Ex parte Fouquette, 3745
| Decision Date | 08 April 1953 |
| Docket Number | No. 3745,3745 |
| Citation | 255 P.2d 733,70 Nev. 90 |
| Parties | Ex parte FOUQUETTE. |
| Court | Nevada Supreme Court |
John W. Bonner, Las Vegas, for petitioner.
W. T. Mathews, Atty. Gen., Geo. P. Annand, Wm. N.Dunseath and John W. Barrett, Deputy Attys. Gen., for respondent.
On April 7, 1953 petitioner lodged in this court his appeal from an order made April 6, 1953 by the First Judicial District Court denying the petitioner's application to that court for a writ of habeas corpus. At the same time he presented to this court and to the justices thereof his petition for stay of execution of the death sentence presently set for April 13, 1953. The attorney general opposed the granting of the petition. The history of the matter to date is as follows: On November 20, 1948 Fouquette was convicted of first degree murder with the penalty fixed at death, in the Eighth Judicial District Court, in and for Clark county, and the judgment and order denying his motion for new trial were affirmed by this court August 10, 1950. State v. Fouquette, 67 Nev. 505, 221 P.2d 404. Petition for rehearing was denied by this court November 16, 1950. 67 Nev. 541, 221 P.2d 404. Certiorari was denied by the Supreme Court of the United States May 14, 1951. Fouquette v. State, 341 U.S. 932, 71 S.Ct. 799, 95 L.Ed. 1361. On July 5, 1951 this court denied his petition for a writ of habeas corpus. 68 Nev. ----, 233 P.2d 859. Certiorari was again denied by the Supreme Court of the United States January 28, 1952. 342 U.S. 928, 72 S.Ct. 369, 96 L.Ed. 691.
He sought without success a writ of habeas corpus from the United States District Court for the District of Nevada, which gave a certificate of probable cause but denied a stay of execution. He then sought and obtained an order from the United States Circuit Court of Appeals, 9th Circuit, which remanded the case to the United States District Court for further proceedings and made an order staying execution. Fouquette v. Bernard, 198 F.2d 96. After such further proceedings, the district court again denied habeas corpus. This was affirmed August 21, 1952 by the Circuit Court. 9 Cir., 198 F.2d 860. The United States Supreme Court again denied certiorari March 9, 1953, 73 S.Ct. 652. During the pendency of each of such further proceedings following his conviction his execution was postponed by appropriate orders. On some eight or nine separate occasions a date was fixed for his execution and the same is now set for April 13, 1953.
On April 6, 1953 petitioner again sought a writ of habeas corpus from the First Judicial District Court, in and for Ormsby county, which was on said date denied. Said district court also denied his application for a certificate of probable cause or for a stay of execution pending appeal to this court. 1
Petitioner frankly concedes that he presents no new facts and no new propositions of law (other than those discussed below) not considered and decided by this court in the appeal from the judgment, State v. Fouquette, 67 Nev. 505, 221 P.2d 404, and in our denial of habeas corpus, 68 Nev. ----, 233 P.2d 859. His petition for a stay of execution recites that the principal point raised on his appeal from the district court's order of April 6, 1953 denying his application for habeas corpus 'is that his defense of insanity interposed at the original trial of said case had been tried in the Clark County newspapers prior to the trial through elaborate statements given to such newspapers by the District Attorney of said County and by other officials working on said case; that the publication of such articles, freely circulated caused such a prejudice against appellant that he did not have an opportunity to fairly present his defense before an impartial jury; that requiring him to go to trial after his motion for change of venue, presenting such articles together with numerous affidavits of citizens conclusively established that the Court was without jurisdiction because such a trial is not in accordance with civilized concepts of due process of law; that the subsequent verdict and judgment deprived appellant of his life without due process of law contrary to Article 1, section 8 of Nevada Constitution and section 1 of Fourteenth Amendment to United States Constitution.'
He contends that Shepherd v. Florida, 341 U.S. 50, 71 S.Ct. 549, 95 L.Ed. 740, (not decided by the Supreme Court of the United States until April 9, 1951, and not presented to us on the appeal from the judgment or the petition for habeas corpus) is controlling and leads to the conclusion that under the circumstances of the adverse newspaper publicity the trial court was without jurisdiction to convict him.
The point is without merit. The per curiam opinion of the United States Supreme Court in Shepherd v. Florida reads simply as follows: The Texas conviction was reversed upon the sole ground that the method of jury selection discriminated against the negro race. Petitioner's reliance however is upon the opinion of Mr. Justice Jackson, with whom Mr. Justice Frankfurther joined, concurring in the reversal, but not upon the authority of Cassell v. Texas. They thought that reliance on this ground was 'to stress the trivial and ignore the important', which referred to the inflamed public mind growing out of newspaper publications which recited, among other things, that the defendants had confessed--a statement entirely without substantiation of any kind, and which was never thereafter repudiated either by the paper or by the official purporting to have made the statement. Many other circumstances (gathering of mobs, burning of negro homes, threats of lynchings, etc.) moved these especially concurring justices to the conclusion that the defendants 'were prejudged as guilty and the trial was but a legal gesture to register a verdict already dictated by the press and the public opinion which is generated.' They concluded that the convictions, accompanied by such events, do not meet any civilized conception of due process of law. In the first place the conclusions of the two justices thus concurring in the result were not the holding of the court; in the second place the circumstances surrounding the Fouquette trial may not be compared with those existing in the Shepherd trial; in the third place the Shepherd case was submitted to the United States Supreme Court in support of at least two of Fouquette's application to that court for certiorari.
We emphasized above petitioner's reliance upon what he contends is a new proposition of law, not heretofore presented to this court or to the federal courts, namely, that his conviction not only deprives him of his life without due process but that by reason of the circumstances and by reason of the language used by Justices Jackson and Frankfurter in the Shepherd case and other pronouncements of the Supreme Court, the trial court was without jurisdiction to try him. It is evident however that this challenge of jurisdiction is simply attaching another label to the identical points raised in the prior proceedings in both the state and federal courts.
Petitioner further contends however that an entirely new question of law arises in his present appeal since it is an appeal from an order of the district court denying habeas corpus under the statute enacted this year by the legislature and cited in footnote 1, supra, not heretofore considered by this court. He contends that the district court's refusal 'to entertain' his petition was a rejection of a jurisdiction clearly vested in the district court; that subdivision c of section 3, as added to the old habeas corpus act, by the 1953 amendment, and which denies the...
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