Engels v. Amrine

• Decision Date: 09 May 1942
• Docket Number: 35489.
• Citation: Engels v. Amrine, 155 Kan. 385, 125 P.2d 379 (Kan. 1942)
• Parties: ENGELS v. AMRINE, Warden.
• Court: Kansas Supreme Court

125 P.2d 379

155 Kan. 385

ENGELS v. AMRINE, Warden.

No. 35489.

Supreme Court of Kansas

May 9, 1942

Syllabus by the Court.

"Habeas corpus", though a writ of right, will not issue as a matter of course or as a mere perfunctory operation on the filing of the petition, and judicial discretion is exercised in its issuance.

A writ of habeas corpus will not be awarded where it appears, on showing by petitioner, that if he were brought into court and the cause of his commitment were inquired into, he would be remanded, but only where the application therefor contains allegations which, if true, would authorize his discharge.

Petitioner was not denied his right of a writ of habeas corpus because he was not present at hearing on preliminary application for the writ, since orderly administration of justice would not be promoted by his presence.

If a petitioner on his application for writ of habeas corpus makes a prima facie showing of wrongful or illegal restraint, the writ will issue, and the petitioner will be brought before the court or judge issuing the writ as directed by statute.Gen.St.1935, 60-2205.

On application for writ of habeas corpus, the sufficiency of the information under which petitioner was charged with robbery in the first degree could not be considered.Gen.St.1935 60-2213.

An accused who on arraignment on a criminal charge, without counsel and without making request for counsel, personally understandingly, freely and voluntarily, enters a plea of guilty of the crime charged, thereby "waives" the right to be represented by counsel, and is thereafter not entitled to discharge on writ of habeas corpus.

The Sixth Amendment to the Federal Constitution giving an accused in criminal cases the right to "assistance of counsel" applies only to prosecutions under federal laws.U.S.C.A.Const. Amend. 6.

A judgment of a court in a criminal prosecution carries with it the presumption of regularity and cannot lightly be set aside by collateral attack even on habeas corpus.

1.While habeas corpus is a writ of right, it will not issue as a matter of course or as a mere perfunctory operation upon the filing of the petition; judicial discretion is exercised in its issuance, and the writ will not be awarded where it appears upon the showing made by the petitioner that if he were brought into the court and the cause of his commitment inquired into he would be remanded, but only where the application therefor contains allegations which, if true would authorize the discharge of the person held in custody.

2.Under our statute, G.S.1935, 60-2213, the sufficiency of an information cannot be considered upon an application for a writ of habeas corpus.

3.An accused who on arraignment on a criminal charge, without counsel and without making request for counsel, personally, understandingly, freely and voluntarily, enters a plea of guilty of the crime charged, thereby waives the right to be represented by counsel.

4.The Sixth Amendment to the Constitution of the United States giving accused in criminal cases right to assistance of counsel applies only to prosecutions under federal laws.

5.A judgment of a court carries with it the presumption of regularity and cannot lightly be set aside by collateral attack even on habeas corpus.

Appeal from District Court, Leavenworth County; James H. Wendorff, Judge.

Habeas corpus proceeding by William Hugh Engels against Milton F. Amrine, Warden of the Kansas State Penitentiary.From a judgment denying the petition for writ of habeas corpus, the petitioner appeals.

Judgment affirmed.

Wm. Hugh Engels, pro se.

Jay S. Parker, Atty. Gen., and Jay Kyle, Asst. Atty. Gen., for appellee.

ALLEN Justice.

This is an appeal from an order and judgment of Leavenworth county denying the petition of appellant for a writ of habeas corpus.

Under an information filed in the district court of Sedgwick countythe petitioner was charged with robbery in the first degree.On the 8th day of December, 1939, the petitioner entered a plea of guilty to the charge, and under the judgment of the court received an indeterminate sentence in the state penitentiary.The petition for a writ of habeas corpus alleges that petitioner is now confined in the penitentiary under a commitment issued pursuant to the judgment.The petition for the writ was dismissed by the district court.On this appeal many errors are assigned.

1.Petitioner contends he was denied his right of a writ of habeas corpus because he was not present at the hearing upon the application for the writ.It is the practice in this state to make a preliminary determination as to the propriety of issuing the writ of habeas corpus.In 25 Am. Jur., Habeas Corpus, § 131, it is stated: "While habeas corpus is a writ of right, it will not issue as a matter of course or as a mere perfunctory operation upon the filing of the petition judicial discretion is exercised in its issuance, and such facts must be made to appear to the judge to whom the petition is presented as, in his judgment, prima facie, entitle the petitioner...