Evans v. Rives, 8134.

• Decision Date: 21 February 1942
• Docket Number: No. 8134.,8134.
• Citation: 126 F.2d 633
• Parties: EVANS v. RIVES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

126 F.2d 633 (1942)

EVANS v. RIVES.

No. 8134.

United States Court of Appeals for the District of Columbia.

Decided February 21, 1942.

Mr. Isadore H. Halpern, of Washington, D. C., for appellant.

Mr. Fred J. Icenhower, Assistant Corporation Counsel, with whom Mr. Richmond B. Keech, Corporation Counsel, and Mr. Vernon E. West, Assistant Corporation Counsel, were on the brief, all of Washington, D. C., for appellee.

Before GRONER, Chief Justice, and STEPHENS and RUTLEDGE, Associate Justices.

STEPHENS, Associate Justice:

This is an appeal from an order of the District Court of the United States for the District of Columbia discharging a writ of habeas corpus and dismissing the petition on which the writ was issued and remanding the petitioner to the custody of the Superintendent of the Washington Asylum and Jail. The petitioner is serving a sentence of one year under a conviction in the Juvenile Court of the crime of refusing to provide for the support and maintenance of a minor child, James Evans, in destitute or necessitous circumstances. The conviction and sentence were under D.C. Code (1929) tit. 6, § 271.¹

Upon issues joined under the petition for the writ and an answer filed by the District of Columbia, there was a hearing in the District Court. The record of that hearing discloses the following concerning the proceedings in the Juvenile Court: On June 27, 1941, an information was filed, upon the oath of Hortense J. Tinsley for the Board of Public Welfare, charging the petitioner with the offense above referred to. On the night of July 1, 1941, a summons was served upon the petitioner at his home in the District, requiring him to appear at 9:45 a. m. on July 2 "as a defendant in an action in which it is charged that you have failed to support a minor child since on or about July 6, 1940 . . .." The petitioner appeared as thus required and, according to his testimony in the instant proceeding, the case was disposed of in the Juvenile Court as follows:

". . . he appeared and a paper was read to him and he was asked if he plead guilty of failing to support James Evans. He said that he was guilty of not paying for support. The clerk said then do you plead `Guilty.' The judge then ordered him to pay $5.00 a week. James Evans was not there. He was not given a chance to explain himself. He was not told that he could have a lawyer nor that he was waiving his right to counsel, nor that he did not have to plead guilty, nor that he could have a jury trial. He did not know that he could have an attorney or that he could demand a jury trial.

"He only understood part of what was read to him. The part he understood was that he was not supporting James Evans. He does not remember the parts he did not understand. . . .

"He is now 39 years of age, colored, went only to the 4th grade of grammar school. . . . He works as a tile setter's helper and earns $4.50 a day, six days a week when the weather is good and there is work.

"He now lives at 1631 Rosedale St., N. E., a 5 room house, with running water, gas and electric, paying $30.00 a month rent. That he got this house to get the Board of Public Welfare to let him have James Evans. They said that his other homes were not large enough; too many children in the family.

"James Evans has not been with him since 1938; that the Board of Public Welfare has James Evans with a private family at LaPlata, Md "Upon cross-examination . . . he knew what a plea of guilty was; . . . he knew that he was not supporting James Evans. . . . he entered a plea of guilty voluntarily. . . . no one asked or forced him to enter a plea of guilty."

A Miss Parkinson testified in the hearing below:

". . . that she was Deputy Clerk of the Juvenile Court and on July 2, 1941 the information was read to him and that Charles Evans upon being asked by her if he plead guilty or not guilty, said `I am guilty.' That a plea of guilty was entered. That sentence was deferred and he was placed on probation and Judge Bentley ordered him to pay $5.00 a week beginning July 5, 1941 at 9th Precinct to the Board of Public Welfare for the support of James Evans. On December 9, 1941, he was brought into court and being in arrears in the sum of $84.50 was sentenced to one year in District Work-house.

"Upon cross-examination . . . that she did not read the information rapidly . . .. That she, Judge Bentley, Miss Tinsley and Charles Evans were only present on July 2, 1941; that an Assistant Corporation Counsel is never present on Wednesdays (July 2, 1941 was a Wednesday).

"That there was `no necessity' of asking Charles Evans if he wanted a lawyer as he plead guilty; that he was not asked if he waived jury trial; that he was not asked if he wanted a lawyer before the information was read to him nor after it was read and before he was asked as to how he plead.

"That on back of the file she wrote in pencil; that No. 50735 was the number of the confidential file of Charles Evans; that this file was placed before Judge Bentley at the beginning of the proceeding on July 2, 1941; that the contents of the confidential file were not read nor revealed to Charles Evans; that this procedure is customary in Juvenile Court."

In the instant proceeding the trial court found that the petitioner had in the Juvenile Court voluntarily entered his plea of guilty, "fully understanding the nature of his act in so doing" — without coercion, deception or fraud; that at the time of entering the plea "he was not represented by counsel, nor was he advised of his right to counsel, nor of his right to a trial by jury"; that the minor child was in the state of Maryland on July 2, 1941. The trial court made no finding that the petitioner had competently and intelligently waived his right to the assistance of counsel. It nevertheless concluded that "the defendant's constitutional rights were not in any way violated . . ." and that his detention was legal. Upon these findings and conclusions, the court discharged the writ and dismissed the petition. This appeal was then taken.

In Johnson v. Zerbst, 1937, 304 U. S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, the Supreme Court carefully explained the guaranty of the Sixth Amendment that "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence," and the duty of the federal courts in respect of this guaranty. In that case the petitioner and another, charged with uttering, passing and possessing counterfeit Federal Reserve notes, pleaded not guilty in a United States District Court in South Carolina, and were sentenced to a penitentiary. Thereafter in a habeas corpus proceeding they attacked the jurisdiction of the district court on the ground that they had not been accorded the right to the assistance of counsel. After reviewing the facts and the authorities, the Supreme Court held that the denial during trial of a criminal case of the constitutional right to the assistance of counsel would occasion loss of jurisdiction to convict, and that the conviction might be attacked in a habeas corpus proceeding in which an examination of the facts outside of, but not inconsistent with, the record in the criminal proceeding might be made in order to determine whether or not the constitutional right to the assistance of counsel had been protected either by the appointment of counsel or by a competent waiver thereof. In respect of the Sixth Amendment and the duty of the federal courts thereunder, the Supreme Court said:

". . . Omitted from the Constitution as originally adopted, provisions of this and other Amendments were submitted by the first Congress convened under that Constitution as essential barriers against arbitrary or unjust deprivation of human rights. The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not `still be done.' It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel. That which is simple, orderly and necessary to the lawyer, to the untrained layman may appear intricate, complex and mysterious. Consistently with the wise policy of the Sixth Amendment and other parts of our fundamental charter, this Court has pointed to `. . . the humane policy of the modern criminal law . . .' which now provides that a defendant `. . . if he be poor, . . . may have counsel furnished him by the state . . . not infrequently . . . more able than the attorney for the state.'

"The `. . . right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defence, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him.' The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel." Italics supplied 304 U.S. at pages 462, 463, 58 S.Ct. at page 1022, 82 L.Ed. 1461

In respect of waiver the Court said:

". . . It has been pointed out that `courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we `do not presume acquiescence in the loss of fundamental...