Ex parte Sharp, 519.

• Decision Date: 04 January 1940
• Docket Number: No. 519.,519.
• Citation: 33 F. Supp. 464
• Parties: Ex parte SHARP.
• Court: U.S. District Court — District of Kansas

33 F. Supp. 464

Ex parte SHARP.

No. 519.

District Court, D. Kansas, First Division.

January 4, 1940.

C. W. Brenneisen, Jr., of Kansas City, Kan., for petitioner.

E. V. Bruce, Asst. Atty. Gen., for respondent.

HOPKINS, District Judge.

Now on this 4th day of January, 1940, the above entitled action comes on for hearing on the petition duly verified by the affidavit of one James Sharp filed with the Clerk of this Court on the 10th day of September, 1938. The petitioner is represented by C. W. Brenneisen, Jr., attorney. The respondent is represented by E. V. Bruce, Assistant Attorney General. From the petition it appears that James Sharp is illegally imprisoned and restrained of his liberty by the Warden of the Kansas State Penitentiary at Lansing, Kansas.

It is contended by the petition that the commitment authorizing the petitioner's imprisonment for life is void and contrary to the Constitution of the United States for the following reasons:

"That the commitment had been procured through a swift, reckless pretense of a trial;

"That the officers of the Trial Court impounded and concealed the petitioner's appeal documents contrary to the Statutes of the State of Kansas, and in such a manner as to deprive the petitioner of the right of appeal;

"That administrative officers of the State of Kansas denied the petitioner the right to perfect his appeal and prohibited the petitioner from perfecting his appeal."

The respondent, Warden of the Kansas State Penitentiary, through the Attorney General's Office, filed a response to the petition, setting out and contending that the petitioner is lawfully restrained of his liberty by a valid judgment of the District Court of Ottawa County, Kansas, and that the petition on its face does not state facts sufficient to give this court authority or jurisdiction to grant the writ prayed for.

The court recommended, and the attorneys for the petitioner and respondent agreed to present their evidence in documentary form. After hearings had before this Court, an order was issued appointing the Honorable C. A. Magaw as Special Master to make findings of fact. On the 9th day of May, 1939, the Special Master filed with this Court a findings of fact.

From the documentary evidence introduced herein, the findings of fact of the Special Master, oral testimony of the petitioner given on the 4th day of January, 1940, and the statements of counsel herein, the court finds:

That the petitioner was granted a preliminary hearing on November 4, 1934, charged with burglary in the second degree and was bound over to the District Court of Ottawa County, Kansas. That he was incarcerated in the County Jail until the 7th day of January, 1935, when at 4:45 o'clock in the afternoon, the petitioner was called in and advised by the court, to be ready for trial the next morning at 9:30 o'clock. The petitioner advised the court that he did not have an attorney and asked that he be allowed to call one. The court said he would be allowed to call his attorney from the County Jail. He was not given an opportunity to use a telephone that afternoon or night. The petitioner had no legal training.

The petitioner did not have the benefit of an attorney in præciping witnesses and he prepared his own præcipes in jail that night and handed them to the Sheriff. A young attorney was appointed after the jury panel was in the box on the morning of January 8, 1935. The petitioner was not acquainted with the attorney appointed for his defense until the appointment and the attorney was not acquainted with the petitioner, and the facts in the case at the time of the appointment. The jury was immediately selected and the petitioner did not have an opportunity to discuss his defense with his attorney until after the jury had been selected. The case went to trial immediately and was in the hands...