Brief for Petitioner — Young v. Ragen

Supreme Court brief1949

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‘SUPREME ‘COURT 0 OF “THE ont

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N wor OF. cenrToRaRt ‘To. THE cuicurr: count | or: RANDOLPH Bee:

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ae fe Se "Olmak or Petitioner. igi SH hae

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2, Pies

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; INDEX: 4

i | Suasect Ixpex. a Pieplonae

"Opinions below . = - Se ers ke he te SE eT eee |

Fo EE ee ee en ey SAP AOS ae

_ Questions presented eee Pe Fee EE peers i

C onstitutional provisibes. involy. ed. esa ek verte

“Statement .......:.. Cn ae Seen mh RN yma rat Mee tce a

Specification of errors .:..... AFA CTE EPL TET ese

BI. 6 or 85k PDR oy ean ire

‘1.-The petition for the writ of habeas corpus

* gficiently alleges, undenied facts showing.

petitioner has been denied due process

’ within. the. meaning of the Fourteenth

* .-... Amendment ..... Peers rer ee ary See

= Page ae

“IQ ww hk

Bute v. People, 333 U. S. 640, hae baat peng hae tered eras |

* 8936 3

PRT ce

a i

.2. Habeas Cor pus is the appropriate. -state a.

: _edy for petitioner and the denial of the peti-

—_ tion for the writ by the court below was the

. _. denial to petitioner of rizhts protected by

the Fourteenth cayuacenas aoe of the Federal ce

°Constitutiofi .. ANaerEeO ea Fees

3. No state remedy other than the writ of hens 7

corpus is available to” petitioner form fol.

= ee of his allegations.»:.°.°..... ee

Conclusion . Pe ase: EEE eet ae pee eegaee 2d.

Appendix . Ear ee rear ¢

| ~Judgment i in + Ke 1929 Ppt gene aa eee tag ae!

__ Allinois Habeas Corpus Statute; Hl. Rev. Stat. 3

RM A ss lta ce eh eta oe es a

\ ‘Hiinois Consfiiutional Provision on Hisbeas Cor- a

Cf ER Ps yee MOR EG wna peo a Sapa Ny ae

Ar —— of the Illinois Supreme Court. 31

ep Cirations °°.

- Cases: SER Sg pate ae . a

_ Betts v. Brady, 316 U. s. 455) 4 457, 462 (1942) .. 8, 42, 14

“ai Spee ae INDEX

“Bx seeks Lange, 85 U.S. onus):

Ex parte Reed, 100 U, 8.13 (1879) ° poe oo ics

Ex parte Siebold, 100 U. $2371 (1879). - oy a

Ex parte Watkins, 28:U. S. 115, 126 ae

Foster v. People, 332 U.S. 134, 137 -(1947) >.

Frank v. Mangum, 237 U. 8. 309 (1915) ..

~ Harris vy. The People, 1281. 585, 594 (1898):

Hawk.v. Olson, 326 U.S. 271, 278 (1945) . . ees

_ Hedgebeth v. State of North Caroline, 334 U. 8: ae

(Preliminary Print) 806'(1948).-......-02. tered 12 -

Herhv. Pitcairn, 324 U. S.117, 127 (1945) . io eer =A

- House v. Mayo, 324.0. S. 42, 45 (1945)... .. ie So eegdecedy (Seen

. Johnson v. Zerbst, 304 U.S: 458, 460 (1938)... =. 9, 16, 19

- ‘Knewel v. Egan, 268 U. S. 442 at 445 966). 8:

: Loftus v. Minots, 334 U. ‘Ss. (Preliminary Print) 804 __

(1948)-- Le PE PPO TPATE Ny mE ONS ace 20, 22-°

yee Marws% Ragen, "332 U. 5. (Preliminary Print) 561, - «

; _ 962, 566 (1947) ...' eee co Sree Sea 10, 19; 20, 22

-, Mooney v. Holohan, 294 U. S. 103, 143 £1935)... os NS

_Morhouse v. New Fork Supteme Court, 293 N..Y. a3], =:

FE ye cic Bee Ee eS eT Cae 20°

. Palko v. Connecticut, 320 U.S. 319, 327 (1937) ope ays | i ae

* People ex rel. Barrett v. Brailey, 391, il. 169, 170, >

es (3 aS EO Ee ener OL Ey WEE Cot em ae TR ee |

. People ex rel. Ruckslery. Rages: 397 Ul. 515 (4947) ee

People. ex -rel. Georgetown v. Murphey y; 202 Hl. 493 ego ens

(1993) ...:... ee aan a ia ee ie gee a ee se ae © ee

-People-ex rel. Maglori v. Simon, 284 TH:-28, 32 (1918) 13,17.

- - Peopleex rel. Melton v. Whitman, 243 Th 7i (1910) . . e

People ex rel. Swenson v. Fisher, 340 TH, 259, 257

ae People ex rel. Magee v. McAnnally, 221 24 9 (1906). 2, 17

‘1. People ex Fel Swanson v. Kelly, 352. Tl. 567 (1933) ony 47.

People ex rel. Swolley v. Ragen, 390 Il. 106 (1945)... )) 17

oe People bax rede ateassies v. Montgomery, 365 Til: 487°

og RS es ne “1 :

People ex rei. Wayman \ v. Simmer, 252 I. 9 (agi) ee -

People v. Bain, 358 Til. 177, 198 (1934) *: yar e ae tai Ss ee

“People v. Evans, 397 Tl. 330, 333 gtial aoe Ses | Syl

People v. Green, 281 Til. 52. (RT. 5 eter ery ki

4 @:

. antes

a 5 eee

Miaees = « ‘ ,

a eearnmre

"4 ° a *.. ; Page

- Peapis v. Kreeasky, 296 th. Apa 211 (1938) cea

Peoplev. Kym ‘358. IT]. 448 (1943)>... we: = ae | ae

. People v. Schuedter, 336 IN. 244 (1929) a ss

: Peoplg v. Skoffner, 400 Mil. 14, Ts, 177, 178 (1948),

10; 13, 17,20, 2 2:3

\ People v. Siitio an, 339 Hl. 146 (1930) e os 4 24

| People v. Utterback, 385 Il. 239 (1944). aoe * FR.

_ People v. W iliams, 293 Il. pp 92 (1937) . meer se Se

People vy. W ilaon, 399 Til. 437, 441, 448, 450, 451, ed

Ss a eee ee Th ode eee , 19, 20, 23

People v. Wos, 395 Tl. 172 (1946) .. WET tea eee

— New York. ex. rel. -W alia v. W ilson, 318 U. Ss, 688 3

MENS al atone eR ees Sara eh ne ae

Rice v. Otson;324 US. 786 (1945) —- eae 5

Smith v. O'Grady, 312 U.S. 328, 331, | 334 (1941) : 7,10; 19

Sunal v. Large, 382 U. 20% See (te) wes

_ Thompson v. The People, 398 Il. 366 (1947) .. Cpa) Ge

Tomkins v:. Missouri, 323 U. S. 485, 488 (1945) oes oo ae

” Townsend v. Burke, 334 U. Ss Le PoaAty Print) 736°

NE ee ee oh 2,13 +

Wade.v. a 334 U.S. (Preliminary Print) 672,

___684, 1276,1270 (4938) Fe ie ae Me eo eee.

White v. Ragen, 324 U. S. 760, 763, 764, 766, 767

7 EMR ai in eat ae (Ff 10, 17, 19, 22.

' Williams v. Kaiser, 393 U. s. 471, 477 (1945) = eae

F Woods v. Nierstheimer, 328 U.S. 211, 214 (1946). 19, 22°.-

*. Constitutional Provisions Cited: o | |

‘Section 7 vy Article Two—Iinois Constitution’ ro oe

Section’ 9, Article Two:—Hllinois Constitution of 1870. 3]

, - Statutes Cited: :

a Bostion! / 1, Chapter é5--inois Revised Statutes :

| (1945) Fi Gee Be hae aie ae Lattewercnt ay me 15

' Section 2, Chapter 65—Iilinois Revised Statute’ ‘

(194BY Eau kee REL oo eee oe $=

_, Seetion 84, Chapter 38—IIlinois Revised Statutés =

eer: vas Tiber = se NS OS Ss Lo ee

“SUPREME COURT OF THE UNITED ‘STATES. 7

ee OCTOBER TERM, 1948 :

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es i : bat oe Ne ae | ee Petitioner, :

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, JOSEPH 1 KE. RAGEN, Warpen, Tuxogf STaTE

of Ree _Pentrentiary, J oLter, Tuxoy/

2 go is fe Respondent

ah ‘COUNTY, STATE OF ILLINOIS

on WRIT OF CERTIORARI TO THE rat COURT ‘OF taboo. ;

aa,

in,” LD ‘

Fe =

ic: + - BRIEF FOR PETITIONER

- ?

This case ‘is before the Court on‘ a elt of certiorari ~

granted to review the decision of the Circuit Court of Ran- ,

dolph County denying a petition for wri it of*Rabeas was

“Opinion Below,

The Cireuit Court of Randolph unis did not aiaie

any opinion. The order of the Circuit Court reads ‘‘Peti-

tion for Writ of Habeas. Corpus denied for the reason ‘that -

Mme Se i: aoe. os

said “potitio on is inaofllcient -in law arid -pubetenee.’ Leav e.

; ranted t ‘to withdraw geasony upon request”. (Ri. 21. eae

; “Jurisdiction re |

‘The judgment of the Cirenit Court of Randolph County.

was,entered on. October 6, 1947. The petition for writ, of.

certiorari. was filed on: November 28, 1947, and granted | oak

Nay 3, 1948 In Illineis, the denial of a petitioner for |

habeas corpus is not reviewable by the Illinois Supreme ~

_ Court. People. ex tel. Magee’ v. McAnally, 221 fil. 66 (106) ; ae

see White v. Ragen, 324 U. 8.’766, 767 (1945). The judg-

ment below’is a final judgment rendered by the highest

court of the State i in which a decision could be had: . The

a arisdiction of this Court is invoked under Section 237 qb) -

of ‘the Judicial Code. (Title 28, Section 1257 7 (3). of the. Lae

New. Federal J udicial Code.) eee

| - Questions Presanted.

"The caestions ‘presented are: -(1) whetha™@he allegations. of

the petition for writ of habeas | corpus are sufficient to show

that petitioner has been deprived of his liberty without due =>

process of law, where the facts alleged show a os sre of the |

request for counsel‘in a non- -eapital case under*special .cir-

evlmstances showing petitioner was prejudiced and taken.

advantage of; (2). whether the writ of habeas corpus in -

-Tilinois is the appropriate state remedy for. relief from a‘”

‘judginent. of conviction which is void for lack of due process;

so that no 1ion- federal ground adequately. — the

denial of relief by the’ Court below.

=»

| Constitutional Provision Involved

: Section 1 of the Fourteenth Antendment to the Const 2

tution provides, so far as is matorish tere: te

“ee 8 nor, shall i any State —_ e any. person of :

ea:

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life, liberty, or * property, without due Process of law :

* ¥ #®.

Statement =. 8

: Pétitionar Jack O’Lee Yourg filed a petition for a writ of |

habeas: corpus on October 6, 1947, in the Circuit Court of -: |

_.Randolph County,' Llinois. - The. petition alleged that-on

August 17, 1946, petitfoner and his wife, Emma Katherine .

Young, ‘‘were arrested at’ St. Mary 8, Missouri without

warrant,’’ and ‘‘were held ov er night. in the county jail at

Perryville, Perry Coun y,. Missouri”? (R. 2-3). ‘‘On a verbal : .

promise that justice would be done,”’ the petitiéner and his

-wife waived extradition and, on Sunday, August 18, 1946,.

_were ‘‘taken to the Randolph County Jail, at Chester, Iili--

_ nois’’ by the sheriff of Randolph | County (BR. 3). —

3 (R.3) Petitioner was ‘‘held <incommunicado’ in the Ran-

dolph County Jail’’ for fifteen days. He ‘‘was denied his’.

' rights of see

-eado from the time of his arrest of: August t7th, in Missouri;

until September 3, 1946, when he “was indicted, tried, on-

vieted, sentenced all on same -‘day’” (R. 8). He ‘‘was never :

taken’ before | a magistrate to have a charge formally placed .

“against him and bail get’’ (R.°3). He was ‘subjected to the |<.

abuse ‘and torment of both the States Attorney and the-said -

Sheriff of Randolph County”? (R: 3). The’ State’s Attor-

hey ‘threatened. him and tried to force. :petitioner, to sign -.

papers, waiving : ‘his rights’’ and .‘‘when your: petitioner

g counsel” (R. 3). He was:held i incommuni-

refused to'sign his*-. ." ; rights away, the. States’ Attorney Te

became highly incensed and. threatened your petitioner”

with a long sentence in prison (R. 3). et :

On September | 3, 1946, petitioner was ikon before the

court. The ‘States Attorney read ati indictment charging

Burglary. and Lareeny, and then petitioner was ae ns

“fe

age 1 Randolph county i is the conaty | Prot which the ciiieans” was seatianed

’ ind the Cireuit Court of Randolph County was theréfore an a fopriate

Court for the —_ of the —— Tl. Rev. Stat. aiken » $2. .

f oy 4

from five to seven years. _ |

_. The State’s Attorney, who: acted as & Prosecutor, Court. ace

: Reporter and: ‘Court Clerk’ (R. 4),serronconsly entered the _

- sentences as running from. five to ten years. (R. 6, 10).

| Petitioner. wrote to the trial judge, and received ' in, ‘reply

: a rele

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be to. five (5) to seven (7). years in- the Illinois State Peni-

tentiary, at Menard, Illinois’’ (R. 4). ‘Petitioner asked |

~ for counsel, and. was denied’? (R.'4). He ‘‘stood’ mute

through the rest of the proceeding” (R. 4). He made‘ no

plea (R: 4 and 5). .He waived no right to-eounsel, and he

- waived no right toa jury (R. 4). He was not, warned of his _

rights; he did not realize that a guilty ‘plea had i in fact been

* entered ‘against him (R. 4). ‘After ‘‘a plea of guilty had

been entered against ‘him, he was never warned of the con-

3 sequences of such Piea’’ (B. 5). : - He did-‘not receive a copy

- of the indidinent ‘until after. he had been. ‘sentenced’?

'(R¢4). ‘He had ‘‘been denied the aid of counsel ; andj access

of witnesses .'. .’’ (R..8). His wife had been tried, sen- ~

tenced gand taken na the Reformatory for Women at Dwight, ves

% “ahead of time (August 21, 1946), so: she would not ae

available to appear as a witness in behalf of ‘your. a :

: tioner’’. (R. 8). Ont PE mA eS

= Petitioner was named i in two indictments filed‘on Septe

ber 3, 1946 (R. 11'and 13). Each chargéd that the bee

| tioner ‘‘feloniously: anid burglariously’’. entered a pogo a

room and stole a- variety of personal: items. -As to eac

3 indictment, ‘Without a jury trial and with the. formal reeord °

reciting a ‘plea of guilty, the petitioner,: on Séptember 3,

1946, was adjudged guilty and sentenced to the Illinois State

= . Penitentiary. (R.-17, 19: and - Appendix - A to Petitioner’ s.

Brief). . ‘The: sentences were concurrent and _were to run.

}

an ‘encloséd letter from. the State’s Attorney to the trial

judge which read i in part’ as follows: “The docket entry is .

| es from five to ten years, and that i is. the- “way that [wrote the

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ie ‘\ : ve > a Sites Ms ROSY

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: 3 Baa joa ‘ \ Fs : < oe ay

_ minutes ap and proparei thé, mittimus. It is-enttrely pos-

« could point’ out fo him: that with, good behavior he vould —

wot haye to-Serve’ any more on a fi¥e to ten sentence. than |

a ue west ° . \. : ' ' ; ao”

y 5

* sible that I made a mistake, hut as I recall the sentence, was

from five to’ ten. . If you cake to write Jack Young, you. .

‘on a five to seven sentence, . It really makes. 110 difference

in’the lengths of timé he would have to. serve if he conduets -

himself properly within the institution’” (R10). The drial» --'

judge in enclosing this letter wroteto’ (petitioner ‘*If you

pata Bio properly, I will write a letter td the’ parole

board, at the end of five-Vears, in your behalf when von

become: eligible for parole” (R. 9), ‘In November, 1946, :

petitioner received a letter, from the trial ' judge stating

_ that he was: ‘‘writing to the proper authorities ‘to authorize

the’ correction: ‘of the error of your sentence, as Iam satis-

., fied that ‘thg senterice was-five to seven years, and I do not

“wish to see an. injustice done to: ‘anyone. -I ‘thank you for

ealling my attentigy to this error”’ (R. 10).

‘The correction, however, Was not made until after peti-.

tidner had mailed a petition for a writ of habeas: corpus in:

December, 1946. | ‘(R. 6). The petition ‘twas intercepted —

by: the States Attorney, and was neither filed or ‘entered ,

on the court docket. Instead, another judge of the Cireuit

Court ‘called petitioner up before, him and corrected the.

error in ‘the. senten¢e”’ {R. 67; 18 and Exhibit Ato Peti- 4

tigner’ s Brief). Witile the formal récord recites that peti-

tioner moved the Court to cdérrect the sentence (R. 18 and

ee Appendix A to. HetGonge's s Brief ), petitioner alleged that. |

"3 The tvs was erroneous, ‘Under Illinois law ‘the deduitioy. for good | x

» behavior is from the maximum limit of the sentenve. Ill: Rev. Stat. (1945)," ?

_ -e. 38, $807. With full géod behavior allowance, a five to ten years sen-

fone

tence amounts to six years‘and three months; a: five to seven years sentence -

amounts to four year and nihe mon * The rule adopted by. the Depart- ._-

ment of Public Safety, ‘pursuant to . Rev. Stat. ( on e. 108, $45, -

}

og Smith-Hurd, Ill. Rev. Stat. (1923),. ec. 108, § 45.

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3 7G ee Moe oe

“Good Time shall be computed sgrensble to the Stqtutes of 1872"; \:

; a had ‘told the States Attorney. that he did: not Subeni eae

c make- -‘any-motions: to the court, uitless. he was allowed |

' first, the advice of ‘counsel, for which The States Attorney

stated, That? counse was ‘not- nécessary in. case of your.

Petitioners, And er tite process had been ‘orttelefed, the .

_ States Attorney handed ‘the Writ of. Habeas Corpus back . ea

to youk petiti onier, and shia that he; your petitioner, world © -

“néed itg@@@onger’”’.(R.7)2 2 wig

a The Det tion for a. writ of habeas corpus filed in the

x 1947 Wyss Anita without opinion on ar same day ‘for the

reas in that said petition is insufficient in law and substance’ 3

( R. 21). No: answer: was filed by: respondent. Petitioner ;

. filed his petition for a-writ of ¢ertiorari. in this Court on

~Ngvembér 28, ‘1947, accompanying | this pétition with a_

--protion for leave to proceed i in. forma. pauperis.. On May 3,

1948, this. Court ranted. the motion to proceed in. forma

_ pauperis and: at the same ‘time granted the Petition. for writ

of certiorari.. (R.-21),; Fite en ga: ie et ee peg

oe On May 17, 1948, this C ourt appointed the -unidersigned as

> “counsel tor petitioner. 3

cant Specification bf Errors to ) Be Urged “

| “< The Circuit Court. of: Hasdolgh County er od j in deny-. |

ing the’ petition for. the. writ of habeas cis witha ee 7.

| quiring ‘respondent to: answer and without giving to peti:

a tioner: an apportunity to prove. his allegations... Skat

“The Court ‘below erred i in not holding, on the Oe w

facti alleged, that petitioner _deniéd his liberty without.

‘due process of law by réason.of-a void conviction. , b

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P mas SUP oc ; . “

- KE The petition for the writ of habeas corpus suficiently o

| leges. undenied facts showwi ung petitioner s been denied

due process, within the eens ws the Fautteenth. Amend-

ment.

The petitioti for ths ext of adeas! corpus, prepared by

the petitiover himself, is. notskillfully drawn. . Yet it alleges,

witli sufficient clarity té be“understood, a number of facts © |

which taken-together amount to a denial of federal due —

process. These. facts have not been denied.. The respond-

_ent filed no answer. to “the petition.: The Circuit Court of.

, Randolph County denied the petition on the day ‘it was filed, |

without affording petitioner any hegring, ‘because the peti-

tion was ‘‘insufficient in: law and substance’”’ (R. 2r). an

> 4

allegations,’ therefore, must be taken as true. White ¥..

_ © Ragen, 324 U, S. 760, 763, (1945) ; House v. Mayo, 324 U.S.

-\ 42, 45 (1945)§ Smith v. O’Grady, 312 U. 8, 399, 331. (1941).

: The outlinés of the picture presented are clear. Peti-

- troner and his wife were arrested in Missouri on August 17,

- 1946, held in the county jail for-one night, and then taken to.

the Randolph Coanty jail in TA Illinois, where tlie peti-

tioner was held ‘‘incommuni do’ for at | ast fifteen days |

until September: 3, 1946. (R. 3). Petitioner was not taken

before any examining magistrate. Petitioner was not :pér-

mitted t6 secure counsel. (R. 3). ‘Meanwhile his wife, on

‘August 20,-1946, w convicted and sentenced: to ong 3 rear’ 5

3 imprisonment i ing e é Reformatory for Women. On Septem-

‘ber 3, he was indicted: on two charges, tried and sentenced.

Petitioner dsked for - -eounse] and was denied.” (4). ‘Not -

only was. petitioner | denied counsel, but he was also deriied

aecess to. witnesses? “the petitionér’ s wife had been sent

to tfieformatory: ‘(ahead of time’’ so that Khe would not

be available to appear in petitioner’s behalf. (R. 8). Peti-

tioner entered no a at the trial ; he stood ‘‘mute”’ after

a, 4 - Ce

> ; :

havi ing g, unsigeessfully oer for éstipeet (R. 4). He did not

waive his right, to a‘jury trial; he was not given a copy of

the indtctments urifil after he had, been. sentenced. (R.-4)..

He had not been givey time and. opportunity to ‘prepare his

defense. (R. 5). The Cotirt sentenced him to the penitenti- —

ary as though ora a plea of guilty. The indictments charged *

two serious 6ffenses 0 of burglary for which the punishment |

in Illinois‘ can be life imprisonment. (III. Revised Stat. 1945;

ehap. 38, See. 84). Petitioner received two concurrent

sentences of from five to seven years imprisonment.

Thus the petitioner asserts in part that_he-was ¢ enied

the right to counsel in a non-eapita case. The assertion

is one which requires an examination. of the “totality: of .

facts’? which go to make the gireumstances of the ‘‘par- —

ticular'situation’’. Betis'v. Brady, 316 U.S. 455,462 (1942) ; .-

Foster v. People of. State of Illinois, 332 U. S. 13%, 137 | .

(1947). ‘But unlike the petitioner in Betts v. Brady. the at

petitioner here has received no hearing whatsoever on his

claim that the denial of coutisel, in the context of a particular

situation, constituted Ya denial) ‘of fundamental fairness -- oe

violative of. the Fourteenth Amendment. The. awkw ard

language of the petition ‘‘of a. common man... not )

versed in legal matters’’. (KR. 9), yet undoubtedly believing -

that leval words of art.are required, is not the most felici- |

tons basis for determining whether due process has been

violated. Particular circumstances” can best. be. explored

only ina. hearing. See Betts v. Brady, 316 U: 8. 455, > ae

462 (1942) ; ‘Wade-v. Mayo, 334 U. S. sec ny Print) -

672, 684 (1948). S : |

One of the circumstances ‘gurrounding. the denial of.

counsel to petitioner is that’ petitioner specifically ‘(asked

for counsel’. (R. 4). “See Wade v. Maye, 334. 0.°S.-(Pre-

liminary Print) 672, 683 (1948). He did so at his trial,

when the request was denied, but he had been-denied pre-

V iously ‘this rights of sic counsel’’ while he was held

, e

v . ae | ‘ P : ‘ 9

a ‘<incommunicado”? for at a fifteen days. (R. 3). “These :

allegations (R. 3, 4 and 8):are subject to the fair inter- .

pretation . that petitioner “might have~s@eured counsel to

‘represent him, without appointment by the court, if he had

not beer held ‘‘incommunicado”’ and had not been indicted,

tried and sentendéed in one day. See Tomkins v. Missouri,

: 323 U.S. 485, 488. ( 1945), ‘In the context of the varticular -

’ situation, the specific request for counsel appears aS a-cof-_

tinuing request vither to’be permitted to make arrangements —

to hire counsel, ox, to’ have counsel appointed. Indeed the

Peti ition for Oertiorgri states, ; apparently in amplification

of what is meant by ‘“incommunicado”’, that ‘‘when peti- -

tioner asked 4f he might make arrangements to wire his .

folks i in Kentucky i in regard to hiring an‘attorney, he was.

suld not*be allowed”’. (Numbered Page Two of

:. Petition’ for Certiorari). The rightoto be represented by’ .

counsel antedates the right to have counsel Appointed. “See

Bute v. People of Illinois, 333 U. S. 640, 661 (1948); Illinois.

Constitution of 1870, Article ll, Bee. 9; ef. House. v. Mayo,

+ $94 U.S. 42, 46 (1945). : pas

Petitioner was given neither opportunity nor time to

prepare for his ‘trial. The right to secure witnesses is an.

important part of. the basie right to be permitted to defend —

against a serious eriminal- ‘charge. Petitioner specifically

~ alleges that-he was ‘<denied access of witnesses’’ (R. 8).

His wife was sent to the reformatory ‘‘ahead of time’’ “so

_as~she would not be available to. appear as ‘a witness’’. -

(R. 8).: Petitioner’ s wife might have been an important f

- witness in his behalf.” She was with him when he,was ar-

rested i in Missouri (R. 2Y, and the alleged erimes took place -

_ the day befor are right to secure withéss¢es and to have

Van. opportuni y to prepare: is partieularly important when

petitioner appears as a stranger to the community and i a. *.

' arrested in another state. See Johnson v. . Zerbst, 304 U.S.

4 + 458, 460 (1938); ee Mayo, 324 U. S. 42, 45 sacenee It

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aS eons 10

ss)

can hardly be said that petitioner hed an opportunity’ to’

prepare. Petitioner ‘‘didn’t even receive_a copy. of. the

indigsment until after :he had been sentenced’’. (R. 4).

See Smith v. O’Grady, 312 U.S. 329, 334 (1941). The trial : |

moved from indictment: to conviction and sentence in erie

day: Such lack of nofice of the charge and such speed, when

coupled with the denial of access to witnesses and the denial .

—of a: ‘specific request for counsel, is not due process, If.

- counsel is to be denied'a defendant, then at. the very least,

the defendant. must be given some opportunity and time to °

_ prepare, Cf. White v, Rdgen, 324 U. S. 760, 764 (1945),

Hawk ¥. Olson, 326 UV. 3.271, 278 (1945). |

: Moreover ‘the trial was perfunctory, informal and

. lacking im‘ “essential ‘steps. — Petitioner entered no plea,

and ‘waived ,no, jury, | ‘yet he was adjudged guilty without

a jury trial and sentenced. to ‘th penitentiary. A pro-

: ceeding so defective has hardly the form of a hedring.

-When added to the denial of counsel,’ it does not. have the

substance of a hearing... See Marino v. “Ragen, 332 U. S.

(Preliminary Print), 561, 562 (1947). Neither. liberty

nor justice would be secure .if such a proceeding could -

be substituted for a fair trial. See Palko-v.. Connecticut,

302 UL. S. 319, 327 (1937).

“Within limits, a state may adopt its own form. for. a

trial. But the trial which petitioner received was_a ¢lear

violation. of Hlinois law. In Illinois ‘the want of a plea .

is not a mere formality’’. People v. " Bain, 358 Til. 177,

198 (1934). The Illinois Court: has held ‘‘ihat a plea is.

- mandatory before the trial court has the authority to

pronounce judgment”’. 358 Ill. 177 at 198; see People v.

Shoffner, 400 Til. 174, 176 (1948). Moréover the IHindis —

| ‘Statute provides that. ‘fin all casgs. where the party on

being arraigned abstinately stands muté or refuses to”

“plead, the court shall order the , plea of ‘not guilty’ to —

wee. oe

» 2 .

be entered on the minutes”. Bi Sev. Stat. (1945);

38, $733. And in Illinois, ‘‘the right of an actused per-

son to apjury trial is absolute to the extent that he may

have. such a. trial by claiming it or even by withholdin

his consent to proceed without it’’. People ex rel. Swan-

Son VY. Fisher, 340 Ill. 250, 257- (1930). Petitioner was

. not ‘warned of his rights’’; and did not realize that a.

— guilty plea had ti fact been entered against him; he

was. not warned ‘‘of the consequences thereof”? (R. 4):~—

In Iilinois the requirement that such an explanation ‘be

given to a defendant is ‘‘akin to the requirement that

an accused: shall liave the ‘right to counsel?’. Je People -

v. Wilson, 399-Ill. 437, 441 (1948) ; Til. ‘Rev. Stat. (1945), . . __—

ec. 38, § 732;- ef. Illinois Supréme—Court Rule: ‘ 27 A,

effective September. A, 1948, in 400 Hil. No. 2..

The informal and confused nature of the trial which °

‘petitioner received is. further indidated by the: fact that :

the State’s Attorney acted..as prosecutor, court reporter;

and court clerk, and, moreover, incorrectly entered the

sentence. The State’ s Attoney, Wong: with the Sheriff .

of Randolph County, is charged with. abusing and tor-

menting the petitioner while ‘he = was, held. ‘*ineom-

municado’? (R. 3), and with seeing to it that petitioner’ 8 |

wife was unavailable as a witness in his behalf. (R.- 8).

It was the State’ 8 Attorney. who ‘‘wrote the minutes up

and prépared tlfe mittimus’’.. (Letter of State’ s Attorney

to J Fudge of Cireuit Court of Randolph Connty, R. 10). The

letter from athe penitentiary pointing out. the error, the

Staté’s Attorney incorrécthy ‘advised the trial judge as fo ©

the, difference between a five to’ ten. years sentence and d..

five to seven years ‘sentence {R. 10). ‘Thee correction of the”

record, after-the State’s ae had aie” (Re

a ees

_State’s Attorney incorrectly entered the five to seven years © Coco

‘sentence. as five to ten years. “In résporise - ‘to petitioner’s ©

—

| ae a =

6) a’ ‘petition for tue writ of habeas corps, was, ‘accom- —

“panied by another’ denial of counsel to the pétitioner (R. 7).

Moreover the correction, coming after the petitioner had ©

“been taken to the penitentiary and after the term of court

during which petitioner was sentenced, is of doubtful legal-

ity. See Exhibit #3 (R. 10)°in the light of People v. Wos,

395 Til. 172 (1946). These facts serve to emphasize the’

prejudiced position of petitioner, and they addtothe denial

of counsel and the other circumstances alleged, Partner « care-—

tess disregard of petitioner’s rights.

The’ rule of Betis v. Brady, 316 U.S. 455 (1942), requires . :

the examination of the particular circumstances in the con-_

~~ text ef which ‘counsel was denied. When examined, the eir-

eumstances may show, that i in effect there was‘an intelligent

waiver of. the right to counsel,’or a hearing: may ‘produce

facts ~concerning the actual conduct -of..the Arial, ; as for

: example, the presence and examination of witnesses, which ~

taken together show that, the trial, whatever its defects,

was not lacking in fundamental fvirness, There can be-no

presumption that a petitioner is competent to conduct his ~~

awn defense when he specifically has requested counsel. See —¢_

“Wade vs Mayo, 334 U. S. (Preliminary Print) 672, :684 :

(1948). Even if a defendant has not requested counsel, the —

absence of counsel under. particular circumstances. may

make his conviction a denial of federal due process. Rice v

Olson, 324 U. 8. se (1945) ; Townsend v. Burke, 334 a ee

(Preliminary Print) -736 (1948) ; see Hedgebeth v. State of.

_ North Caralina,:334 U.S. (Preliminary Print) 806 (1948). oe

But in the- present case petitioner can point to hoth a specifie. _

request for cou sel (not only in open court: but: previously ‘

while petition r was held ‘‘inecommunicado’’) and to numer:

ous circumstances showing that he lias ‘‘actually been taken

advantage of’’; and that he-has been “*prejudiced’’, and.

: hence petitioner ‘does make out a case of —— of due.

. a

She

process”, T ownsend v.. * Burks; 334 U. Ss. (Preliminary

Print) 736 (1948). :

The allegation that petitioner was tried as on a-plea of

guilty without. a: jury, ‘when petitioner did not plead and’

did not waive a jury, describes a ‘trial which is no trial at

ail., “The State’ s Attorney acted as court. cl k_and- court

reporter. See Tl. Rev. Stat., 19453 Chapter 37| Par. 163 a;

Chap: 25, Par. 8, 44, 16. The State’s Attorney says he

‘‘wrote the minute. up and prepared the mittimus’’. And .

_ he entered. the sentence incorrectly. Thug at the very least.

the trial was one of informality, and cofifusion: It was per- .

meated with irregularity. The absence of a court clerk, a

. court reporter and correct records would be fatal to any

attempt te restore petitioner’s rights on an appeal, where — _

‘“the reviewing court.is restricted to its examination to the

record certified by the trial court’’, and where court records _

’ are conclusive and cannot be contradicted ‘‘on the memory

-of the judge who présided when the record was made*’.

People v. Shoffner,; 40)-Mh, 174, 177,178 (1948). But peti-

tioner’s allegations go further.’ They assert there was no

- plea and no waiver of jury. The assertion gains support —

‘when clerk and.reporter are absent, when records are not

kept properly, and known errors have been made.

The circumstances of this case show.a petitioner denied |

access to’ witnesses, and given no opportunity to prepare his”

"defense. The probable. principal witness was made unavail-

_ able through the aetion: of the State's Attorney. Petitioner

did not receive a copy of the indictment until after h

been sentenced. -Petitioner was. indicted, convicted

sentenced on one day. —

Moreover in the present case the request for counsel was

broad and continuing. The petitioner requested ‘he’ be |

given an opportunity { to secure counsel, while he was held

~ ‘incommunicado’”’.. He later asked for counsel and was

denied in- open court. ‘The right to counsel here asserted

oe ss

14°

goes beyond a-right to’ Liles eimai aipipeduted: It nites

to the’ right to be represented by counsel, and the right to

make arran rements ‘to secure counsel.

_— These allegations cannot be brushed aside, iaibabed and

- without any hearing. The application of the ‘concept of

due process may be ‘‘less a matter of rule’’, Betts v, Brady.

316 U.S. at 462. But then: this is so in order. - take “é

account ‘the totality of facts in a ‘given case’’.. 316 U

at 462. Where, as here, the want of. counsel resilts i in.a con-

_vietion lacking in fundamental fairness, and where the.

totality of facts alleged shows atrial offensive to the com-> *

-morrand fundamental ideas of fairness and right, then judg-

ments of sere deataiacte are 2 void...

2. Habeas Corpus Is the Appropriate State Rimsdy for *

' *~ Petitioner and the ‘Denial of the Petition for the Writ

by the Court. Below ws the Denial to Petitioner. of

Rights Protected by,the Fourteenth Amendment of the

Federal Constitution - NG

‘The court below, which denied the ss alisha as “insufficient

~ in law and substahce’’ determined, without 'a hearing, that

‘petitioner had no federal right to counsel and was not denied

due -process of law. This: determination was the commis- °

‘sion of federal error and a denial to petitioner of his con-

_ stitutiona? rights. It was also the only thing to be ‘decided in.

determining | whether or #t to grant the petition. ~Habeas

. COvpus 4s available in Illinois when a petitioner alleges that.

.. the denial of counsel has made a judgment of conviction

void as lacking in. aug process of law. This i is made per-

fectly: clear by the récent per curiam announcement of the —

Hlinois Supreme Court,in Peoplev. Loftus (1948). See Ap-

_ pendix D of this brief. The Announcement stands as a sum-

‘mary ef the scope of the Illinois remedies of. habeas corpus,

_ writ of error and corantenobis when due process questions.

are’ raised. It directly « answers the poreee of the avail-

ability of habeas corpus when ‘denial of counsel, together

with other circumstances nov appearing in- the record, has

“resulted in a\ yoid conviction. . The. Announcement is de-

cisive. In additior the Announcement i is consistent with the

prior Illinois dev elopment of the. writ of. habeas corpus.

The writ of habeas corpus is, provided for both in the

-Mlinois Constitution and-in the Statutes of Illinois. Hil.

Constitution, Art. 2. See. 7; Ill. Rev. Stat. (1945), ¢. 65, § 1. -

When the writ is sought by a prisoner. held in custedy by

virtue of process from any court legally constituted, the

. Illinois Habeas Corpus Statute poses the question as to

‘ under circumstances where the law. does not allowprocess. *

whether the court “has exceeded the limits of its jurisdic-

tion’’ or whether the process ‘‘has been issued in a case or

or orders for imprisonment to issue’*, Ill. Rev. Stat. (1945), .

.¢. 65, § 22.: The Illinois Supreme Court, in ‘its interpreta-_

"tion ef the scope of the writ of habeas corpus, has made it —

clear that habeas corpus is not a substitute for the writ of ©

error.’ People ex: rel. Georgetown. v. Murphey,.202 Il..

493 (1903); Sitice habeas’ corpus cannot do service for a

writ of error, habeas corpus is proper. only when the judg-

ment attacked can be said to be void and subject to collateral — |

attack. Therefore’ the inquiry in linois eases has usually

been: Whether the writ should issue because there has been

an original defect in-or a subsequent loss of jurisdiction i in,

the court issuing the order of conviction or sentence under:

which the petitioner is held.’ Jurisdiction’has become a word

of art in most Illinois habeas Corpus Cases ; ; the word “‘juris-

diction”’ as used in tese cases means an .inquiry - -inté”

* whether the judgment of conviction is void and collateral

attack possible: People ex rel: Wayman v. Zimmer, 252

Ill. 9 (1911); People v. Green, 281 Ill..52 (1917); Jeu

ex rel. Maglori v. Sima, 284 I. 28 (1918).

eee nr

a8 a ee Se

This is not an unusual devel pment.’ ‘The United States -

= * Supreme Court has similarly stated that habeas corpus

_ ‘+will not’ be allowed to do: service for-an appeal’: Sunal _

ss Large, 332 U. S. 174,178 (1947). ‘The problem in habeas

corpus cases has been ut in terms of whether .the ‘court

issuing the order. of confinement had jurisdiction. “Ex parte

Watkins, 28 U. S.’ 119, 126 (1830). Mr. Justice Stone,

speaking for the Court, stated: ‘It is the settled rule of

_ this Court that Mrabeas corpus calls in question only the

| jurisdiction of ‘the court whose judgment is challenged’’.

_- Knewel v. Egan, 268 U.S. 442 at 445 (1925). A distinction

“has been drawn between orders erroneous and orders that

are void. Ex parte Siedold, 100_U. S. 371 (1879). It has

_been said that more than jurisdiction over the person and

eS subject matter niight be required; there would have to be

| jurisdiction, to issue the particular order entered. Ex parte: rs

_ Lange, 85 U. 8.163: (1873); Ex parte Reed, 100 YW. 8. 13

~. (1879). Given the power to look behind the face.of the.

judgment, such a formulation leads to an inquiry into the -

seriousness of the alleged defect. Defects sufficiently :

serious make orderg void and collateral attack possible. .

Johnson v. Zerbst, 304 U. S. 458 (1938), and see ‘Frank vy. — :

_. Mangum, 237 U. 8. 309. ¢1915) ‘and the dissenting opinion

at 347 where Mr. Justice Holmes refers to the loss of juris- .

diction as not general ‘‘but particular and proceeds from

the control of a héstile influence’. As a matter of history,

the use of the jurisdiction concept in, connection _with

fedéral habeas corpus cases has been a part of the expended _

use of the writ due to the increased scope of the Fourteenth ©

Amendment of. the Federal Constitution.

“The development of the writ of habeas corpus in Tllinois

has’ been’ similar, although impeded because the Illinois

| ‘Supreme Court does not review the denials of petitions in

lower Illinois courts, and will not itself conaider petitions .

wh ee Oe gee

which raise questions. of fact. People ex. rel. “Magee ¥. Me- ae

- Anaily, 221 Ill. 66 (1906); People ex rel. Swolley v: Ragen,

390 Ill. 106 (1945) ‘see: ‘White v. Ragen, 324 U: S. 160, 766

(1945). ° :

The Illinois Supreme Court ‘al orented the writ hen oo:

7 ‘Appears that the conimitting court had no jurisdiction over

the subject matter. People ex rel. Melton v, Whitman, 243 | =“

Teh. 471 ( 1910). ‘It has. recognized that “jurisdiction in a

. particular case is not, only the power of the court to hear’

_ and determine but also the power to. render the particular “

judgment entered, and every act of, the court beyond its»

jurisdiction i is, void’. People_ex rel. aglori v. Siman, 284 .. -

Tl. 28, 32.(1918). In the Maglori casé, Mr. Justice Carter,

in his dissenting opinion, 284 Il, -28 at 37, stated ‘‘If juris-.

diction should be defined as it Jias been in the opinion, then

every act of the court that goes.beyond the authority of the as | :

court to enter it is void’. The writ of habeas corpus in |

- THinois can be used to. search behirfd the face of the judg- /

“ment: and to” matters not appearing on the: ‘record. ‘People

toy, Loftus, Appendix D (1948); see People v: Shoffner, 400

. Hi-174, 178 (1948); People v. Wilson, 399 Illy 437, 450-451

(1948). In developing the writ, the THinois Cnt’ has

distinguished between orders merely erroneous and safe

from collateral attack, and those. that are void. People ex

rel. Wakefield v. Montgomery, 365 Ill. 487 (19387) ; People e

~ ex rel: Swanson'v. Kelly, 352 Ill. 567 (1933) \ People ex rel.

Buchalter +. Ragen, 397 Tl. 515 (1947). Be DO ak

Because this line of i inquiry necessarily leads to a. weigh.

‘ ing of the seriousness ‘of the allezed defect; he Tilinois. }

Court has discussed in terms of: jurisdiction; t

ness of alleged constitutional: violations. The Court has

considered whether the constitutionas protections fforded

‘aré so major they may not be wai ved. In hoiding\that a-

a jury baie not be waived, the Minois Supreme Court s ated:

serious: -

ee A

oa “The: late J Fuigh MeAllister, i in a case. bronght before him

"on habeas corpus; where the defendants had been tried‘ and

convicted of a felony by the court, a ju having been\waived

_ by their consent, delivered an able and satisfactory opinion -

holding the conviction was void, and the defendants were

ilkegally imprisoned - thereundér’’. Harris vy. The. People, *

128 Til. 585, 594 (1898). Later times: have. brought a differ- ee

(> ent result ;.the jury may now be- waived and. jurisdiction is

said not to be involved. ‘People ex rel. ‘Swanson v. Fisher,-

he tutional.

340 Ill. 250 (1930). But the: important-pointis that-when

the protection of the jury. was considered so major that

waiver was not ‘permitted, then jurisdiction was involved -

and the writ would lie.“ In People. v. U ttetback, 385 Ill: 239

_ (1944), on a writ of. error, the: ‘petitioner. claimed he had

been denied a: ‘constitutional : ‘right to a. speedy. trial,.and

urged that this was a right which he could not waive. The .

‘Court translatéd the contention into, the problem of .the.

seope of habéas:corpus, and stated: “to hold, as plaintiff

_ in error contends, that fhe lapse of the four months’ period

- ousted the trial court of jurisdiction, would be to go counter |

to many rulings of -this court . made on original petitions -

for writs-of habeas corpus’’, 385 Til, 239 at 243. In People

ex rel. Barrett v. Bradley, 391 Ill. 169, 170, 171 (1945), the

— Minois Cy uirt posed. the problem of habeas corpus in terms -.

of jurisdit: ion ‘and ‘power to enter the order -questicned

and thep ¢ considered the contention, raised on‘a petition for

habeas corpus, that a septence to the penitentiary of: from

one year. to life for. the crime of. manslaughter was so out

of. proportion to the nature of the offense as. to be unconsti-

Thus despite’, e language of jurisdiction, the very in- |

quiry posed by a\petition for habeas corpus in Illinois;

namely, whether’ the judgment complained of is voidand .

> collatéral attack ps ieseccer users imports into *

ee 3

whether thvre has been a denial of° ‘major . federal rights.

A judgnient obtained in violation | ‘of the fair hearing re- _

: | quirements of the Fourteenth Amendment is vulnerable to

“eollateral attack in. the Yederal courts if nowhere else. See —

White v. Ragen, 324 U, S. 760, 767 (1945). This. vulner-

ability. to collateral attack. should ° by itself answer the

jurisdictional question posed by Illinois habeas corpus pro-

ceedings. But beyond that the duty_ to enforce the federal er

right rests on the state court, and this is recognized by the

\Hlinois Supreme Court.’ People v. Wilson,.399 Tl. 437, 448

"(1948) ; Mooney v. Holohan, 294 U. '9.°108,. 113 1935). A

‘judgment ‘obtained i in violation of procedural guaranties —.

protected against state invasion through the Fourteenth |

Amendment’ is void. Smith v. O’Grady, 312 U.S. 329,

‘334 (1912); ef, Johnson v. Zerbst, 304 U. S. 458 (1938).

Such a judgment can hardly be considered not void and not

subject to collateral attack in Illinois habeas corpus pro-

- : proceeding a ‘determination of the federal question “a as to

— ceedings once the ‘‘duty of a State court to ‘enforce the re-

. quirements’’ of the Fourteenth ‘Amendment has been rec-

ognized. People.v. Wilson, 399 Tl: at. 448. The response of ©

the writ of habcas corpus to this duty i is recognized by the

Attorney. General of Illinois by his Confession of Error in

Marino ¥. “Ragen, 332 U. = Hidicrasmey dd ‘Print) 561, 566°

(1947). !

To be stire, this Conrt has’ previously stated, in:a case

_ involving the right to effective assistance of counsel, that.

the denial.of relief by the Illinois Courts could have restéd,

on.the ground that, habed 3 corpus is not the’: proper remedy. -

Woods v. Nier§theimer, 28 U. S. 211, 214. (1946). Ad-

mittedly the question of. the scope to be given to an ancient

writ intended to. safeguard liberties presents. unusual diffi-

culties when the. determination must be made by’a federal aS

court about the status of the writ as it exists ina state sys-

ee eee,

aa a. Sere °

é : - :

+ oe

ten. For while the writ undoubtedly’ has the eapacity to ~~.

safeguard rights as new meaning is given’to the Fourteenth -.

Amendment,‘there may be doubt as to whether. the power .y

has been red ized. Cf. Matter of Morhouse v. Xt, Y. Supreme °

203 N-Y- 731, 140 (1944). Events, since the Woods ;

. - ease, howe ever, make clear that the writ of habeas corpusin

-‘Tilinois. has achieved full status as a ‘remedy for relief

from a judgment void for. want of due process. First, the

| “Bute and Foster cases have shown, the limited -nature of

review by writ of error in Illinois’. Bute v. People, 333 U.S.

640 (1948) : ; Foster v. People, 332 U.S. 134 (19474. Second, -

thie Confession: of Errer i in the Marini case, showed. that

habeas corpus could hot be: considered confined te a limited . ”

‘number of jur isdict"onal questions but was available to aise

the broad question of ‘a judgment void for -want- of due

process. Marino v. ‘Ragen, 332 U.S. (Preliminary. Print)

el (1947). . Third, the Illinois Supreme @ourt in the. Wilsod

- case explicitly recognized the duty of the State court to en-

force. thg, due process requirements of the _ Fourteenth

“Anieydment, and distinguished between the review limited to

2 the: eommon law record available on: writ of error and. the.

_ issues presented it -right to counsel cases on habeas corpus.

- People v. Wilson, 399 Il. 437, 448, 450 (1948). ‘Then in the. ~

- Shaffher case, the Illinois Court took occasion ‘io again

emphasize the’ distinetion plainly drawn by the cases. be-

pw een. stions reviewable | on a writ-of error-and questic.

cof fact that may be tried on a petition for writ of “habeas

corpus where’ it is. claimed due process has been denied’’.’

” People: v. Siro ff ner, 400 Hi. 174,178 (1948) ; see Loftiis.v.

| Tinois, 334 U. 8. (Prelimiriary Print) 804 (1948). ae

- Rinally, “the availability’ of: habeas corpus as-a proper =

remedy: in Tilinois | for relief from’ imprisonment under. a

judgment of conviction void for lack of due!process of law eo

has been made parfectly Aleat by Announcement of. the +

Minois Supreme Court m People ® v. on —— D, Sti

aoe Sane os ce

gb |

‘made. in - Rintonhes, 1948. In ‘Pods v. Loftus, ‘the ‘peti-

Ationer claimed that the denial of counsel, in the context of a.

particular sitifation, resulted in a want-of due process. The -

Mliniois Supreme Court said that a number of grounds-for

the ‘issuance of. the writ of habeas corpus ‘‘may be. found

in Chapter 65 of the fllinois Statutes but the sole pertinent

: ground here would be confinement in the penitentiary urider .”

a judgment of sgenviction which is void. Such ground has

-* Been fr equently oe q Illinvis aahed LOR shen 33 of this

"1 efiels 3 |

«> The Illinois Coast Feet that ‘the tailute to appoint cae

counsel, if violative of the Fourteenth Amendment, would |

render-a judgment void. . The Court, said ‘In the instant

case the contention ofthe plaintiff i in erkor is that under the

particular circumstances, the court shout] have appointed

counsel to defend him. If the circumstarives are’ such to”

merit ‘such duty, and. the court failed in that duty,. the

Supreme: Court of the United States has held the: gudamient

. js void fordack of due process of. law.” Page 35 of this

Brief. “The constitution of the United States. andjthe .

decisions of the United ‘States Supreme Court are: the _

‘supreme law of the land, ‘binding up every court in the ,

land’’. ° More: specifically ‘habeas corpus is applicable —

to a. -situation, among others, “where the e judgment is void

by reasons of matters, not appearing in thé record. The |

ec Boerae

claims’ of the pétitione> must’ be presented to the court,

_. whether ‘the circuit oy supreme, by a proper petition a

ing facts. Which, if true, would render the iedenient -void’’. “.

“Page 3 34 of this Brief. he =e

mr ‘Wines facts shania. ‘that. the aeeieuke of. conv iction a

~are void by reasons of sane not appearing in the com- .

fmon law reeord. The detial of counsel; in the context of *

a. particular ‘situation, resuited in convictions lacking. iy

—

fundamental fairness and therefore void for lack. of due

process of law. This is the precise situation. where the

_ Illinois: Supreme Court has stated that habeas corpus is .

applicable. Tllinois v. Loftus itivolved the right to counsel ina |

_non- capital casé. ‘Seé Loftus v. Illinois, 334 U.S. (Prelimi: ©

“nary Print) 804 (1948). Thus there can be no doubt that -

‘In Ulinajs the appropriate remedy for such ° a complaint, is

habeas cokpus. | Seer |

a 2°

8. No state Hine oi than the writ of eikeas corpus .

1s available to petitioner. i098: ¢ a full: consideration: of his ;

; aliegations. | :

The av ailability of | some ‘other state ‘Sie has been

urged before this Court in a number of. Illinois cases in

explanation of the denial. hy courts below of relief to peti-

tioners claiming a violation of Federal due process. ‘ See

Confession” of Error i in Marino v. Ragen, 332 U-S-(Prelim-

inary Print) 561 (1947) ftug ye-tinois, 334 U.. S.

_(Prelinfinary. Print) 804 (1998)< Woods v. Nierstheimer,

828 -U. S. 211° (1946); ef White v. Ragen, 324 U. S: 760

— (1945). The argument loses force when the remedy tried

_ is plainly appropriate, for remedies need not be exclusive of:

each other. See New York ex rel. Whitman v. Wilson; 318

U. S. 688 (1943).. In view of the Announcement by the |

“Tilinois Supreme Court in the Loftus case, habeus corpus

is so clearly the apprepriate remedy for petitioner, that the

question of the possible existence of other remedies ap-

pears irrelevant: The Announcement must carry unusual

weight because unlike more routine State Court =ipe

which perhapg | need not separate. out the adjudicat on on

the ‘Federal question from the adjudication on the ap-

_ propriate | state procedure, the Announcement attempts to

‘answer these questions directly. See Herb v. Pitcairn, 324

U, S: 117, 127 (1945). The Anriouncement makes it clear

that when the denial of counsel, together with surrounding

—

this case. Such a bill would have

_., Within fifty’ days after judgment was enteted. Ill. Rev.

\ oe 4

) ¢

cireumstances not appearing in the record; results i In a. void

The announeement in the Loftus case also-makes it clear,

S however, that no other State remedy ean serve the peti-

tioner.

Na relief” cain ‘be obtained for the potitionas under the

writ’ of error. The issues presented in the petition for:

habeas. corpus .are ‘‘entirely different’’ from the~.ones

| which could be presented under the wit of error. Pe ople ~—

: an 399 Il}. 437,452 (1948); People v. Shoffner; 400»

174, 178 (4948). As the Illinois. Court stated .in the —

Loftus Announcement, ‘“the writ of error ‘tests the record,

, jndgment, the appropriate. state. remedy is habeas corpus. |

made in the case by ‘the. trial court’*.—When. ‘“‘the.review is

had upon the common-law. “reeord, the sole matter nly that

- may be considered by the court is error appett ng upon

the face of the record, and matters. may not be added iy *

arguments, affidavit, or otherwise, to supply or expand.

the record’’. Matters which do not come within the ¢lerk’s.

‘. mandatory record ‘‘may be only a pi

_ review when.a bill of exceptions is prayed and allowed and :

rt of the record on

certified by the court’’. There is no \bill of exceptions in

to have’ been filed

Stat. (1945), c.e110, 4259, 70 A. The request for counse?,

-the denial of counsel, and the surrounding circumstances

could not be raised on the common law record. The in- .

‘appropriateness of an .appeal setves to emphasize the

particular need for counsel. Williams v. Kaiser, 323 U.S.

71, 477 (1945). Common law records are most inadequate -

when improperly kept. Certified copies of a trangeript

| .%

_ Nor would relief be suitable for the petition ner through

- are most. difficult ‘to secure if there is no separate ‘eourt ©

reporter.

arcs |

the statutory motion in. the nities of an, application for .

a writ of error coram ‘nobis.

Coram hobis is a remedy strictly limited in Hlinois.. -*

cannot be used to contradict the findings of the court.

People v. Sallivan, 339 Tl. 146 (1930): It cannot be used ;

92 (1937). It is available only to correct errors of facts \

of which- the trial court’ had no notice. People v. Evans,

397 Til. 330, 333 Gm); Peenle” “V. , Bchuedior,, ‘336 TL: 244

(1929).

Specifically coram nobis: is. not: available e a. petitioner

San

- to. contradict the record. People v. Williams, 293 Ill. App :

for the purpose of raising the denial of counsel.. People _

*y. Parcora, 358 Ill. 448 (1943). In the Parcora case, peti- °° -*

tiofer Claimed in a coram nobis motion that ‘‘he stated. t6

the court that he did not have a lawyer and desired an op’

portunity te secure one and requested a continuance, but:

that the court proceeded to trial”. 358 Ill. at 449: As to

this allegation, the Illinois Court said. “It can scarcely he,

said that the court did not know that plaintiff i in error was

*-not represented by counsel, if such was true, nor that he ?

was denied counsel when requested.’’ 358 Ill. at 450. the

7 allegation. that petitioner did not have.counsel or a a

counsel, accordingly, has been said to have ‘no P)

‘the motion, which must contain facts unknown to the court

when judgment was rendered. » People v. Kresi sky, 296

Ill. App. 211 (1938) ; see i eats v. The Peo

- 366 (1947).. 7 : )

The Announcement in the Loftus case ‘gives pene em-

phasis to the requirement that the allegatic

"fact unknown to the trial court. Discussing the allegations

in People v. Loftus, where the right to egunsel was denied,

the Illinois Court ‘stated: ‘‘It is obvi

error coram nobis has no. applicatio “6

This must be ad-

dressed to the trial court, and if the/trial court finds there’

» 398 Th. .

s that the writ of |

ein |

must be of a |

was some mistake of fact. not shown, which would have

“required a different judgment, such court may alfow the

writ, set aside’ the conviction, and supply . the defect. It

is: apparent the writ could not apply here ‘became ah the ee

facts. appear to be khown.’’ Page 36 of this Br Brief. — ey |

~ Such an announcement of the Ilizivis- law of coram nobis’

leaves no basis for an ass assertion that the court below, which —

denied a petition for the writ of habeas ‘corpus because it |

was ‘‘insufficient in. law and substance,’’ did so because

_coram nobis was available to the petitioner. . Petitioner is

-entitled-to a full consideration of his allegations and not

merely‘to a. review limited to the consideration of these

facts which were unknown to the trial judge or do not ¢on- -

_‘tradict. the record. The allegation » that. petitioner was.

‘denied counsel,could have no place in a coram nobis peti- ~*~

tion. Allegation of other facts, as for example, the.failure -

‘to plead, the lack of a jury waiver, and the } pirates |

of the conduct of the trial. inelt liding the use of the State’ .

Attorney as: the court clerk and court. reporter, could not

be made. : ele . ,

No: remedy i is iratianle? in “‘Minois for a . full cotisideration

_ of petitioner’ s allegations other tin an the. writ of habeas

“corpus. ites

fear Summary and Conclusjon_ a ae . as @

Petitioner was denied the right to secure poenaek by

ayipointment or otherwise, under. such circumstances as to~ <

amount to a denial of federal due process. The circum-.— Sp oe

stances show tuat he was taken advantage , of and prejudiced oa

-m-a proceeding which had hardly the form of a hearing.

_ Petitioner specifi@ Ny asked for counsel and was denied. He

did not plead guilty , he ‘waived no right to a jury, and yet.

lie was adjudged’ ‘cuilty without a jury and sentenced to ‘the

penitentiary. He had been held: incommunicado for fifteen.

days. from the: ‘time of his arrest to. the time. “of his trial.

He hai been’ denied access to witnesses. His wife had been _ ae

“made unav ailable as.a_ witness. in-his behalf. ‘He was thus

brought from one ‘state to another, denied access to counsel

and. to witnesses, and then on one day indicted, tried and

~sentenced. The proceeding was without a plea, without

a jury and with the State’s Attorney acting as court re- - =

| porter and court clerk and incotrectly entering the sen: .

“tence. _ This is not due ‘process of law, and the judgments

_ of. conviction are void. Petitioner charged’ the want of

_ federal due process in the judgments of conviction in ‘his

petition for the writ of habeas corpus filed below. The

writ of habeas corpus, is available in Illinois where a judg-

ment of conv iction is void because federal due process has

been denied. The court below denied the petition as ‘‘insuf-

ficient in law and ‘substantce.?’ “It denied the petition the

ie saine day it was filed ‘and without an opinion. Petitioner

"was giv en no hearing. and no eppercontty ty prove his alle-

gations. |

‘The judgmeat below hath be reversed. ;

Regessy wae submitted, phe eRe Ag

‘ Epwarp H. Lev,

~ Counsel for Petitioner.

_ APPENDIX A

TNS, Oe

Burolary and. Lareeny” cee

No. 1029.

THE Proriz « OF THE Srare OF * Luursors

vs.

*. Jack Younc ;

September 3, 1946—This day come the Grand J urors, n

a. body, and return into open court indictment against4%ack -

Young for Burglary and Larceny Indorsed A True Bill by

. Edward J. Doerr Foreman Bail Fixéd at $1500.00.

The Defendant, Jack Young, appears before this Court

in person and before arraignment. is furnished with a copy

or the indictment; together with list of the witnesses -

oe ai

~ »

and jurors, thereupon being duly arraigned punters a\ —

se ee

plea of Guilty.

And the Defendant, Jack. Young, pleads celity to the 3

-erime of Burglary and Larceny in manner and form as:

and admonished bythe Court as to, the consequences of his

said. plea of guilty, and still persists therein, Whereupon

‘tlie said plea of guilty is accepted by the Court-and upon

‘said. plea of guilty, the Court being fully advised in the

premises, doth find and adjudge the Defendant, Jack Young, —

guilty of the crime of Burglary and Larceny in manner and

~ form as charged in the indictment, and doth further find :

‘and adjudge the value of the property stolen to be $25.00,

and the age of the Defendant to be 38 years, and the said

Defendant is accordingly hereby sentenced by the Court to

the Illinois State Penitentiary, for a ‘term of one year to

life there to remain until discharged e-cording to law,

and the statute in such case made arid provided; the Court

after hearing evidence and the recommendations of the

. State’s Attorney, fixes the minimum duration of i imprison-

- onment to be ten years: This sentence to run coicurrently -

| (S.) Epwarp F. Bargis, aa

-Judde of the Cirenit Court. .

re |

* December 12, 1946—N ow comes the defendant Jack Young -

in. person and the People by David N. Conn State's

Attorney and the defendant by oral motion, moves the —

Court to correct the sentence heretofore entered, and

it being affirmatively shown that the sentence. heretofore —

entered in this case is in error; that the Court on September

3, 1946 fixed the minimum duration of imprisonment at ‘five

years and the maxirhum duration of imprisonment at seven

years; but that by clerical error the judgment read a maxi- |

-mum-duration-of ten years. The People interpose no ob-.

jection to the motion and the -Court allows the same and

thereupon directs the Clerk te correct the record to read as.

follows: -‘*The Court fixes the minimum duration of i impr is-

- onment to be five years and the maximum duration of im-

prisonment to be sevén years. ”». This sentence to run con-_

~ eurrently with cause No.: 1028... Corrected mittimus ordered

to issue. See oe Pir ee nies

(S. ) Raven L, Maxwewn, .

Judge of the. Circuit Court. -

sae ‘Cerriricate are

Strate or Inuinors, *

County of Randolph, SS: 3

. | Harold Hahn, Clerk of the Circuit — and Ex-

Officio Recorder in and for said County, in the State afore-

said, do hereby certify that I am the’ keepe: of ‘the records,

-files and seal of said Court, and that said. Court is a ceust:

of record, having a duly,eiected, qualified aid acting Clerk

_ and a seal; said court has original jurisdiction in all matter s”

of law and equity, and as Recorder I am the custodian. of

the records and.files of the,Recorder’s Office. I do also-

. . further certify that the foregoing is a true and complete _

copy of Onder of Couft in the matter of:

| ae : ‘Burglary & Larceny, No. 1029

>» Tae Paorte OF THE State oF Tuuso1s SR RE

vs.

Br ACK Youne.

--as the same appears from the. records and files: now in this

office remaining.” aioe ” My

say 3

In. testimony whereof, T have hereanto set.my hand and

affixed the OffickakSeal of said Court, at.my office in € ster,

Illinois, this 21st day of July, A. D: 1948.

‘Harold Hatin, Clerk of the Cireuit Court. eal.)

é ‘ ; ' Ts ‘

en quiittinnts =,” ~ &

eae ee APPENDIX B

See. 1. Bevit enacted by the People of the State of Minois,

| ne sented in the General’ Assembly: That every person

jmprisoned or otherwise restrained of his liberty, except

as herein oth -rwise prov ided, may ue a wr it of habeas. ;«

law ful.

See. 2. - Application for the writ. shall be maie- to the court

or judge authorized to issue the same, by petitign signed by

the person for whose relief it is intended, or by some : person’

in his behalf, and verified by affidavit; ‘provided, that sych _

application shall be made to the Supreme. Court or to a

court of competent jurisdiction of the city or of the county

- in which the prson in whose behalf the application is made,

is imprisoned or restrained, or to a gourt of competent —

jurisdiction of the city from whieh said person was sentenced \

- or,committed or of the coutity from which said: ‘person was

sentenced or committed. Rigas

See, 21. No jierson. shall e dinthaveod indor the prov oe

sions of this’act, if he is in custody either—

_. 1.’ By virtue of process by any court or POF of ‘the:

United States, in a case where such court or judge has exclu-

sive jurisdiction ; or, vote ; :

2. By virtue of a final suiluenianst: or decree -of any com-

~ petent court of- civil or .criminal jurisdiction, or of any:

execution issued upon such judgment or decree, unless the

time during which such eer may -be legally detained has

expired; or, 3

"3 For any treason, bin or other crime committed in

% ‘eal a 2 _ Sea - aii ied .

™e>

< Ky

pee other state or : territory: of the United Btates, for which

--« such person. otight; by the Constitution and laws. of the

United States, to be deliv ered up to the’ executive power of

such state or territory. )

Sec. 22. If it appear ‘that the prisoner is in custody by

virtue of process froni any court legally constituted, he can

be discherged only for some of the following causes:

1. Where the court has exceeded the. limit of its jurisdic- .

tion, either \as to the matter, place, sum or person. — |

ce 2. Where, though the original imprisonment was lawful,”

yet, by some act, omission or event which has subsequently |

taken place, t te party has become entitled to his discharge.

_» 3. Where the process is defective: in- some substantial

, Where the pyocess, though i in proper hime. has been

not allow, process or orders for imprisonment or arrest, to

_ issue.

ae Where; although in. proper form, the\ process has been:

issued or executed by a person éither unauthorized, to issue -

or execute the same, or where the person having the custody:

of the prisoner under such process is not the person em-

6. Where the process. appears ‘te have been obtained by :

false pretense or bribery. - eee

~~. Where there i is io general ‘law, nor any judgment, order.

or decree of-a contt to autherize the process if in a civil’

-.. suit, nor any- conviction if in a criminal: proceeding.. .No

. court or judge, on the return ‘of a habeas corpus, shall, in a \

any other matter, inquire into the legality .or justice of a

judgment or’ decree of a court legally egeativaied,

& "APPENDIX 0.

Illinois Constitution, Art. 2, Sec. 1

Alb persons shall be bailable by sufficient sureties, except 7

for capital offenses, where the proof-i is evident or the’ pre-

sumption great; and the privilege or writ of habeas corpus

shall not be suspended, unless when in cases of rebeltion « or |

inVasio2 1 the public safety may require u.:

\O. ‘

j “ge

: | “APPENDIX D 4

ot ee ee

was peers "Een ea er ar

7 re . cs fe) >

Propiy StaTe or ILirnols; efendant i in Brror,

; Vv, : . Bide ¥

_ Donatp Lortos, Plaintiff i in Error

/The following per curiam announcement i is miade pursuant

Ao the suggestion of the United States Supreme Court on

June 14, 1948, in cause No. 59, October Term 1947, which i is

to be filed, with the Clerk in said cause:

Donald Loftus, defendant, was convicted in the circuit

- court of McHenry County, Illinois; on four’ indictments, two-

for armed robbery, and two for burglary, On writ of error

the judgments of conviction were affirmed in 395 Ill. 479.

Defendant applied for certiorari to the Supreme Court of

‘the United States, which was allowed, and on June 14, 1948,

. gaitl eourt made an announcement in Cause No. 59 to the

_ October term, 1947, of said court, the purport of which.

amounts te an Inquiry as to. the correct’ Illinois practice -

as to the manner in which lack of due process of law under

the fourteenth amendment. thay be raised in courts of ap-

pellate jurisdi¢tion, reviewing a convi¢tion shown only by

the common-law record. '

The particular lack. of due process in the present‘case j is. ;

claimed to arise froma failure of the triai court to appoint .

counsel to defend plaintiff in error. The inquiry of the.

\d .

a «\ : - >> be *?

A \ 7 ; ‘ ‘

dered,-and an examination of the’ general modes afforded

by thie Tlinois law to test ihe 9 saliity of the conviction of a.

cr ‘iminal*offense. Ss \ :

- ecurt requires an apn ot of the. dgiaion originally ren- |

In general three. methods! are provided: (1) review by

: weit of. error; which:is-allowed in-all felony cases, to the

a Supreme Court; (2) by: petition for writ of. habeas corpus; |

and (3) by the application for a writeof error coram nobis,

or, as i. is now designated, a motion under section 72 of -

¢ the Civil Practice Act. And each ‘of: these méthods has/a

distinct application, depending upon the . circumstances of

. each particuffr case... = :*-

A wfit of error is of aircient origin, and soak the. record a

made i in the case by: the trial court. The’ record in the-trial

‘ ‘court may consist only of the mandatory. record, vié., indict- |

.. ment, arraignment, pléa, trial and judgment. (Cullen: a

: Stevens, 389 Til. 35.) This appears in the clerk’s record in

_ every case, whether there is a plea of guilty ora trial... The .

record may include also a bill af: Pxceptions; which consists °

- of all of the motions and rulings of the trial court, evidence

heard, instructions, and other nidtters which do not come:

directly within the clerk’s: mandatory record. This may

be only a part of the record on review when a bill of excep-

_tions is prayed and allowed, and certified by the court.

“When this is done, the record consists of all proceedings i in

—the case from the time of the’ convening of the court until

the termination of the trial. . In the instant case the record

consists of the mandatory proceedings only.

The statute provides also that it is the duty of. the court

to appoint counsel for the accused. when he states upon.

oath that he is unable to procure counsel. (Ilk. Rev. Stat.

’ 1947; chap. 38, par. 730.) To this provision the exception

is that j in capital. cases it is mandatory for the court. to ap-

. point counsel. Therefore, when the review is had upon the

eommon-lav ‘reeord, the sole matter only that may be con-

sidered by the court is error appearing upon the face of

the record, and matters may not be added by argument, —

affidavit, or othérwise, to supply. or expand the record. The

case must ‘stand or fall upon the errors appearing in. the

record. Of course, where there‘is a bill of exceptions, which

, error. No bill of exceptions was saved in the present case.

- 33

includes motions, evidence, rulings on evidence, instructions,

and the like, and such bill of exceptions is made a part of

the record, errors mayebe reached by the reniedy of writ ot

The second method of reviewing a\conviction of a crime,

where the prisoner is under confinement, is by application .

for writ of habeas corpus. A nuniter of grounds for the

issuance of such a writ may be found in chapter 65 of the IL.

linois Statutes, but the sole pertinent ground here Would

be confinement: in the penitentiary under a judgment’ of

conviction which is void. Such ground has been frequently ade

upheld by Illinois law, (People ex rel. Georgetown v.

Murphy, 202 Ii. 93; People ex rel. McGee vy. Hill, 350. In,

129; People ex rel, ‘Maglort v. Siman, 284 Ill. 28; People

Cx rel. Melton v. Whitman, 243 Jil. 471), and by the Supreme

Court of the United States. House v. Mayo,.32% US. .42,

89 L. Ed. 739; Rice v. Olson, 324 U.S. 786, 89 L. Ed. “43367.

The. netition for writ of habeas corpus may-be. filed origi-

nally in the Supreme Court. The usual procedure has been

.to form an issue of law by demurrer, or motion to strike | |

the petition, or like action, directly to-the return of the’

officer. In either event the demurrer admits the. matter’

well pleaded, and thus, either the faets of the petition or

the return being admitted, the question of law is presented.

The issues of.fact cannot be determined in the Supreme .

Court because the law does not. afford a. yleans for the

court to take testimony, so recourse must be “had to, the

appointment of a commissioner, although no method for

compensation for such commissioner has been provided by -

law. This omission for hearing evidence an habeas corpus

‘in the Supreme Court’ is compensated for “partially by

- granting original jurisdiction to the circuit-courts to hear

habeas ‘corpus cases upon petition, ahd to hear evidence,

and the judgment of such circuit court is a final order, but

is not appealable: to the Supreme Court of the State, ex-:

* cept in extraditign cases. No habeas corpus. cay operate

asa writ of error. People ex rel. Morris v, Hazard, 356.

-. Tl. 448; People ex rel. Thompson w. Nierstheimer, Warden,

395 Til. 572.

‘The third method of review is commonly designated as

‘=

e Cee, U8 F a

a oe.

whit of error coram nobis, Sithaded a Meroeiy red to as ¢

. motion,.in section 72 2 of the Civil Pracfide Act. (Ill. Rev.

Stat.. 1947, chap. -110, par. 196.) The procedure is an.

ancient one, and was a process at common law used for tlie «

purpose of correcting errors of fact occurring in the trial

court; which facts, if known to the court, would try e resulted | |

in a, different judgment: The errors sufficient for’ the

issnance of !sueh writ have been cited many simes, ‘and

generally includéd death of one of the parties prior to the

Hike ya infancy, coverture, insanity, fraud in procurimg

jurisdiction, etc. (People v. Gieitsman; 39641. 499.)

_ From the earliest time the writ, has been used in Illinois, for

we find a reference to it ‘in Stoo v. State Bank of Illinois, °

a ‘Scam. 428, where it is declared to bea settled remedy

to: correct mistakes -of fact; and as late as Schoets' v. ° =

“People, 399 Ill: 428, when it was used where the evidence ee Sa.

‘tended td show the accused ‘was insane at the: time ef eee ie

-eanyiction; .a fact’ which was unknown to the trial court;

-,and had it been ‘known | a different result would have

followed, 9. | gee Eee i :

We do not, see. any. great complexity in the application .

of these various. remedies to different states of facts which

. may. occasion ger | use... A writ of error séarches. the

record as it is Made: in court, without any aid of extrinsic

__eirenmstances..- Thus, if theres is- mmorndaw Ww récord,

~ nothing: ‘ut what is contained in the common- law re record,

may be examined..- If the common-law record is supplemented

"by a bill of exceptions, so that the.entire trial. proceeding *

is recorded, any error. shown: by the ‘complete record may |

he reached, by a writ of error. Habeas COrpUS 1S applic able

to a. situation, among others, where the judgmetit. is’ void.

“by reason of matters not appearing jin the record. The athe

claims of the petitioner | must be presented to the court, -

whether the cireuit or suprenie, by a proper. petition showing

facts. ‘which, “if<true, would render: the judgment: void.

“Phe writ of exror coram nobis applies to the relief which |

“would be afforded because of matters which, if known, — .

would have changed the result, and hence is baisted a mat-

ter, for the trial court only.

But in any- event, ‘this court’ ~ jurisdiction on writ. t. of,

° Os a ;

4 ; et eas «

q ay ‘ ~

- . Se a+ 4

frre,

SS ae x oe x .

error, as distinguished frem its jurisdiction or ‘that of a

lower court, on idabeas corpus, and:as distinguished from

that of a trial eourt on proceedings in the nature of writ: of.

error coram.nobis,-is confined .te.a scrutiny, of matters

appearing upon tie - record made by the lower court, with 2

or without a bill of exceptions, aethe case may be, (People

Carter, 391. Ill. 594, “and Affirmed sub. nom. Carter v.

‘Tinois, 329 U, 'S..17% 91 L. Ed. 172; and many other cases.)

This is, of course, thie general rule in ‘State and- United

of error or appeal. C — v: U nited States,142 ey ‘ 140,

35 L. Ed. 966.

Tn the instant ease. ‘the: contention of the plaintiff it in error

_ is that‘under. the’ particular, circumstances the court shoud

have appointed counsel: te defend lim. If the’ cir¢um-

stances are such as to mévit Such duty,.ahd the court failed

in. that ‘duty, the Supreme Court .of ‘the United States

has held the “judgment i is void for lack of due process gf law.

(House : Mayo, 324 U. S. 42,89 L. Ed. 739;-Rice v. Olson,

324 U.'S..786, 89 L.- Ed: 1367.) . The Constitution of -the -

United ie and the: “decisions . of the United States:

Supreme Court are the ‘supreme .law 6f the land, binding

up every court in the’ land. But, to’ reach this ques-

tion it is, necessary that’a p&tition bring forth facts, which

can ‘be heard and tried by the court, to determine whether”

or not,the particular Facts in the case: Justified ~~ ste’ ef

the plaintiff ‘in error. 0.

But the United States. Supreme Court alse matter it clear

that where the record ‘on’ revi iew leaves .it, to’ conjecture

whether the aceused’s circumstances were of such special

__ exigency as to require eounsel in a noncapital case, the

~ State Supreme Court ‘or other! reviewing court may prop-

.. eriv refuse to decide a nites that, upon the. record be-

fore it, it cannot decide;,ard it may leave the accused to

_ such remedy, whether .yy. way of habeas * corpus, coram

nobis proceeding under g-rule- of: court, or otherwise, as-is

_ appropriate. under the State’s system of procedure. The

opinion in Carter y. Hlinois, 329 U. S. 173, 91 L. Ed. 172,

affirmed this court’s judgment in People v. Carter, 391 Til:

594, -on .the ground that, although | the defendant” 's claim

3€

hat he was uncoatitaGonally: denied piekael at the time

yf his arraignment, raised a Federal question, this. court:

vas justiied.in refusing to entertain, that— question on

1 record insuflicient to present. all of the relevant facts.

In the. inatans ease it does eogiae from the. record see

iSiing that nike ause 2 of circunistances in “the orevions. CASES

ve was disinclined to: appoint counsel, whieh reasons are

iot preserved in the record. We therefore cannot say, upon —

he record now. before us, whether there is merit in defend.

» claim of. Feder ‘al constitutional right; for the trial-

may or may not have had ample reason, grouggled in

natteNn not apparent in ‘the record, for not ‘appointing

ounsel.

It is obvious that the writ of error coram wodis has no

pplication. That must be addressed to the trial court, and

f the trial court. finds there was some mistake of ‘fact

ot shown, whieh would hav® required a different judginent, -

uch court: may allow the writ, set aside the conviction,

nd supply the defect. ‘It is apparent this writ could

iot apply here because all the facts sppear to be knewn.

From a corisideration of the ‘scope of the several

emédies allowed in. Illinois to a person convicted of

rime, it is clear ‘that the error claimed in the failure

f the trial’ court to appoint counsel is not presented so as

o be allowed upon’ writ of ¢rror, as it does not sufficiently —

ppear from the record that any rights of the defendant to

ounsel were refused by: the court. Nor did the defendant |

how by bill of. exceptions that he made any proper appli-

ation to the court requiring” the appointment of counsel |

inder the Illinois statute, so as to.comply with due process.

- To. be precise, the position, of the court is that the eon-

enition of the plaintiff in error cannot be allowed bycatse the .

ecord he has tendered does” not present j a A question for our

onsideration on writ of -CSrOr. |

ae r Sea (8936). |

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.