Ex parte Barnett
| Decision Date | 15 September 1939 |
| Docket Number | A-9698. |
| Parties | Ex parte BARNETT. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. Every person charged with crime, whether guilty or innocent is entitled to a fair and impartial trial according to the due and orderly course of the law, and it is a duty resting upon the courts to see that the guaranty of such a trial conferred by the laws upon every citizen, shall be upheld and sustained.
2. Under Bill of Rights, Sec. 20, Okl.St.Ann.Const., an accused has the right to consult with counsel and to be fully advised as to his rights, and as to the consequences of his act before entering his plea to the indictment or information.
3. A plea of guilty should be entirely voluntary, and should be made by one competent to know the consequences thereof, and should not be accepted until after the defendant has been fully advised by the court of his rights and the consequences of his plea.
4. When a person is held in custody under a void order of commitment or is imprisoned without due process of law under the sentence of any court of the state, it is not only within the authority of this court, but it is its duty upon habeas corpus to inquire into the illegality of the commitment when the matter is properly brought before it by petition, and if it be adjudged that the order of commitment was made without authority of law, the person will be entitled to a discharge from custody in order to preserve the constitutional right of all persons not to be deprived of liberty without due process of law.
5. The scope of review on habeas corpus is limited to an examination of the jurisdiction of the court whose judgment of conviction is challenged.
6. The remedy of habeas corpus is available wherever it is found that the court in which the petitioner was tried had no jurisdiction to try him, or that in its proceedings his constitutional rights were denied.
7. A person prosecuted for a crime may waive the rights guaranteed to him by Bill of Rights, relating to trial by jury, right to be heard by counsel, etc.
8. A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.
9. Courts indulge every reasonable presumption against a waiver of fundamental constitutional rights, and do not presume acquiescence in their loss.
10. Whether one accused of crime has waived his right to the assistance of counsel for his defense must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.
11. Habeas corpus is an available remedy to one who has, without having effectively waived his constitutional right to the assistance of counsel, been convicted and sentenced and to whom expiration of time has rendered relief by an application for a new trial or by appeal unavailable.
12. A judgment of conviction of one who did not effectively waive his constitutional right to the assistance of counsel for his defense is void as having been rendered without jurisdiction.
13. One charged with crime is as much entitled to assistance of counsel in preparing for trial, as at the trial itself.
14. In a felony case, where the defendant is unable to employ counsel and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not to assign counsel for him as a necessary requisite of due process of law.
15. It must never be forgotten that the writ of habeas corpus is a precious safeguard of personal liberty, and that there is no higher duty than to maintain it unimpaired.
Ex parte proceeding by Lawrence L. Barnett for a writ of habeas corpus to be directed to Jess F. Dunn, Warden of the State Penitentiary.
Writ granted.
Upon petition filed in behalf of Lawrence L. Barnett, now confined in the state penitentiary, alleging that he is unlawfully imprisoned and restrained of his liberty by the warden, Jess F. Dunn, and that he has been so restrained since June 11th, 1934, a rule to show cause issued, directed to said warden, and made returnable July 25, 1939.
It appears both by the petition herein and the response to the rule to show cause, issued thereon, that petitioner was on June 11, 1934, by the judgment of the district court of Adair County, sentenced to confinement in the state penitentiary at McAlester for the term of Fifty years, for the crime of attempt to rape. On the same day commitment issued and said petitioner was delivered and received at the State penitentiary on the following day:
The amended petition alleges:
"That he was arrested for the offense for which he is now serving a term in the state penitentiary under prison No. 29928, and was taken immediately before the county judge of Adair county on the 11th day of June, 1934, without any preliminary hearing or the hearing of any evidence except an affidavit of the wife of this petitioner and without being informed of any of his rights to counsel or time to plead his cause was immediately certified to the District Court and that this petitioner was not represented by counsel or given an opportunity to procure counsel in the hearing before the County Judge.
That immediately after the County Judge held this petitioner for trial in the District Court the petitioner was taken before the District Judge and was there sentenced by the District Judge to a term of fifty (50) years imprisonment in the State Penitentiary. That the District Judge did not ask this petitioner if he desired to be represented by counsel and did not inform him of his constitutional rights to be represented by counsel and of the time to which this petitioner was entitled in which to plead. This petitioner further shows to the court that he was never furnished a copy of the information and that he was not represented by counsel in the District Court and when he first saw the information, except that he may have seen it while the County Attorney was reading it at the time the sentence was pronounced against him, was about three years after he was in prison at the State Penitentiary at McAlester. That he was not furnished a list of the witnesses and did not know who the witnesses against him would be until he procured a copy of the information having an endorsement of the witnesses thereon.
Petitioner further says that he was not sentenced by the District Judge in the court room of the County of Adair but was sentenced in an office and that there was no formal opening of the court before the pronouncement of the sentence.
This petitioner further shows to the court that he was made no promises by the County Attorney, but that when the Sheriff arrested him he took him to a private room in the county jail and stated to the petitioner that he had no money with which to employ counsel and that if he plead not guilty he would probably lay in the jail as much as a year before he could get a trial and that he would not be furnished an Attorney and that if he would plead guilty he could start serving his sentence immediately and would be putting in the time that he would serve in the jail in serving his sentence and that after the defendant agreed to plead guilty he took the defendant before the County Judge and County Attorney and represented the petitioner in stating that the defendant was ready to plead guilty and the County Judge then made the order commiting him to the District Court for trial upon the mere statement that if he had it in his power that he would send him to the electric chair."
The information set forth in the petition is as follows:
"State of Oklahoma v. Lawrence L. Barnett, Defendant.
In the District Court Adair County, Oklahoma.
In the name and by the Authority of the State of Oklahoma:
Now comes E. G. Carroll the duly qualified and acting County Attorney, in and for Adair County, State of Oklahoma, and gives the District Court of Adair County, State of Oklahoma to know and be informed that Lawrence L. Barnett did, in Adair County, and in the State of Oklahoma, on or about the 10th day of May, in the year of our Lord One Thousand Nine hundred and thirty four and anterior to the presentment hereof, commit the crime of Attempt to Rape in the manner and form as follows to-wit: That on the day and year last aforesaid, in the county and state aforesaid, the defendant did then and there attempt to have sexual intercourse with one Jewell Barnett, a female child, about ten years old, she, the said Jewell Barnett not being the wife of the defendant, by then and there taking hold of said Jewell Barnett, and by then and there attempting to enter her female organ with his male organ, contrary to the form of the Statutes, in such case made and provided, and against the peace and dignity of the State of Oklahoma.
Acting Co. Atty.
State of Oklahoma, County of Adair-ss.:
I, Pete Helton, being duly sworn, on oath state, that I have read the above and foregoing information and know the contents thereof and that the facts stated therein are true.
(Signed) Pete Helton
Subscribed and sworn to before me, this 11th day of June, 1934.
(Seal) J. M. Lynch, County Judge."
And has the following endorsements:
No. 114 Names of Witnesses
State of Oklahoma Jovan Barnett
vs Jewell Barnett
Lawrence L. Barnett J. W. Ferguson
Bill Barker
Information Herbert Barnett.
In the Dist Court of Adair County,
Oklahoma. Filed 6-11-34
G. R. Dannenberg, Court Clerk.
And concludes as follows:
"Wherefore, your petitioner prays this Honorable Court for a writ of habeas corpus, and an order and judgment directing the said warden of...
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