Hurt v. Zerbst, 8631.

• Decision Date: 11 June 1938
• Docket Number: No. 8631.,8631.
• Citation: 97 F.2d 519
• Parties: HURT v. ZERBST, Warden.
• Court: U.S. Court of Appeals — Fifth Circuit

97 F.2d 519 (1938)

HURT v. ZERBST, Warden.

No. 8631.

Circuit Court of Appeals, Fifth Circuit.

June 11, 1938.

Payne Hurt, in pro. per.

Lawrence S. Camp, U. S. Atty., and Harvey H. Tisinger, H. T. Nichols, and J. Ellis Mundy, Asst. U. S. Atty., all of Atlanta, Ga., for appellee.

Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellant, a prisoner confined in the United States penitentiary, applied for release on habeas corpus, making two attacks upon the judgment, sentence and mittimus under which he was being held.

The first was that the indictment was null and void, and failed to charge any offense. The second, that he was put to trial without his having, or having competently and intelligently waived, the assistance of counsel for his defense.

The writ was issued as prayed. There was a return controverting petitioner's claim, a traverse of the return, and testimony including that of the applicant, on the issues made. At the conclusion of it, without findings or opinion, the writ was discharged and petitioner was remanded to respondent's custody. Appellant perfected his appeal, assigning error on the two points raised below, the insufficiency of the indictment and his having been tried without the assistance of counsel for his defense.

In its brief, filed before the reversal of our decision in Johnson v. Zerbst, 5 Cir., 92 F.2d 748, the Government, of the opinion with which we agree, that there was nothing of substance in the first point, directed its whole attention to the second point, urging our decision in the Johnson Case as controlling. At the argument the counsel for the Government was of the opinion that the reversal and remand of Johnson v. Zerbst, 58 S.Ct. 1019, 82 L.Ed. ___, for findings as to waiver of counsel, and further proceedings in accordance therewith, required the reversal and remand of this case for such findings and proceedings.

We agree. Under the rule of the Johnson Case the burden was on petitioner to establish, by a preponderance of the evidence, that he did not competently and intelligently waive his constitutional right to the assistance of counsel, and the record we have does contain a flat controversion of petitioner's claim that he was deprived of counsel, and testimony by deposition in support of that controversion. There is, however, positive testimony on the part of petitioner, that he did not waive the assistance of counsel, but demanded time to obtain it, and that he was put to trial without counsel of his own choosing, or any furnished him by the court, and neither in the judgment and sentence, nor in any other part of the proceedings had in the court of trial, as the record stands before us, was there any finding or even notation, that petitioner had waived such assistance.

In this state of the record, the District Judge, before whom the habeas corpus was tried, should have determined as a fact whether petitioner, who admittedly had no counsel, was deprived of, or waived, the right the Sixth Amendment, U.S.C.A. Const. Amend. 6, guarantees, to have the assistance of counsel for his defense.

The cause is therefore reversed and remanded to the District Court, for further proceedings in accordance herewith.

Reversed and remanded.

SIBLEY, Circuit Judge (dissenting).

There is no law or rule of Court or practice requiring an opinion or findings of fact in a habeas corpus case. The judgment, like other judgments and decrees, is presumed to be on the merits. The record in this case shows affirmatively that it was. The petition asserted a clear case of denial of the right to employ and be represented by counsel. The response did not dispute the sufficiency of the allegations, but denied them and annexed affidavits to prove them untrue. Hurt filed a traverse of the response, making a clear cut issue of fact for trial. The District Judge on the first hearing received the testimony of the petitioner which supported the petition. Time was then given the respondent to take depositions. The testimony of seven witnesses was thus taken, including the Secret Service agent who made the case, the United States Commissioner before whom Hurt was first brought, the Deputy Marshal and Jailer in whose custody he was held, and the two Assistant District Attorneys who...