Breithaupt v. State, 5611
| Decision Date | 12 February 1953 |
| Docket Number | No. 5611,5611 |
| Citation | 1953 NMSC 12,57 N.M. 46,253 P.2d 585 |
| Parties | BREITHAUPT v. STATE. |
| Court | New Mexico Supreme Court |
Justin T. Reid, Santa Fe, for plaintiff in error.
W. F. Kitts, Asst. Atty. Gen., for defendant in error.
On April 5, 1951, the petitioner was sentenced to serve a term of not less than six years nor more than ten years in the penitentiary following his conviction in the District Court of Eddy County on a charge of involuntary manslaughter. He filed an application for a delayed appeal in the district court where he was convicted on October 17, 1952, and on the day following the application was denied as having been made too late.
Under our Rules 5 and 6, secs. 19-201(5) and 19-201(6), 1941 Compilation, appeals must be taken or a writ of error sued out within three months from the entry of final judgment.
The petitioner excuses his failure to appeal within the time provided by stating he was not advised of his right to appeal within the time allowed, or that an appeal might be taken (as he says) without the usual expense where a defendant was without funds; that during the appeal period he was caused by the officials, guards and inmates of the penitentiary to believe, and he did believe, that prisoners were not allowed to see or contact attorneys, and that appeal papers, applications for writs of habeas corpus, or other papers, could not be filed in any courts directly by any prisoner. Other matters are stated but will not be here repeated as a formal hearing was held by the Court at which appeared the petitioner, the prison Warden, Morris Abram, and inmate Timmons, who well deserves the title of 'penitentiary lawyer.' As a result of the hearing we summarize our findings of material facts as follows:
Within a few days after the prisoner entered the prison, the then Assistant Warden, Morris Abram, fully informed him of the rules of the penitentiary, and, among other things, stated that he was free to write to the lawyer who defended him, the judge who presided at the trial and the sheriff of the county in which he was tried concerning any matter connected with his case. Within thirty days after his incarceration the petitioner was advised by inmate Timmons (above referred to as the penitentiary lawyer) that he still had time in which to appeal and that he had good grounds for an appeal or discharge on a writ of habeas corpus. Within such thirty day period the petitioner asked Abrams to allow him to look through the telephone directory to get the name of an attorney to whom he could write, as he desired to file a civil action for money owed to him by some persons, and was advised he could not maintain a suit while in prison, and such permission was denied. He did not thereafter ask permission to contact a lawyer or mail out appeal papers. Inmate Timmons prepared a petition for a writ of habeas corpus for the petitioner who attempted to have it carried out of prison by a visitor who reported such action to the prison authorities and the petition was confiscated.
It had been the rule of the prison for a considerable time that inmates could not mail out legal papers or petitions for writs of habeas corpus directly to a court clerk or judge, or write to any attorney except the one who defended him in the trial court. This rule was abolished in the early part of June, 1951, following a visit to the prison by the then United States Attorney, and immediately public notice was given over the prison loud speaker to the inmates of the revocation of the rule and that they were at liberty to mail out such papers. The change in the rule was known to all inmates.
On April 16, 1951, the petitioner wrote to James F Warden of Carlsbad, New Mexico, a competent and experienced attorney who had defended him in the trial court, the following letter.
'Carlsbad, New Mexico
'Dear Jim:
'We got hit pretty hard Too bad. I am beginning to wonder if there was not some colusion connected with the outcome. Just a thot.
'Now Jim, please do not get the wrong impression, I am not going to become a jailhouse lawyer. The entire procedure was so fast, smooth, well oiled, and so completely confusing to me, and I may add, slightly disappointing.
'I have had an interview with the doctor here and he made the statement to me that there is a possibility I may have suffered brain concussion and still may be. That would account for my lack of equiblibrum, severe headaches, lack of mental alertness, hazy memorie concerning names, addresses, events that happened in the past. The doctor has sent to Dr. Womack for X-rays and complete details on my physical condition. I have applied to the V. A. for admittance to a V. A. hospital. The V. A. man told me that if I were admitted for treatment, that the V. A. would also fix my glasses.
'They have a rule here that no one can have his glasses fixed until after 60 days unless the patient will stand the expense. Well, I am broke. Hint!
'Jim, I have been informed that if the judge who sentenced me so desires, he could give me credit for the 90 days I was a prisoner of the county, however this must be done within 30 days after sentence was passed. Please do what you can.
'Incidentally, Coffee owes me $2.00. Also 'Alabama', another prisoner there, has a pair of glasses of mine--the frames are broken but the lenses are O.K. and I could use them in this pair of frames I have with me.
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