Application of Trevithick, No. 10171

CourtSupreme Court of South Dakota
Writing for the CourtFrank L. Farrar, Atty. Gen., Walter Weygint, Asst. Atty. Gen., Pierre; HANSON
Citation131 N.W.2d 440,81 S.D. 121
PartiesApplication of Thomas W. TREVITHICK for a writ of habeas corpus.
Docket NumberNo. 10171
Decision Date18 November 1964

Page 440

131 N.W.2d 440
81 S.D. 121
Application of Thomas W. TREVITHICK for a writ of habeas
corpus.
No. 10171.
Supreme Court of South Dakota.
Nov. 18, 1964.

Page 441

[81 S.D. 122] Davenport, Evans, Hurwitz & Smith, and Carleton R. Hoy, Sioux Falls, for appellant.

Frank L. Farrar, Atty. Gen., Walter Weygint, Asst. Atty. Gen., Pierre, J. A. Lammers, State's Atty., Madison, and Roger A. Schiager, Deputy State's Atty., Sioux Falls, for respondent.

HANSON, Judge.

Petitioner was charged with the crime of kidnapping. He defended himself and was convicted. He now seeks release from the State Penitentiary in this habeas corpus proceeding claiming a denial of due process of law in violation of both the State and Federal Constitutions. The question presented is whether petitioner waived his right of counsel.

[81 S.D. 123] In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, the United States Supreme Court expressly overruled Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, and held the Sixth Amendment right of an accused, in all criminal prosecutions, to have assistance of counsel, extended to and was obligatory upon the states through the Due Process Clause of the Fourteenth Amendment. See Anno. 9 L.Ed.2d 1260. However, as pointed out in the recent case of State v. Erickson, S.D., 129 N.W.2d 712, the decision in Gideon v. Wainwright currently has little impact on criminal procedures in this state as South Dakota has long recognized and honored an accused's constitutional and statutory right to counsel.

Although right to counsel is fundamental in nature and guaranteed by both State and Federal Constitutions it, nevertheless, is a personal right which may be waived. State v. Hillerud, 76 S.D. 476, 81 N.W.2d 130. Neither constitution contains an inexorable command that every accused have the assistance of counsel in every case, State ex rel. Baker v. Jameson, 72 S.D. 638, 38 N.W.2d 441, and it is not within the province of a court to require an unwilling defendant to be represented by unwanted counsel. State v. Thomlinson, 78 S.D. 235, 100 N.W.2d 121. In the absence of unusual circumstances an accused who is sui juris and mentally competent has the right to defend himself in a criminal case without aid of counsel. See Anno. 77 A.L.R.2d 1233. To be binding, however, waiver of counsel must be made voluntarily and intelligently by a competent mind, State v. Haas, 69 S.D. 204, 8 N.W.2d 569, or as indicated in Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70, it must be 'intelligently and understandingly' done. The determination of whether there has been a valid waiver depends upon the particular facts and circumstances surrounding each case, including the background, experience, and conduct of the accused. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357.

It appears from the record in this case that after petitioner was apprehended in Sioux Falls he was returned to Madison and taken before a Justice of the Peace on November 27, 1961. The Justice Docket shows 'the complaint was read to the defendant and he was advised of his rights under the statute.' Petitioner [81 S.D. 124] waived a preliminary hearing and was bound over to circuit court to answer for the crime of kidnapping. On February 26, 1962, an information was filed in the Circuit Court of Lake County where petitioner was arraigned and interrogated with respect to counsel as follows:

'THE COURT: Do you have an attorney?

'THE DEFENDANT: No, sir, I don't.

'THE COURT: Do you have the means to employ a lawyer?

'THE DEFENDANT: I do.

'THE COURT: You have been in Court before. Do you understand your legal rights?

'THE DEFENDANT: I do.

'THE COURT: You understand that you are entitled to a lawyer?

Page 442

'THE DEFENDANT: Yes, sir.

'THE COURT: And an attorney of your choice?

'THE DEFENDANT: Yes, sir.

'THE COURT: And if you do not have the means to pay one, the Court will appoint one to represent you. Do you understand that?

'THE DEFENDANT: Yes, sir.

* * *

* * *

'THE COURT: Do you wish to secure an attorney?

'THE DEFENDANT: Yes, sir, from Sioux Falls, if I may.

'THE COURT: Have you talked with an attorney? Have you obtained the services of anyone there?

'THE DEFENDANT: I wrote to one, sir.

[81 S.D. 125] 'THE COURT: When did you write to him?

'THE DEFENDANT: The 9th of February.

'THE COURT: And you haven't heard from him?

'THE DEFENDANT: No, sir.

'THE COURT: Who was it, if I may inquire?

'THE DEFENDANT: A Robert O'Connor.

'THE COURT: Well, you understand that the Jury are to report next Monday, and that your case will be for trial at that time?

'THE DEFENDANT: Monday, sir?

'THE COURT: Yes, a week from today, and you should have an attorney by that time. In fact, you should have one before that time. Do you wish the Sheriff to call Mr. O'Connor, or do you wish to...

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2 practice notes
  • United States ex rel. Miner v. Erickson, No. 19977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 5, 1970
    ...v. Jameson, 78 S.D. 431, 104 N.W.2d 45 (1960); State ex rel. Burns v. Erickson, 80 S.D. 639, 129 N.W.2d 712, 715 (1964); In re Trevithick, 81 S.D. 121, 131 N.W.2d 440, 441 (1964); State ex rel. Pekarek v. Erickson, 155 N.W.2d 313, 314 (S.D.1967); State v. Buffalo Chief, 155 N.W.2d 914, 917 ......
  • Application of Trevithick, Civ. 66-78.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • December 8, 1966
    ...which court on November 18, 1964, affirmed the Judgment of said Circuit Court. Application of Trevithick for a Writ of Habeas Corpus, 131 N.W.2d 440 8. Petitioner, at the time of his arraignment, had approximately $100 with which to hire an attorney, and his formal education included grade ......
2 cases
  • United States ex rel. Miner v. Erickson, No. 19977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 5, 1970
    ...v. Jameson, 78 S.D. 431, 104 N.W.2d 45 (1960); State ex rel. Burns v. Erickson, 80 S.D. 639, 129 N.W.2d 712, 715 (1964); In re Trevithick, 81 S.D. 121, 131 N.W.2d 440, 441 (1964); State ex rel. Pekarek v. Erickson, 155 N.W.2d 313, 314 (S.D.1967); State v. Buffalo Chief, 155 N.W.2d 914, 917 ......
  • Application of Trevithick, Civ. 66-78.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • December 8, 1966
    ...which court on November 18, 1964, affirmed the Judgment of said Circuit Court. Application of Trevithick for a Writ of Habeas Corpus, 131 N.W.2d 440 8. Petitioner, at the time of his arraignment, had approximately $100 with which to hire an attorney, and his formal education included grade ......

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