waapiies ME LS eat ae 31

STATUTES:

2s United States . ica Bh . ;

See, 1257 .. FE AE Fare el ae ien Ms ale s

See. 2106... ae Eto Ye ae

Vernon's Penal Code of Texas: :

Art. 1408 (Robbery). 3

Art.56 (Intoxication and 1 Use of narcotic: sas

a de MEE Sorscianca ie e 34

V ernon’s Code of Criminal Proce ‘pre of Texas:

Art. 2150 (When felony nv has been committed) 4, 27

‘Xrt. 217 (Must ti ike offer nder be ‘fore magis-

trate)... aE EE Set As Tic hoes: alles Rie ch ace ob ioe 4, 24, 28, 30 -

Art. 240 (Examining Ee i ee

Art. 247 (Warning to acetised) 000. . 4,28

Art. 248 (Voluntary stateme wigs entices’ Sage

Art. 491 (No arraignment) 000 ”

Art. 494 (Court shall appoint counsi 1 oe i)

Art. 494 (Same, as amended effective June

1, 1959) : : #° F

Ag. 120 (WwW he: n eontvasion shall not be.

OED cto, sriteesteeeegesecsecaeretsteereseee Oy 2D, BY, BI

Lotiisiana Aets 1928, Nol 2, Soe J. Art. ob

(Arrest without warrant) = = Ae

*. Louisiana Aet:

OTHER

> 32° Tes:

INDEX

1h, No.

Close purstit, arrest) .,

Lonisiant Nets 1955, No.

(Close pursnit, bearing )

“ ‘

AU TITORITIES ; r

Noteg 96 A.L.R. oi) (1928)

IS4,

US4, Boe.’

See,

1 Branch’s

ed. 1956)

Jur, 300- \ | ae

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cs)

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’

“

”

,’

Annotated Pe nal Code. of Te ‘Xa (2 d

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co Py " Le

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IN THE SUPREME COURT. THE’ UNITED STATES

QCTOBER TERM, 1960 |

” —

ae ' No. 561 & ae

\ \ ianebineiantd — a

JAMES M. BUSHNELL.

Petitioner,

. iy *

‘ d US,

O. B. ELLIS, Dircetor, Texas Department-of Corrections,

Respondent.

eo ON OVW RIT OF CERTIORARL TO THE COURT OF CRIMINAL APPEALS

. OF TEXAS

BRIEF FOR THE PETITIONER

Opinion Below

The Canrt of Criminal Appeals of Texas denied Peti

stoner’s petition for writ of habeas corpus and motion, for

rehearings Without writtensorder or opinion (R. 44, 47).

Jurisdiction

Petitioner's petition. for writ of habe Haas corpus was de

pied by the: Court of Criminal Appeals of Texas on dan.

- ary 1d, 1960 (CR. 44). Motio& for rehearing was denied) |

by. that Court on February 16, 1960 CR. 47), Petition for

writ of certiorari was filed on February 25. 1960, and: on

> \

> ’

> e

¢, i) 2

)

December 5, 1960 was eranted with leave to proceed my

forma pauperis, ‘Che jurisdiction ol | Us ( gurt rests. On.

28 U.S. C, 1257 (3). ,

‘ Question Presented

Whether a young, ignorant, and indicat defendant is

deprived of due, process of lay in violation of the Four-

teenth Amendment to the United States Constitution when

he is ue to trial Om a rege charxe ina State mee with.

exclude

vaca aie and oréjndicial pe RARE sncluding

an’ involuntary written confession, and did not limit) the

jury’s consideration of evidence of aeprior. conviction for

another offense.

ri ‘ : o os :

‘Constitutional Provision and Statutes Involved

Section 1 of the Fourteenth Amendment to fle United

States Constitution. provides in pertinent part:

“No State shall make or enforce amy law Which shall

abridge the privileges or immufities of citizens of the

United States; nor shall dhy State deprive any per. ,

sgn of life, liberty, or propytty, Without.due process of

law; nor deny fi, any person ‘vithin’ dingindicdon the

equal protection of the laws,’ :

Seetion. 12 252, Title 28, Enfted States Code provides in

pertinent part: ;

81257. State courts; appe: il; certiorari ; on

“TF inal judgme nts or decrees rendered by the hisshest

court of a State in which a deci ‘slo could be hid, Tada s

> be reviewed by the Supreme Court is s follows:

é 4

. '* * er * *.

' i °

(3) By writ of certiorafi, where the validhiv oi a

treaty Or statute of> the

Siuestion or where the validity of a State statute is

Nuited States is drawn in

drawn an question on the ground of its being repugnant

to the Constitution, treaties of kaws of Che L nited

Stafes, or whe re ans title, right, privaeve or dyna

/ nity, Ws Fxpevially set up or clatuied nae the Cogisti-

tution, treaties or statutes ol, or commission held) or

lb» authority exercised under, the United States,

. 6 e .

Section 2106, Title 28, Uhited States Code provides:

—_

“106. Determination

“The Supreme Court opayy other court of appellate

: Jurisdietion may

4 reverse any judgment,

fully brought before it for review, and may remand the

nodify, vacate, set aside vor

ree, or order of a court law-

‘ause and direct ‘the entry of such appropriate judg-

ment, decree, or order, .or require such further pro-

ceedings to be: had us. May be Het under the cirenn-

stances.” +

Article 1408, Title XVIT, Vernon's Penal Code of Texas ,

provides ; ha oe

p . = e- .

“Art. 1408. Robbery ei '

“Tf any person by assault, or violence, or by putting

“f - in fear of life or bodily injury, shall fraudulently take

orth Herson_oFe posseMion of another ama prop

ee erty Witheintent to appropriate .the same to his own

use, he shall be security by confinement in the pent.

4 tentiar’ for life, or for a term of not @. ~ than five

, . vears; and when a firearm or other deadly weapon

ix used or exhibited in the commission of the offense,

the punishment shall de death or be confinement. itt

the penitentiary fop any term not less than five years.”

F ; a “ +

4 . a e. er" ® ° . ‘ ‘ : A.

\rticte 215, Tithe od Chapter 1, Vernon's Code of Crim

inal Procedure of Texas provides. . .

“Arto 2ta When felony has been cominitted

“Where it is shown by seit is Bre ‘ory proof to Th peace

officer, Upon the represeytation of a eredible person,

that a felony has heen ‘committed, and that the of

fender ix about to PSCagh PIE, sO that there Is no thie “to

prociire a wirrant, su peace officer may, without war

rant, pursue and arrest the accused.’

Article 217, Title 5,-Chapter 1 (Arrest Without War-

rant), Vernon's Code. of Criminal Procedure of Texas

‘provides : @¢

“Art. 21%. Must take offender before magistrate

Pid *.

“In each case onumerated in this chapter, the person

mitking the arrest shall immediately take the person

varrested before the magistrate who may have ordered

the arrest, or before the nearest magistrate where the

arrest was made Without an oder.” .

Article 245, Title 5, Chapter 3, Vernon’s Code of Crimi-

nal Proce — of Texas provides : 5 ,

° oe

“Art. 245, Examining trial

“When the aceused has been brought before a twagis-"

trate, that officer shall proceed to: examine into the

° trutheof! the accusation made, allowing the aecused,

however, sufficient tine to precure counsel.”

. (ie * we: a 4

Article 247, Title 5, Chapter 3, Vernon's: Texas Code of

Criminal Procedure provides :

“Art. 2447. Warning te accused

“Before the examination of the witnesses, the magis:

trate shall inform the accused that it is his right to

ona

4) , . :

: | ;

2 ° ® ° .

wake a statemenk relative to the eeeusadon drought

avainst Hin. butoat the same time shall alse inform

him that he ean not be eompelledsto aiftke any state

nent whatever, and That ifele does make such state.

ment, it may be used jn evidences avainst hin)” °

inal Procedure of “Texas provides :

A rficle fs

“Art. 248, Voluntary pie cas

“Or the accused, desires ; to niake a volunts uy state. @

ment, he may do xo before thee ‘Naufnation of any wit-

ness, but not afterward. Itis statement shall be. re-

duced to writing by or under the direction of the magis-

trate, or by fle accused or his counsel, and shall he

signed ‘i the accused by affixing his name or mark,

but shall not be sworn’to by him, The magistrate shall

attest by his own certificate and Signature to the execu-

tion and signing of the statement.”*° 00 j

“Article 491, Title 7, Chapter 4, Vernon's Code of Crim-

inal Procedure ‘of Texas provides:

a se

“Art. 491. No arraignment -— oth, .

o F ry \ .

“There shall be no arraigmment of a defendant ex-

ceptu

4, Titly ie a 4, Verfon’ s Code of (‘rim-

“Art. -494.

“When

Court shall appoint counsel ¢

Article 248,. Tithe 5, Chapter 3, V?rnon's Code of Crim-

(KB an indictinent for a capital offense.” 6

pose of being arraigned, if it appear that he has nos

counsel and is too poof to employ counsel, the corirt

hall appoint one or moré practicing Wtorneys to de-

the accused is broiwfght into court for the pur. +

fend him: The counsel So appointed _ have attest —

one day to- prepare for trial.”

° .

Article 494, Vernon's Code af Criminal Procedure of

Texas, astamended effective Jane, 1959, provides :

a “Art. 494, Court shall appoint counsel

a es

“Whenever it is made known to the court at am ar

riigmment orany other time’ thas ine recused-elmarced

‘ with a felony is tod poor to employ a eouasel, the

court shall appoint one (1) or hore practicing attor

neyvs to defend him, ae | ;

“The coumsel so appointed shail have ten (10) days

to prepare for trial, unless sugh time be waived in

writing by said attornéss and, the accused.”

‘

ti $ . :

Article 727, Title 8, Chapter 7, Vernon's Code of Crint

‘ s “ e “_ ‘ :

inal Procedure of Texas, provides ;

“Art. (ue When Confession shall mot be ised Fs

“The confession shall not be used i at te time it

Was made, the defendant was in jail or ethor place, of

confinement, hor while he is in the eustody of an offi.

cer, Unless made in the voluntary statement of aceused,

taken before an examining court in accordance with

law, or be made in writing and signed by him: whieh >,

‘written statement shalh show thipAhie has hoon warned |

vaby the person to,whom the same is made: First, that

healoos not have to make any statement at all, Seéeond,

that any statement made may be used in evidence

-against® lim oon his trial for the offense concerning

Which the confession is therein made: Or, unfess in.

connection with said_confession, he makes statements

. of facts or circumstances that are found to he true,

which conduce to establish his guilt, such as the find:

ing of secreted or stolen property, or tle instrument

with which he states ‘the offense was commuitted, Tf

the defendant is tnable to write his name, and sign®

the statement by making his mark, such statement shal

; 7

. \

» me ; 4

not be admitted in evidenes, ess tt he witnessed by

sole person other than a peice coficer, who shall sign

\ the same as a witness,”

? ‘

. Seetion 1, Lonisiana Aets 1986, No. 284. now Louisiana

Revised Statutes 13:S4.1 (1900), Code of ¢ ‘riiminal Proce

dure, pyovides in relevant part:

ae :

“Seetion 1, Be it enacted by the Legislature of

Louisiana, That any meniber of a daly organized State,

county or manieipa peace unit of anethor State of the

United States who enters this State‘in close pursult,

and’ continues witha this State inosuch close pursuit,

of a& person in order to arrest hin on the grounds:that

he has wommitted a felony in such other State, shal!

a _ have the same anthoritw Yo arrest and hold in custody

such person, as juember of a duly organized State,

parish or municipal peace unitlol this State haves te,

©. arrest and hold in eustody a person oy the ground

7 - that he has conmnitted a felony in this State.” !

Sectio® 2, Louisiana Acts 1986, Ne. 284, néw Louisiana

Z Revised Statutes 15:84.2 (1950), Code of Criminal Pro-

| cedure, pravides :

\ ‘ “Section 2. That if an arrest is made in this State

Jby an officer of another “State in accordance with the

se - provisions of Section J oof this Act, he shath without

unnecessary delay, take the person arrested before a

magistrate of thy parish in which the arrest was made,

» Who shall conduct a hearing nda purpose of deter.

ot inining the lawfulness of the arpest. Tf the maistrate

determines thiéet the arrest was lawful, die shall commit

2 cunlh

‘ the pergon arrested to await, for it reasonable, tie,

Se . ' ee

the Jissuance of an extradition warrant by the Gov

) ernor of thig State, Tf the magistrate determines that

* the arrest was unlawful, le shall discharge the person

‘4

arrested,”

Section TL, Article 60, Louisiana Nets 128, Noo 2, oy

Louisiana Revised Statutes Ld:00 (1950), Code of Criminal

Procedure, provides : 6 %

"60, Arrest without warrant, when permitted

"Any peace Officer diay, withent oo warrant, arrest

aperson; 9 )

’ ° . ‘ . **

#(2) When sueh person has committed a felony al:

though mot in the presence of the officers: 4

“(3). W hen a felony in faet has been committed and

he has reasonable exuse to helieve that, sueh person

has committed itt +

- .

(4) When he has reasonable cause to believe that

a felony has been committed and reasonable cause te

believe that such persén has committed ity

Statement

” Vv

. I.

The Proceedings in the Texas District Court.

A. Tie Ispterment :

~ On February 22. 144, a grand jiry of the Distriet Court

of Orange County, Texas, Mdieted Bushnell for robbery by

assault CR. b2). The ind#ttment charged that on or about

ebyuuyy 12. 144, Bushneth by assault upon and yielence

to HL. Myers: and by putting Myers in fear of life @gnd

hoglily injury, took $200.00 from hin (RL 1).

I... Tue Tran ees

1. The Plea ai

Bushnell pleaded not guilty CR. 35).

how

; Wane.

2 The Lack ot Represeutotion of Deegitiant

Atetripl Bushnell was not represented hy, nn attorney

'y open ’ ‘ : 5 . 4

MR. Oo) and aeted as counsel for himself (RO 3). Te eross

exiieined four of the SIN Willesses for the Stote (RR. 10

12-133, lv, IS, 20, OO, BL). Te did) net object to ans

questions msked I the proseention or to TTT evidence

introduced,

The court reporter recorded: the trial proeeodings only

durmy the examination of witnesses, The trial reeord or

statement OF fyvets is silent as to whether Bushnell ex-

amined the veniremen on coi dire, oy exercised peremptory

Challenves, orohjectod to the instructions to the jury, Any

eolloguy between the court and the defendant prior to the

testimony of Withesses, or in connection with the formula:

tien of the charge to the jury. was net reported, The

trial ‘record does not rethoet whefier usted] Pec uerstes

the appointinent of COUN SOL ak Au i eter etic eourt

Whether or not, he had a right oto Counsel, Or Wits offered

vourteppointed cotigised: Neither Bushnell nor the court

hientioned the matter of defense counsel during the re-

ported proceedings CR. oo).

Petitioner, in hia petition for writ of habeas ned iy)

the Courtiaf Criminal Appeals of Texgs, alleged: {ha por

culfing ef the case for trial hetstated to the eourt that he!

Lid ne attorney, was toe poor te employ counsel, Was not

familiar with law. and was unable to adequately defend

hima@t (R. 40,42). Te iso alleged that he asked the court

to appoint counsel to defend hin, thitt Stel request wits.

denied. and that he did nof waive his right to counsel

CR. 40, 42). s me:

' ‘ Mi ' &

a The Carcnnistanees of Defendant at the Trial

In his petition for writ of habeas corpus in the Court

Fe eed ~~ we? Ss

of Criminal Appeals of Texas, Petitioner atieved that when

‘ . 6°

7 ov

tried h@was 22 vears old and had only a sixth-grade edu

cation (R. 4 427 Petitioner was actuaily 20 vears of age

at the time of trial, and the age shown in such petition was

apparently a typographical error, At trial the proseeuting

Witness twice spoke of Bushnell as a “boy (R. 6), ‘and

the distriet attorney called’ Bushnell “a young man” (RR.

26). The constable who arrested Bushnell testified for. the

State that Bushnell had said that ‘he had been shook mp

in the Army and he was taking Amatol tablets for relief”

(R. 31). Bushyell testified on cross-examination that he.

had been granted a medical discharge from the Army CR,

J1), and was taking Amatol “all the time” upen a doctor's

prescription, because “L's a nérve medicine, [have moods”

(R, 23). oh he constable also testified that he took what-

ever money was on the defendant at the time of Arrest

(CR. 12), A deputy sheriff testified for the State that he °

paid for some telegrams sent by Bushnell from jail CR. 29),

Bushnell testified on cross-examingtion that his mother

Was sick and not able to come to the trial and that "EP don't

have a father Lean depend on” (R. 25), and that he had

no friends at the triak CR, 2s), The district attorney asked

Bushnell if ge had been put in jail shortly after his arrest

and had been there continuously until trial, and Bushnell

affirmed that he had been (it, 24-20).

4. The Bvidence astto the Mleged Offense

gw The State’s evidence was a signed statement, including

a confession, by Bushnell (RR. 16-17), and the testimony of

‘six persons, Hfeluding four local law enforcement: officers,

Bushnell was the only defense witness (Ry 19-28),

a, al. L. Myers

v, re

Myers, the profceuting witness, testified on direct. ex-

ainination (R. 4-10) substantially that: On, or ahout Feb.

ruary LZ, 1944, when he was going to buy lumber, his

_—

ear gave onutoand slipped into a diteh. Te walked into a

heer tavern a Vidor, Texas, and vot two bows, one of

Whom Way Robert Marshall to pull bite out. Outside the

tavern aman, identified by Myers as the defendant, asked

Whethyr Myers was alone and other questions, and. said

to vet in defendant's car, that defendant would earns tim

to vet admechanic. Myers got in the ear, alone with Bush-

nell, Instead of going toward Orange, Bushnell turned

down another road, Bushnell gave a drink to Myers, who

in a minut®-hegan to fool numb and knew he “was doped.

Bushnell got a sit-shooter, stirted toa stop butewent fire

ther, then stopped and ordered Myers out, Myers got

lithe gunoonm him, and hit

outs Bushnell cursed tit, tel

hin entting hin 4o the bowe and in three places, leaving

sears over lig eves find on tis nose, Bushnell threatened

to shoot a bullet through Myers’ brain and took 26% r\

thing” from Myers, including about S210 from Mv i it

fold, lig gas ration tiekets and ‘his eveulasses, Ms

staved in-a diteh about 2 or 2bo hours. walked oly" tiles

until he way found by a eonstable, and “might neat bled

to death’) Mvers positively plentified Bus neil as the dian

who robbed Rid? assaulted dua,

Myers was asked and testified on direct examimitron as

follows; ’

No" * So they got after hin then, asked ane his

description and Podeseribed tina and they caught fam,

He taken about 8210000, PT had ome S100 bil and th:

other iN SOUS: | mig | have Hisael One sO, Vhes wot byaverh

é S128.00, and hie said-he spent the other in-a gambling

dump. i a

That's Bushnell? 7 U

A. Yes, sir CR. 6-7). “ ,

You rt he took sodie other Possessions?

’

: 12

A. Yes? he taken all iny: ration hooks, every ration

‘book Thad. We got the A cards, they Wits Gn hinn,

and my evertasses, Pe even taken Iny evewhiss sand

hid them, g&ick themoin the cashion of tits ear, They

got ny eveltissos find A cards, also, ©" * CR. 7), a

re ee 4 .

(). | Picve vou stated that the officer later returned

your gas ration book?

A, Yes, sir, the A, They got them off of him and

part oof the money,

°(). And soyle of your doney?

A, Some of niv money, and mv everlasses (RO),

b. Clade (Hop) Williamson

Williamson, a prosecution witness, was a constable of

Orange (County? Texas, at the time, of the alleged offerse

andoatethe the of tral CR. TO-TD), On direet examination

he Gas asked the follow? questions to whieh he wave the

followimy answers:

) ¥ ¢

A. There wits a couple of haves come Togne and told

me that there was a fetlow that pieked up Mr. Myers,

() De vou Rnow Whose those hove were?

A. Robert: Marshall, and Stephens,

bf A ds Robert Marshall here? -

’

A. Yes,

) Do you know where Stephensgs! g

\. Heads in the army,

c Q). AN right.

| A. So they said that they saw timowith a gun aid

said he turned off the wrong way to get tum heme,

and said. "Hop. you better fook and see about it;

it lon look right’, So't got to hunting lim. * " °

FAs Bae

La)

Williamson seat ied fiat on the mond he found Myers, whe

was artbeat up. Sirty and blood ameb eidn't have his

wood sense, hardiy” and that: Movers told Wilhanmson what

had happened CR. TD). Williamson testified le started

‘looking for Bustineli, ran hin te Lonistama ame eanueht hina,

then brought hina hack and searched him OR. 12). He tes-.

tilled that heaiot fragn Budinell momes. and its CON pons

and ylasses Which were wiven hack to Myegs OR. 12). On

redireet exatiimation Willitunson Was asked and answered

is follows: 5 ;

o, °

Wii were vou looking for Fin thar ofthe?

NA. Boeause TP ohad the infortation on hime tht he

C.e Prisha rt Marslall

On direct exgnination Marshall testiiied for the State

dbstantially ass follaws: The and @ how taiend, NWenneth

) wry

ey fe.* \"

Stevens, Were in a partor in) Vidor? where Myers

med them tocpull his ear Ant ot thi: ditehdand the pulled

itn out. Bushnell tad been inside and Ti L come out and

vot in acenr. Myers Was drinking a beer ddd went over to

Bustnellts ear and Feftqwith bia, Marti! ds tified. Bush.

Hellas the nian that Myers lett with Mf hey Whrahi all

ws /

also Was asked and testified as follows £0 >>

4 & 7

Q), ATL right, what didi vou do then! ‘

Kenneth sd ob doen't believe he Was taking tain

home; lets fo and tell Hop to watch and see where he

went# * * * (RR, 14). ' —

° on ° "

d. J). L. Stand field os

Standtield, shervfh ot Otanmwe County OR 1) and oa

Witness for the State, Was asked a®d testified on direct

eMunination as follows:

' ’

he.

‘i

(). Do you know anything aboutua pocketbook belong

ing to Mr. Myers? |

A. Well, there was a deputy trom [believe it was

Kountze, rang me and said he had found id, wifi scine

and that two boys had broftreht it to dara ane ssid

they found it between Terry and Connell.

(). Ana tat wis a pocketbook that was identified as. ,

delunging to Mr. Myers? |

A. Phat’s right (R. 19).

ve Defendant Bushnell

While cross-cxamininf \bvers, Bushnell denied that he

robbed or hil ever seen Myers (RR. 1) or that hie had

ever owned a gun-(R. 10), and testified that on the might

of the robbery he was “delirious”, “passed out’ and was

taking medieme™’, and that he remembered nothing about

it (RY).

Qn dorect examination Bushnell testified that on the

night of tUM&alieged robbery he was in the tavern at Vidor,

drank rum and beer, took some “femotal’, remembered

‘nothing tyereafter, and woke up in his ear “over there by

Louisiane” (R. 19-20), He testified that he then drove te

Lake Charles, Louisiana, bad breakfast there, and was ar

rested when coming back. home to DeQuines, Lotisiani

(R. 20).

Qn cross-examination, Bushnell repeatedly said under

persistent questioning that he was not xuilty (R. 21, 24.

Jv). He again said he “passed out in that place (R. 21).

He stated several times that he was framed (R. 21, 22, 24)

and that he had never seen Myers CR. 21, 24). He stat d

thatshe didarot beat Myers CR. 21, 27), did not take mones

from him (KR. 21) or his glasses or ration books (R. 24, 27,

28), did not get Myers inta Bushnell’s ear (R. 21, 24, 277."

and did not give him liquor with amatol (R. 21). Bushnell

denied that he had told county attorney Sexton that hes

. a. Oe

. ? :

. ; ‘ ,* >

robheod Mvers OR. 22). and denied that after arrest he had

said that he wailted to plead guilty’ (R. 26). g

: i Louis York vee

» » Qs

York, a deputy sher'¥ of Orange Connty’ CR. 28 29) anid

a rebuttal avitmess por thie State, was asked and testified for

the State, with respect bus ee i]: 3 .

Q). Do vou remembey the last term of Court, le of

rored himeel as wanting to plead guilty? 4 ‘

» A. He did (R. 29).

2 Ce Th. Woy he u Sheikha dpe veel, jets '] at

“puring the State's case in chiet, W. PL Sexton, County

ktterms of Orange Covnty at the time of trial and at the

time of the alleged offemses OR, ls), testified that he took

a statement from Bushnell OR..15-16), wiheh was intro

duced as Sfate’s Exhibit Neue RR. 16). The statemayt ts as

follows (R. 16-17): : .

. “LT. dames M. Mushnell, being in the eustody of Top

Williamson, Comytabl oof Preemet Now Pour, Orang:

County, Texas, aid having been warned by WP.

Sexton, the person te whom the heremafter set out

statement Ix by me made, that bdo mot have te make ”

any statem sitat all, and that any statement made by

re maa’ ‘be used in evidence against me oon the trial

for’ the offense coneerming which this statement

made, do here make the following voluntary statomeut

in writing to the said W. oP. Sexton, to wat: —

“My name is fi ames MM. Hyushnell and Foam twenty

live vears of age. On’ the night of February P2. Hd,

I was at Vidor, Texas, at a beer joint. While at this

beer joimt | drank quite a bit of rum and beer and

took some amatol tablets. TP then left the place and a

inan Whose name do vet know got in the ear with me

[rode down a ssderoad trom: Tighway 40 appre

16 ‘

imately three miles. -L then robbed this man and took

what money he had on his person from him, which wis

approximately $200.00 in currency. During the rob

bery Lhit him with a beer bottle and struck him with

my fists. 1 then put hign out of phe car and then drove

to Orange, Texas; L was arrested just across the Sabine

River Bridge by Mr. Hop Williamson and Mr. |

Thompson. [ returned from Louisiana voluntarily with

Mr. Hop Williamson. I was convicted in the State of

Louisiana for swindling with worthless. checks ap- .

proximately three years ago-and served a term in the

Lovisiana State Penitentiary.

“I make this confession voluntarily and | was not

coerced. or threatened by Mr. Williamson or Mr.

Thompson or by Mr. Sexton, the County Attorney, in

the making of this statement. The same is true in

every respect and | realize that b¢ the making of this

voluntary statement that the same can be used against

me on my.trial. Witness my hand this 14th day of

February, 1944. + : /

° Fa)

ri /s/ James M. Bushnell”

‘ ms &

). The Oral Testimony as to Whether Piske Il's

Signtd ( ‘onfession Ww as | voluntary

hed

The alleged ‘robbery’ of Myers oe¢eurred on the- night of

Saturday, February 12, 1944 (R. 1, 4, 7, 8, 19), at about

10:30 P.M. or midnight (R. 8, 9). Constable Williamson

testified that he found Myers about 4:00 or 4:30 the reatter

and then started looking for Bushnell (R. a he. con-

stable went to several places where Bushnell had stayed,

and near a hotel by®the depet ‘saw Bushnell and “run”

him to Louisiana “until we caught him” (R. 12). When

asked by the district attorney whether he was jailed some

12 or 15 hours after the robbery, Bushnell testified with-

out contradiction that he Whs putein at 5°A.M. on.Sunday

~ _

(R. 24), February 13) 1944. Bushnell’s confi ssion was

signed oy the following day, Mebruary 74 (R. 17).

Bushnell testified that constable Williamson and an of-,

ficer Thompson arrested him in Louisiana CR. 20, 26) after

they shot at the back of his car CR. 20), and this was not

disputed, Petitioner asserted four times that the cansiabte

jerked hamvout of the car on a Louisiana highway snc beat

: him over the Bead CR. 15, 2), 26). Although’ the constable’

testified that "TL mever touched vou over there” in Louisiana

(R.-12), the State did ngt attempt te show that Buslined!

Was not jerked:from his car and beaten in Louisiana, by

someone, When the constable was asked by Busha!

whether the constable, at the time of the arrest, pat Bush

nell in a ear that belonged “to this «ther guy that run cae

down first and beat me and stomped me” and later put. -

Bushnell in the constable’s own car, the witness admitted

that “The man was Lee Anderson and he’ owns a grocery

stere” (Re 31-82). The constable had previously testified

that “They was helpingeus trying to stop him at the hotel,

and we brought litm back” (RR. 31).

The constable testified that he had arranged fora Louisi-

ana officer to “run” Bushnell across the State line, and

that such officer “said he would follow him and back us

yp (ROL). The constable testified that when he caught

Bushnell, he asked Bushell if he wanted to let the Louisi

ana officer “run him across or come on back, and he said,

“TH -eome on back’ (R. 31). The constable testified’ that

he took Petitioner to the police station at Orange when

he came back (R. Ob) \and pat him in jail GR. 12).

F : i

Petitioner testified twice that at the police station the

~ constable aid officer Thompson tried to get him to confess

and beat and stomped him on the floor (R. 20, 27). He

testified: “LT was beat-worse than a dog: then when they

vot through beating, they taken me in an office and sat mie

in a chair and knocked me down. He said ‘I’m goin to

slap you—I ‘d like to kill you, but 1 w ant to do it the right

way.’ Ie knocked me qut twice and whe n they got through

knocking me around, they threw some water on me, and

then they threw me down the stairs” (R. 20). None of such

testimony was denied. The constable admitted using force

against Petitioner at some time; when asked by Peétitione:

Whether “you beat me up across in Louisiana”, the Constable

‘testified “[- never touched -you over there” and “1 ain't

touched you but once” (R. 12-13). When asked by Bushnell

if he “beat me up without merey”, the constable answered,

“It wasn’t over in Louisiana” (R. 12, 13). After the eon-

stable so testified on cross-examination, the State excused

the witness, (R. T8). When the constable was recalled on

rebuttal, the district attorney did not ask him whether he

or anyone else beat or stomped Bushnell but asked him

only whether he or Thompson “put these sears on his body”

or “hit him or beat him in any way to make those sears”,

to which the constable answered in the negative (R. 31).

It was undisputed that Bushnell was taken to the office of

the county attorney, Mr. Sexton, to make the signed state-

ment (R. 18, 80). The County attorney, when asked if

Bushnell then looked like he had been abused, answered,

“Tle was—he had a bandage on his head, yes, sir” (R, 18),

Bushnell testified without contradiction that at that time

he could not see out of his eye (R. 18, 22), and that his nose

‘and eyes were bleeding (Re 80). When Bushnell, attempt

ing to cross-examine county attorney Sexton, stated that

he was threatened in Sexton's office about the statement,

and askedvif that. was right, the county attorney did not

deny Uhat.a threat was made but evaded Bushnell's ques.

tion by asking Bushnell, “You didn’t tell me anything abont

t, did you?” (R. 17). When Bushnell then stated to the

wah attorney that the constable had threatened at that

time to tie and ecow-whip him, and asked the witness if that

was right, the county attorney did not deny it) bat said

only, “Lt didn’t hear that” (GR. 17). The district attornes

then asked the county attorney whether Bushnell told the

county attorney at the time of the statement about being

mistreated or abused or forecd to make the statement

AR. 18), but did not ask if Bushnell was threatened or

_forced to maké it. On te-cross examination of Mr. Sexton,

when Bushnell said that iv Mr. Sexton's office “they said

~ Thad to sign a statement, said that day if it wasn't sign a,

‘they would get it one way or the other", Mr. Sexton an

swered that “no such conversation as that took place” (CR.

1s). Jushnell testified on cross-examination that he first

told’ the county attorney he did not rob Myers, but that

officer Thompson then said “You just as well say > ou did,

or we will getit out of you” CR. 22). Bushnell we stified

that at the time of such statement by Thompson, the county

attorney “was there, but he was called off to talk to two

ladies who was outside in the lobby” (R. 22). Bushnell

peated that he was told he had to say he did it (R. 24)

and that he had to giye the statement CR. 27). The State

introduced no evidence, other than a confession itself, eon

tradicting such testimony that he had to give the state

ment and was told th.t he had to. although the counts

attorney testified that, Bushnell said that the statement

was true (R. 18). Bushnell’s testimony that he showed the

county attorney a “rupture they gave me” and sears on dis

hack and that he couldn't read at the time the. statement

was given, Was denied by the county aftorney (R. 15.30).

. v ~

The district attorney, when ecross-cxamining Bushnell,

assamed that he had heen subjected to violence by the of

ficers, and condoned it in the following interrogation (R,

YO-24 7): ,

Q. And you don't. know the reason why Williamson

and ‘Thompson was looking for you?

s -

They didn't siy nothing, they run up and as soon

‘fas my car—-1 stoyped, they jerked me out and beat

meup, and over the head, out inthe highvay.

Q. Do you think it was right for a young man fike

you to take an old O9-year-old man and beat) him

out, put a buneh of sears on his face, take his money

vud hit him! But the offigers has to get a little bit

rough with you and you don't think that’s right, ix

that the ticket” ‘

“A. No, they don’t have the right to do me like that.

Q. They did you like they should have done yon.

A. No, they shouldn't have beat me and stomiped me

in the police station. mee 4

Q. Why?

A. Because they shouldn't. Not while I was till

im Louisiana, and get me and stomp me,

Q. | guess you think you did what you should have

‘done to Mr. Myers?

\. I didn't do its

Q). Suppose you had—would you have said ‘it, was

right to do it? : ¥

A. Lnever done it.

Qs What’ kind of treatment would you be in favor of

vivingea man that would beat Old Man Myers up as

he said he was beaten up? ere

A. All Lean say, | didn’t do it.

* (. You are not answering my question,

A. That is all t care to saye

(), What kind of treatment would yon be in favor of

for — a gan?

. | wouldn't be in favor af be ating him up like a

ake like theysdone mew L begged for merey.

(). You think they gave you merey?

A. No. .

(Q)..Just like you meted out to Mr, Myers,sor would

have to anybody else?

\. Tdidn't do anybody like that.

” ; 9y

& ; we? .

There is no suggestion in the record that any warrant

for Bushuell’s arkest had been issued, and Bushnell testi

fied without contradiction that he was arrested “without a

permit” (R, 20), “without a license” CR. 83). It is inferable +

frome the trial record as a whole that prior to the time

Bushnell signed the written statement, the officers did not

fine him befere a magistrate For an examining trial,

6. The Conduct of th Trial’ Judge p

When Bushnell Was) cross-examine Myers and at

tempted to testify bymself, the eourt instructed defendant ?

“You may not testify, You ean tell that when you take

the stand” (R.9);and agai to “just ask questions” CR.) :,

-and again: “You can testify to that when you get on th

e stand” (R. 10). While Bushnell was cross-examining con

stable Williamson, the court said, “You can testify fo that

whep your turn éomes up” (R.12).'So far as is shown in

the statement of facts, the court gave no other inetructions

hor any warning to Bushnell.- The only assistanee given

Bushnell wby ‘the court was during: cross-oxamination of

county attorney Sexton, when the caurt direeted the de

fondant to ask the yetness Whether he knew Bushnell was

threatened in his office (R. 17). The court did not ask un)

question of any witiess, * bye

~ on ‘ 9 ° on . : ‘ :

1. The Cross-Kavaminalion oN bushuell as ta Characthes

o °

and Reputation rae

‘Bushnell was asked the following questions by the district

‘attorney and gave the following answers, on cross-examine,

tion: ; f

Q. I thought vou had been in the State Penitentiary

for three years, in Louisiana? .

A. L know, there are a lot of things that poople

thpught. es

1oUg o

Q. Well, that isn't true, you haven't been in’ the

penitentiary ! :

A. Pheen toa house at COPreetion,

Q. You weren't in the penitentiary for three years! -

A. ‘No, sir. ; ; :

(). How long were you there? pes |

A. Might months,

(). Whiy did you teal Mr. Sexton you were there ap. .

proximately three years ? |

A. L told hisi—-when [ came in-his offiee my heart

Was sWinming, ‘A couldnt see out of my eye. You

seu, Tm black under Yny eyes, Ihe asked me had |

been in apd | told hint | been in a house of correetion

eight months (R, 21-22). ;

. . * . g .

Q). Cam't you tell the sheriff to serve subpor nag on

the witnesses? Can you ask the county?

AL T got some letters—L wrote to miy sister and my

emother,

(). They didn't reéeive them?

A. Nobody knows if the mail got out. * =

Q. They are not interested enough to come over here

and look after you? te, See

A. She's not able. ;

(). You don’t have anybody interested enough in you

to come over? ; Soo

AS My mother does (kh. 20). F

“Q. You.don’t have any friends at all?

A. Lhave friends. es

Q. Where are they?) In Louisiana? Noue of thom

ary here, ; ’

A. No, | don't have themuateht here, Leouldn'’t make

acall, anyway (R. 28).

8. The Charge tothe Jury

The court's charge to the jury included the following

instruction:

“You are further instructed that unless you believe

from the evidence bevonda reasonable doubt that prior

1 the time the defendant maderagd signed the written

~ statement introduced “in ovideet if heealidl, that he

the defendant, was properly warne@ by the offieer te

wht setiel statetttentt seta tititeles fests tlteet The ebiet thet

hi ive to make any statement at all} gnd seconds that any

stile mient ‘miacde hy him, the defe indi Ura, Thicas nel could

be cused in evidence daninst him ona trial for the

offense concerning Whicheit Was made, anel after being

so warned, he voluntarily wud without coercion, persia

siogi, inducement or promise of immunity of wary kind,

made the statement Introduced thoovidence, and unless

you so beljeve, or HW Vou hav: a reasonalle doubt there.

of, vou will disregard uch state ment for any and all

purpyses ant all parts theredf end consider the same

for purpose” CR, 30-51 ys ’

No instruction*was given with: respect to. the defendant's

oral confessions introduced in the testimony of Myers and

deputy sheriff York, o®excluding any other evidence fron

considedation, or limiting consideration of the evidence of

defendant's prior coavietion to the jssa of lis erodibility,

W The Verdict, Judgment and Sentence

. : A

TheJury found Bushnell guilty and assessed his pani shigs

ment as 3d years (R. 34). The courtlentered judgment on

the verdict CR. 8-36), and imposed sentence of not less

than 5 nor more than 35 years in the penitentyiry CR. 387).

No motion for new trial was made (R. 386), and nu apper!

Was daken.:

11.

The Petition for Writ of Habeas Corpus.

4 Petitioner collaterally attacked «the judgment of ‘he

District Court by petition for the writ of habeas corpus in

the Cour? of Criminal Appeals of Texas CR. oo 44). Peti-

tioner there asserted that the judgment is void under the

Constitution of Texas and the Sixth and Fourteenth Am nd

ments to the United States. Constifution (R. 39), but: the

ynly “question presented” to that Court was whether duc

process of law as guaranteed by the Fourtecnth Amend

ment to the United States Constitution was violated in that

Petitioner was foreed to trial without court-appointed coun

sel (R. 40). Petitioner stated that “being forced to trial

without appointment of counset, and his incapability of

representing hitself adequately, resulted ino him beong

taken advantage of "¢ R. 43), Attached to the petition were

copies of the indietment, jury verdict, Judgment, sentence,

and a certifieate of the court clerk to the effect that Peti

tioner had no attorney at trial (R. 40).

oh]

In his “Petition for Rehearing’! in that Court, Petitioner

asserted that “wa confession taken during a period of iNegal

detention, and... extraeted by coercion and duress at the

hands of Orange County officers” was admitted in evidence *

at his trial (R. 45). Petitioner stated that he vas arrested

without a warrant and was never taken. before a magistrate

us required by Artigg 217 of the Code of Criminal Proce.

dure of Texas, and "@# injury arising therefrom, said eon

fession was extracted by physical abuse of Petitioner

‘administered by the Orange County police officers” (R. 45-

46). Petitioner asserted that had he been afforded. as-

sistance of counsel, Objection could have been made to’

the admission of the confession (R. 46),

2 ie

After Petition (ér Writ of Certiorari was filed in this

Court, the reporter s shorthand record of the proceedings

ut Petitioner's trial Was transcribed ih. 32),

e *

, .

ba 0

, Summary of Argument.

eee c ,

The record of the proceedings at Petitioners trial on

the seri@@s charge of robbery *by assault) show s Without

dispute that) Petitioner, an-cemotionally disturbed young

man of 25, without funds or friends, was tried without

the assistance of counsel, alter having pleaded not gyitty,

His handicap of ignorance, in feting as hiscoWwn counsel,

Was apparent throughout the trial ‘Phe distriet attorney

improperly subyjoc ted Petitioner to humiliating iInterrowy,

tion to show that he was a merciless person of bad reputa

tion, and the trial Judge did not stop _ th questioning or

otherwise materially assist or prote et Petitioner, The Stat

introduced in evidence a signed confession whic h Petitioner

repudiated at the trial Defense counsel could have sugeess

fully objected to such uvidence on the ground that t had

hoon coerced, in view of admissions at the trial that Peti

tioner had been physically, abused aM injured by peate

officors trying to get the contession, Bnd in View ot Peti-

Hioner’s mneontradicted testimony that he had been threat

ened by one of the same officers immediately before signing

the confession: The court nevertheless permitted the jury

to find that the confession was voluntary and®to consider

itas evidence, The State afso introduced, and the jury was

permitted to consider, inadmissible evidence of two oral

confessions attributed toyPetitioner and much other ex

Fadible hearsay testimony. Damaging evidence of a prior

convietion ef Petitioner should have been limited to the

’ ye

purpose of impeaching his credibility, but the court did not

~o limit it.

Qn this record Petitioner's convietion and sentence, on-

tered by tdie Texas court after failure or refusal to ap

‘@

i) | ae | \

P :

aint defense counsel, deprived Petitloner of die prec

Of law and are void ander the Pourteeuth Amoendient to

the United States Constitution, Sinee thie record comely

sively establishes the material allegations of Petitioancgs

petition for the writ of habeas corpus, and me tarthes

development of the faets is necessary oon remumd. this

Court should hold that) Petitioner is entitled te the wait

as prayed for in the Court of Criminal Appeals of Toxas

. ARGUMENT

The State Court's Conviction of Petitioner on the Charge

of Robbery by Assault, After the Court’s Refusal or Fail.

ure to Appoint Defense Counsel, Deprived Petitioner of

Due Process of Law Because He Was Unable to Protect

Himself at Trial in View of His Youth and Ignorance, the

Conduct of the Court and the Prosecuting Attorney, sud

Complex Problems as to the Admissibility and Purpo# o!

Evidence,

Indietéd fora grave offense, Petitioner was tried without

the ussista:ce of counsel, convieted, and sentenced to oa

severe teri in prison, ot trial, he was seriously prejudiced

bythe rolloy woerrors*which an attorney could have pre

vented : |

a. The coftrt’s charge to the jury permitted the jury to

find thal Petitioner's written conse sston wmastrglintaru® and

lo COMSIE x: if, ads erudener of quill, " hie +4. such Coufse ston

should hav bie Cr Crt lived d On tlie undies pute dl packs,

That Petitioner's signed confession (HR. Ted?) was ob-

tained I physical violence and threats ts shown hy undis

puted cpidence in the trial record, discussed in Paragraph

1B. oO under eStatement™, supra.

'. Petitioner's arrest in Loutiana, bya Tpxas county peace

officer, Was Without warn (R. 20, 25, 26). Such arrest,

. \

BP;

be \

p= s

of ee

ee -

LL *

by the Texas officer geting as sath. comld have been Law fri

under Louisiana haw only af Petitioner had) comunitted a

q ear | ov.

Louisiana Laws 150, No. 284, See.) Assuming. argue aed,

Nelonvoand wis aarested: after ahedose pursuit from Texas

that Petitioner Was law Pally arrested: after close pursuit,

as ghaimed ia the aeresting dficer’s te stimonmy OR D2 aT),

Petitioner Was entithed toy he taken Witheut TI OCes sary >

delay befqre a loca} Louisiana mactstatte for exanmdniation

and commitinent to aiwyaH extradition, Loufsiina Lyuws

10, No. 284, Seve, IY Petitioner an tet agreed te return

with the Texas offieer, as the offieer clammed, and therebs

wath dis risdhty to an immedfate hearing i Louistama and

to extradition, Petitioner did) se after beime beaten ane

When wiven the alternative of being “run aerass” to Texas

o ’

HY a Louisiuna offieer GR. Ob-S2o0 After Petitioner was

The Louisiana statute evted in the text gives ai ®ontofistate

petee officer in close primecit: the osamee authority as a Levistanis

offcer\ has to arrest “ae person og the wren That tie has eom

itted a Qelomy dn Leuistana ‘s Lotisianda offieer miay arrest

Vithout a warrant on stich wrodnd whom Usteh, person dias com

Pi Pelomy although diet i Chee presen of the ottieer™ La

Acts, a4 Nou oo See ] Art. 40; 2 Crider Th Sas baw i OTS @

peaer officer tas me authority ds stil te make aie arrest outside

His VOUS Seu CUNT s etted phy Ward \ li pus, Ot Us oy be

de Where the offense Was nel cotumitted: Within tps presenee

orowithin his view, a Texas COHHTS preaee coitieer tae take ian

arrest Without a warrant ody au satistaetory pool that a. felony

Nits bee committed: aod that toe offeauder ts about te escape SO

UM there sono time te procure a warrant Art 21, Vernon's

Code of Criminal Procedure of Texas

Even itt Petitioner: was Widawtally seized im Levistana or un

hess Pally returned to Texas without extroditiou, this would not

have been a defense to the presechution Bowhen Vo State, 26 Tes

App. 120, 9 SW. 785 cIsas! ef. Ba parte Dae aL Tex, Cr R,

HOS TOR SAW OSOD TOT SPY home v Miehols, 205 EOS 192 1906)

Noroais it prolabl’ that under Texas haw a coerced warner af extra

Coton WithOUL assistanee of counsel would ave been Ga defense to

The prosecution or a ground for release of Petitioner @y. Bue part

Harrelson, OF Okla. Cro Ro Soo) Lod Pola OOH 18) adn res

Charles, $44 Pd TDS Okla Cro App Tot Mrdawtul arrest

hos never been reeeunized as i defense to a crinitaal prosecution

hb Texas. See Note, rOD ALA feo 192s

returneck te Texas. be was jared and: vielentiy. beaten iR.

12-13, 18, 20, 26-279. The offieers fittled to take han betore

Texas magistrate on the day following, a Monday, as

required by Article 217 of the “Texas Code of Cruninal

Precedure, for an examining trial at whieh Jie could have

pttder ah VaOduntars etaterment, atger being warned by the

Magistrate, as required by Artieles 245 and 24e of the

Code Gf Criminal Procedure, and under the safeguards

inposed by Article 4s of that Code, Instead, Petitioner

was taken before the county attorties ta sim a confession

ORO DAT). Although iegal acts of peace officers leading

up tea confession “do not furnish the aye wer to the con-

stitutional question’, Lisenha vy. Calitorni, 34 US. 21,

oe 61941), the faile cof arresting officers to take the)

accused before an examining magistrate, as required) by

Article 217 of the TPexaa Code of. Crinum P rocedure, his

heen considered by this Court in determinihy gehen i

Coplessionm Was forced, Ward ve. Teras, 716 1,.8. 641, 802

(1942); cf, Payne VE Arkansas, vet LLNS. 56u, a (1s),

‘Ehe, brutal mistreatment of Petitioner was begun when

he Was apprehended, by a person whe helped a ‘constable

run him down CR. 31-32), and was continued at the police

station either on the saqe day or the following day, by’

the arresting constable and another peace officer who were

trving to get a confession CR. 20, OF, 31-32). On the day

after his arrest and upon being further threatened by the

cotistable, Petitioner signed’ the confession (kh. “it. oe),

although he had first told the county attorney who took

liix statement that he did not commit the robbery CR. 22).

v nder these cirenumestances Petitioner's signed confession

‘was not free and voluntary but was the product of

‘When an arrest is made on Sunday, Article 217 of the Code

of Criminal Procedure does not require the arresting officer to tike

the accused be hore a magistrate until Monts iy. See Gilbrrgy Ntate,

162 Tex. Cr. R. 200, 284 SW. 2d 906 1055

re)

‘

COOCTOC TOM GMa duress, fer Petitioner “as ne longer able

Treels to adinit: or “deny or refuse to pnswer Word v.

Tesas, pra SAB U.S, oti. yd.) (1942).

‘| he confession Wile porenpee rts exedndabile benieds t Aoerstons

of this Cork, Prrou oe Misstssipyn, QT et OTe (1936):

Chambers ¥. Florida, 309 US, 227 (1940); Ward v. Texas,

Stpra, B15 7 Dai (1042), Under the principle ‘ealimned

in Payne v. Arkansas, supra, 356 US. S60, S68 1998),

Petitioner's signed combesston eotitd have heen excluded on

objection of counsel :

Sut whereas here, a coerced confession constitutes

ao partoof the evidence Lefore the jury and a general

Verdiet is peturnmed, no one ean say what eredit: and

Weight the jurs gave to the confession. And iInM* hese

erretistanees this Court tias uniformly held that ever

though there may have been sufficient evidence, apart

from the coerced confession, to support a, judyment

af conviction, the admission in evidence, over objec.

thon, of the coerced confe®sion, vitiates the judgment

how “iuyse it violates the’ Due Process Clause of )the

Fourteenth Amendment.” ‘

The written confession was also inadinissible under

Article 727 of the Codevof Criminal Procedure of Texas,

Vieh requires that any @onfession be made “in the volun.’

‘ary statement of accused’. Under that Article, when an

officer at the triakadinits having struek the prisoner sh optly

before the confession, the confession hs inadmissible over

ob jeetion : the court ts required, On rediest, to exclude from

‘hie jury's consideration any such confession which has been

mtroduced: and submission te the jury of the issne of

voluntariness ‘is error. Williams v. State. 8 ee a ae

‘; Je SW Tr (1920); Thompson ¢. Sale 126 Tex Ce

Ro 440, 63 SWoaed S49 (1923 : seta v. Btate. 139 ‘Tex.

Cr R130, LOZ SW, 2d 428 C1937): Sigler v. State, 139 Tex,

, @ :

a <j ‘

Cr, R. 167, 139 S.W. AM 277 (1940): Allgood vy. State, 141

‘Fex: Cr. R. 827, 4s S.W. 2d 455 (141) 3 Vaughn v. State,

145 Tex. Cr. R. 115, 166 SW. 2d 139.1942). Eppn objec

tion to the proffered confession as having been coerced,

the court would have been required to hear, in the absence"

of the jury, the evidence relating to volyntariness and to

Inake a preliminary determination of thaffssug, Binghan

* State, 97 Tex. Cr. R. 594, 262 SW. 747 (1924); Caxazes |

. State, 1455 Tex, Cr. R. 564, 160 S.W. 2d $e (1942) : Davis

eae 165 Tex. Cr. R. 456,308 SW, 2d°ss0 (1957),

The failure of the arresting officers to take Petitioner

immediately before an examining magistrate, as required”

by Article 217 of the Texas C@e of Criminal Procedure,

would have raised an additional State ground for exclusion

of the confessioff, Vaughn vy. State, gupra, if it had been

established by Petitioner that such failure “caused or con-

tributed to brings about the confession”. See Dimrry-v

‘State, 156 Tex. CrSR. 197, 240 SW, 2d 293, 295 (1951)

Golemon vy. State, 157 Tex. Cr. R. 534, 247.S.W. 2d 119, 124

(1952). | . Pe

b. Eucludable evide nee of oral "confe SSIONS by Petitione

was admitted.

The rebuttal testimony of deputy sheriff York that che.

fendant “offered himseif as wanting to plead guilty’ ‘aR.

29), amounted to thew introduction of an unwarned and un.

signed confession of guilt made while defendant was under

arrest. Under Artic ‘le’ 7 727 of the Texas Code of Criminal

Procedure, the admission of such confession over objec-

tion would have been reversible error. Dean v. State, 72

“Tex. Cr. R. 247, 161 S.W. 974 (1913) (agreement to plead

guilty, @/d, inadmissible); Stafford v. State, 125 Tex, Cr.

R. 174, 67 SW.'2d 285 (1984) (offer to plead guilty, held,

inadmissible). Tf not admissible as original evidence, such

‘

» ° , .

evide nee Was’ net adinissible for impeaciiment. Pierson v.

State, 145 Tex. Cr. Re oss, 16s SW. 2d 250 I4'})

The testimony éf prosecuting withess Myers, when asked

‘about the recovery of part of lis money, that defendant

esaid he spent the othe ina waunbAne dump” CR. 6), wa

evidence of an unwarned: and unsigned confession, made

» When In, the custody of an oflicer oP under arrest, ang in-

adiitissible under ‘Artic e727 of the Texas Code of Criminal

|’ rocedure.. Its gangrene over objeckion would have been

reve rsibleérror, Cf, Wilougdhbu vy. Slate, ST Tex. Cr. R. 40,

- rt , ) We 46s i J): In WES \. Stale, 141 Tex. rr I. ols,

+4 ‘148 S.W. 2d 1098 (1941); Ane ve State, 166 Tex. Cr. R.

W4, Sd SAV, Bd OSS (TYSS). ;

e The court tated to limit the jury's consideration of

evidence of Petitioner's prior conviction to the: PP pose of

——ayaching his credibility, when such evidence. was not ot ag-

missible for any other purpose,

The statement in Petitioner's written statement (State’s

exhibit Now 1, R17) that he had been convicted in Louisiana

tor <Windling with worthless checks and served a term in

the Louisiana State Penitentiary, was not admissible at

the stage of trial at which it was admitted, before Peti-

tioneRtook the stand, After Petitioner testilied, such evi-

dence of prior conviction, together with Petitioncr’s oral

peeping on skigestarcoapitths as to such prior imprison-

> tent (R. 21-22), should have been limited to the purpose of

t inipere one his witlaginecti Mahoney v. psete, ood Tex, Cr.

KR. 388, 26 S.W, 622 (i894); Seaton x, State, 33, Tex. Cr. R.

116, PO SW. Son (1894): Jbaftou 'v. State, 33 SW. 969

“(Te x. Cr. App. Usd6); Roberts v. State, 44 HA, Cr,

267, TUS W, $53 12) : : Navarette ve State, 18 Tex,

: 7h. 4 449, 281 SAW. S63 (1926). Petitioner w as entitled ie a

charge that the jury. could considey such. evidence only

for such limited purpose, amd the failtire of the court to

give such charge, whether or not requested, Was reversible

error. Sexton v. State, supra; Mutton vo State, supra. It

could hardly have occurred to Petitioner not to take the

stand, so as to preclude admission of evidence of his prior

conviction, after the trial judge had repeatedly indicated

to Petitioner that the time for jis testimony would be

When it came his turn to take the stand (RL 9, 10).

. , . é

ad. The court failed to instruct the jury to Misregard th

evidence of Petitioner's character or reputation, or to

-reprimand the district attorney for opening up thematter,

when Petitioner had not raised the issue of his Character.

/ ‘ sad

Petitioner on cross-examination was subjected to humili-

ating interrogation which improperly raised the issue of

his character and reputation. After Petitioner had testified

that hy begged far merey from the peace offfeers, the prose. ,

cutor asked, “Just like you hheted out to Mr. Myers) or

would have to anybody else?” (R. 27), Petitioner was also

asked what had kept him “from getting these witnesses

you've told us about”, and whether he had “anybody inter-

ested enough in you to come over” (R. 25), and “You don’t

have any friends at all?" “Where are they? In Louisiana?

None of them are here” (R. 28). Such interrogation, when

Petitioner had not placed his character or reputation in

issue, Was improper. The epurt on its own motion should

have promptly reprimanded the district attorney for ask--

‘ing such questions and instructed the jury to disregard

such questions and any -evidence of character or reputa-

tion so oBtained, Failure to do so was reversible error.

Childress v. State, 92 Tex, Cr. R. 215, 241 S.W. 1029 (1922);

= v. State, 117 Tex. Cr. R. 178, 384 S.W. 2d 871°(1981) ;

cf. PEllard v. State, 33 Tex. Cr. R. 197, 26 8.W. 70 (1894).

oo.

abi oi tie Ree TH

’ | 5 e "9

a‘, Mummy ig dludable hi psd a viele dice Was ede: ty /,

Ale testinjony of Myers that his stolen ration book and

wvemasses “was on” Petitioner, and that the offeer got

them and mofey “off of defendant or from his car CR. 7,

9) was hearsay, since it is inferable from the regord that

sw Alvers whs not present at. the time of recovery of such

articles and Was testifying to information received Trem

another, Although consti thle, Williamson later testifie Piha

he recovered the aricles fren defendant, Myers’ fexti-

mony on the matter could have been excluded: Massie. v.

State, 27 Tex. ‘App. S77, 1) SAW. 688) C1889)" Likewise

inadmissible wae Myers’ hearsay testimony tha ,

boak was sent bac A to the sheriffs departimer

view (R. 7) and that an officer could tell of yMftv connection

the defendant had With anybody at Longview (R.10). All

of Shorité Standtield’s testimony, Which» related only to

his conversation with an opt-of-town deputy who said two

hovs had found Myers’ pocketbook on a road, was inad-

inissibte hearsay (R19). Such testimony tended to bolster

the constable’s testimony that defendant said he threw away

the billtald (R. 12).

bis pocket.

om Lony-

Other hearsay evidence to which objection could have

been made was: the testimony of constable Willianison that

the hovs Marshall and Stevensfiad said to him, after Myers

allegedly rode off with defendant, “vou hetter look and see

about it; it don’t look. right” (R. 11); the testimony of

Marshall that Stevens, seeing Myers and 1 defendant leave

‘tovether, said, “Ll don't believe he was taking him home ;

let's go and te Hop to wateh and see where he went” (R.

14); and-Williamson’s statement that he was looking .for

defendant because “Lhad the information on bin tha® he

Was the man that robbed Mr. Myers” (R. 30). ue

Petitioner denied that he committed or was present at

t] bbhery, and did not raise any issue of tenfporary in-

34°

sanity, although he testified that® prior to the tine of the

alleged robbery, he fad been-drinking- rum and heer ‘and

taking femotal, and had been delirious and passed oul,

(R. 9, 19). Tt should be noted, in evaluating cicniattion

of Texas law with respect to'defenses which Petitioner con-

ceivably might have raised, that unde) Article 36 of the

Penal Code of Texas temporary insanity produced by

voluntary recent use of liquor or narcotics or a¥ombination

thereof is not-an excuse for an offense, Inut evidence of such

temporary insanity may be introduce ‘git. in mitigation of the

irc See 1 Branch’s annotated "Pifal Code of Texas

Jdeed. 1956) pp. 53- 50, However, it seems a defendant is

tntitled to aequittal on a finding of temporary insanity re-

— from the use.of whisky mixed with a drug. * Parker

. State, 91 Tex, Cr. R68, 238 S.W. 945 (1922); 12 We.

is pp. 300-301, °

_ At Petitioner's trial, the judge siggested to Petitioner

one question to be asked of a witness (R. 17) but otherwise

gave him nq assistance, The court. showed ‘shocking un:

concern for Petitidwer’s rights, ajlowing the district. at’

torney to pursue improper lines of questioning that con-

-doned the beatings inflicted on Petitioner (Rh. 26-27) and

presented Petitioner to the jury as a merciless and friend:

less.person (RR. 25, 37, 28). The failure of the court to give

‘Petitioner the protection to whrch, he wits “titled in the

charge ‘to the jury Was inexe ‘usable, :

Petitioner when tried was 25 years old, but was younger

than the petitioner in his thirties whose right to counsel

in a non-capital felony case was held to dave been denied

in Gibbs ¥. Burke, 337 U.S. 773° (1949). Petitioner's in-

maturity, his condition as’an emotionally disturbed person,

and his ignorance of how. to protect himeelf at trial, are

apparent throughout the record, :

In view ef Petitioner's youth and ignorance, the indif-

ference of the trial judge, the callous questioning by. the

‘ yu

"2 35

prosecutor, and the qe bidke lal consequences to Petitiones,

ot bweine triedSvithout the gissistanece of counsel, this. case

ix controlled by the yorineipie reeenth, restated by this

Courtin' Cash vy. Calver, o05 U.S. bao, bog (IUD):

Where the wei oy ahie erhine and. other factors

—eesuch as the age ee education of the defondang, the

ecOnduct of the court gr the prosecuting officials, and

the complicated mature of the offense. charged sand ‘the

possible defenses thereto—render criminal proceedings .

Without counsel so apt to result in injustice as to be

fundamentally unfair, the Coustitution requires’ that

A the aecused must have legal. ussistanee at his trial.

‘Uveges ve Pennsylvania, 385 US. 437," 441,. or par-

ti®vdar relevance liere are the dgeisions wt ‘the’ (‘ourt

hich have held the appointment of counsel necessary

toa fair trial hecituse of the complexity of the pro-

ceedings. Rice ve Olsan, S24 US. TSG; Gibby v. Burke,

3o7 "S. 773; and se c NV Wliams Vv. Natser, 323 U.S, 471,

475- 4762 ;

The Court of Criminal Appeals of Texas should have

ordered a development of the facts alte ved hy apie

as itdidin fe parle Drush, 166 Tex. Cr. R. SO, oligo 2d

| (1958), That Court did not have’ ‘before At vo state-

smentsof faets (R. 3-32) or the. jury charge (R. 49-51) Which ,

fifve been pliced in the record since the-filing in this Court

of Petition fer the Writ of Ceértiorari. ;

Upon review of habeas corpus cases involving Pt state

court-conviction, without defense counsel, of a non capital

vtelony, this Court, in cases where’ it ihid the full trial ree-

ord before it and the petitioner's allegations ‘were astab-

ished by that record, has concluded that he. convietion

conld net stand, Kg... Townsend y. Burke, 384 US. 736

Wate Gibbs v, Burke, supra: In other such cases, where

«trial record was net before this Court, or the petitioner's

‘ a = .

7 . ‘ ‘

ae ;

allegations required proof from aide the record, this

Court has determined only that the petitioner was entitled

to a hearing or opportunity to establish his claims. £.%.,

Cash vy. Culver, supra. Lv the case at bar, the condition of

the record before this Court ¢ enables the Court to deter-

mine that Petitioner ix entitled to the writ of habeas corpus

on remand.

The‘record before fhis-Court establishes without dispute

Petitioner's youth and ignorance at the trial, his indigenée

and inability to defend himself, and that he was taken

advantage of, The only issues raised by Petitioner's allega

‘tions ard not. settled by the trial record ‘are. whether he

requested and was denied counsel, and whether he waived

court appointinent of counsel. ve

Under the circamistances a request or demand for counsel,

if madeas Petitioner alleges, was unnecessarye In Gibbs vy.

Burke, ‘supra, 3387 US. 773 (1949), where petitioner had

heen conVicted of a non-capital felony stithout shaving the

assistance of Counsel, the record showed neither a request

for counsel by the petitioner nor an offer of counsel by the

court, and the petitioner conductyd his own defense. , This

Court stated that “a failure to re\uest counsel does not

constitute a waiver when the deferlant does not know of

g itis right to ¢ounsel”, and held that the petitioner’s coi-

stitutional right to a fair trial was denied. In this case, as

in Gibbs, the conclusion is irresistible that Petitioner was

too ignorant to-know that he had a Federal right to counsel.

Moreover, Respondent has conceded in this Court, in his?

Brief in Opposition to Petition for Writ of Certiorari

(I. ‘D), that in view of the Texas law as it existed in 1944,

it would have made no difference whether Petitioner -re-

quested the Court to appoint counsel:

“Additionally, under the Texas Criminal Procedural

Law in 1944 it made no difference whether or not Peti-

tioner had asked the Trial Court to appoint counsel to

Oe heed

‘ ord

represent him, which is denied, Even had the record

indirated sueh request, which 4t does not, Petitioner *

Was being twied on a nos-capital felony offense, which

required hoe arraignment and no right to representa. .*

tion by counsel.” | .

‘ ad -

ee z ; >

On the record now before this Court, it is clear that the

Court of parece Appeals of “Texas would not’ require

‘further proof by Petitioner of his atlegations that he re-

adie Pesta: Was indigent and Ba nor waive his Pederal:

cright to the appointment of counsel. In “Moore vy. State,

S24 SW. 2d STM. S80, S81 (Tex. Crim, App. 1909), that

Court said: nf °

’

“The record in this. ease affinmatively reflects that

. this appellant, an eighteen year-old boy, wis not repre-

sented by counsel either of his own choosing or by ap

pointment by the court. There is an absence of pay

or offered te appoint counsel for Appellant, or that

appellant was fineneiailyable to employ ‘counsel. There

isan absence of any evidence that appellant possessed

sufficient education or was mentally alert to the point

‘of being able‘to represent liimself upon the trial of

this case, . -

. .* « ° &

“Giving effect to the decisions of the SuprémeCourt

of the United States andl the rule of daw announced

thervin, we are,constrained. to agree that under the

facts here presented this conviction Yggst be beygersed,

heeause of the failure on the parted thi@trial court to

appoint counsel for the appellant. 8

“While we have no statute in this state which ore.

quires the gine nt af counsel for one on trial for

an orddingry felony, the Supreme Court Of the United

sta

‘

sin aseries of decisions hats judie ‘ialiy determined

and held that failure to appoint counsel for one on tri:

in‘a state court for an ordinary felony may constitut

a denial of due process, under the Fourteenth Amen

ment to the Constitution 6f the, United States.”

*, 4 &

The state of the record in the Moore case was emphasize

by a dissenting opinion, 524 S.W. 2d at SSI, SS2, as follow:

- “* * * There is nothing in this record to show thi

appellant used any diligence to secure counses of h

own’ selection e urlier ; ; hothing to show that Ife desing

that the court appoint counsel forhim* * *. .

.“The effect of the majority opinion is-that, contrar

to its prior decisions, this Court announces the rule

‘be that in al! felony cases wherein the defendant is nm

____ represented by sel_his conviction will be set asic

Sunless the record affirmatively shows that the dees

danas financially able to entploy cotinsel, and’ thi

he possessed sufficient education and mental alertnes

to the point. pf being able to represent himself upe

the trial:” . * o -

Further development of the fa@s by the Court of Crimin

Appeals of Texas, before,granting the writ of habeas co

pus, thus hee ‘comes unnecessary. ) a -

Petitioner has exhausted his remedies in the courts ¢

Texas, and Respondent so concedes ine this’ Court. Bri

of Respondent in Opposition to ron for Wyit of Cert

: oraki, P. 2,

‘The Court of ‘Criminal Appeals of Texas has held that an ori

inal petition to that *Court.for the wrt of habeas’ corpus. is

proper remedy to prevent enforcement of an unappealed judgme

obtained under circumstances which @bnstituted a denial of

process under the Federal Constitution, La parte Bush, AB 8.)

2d 287, 166 Tex. Cr. R. 399 (1958) (non-eapital felony convicti«

« after denial ofscourt appointed: counsel to presumptively , insa

defendant, held, writ of habpas voFpus granted ten years ‘faft

conviction ), C a al

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Conclusion

oo... '

The Cogurteol! Criminal Appeals of @oxas erred in refs.

Inv to give Petitioner an opportunity to establisl the mate:

rial allegations. of his petition for writ of habeas corpus

and in refusing to develop the faets and deterinine the issue

raised by Petitioner as to denial of due process under the

Fourteenth Amendinent. Had the Court of Criminal Ap-

“peats considered the fall record whieh ts now before this

» Court, it would heave boon required, wader this Court's deci

sions during the past twenty veags, to grant Petitioner the

writ Of habeas corpus. .The ecireunistances under whieh

Petitioner went to trial and the complexity of the legal

problems which then arose, made if impossible for Peti-

Loner to have atau tal without the gasistene al counsel,

This Court should now deterimin® that Petitioner is entitled

on the trial record to the writ of libeas corpus, and reverse

and remand for further proceedings net qlcouststent with

the opinion of this Court,

Respecthuiy submitted, ‘

ack ; vp

i ; Perey Dé Wiuntass

e Counsel tor Petibioner

2 loo Gul! Biulding

‘ Tlouston 2, Lexite.

‘ ’ ’ a

: 1

, &, ° f

K 4 -)

v a .

. ™*

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