Ex parte Carper

• Decision Date: 21 April 1944
• Docket Number: 31723.
• Citation: 14 N.W.2d 225,144 Neb. 623
• Parties: Ex parte CARPER. TESAR v. BOWLEY et al.
• Court: Nebraska Supreme Court

14 N.W.2d 225

144 Neb. 623

Ex parte CARPER.

TESAR v. BOWLEY et al.

No. 31723.

Supreme Court of Nebraska

April 21, 1944

Syllabus by the Court.

1. Habeas corpus is a collateral, not a direct, proceeding when regarded as a means of attack upon a judgment sentencing a defendant. It cannot be used as a substitute for a writ of error.

2. The regularity of the proceedings leading up to the sentence in a criminal case cannot be inquired into on an application for a writ of habeas corpus. If the court had jurisdiction of the defendant and the authority to try the charge against him, its action can be assailed only in a direct proceeding.

3. While a defendant in a criminal case is entitled to defend by counsel, such right is not inalienable and not conferred by consideration of public policy. He may, by judicial confession of guilt, waive the constitutional rights guaranteed him by the federal and state Constitutions.

Fitzgerald, Tesar & Welch, of Omaha, for appellant.

Maynard M. Grosshans, of York, Walter R. Johnson, Atty. Gen., and Carl H. Peterson, Asst. Atty. Gen., for appellee.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.

MESSMORE Justice.

An application for a writ of habeas corpus was brought in the district court by her attorney in behalf of Merna Carper hereinafter referred to as the applicant, containing allegations: That the applicant was denied her constitutional rights under the provisions of the federal and state Constitutions; further that she was induced, through fraud and coercion by police officers, to enter a plea of guilty to breaking and entering; that she was denied counsel and the services of the public defender. The return and answer to the writ denied applicant had been deprived of her constitutional and statutory rights, as she claimed; alleged that she was lawfully detained in the women's reformatory. On these issues joined hearing was had, the writ denied, and applicant appeals.

The record discloses that the applicant, her husband and a friend were arrested almost immediately after the husband had broken into and entered a drug store, to steal some narcotics, for the use of the three; the applicant was standing on the sidewalk near the store. After her arrest she denied having any part or assisting in the commission of the crime. At the police station she informed the inspector of detectives and the deputy county attorney that she was not guilty and was without funds with which to procure counsel and desired counsel. Applicant also testified that the police officers had been abusive to her and, by fraud and coercion, sought to induce her to plead guilty to the crime charged, stating that if she failed to do so an habitual criminal charge would be placed against her.

We are cognizant of the rights of the accused in criminal prosecutions, as set forth in articles V and VI Amendments to the Constitution of the United States, and likewise section 11, art. I of the Constitution of Nebraska and the due process clause appearing in section 3, art. I of the Nebraska Constitution. There is no contention that the court lacked jurisdiction to receive the plea of guilty entered by the applicant (defendant) to the crime charged.

From the testimony of the deputy county attorney it is clear that the applicant was informed of her constitutional and statutory rights before entering any plea in the district court. She admitted that she had a conversation with the deputy county attorney and was informed of her rights, and it is apparent, from her previous criminal record, that she was familiar in some degree with her constitutional and statutory right to have counsel represent her if she so desired. On at least two previous occasions she had experience in entering a plea of guilty to forgery in the United States district court, in the district court of the state, and at the time of her arrest there was a forgery charge pending against her.

In McCarty v Hopkins, 61 Neb. 550, 85 N.W. 540, 541, where the defendant entered a plea of not guilty, later changed it to guilty, and then filed a petition for a writ of habeas corpus, challenging the jurisdiction of the trial court, this court said: "The right of an accused person to be tried by a jury drawn from the county or district in which the prosecution was initiated is a mere personal privilege, and, like the other rights conferred by section 11, art. 1 of the constitution, may be waived. Even the right to a trial, anywhere or under any conditions, may be waived, and in practice is waived, when the accused...