Case v. State, No. 35637

CourtSupreme Court of Nebraska
Writing for the CourtHeard before WHITE; BROWER
Citation177 Neb. 404,129 N.W.2d 107
PartiesPaul V. CASE, Appellant, v. STATE of Nebraska, Appellee.
Docket NumberNo. 35637
Decision Date19 June 1964

Page 107

129 N.W.2d 107
177 Neb. 404
Paul V. CASE, Appellant,
v.
STATE of Nebraska, Appellee.
No. 35637.
Supreme Court of Nebraska.
June 19, 1964.
See 85 S.Ct. 672.

Page 108

Syllabus by the Court

1. A provision of the Bill of Rights of the Constitution of the United States which is fundamental and essential to a fair trial is made obligatory upon the states by the Fourteenth Amendment; the Sixth Amendment's guaranty of counsel is one of these fundamental rights.

2. The due process clause of the Fourteenth Amendment to the Constitution of the United States guarantees the assistance of counsel, unless that right is intelligently and understandingly waived by the accused.

3. Courts must indulge every reasonable presumption against a waiver of fundamental constitutional rights, and do not presume acquiescence in their loss.

4. Where the constitutional [177 Neb. 405] infirmity of a state criminal trial without counsel is manifested, and there is no allegation or showing of affirmative waiver of counsel, a resulting conviction is unconstitutional and the accused is entitled to relief therefrom.

5. A plea of guilty must be freely and understandingly made by one competent to know the consequences thereof.

6. The sufficiency of the statements of the petition of relator to justify a writ of habeas corpus allowed by virtue thereof may be tested before making return thereto by a motion to quash the writ.

7. The remedy of habeas corpus is not demandable of course, but legal cause must be shown to entitle a petitioner to the benefit of it.

8. Habeas corpus is not available to discharge a prisoner from a sentence of penal servitude if the court imposing it had jurisdiction of the offense and of the person charged with the crime, and the sentence was within the power of the court.

9. It is for the Supreme Court of this state to decide what issues are justiciable in an application for a writ of habeas corpus made to the courts of this state.

10. The Supreme Court of this state has the undoubted right to decide upon its own jurisdiction and the jurisdiction of the courts of this state to which its appellate power extends.

11. Habeas corpus cannot be used as a substitute for a writ of error.

12. Habeas corpus is a collateral and not a direct proceeding when regarded as a means of attack upon a judgment sentencing a defendant.

Page 109

13. When the judgment is regular upon its face and was given in an action where the court had jurisdiction of the offense and of the person of the defendant, extrinsic evidence is not admissible to show its invalidity.

14. The existence of a right is one matter, the availability of a particular remedy in which that right may be asserted is distinctly a separate matter.

Paul V. Case, pro se.

Clarence A. H. Meyer, Atty. Gen., C. C. Sheldon, Asst. Atty. Gen., Lincoln, for appellee.

[177 Neb. 406] Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

BROWER, Justice.

Paul Vernon Case, hereinafter referred to as the petitioner, instituted this habeas corpus action in the district court for Lancaster County, Nebraska, on September 9, 1963. At the time of filing his petition he was confined in the Nebraska Penal and Correctional Complex at Lincoln, Nebraska, hereafter referred to as the complex. The object of the petition is to have a writ of habeas corpus to determine whether he is being unlawfully confined therein.

On September 12, 1963, the district court found that the petition failed to state a cause of action requiring the issuance of the writ, denied the relief requested, and dismissed the petition. From this order the petitioner has perfected an appeal to this court.

The petition alleged he was held incommunicado in solitary confinement in an overheated portion of the city jail for 3 days without proper food or bedding; was repeatedly 'herded' into a police lineup; and at the end of such time was 'fast talked' and coerced by the chief deputy prosecutor to waive his constitutional rights to preliminary hearing and counsel and to plead guilty under threat of prosecution under the habitual criminal act.

The petition had attached thereto certified copies of the information filed against the petitioner on April 18, 1963, in the district court for Lancaster County, charging him with the crime of burglary. Certified copies of journals of the court were likewise appended. The first showed that he appeared in court on April 18, 1963, and 'after waiving his constitutional rights,' he was 'duly arraigned on the information filed against him * * * and said information having been read to him,' he pleaded 'Guilty.' The plea was accepted by the court and he was found guilty as charged. His custody was [177 Neb. 407] remanded to the sheriff and sentence was deferred pending a presentence investigation. The second journal entry shows petitioner was brought into court on May 2, 1963, and having nothing to say prior to his being sentenced, the judgment of the court was that he be confined in the Nebraska Penal and Correctional Complex for 5 years, said sentence to run consecutively with the present term being served by him. A certified copy of the commitment to the complex was attached.

Petitioner assigns error to the trial court: In failing to assign counsel to advise petitioner as to his state and federal constitutional rights; in allowing petitioner to waive his rights under the Sixth Amendment to the Constitution of the United States made binding upon the states by the due process clause of the Fourteenth Amendment thereto; and in allowing him to enter a plea of guilty without benefit of counsel. In his brief he admits waiving in the trial court his constitutional rights to preliminary hearing and counsel and entering a plea of guilty but again alleges his acts in that respect were coerced as alleged in his petition.

The petitioner relies on recent decisions of the United States Supreme Court and he particularly cites Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 92

Page 110

A.L.R.2d 733, which overruled Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. The Betts case was an appeal from the decision of the Court of Appeals of Maryland in an original habeas corpus proceeding instituted in that court after Betts' conviction and while serving his sentence. The writ was issued; a hearing was had; his contention was rejected; and he was remanded to the custody of the prison warden. Betts had been indicted for robbery in the original trial court in Maryland. He told the trial judge that for lack of funds he was unable to hire a lawyer and asked the trial court to appoint counsel for him. The judge informed him that it was not the practice in that county to appoint...

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15 practice notes
  • Case v. State of Nebraska, No. 843
    • United States
    • United States Supreme Court
    • May 24, 1965
    ...a charge of burglary. The trial court dismissed the petition without a hearing, and filed no opinion. The Nebraska Supreme Court affirmed. 177 Neb. 404, 129 N.W.2d 107. The Supreme Court's opinion recognized that petitioner's allegations, if true, would establish a violation of the Federal ......
  • Davila v. State, No. 90-226
    • United States
    • United States State Supreme Court of Wyoming
    • April 23, 1992
    ...in the law. In State v. Moore, 203 Neb. 94, 277 N.W.2d 554, 557 (1979), it is stated by quotation from the earlier case of Case v. State, 177 Neb. 404, 129 N.W.2d 107, 108 (1964), cert. granted sub nom. Newman v. United States, 379 U.S. 975, 85 S.Ct. 672, 13 L.Ed.2d 566, vacated 381 U.S. 33......
  • Maria T. v. Jeremy S., No. S-17-925.
    • United States
    • Supreme Court of Nebraska
    • July 20, 2018
    ...at 770, 78 N.W. at 269.17 § 29-2819.18 See Sedlacek v. Greenholtz, 152 Neb. 386, 388, 41 N.W.2d 154, 156 (1950). See, also, Case v. State, 177 Neb. 404, 129 N.W.2d 107 (1964), quoting Sedlacek v. Hann, 156 Neb. 340, 56 N.W.2d 138 (1952), vacated on other grounds 381 U.S. 336, 85 S.Ct. 1486,......
  • State ex rel. Scott v. Boles, No. 12522
    • United States
    • Supreme Court of West Virginia
    • February 15, 1966
    ...306, 16 N.W.2d 181; Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61, 67; Hawk v. Olson, 146 Neb. 875, 22 N.W.2d 136; Case v. State, 177 Neb. 404, 129 N.W.2d 107. But, see Case v. State of Nebraska, 381 U.S. 336, 85A S.Ct. 1486, 14 L.Ed.2d 422, (decided May 24, 1965), for a solution t......
  • Request a trial to view additional results
15 cases
  • Case v. State of Nebraska, No. 843
    • United States
    • United States Supreme Court
    • May 24, 1965
    ...a charge of burglary. The trial court dismissed the petition without a hearing, and filed no opinion. The Nebraska Supreme Court affirmed. 177 Neb. 404, 129 N.W.2d 107. The Supreme Court's opinion recognized that petitioner's allegations, if true, would establish a violation of the Federal ......
  • Davila v. State, No. 90-226
    • United States
    • United States State Supreme Court of Wyoming
    • April 23, 1992
    ...in the law. In State v. Moore, 203 Neb. 94, 277 N.W.2d 554, 557 (1979), it is stated by quotation from the earlier case of Case v. State, 177 Neb. 404, 129 N.W.2d 107, 108 (1964), cert. granted sub nom. Newman v. United States, 379 U.S. 975, 85 S.Ct. 672, 13 L.Ed.2d 566, vacated 381 U.S. 33......
  • Maria T. v. Jeremy S., No. S-17-925.
    • United States
    • Supreme Court of Nebraska
    • July 20, 2018
    ...at 770, 78 N.W. at 269.17 § 29-2819.18 See Sedlacek v. Greenholtz, 152 Neb. 386, 388, 41 N.W.2d 154, 156 (1950). See, also, Case v. State, 177 Neb. 404, 129 N.W.2d 107 (1964), quoting Sedlacek v. Hann, 156 Neb. 340, 56 N.W.2d 138 (1952), vacated on other grounds 381 U.S. 336, 85 S.Ct. 1486,......
  • State ex rel. Scott v. Boles, No. 12522
    • United States
    • Supreme Court of West Virginia
    • February 15, 1966
    ...306, 16 N.W.2d 181; Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61, 67; Hawk v. Olson, 146 Neb. 875, 22 N.W.2d 136; Case v. State, 177 Neb. 404, 129 N.W.2d 107. But, see Case v. State of Nebraska, 381 U.S. 336, 85A S.Ct. 1486, 14 L.Ed.2d 422, (decided May 24, 1965), for a solution t......
  • Request a trial to view additional results

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