Ex parte Tail

• Decision Date: 20 October 1944
• Docket Number: 31795.
• Citation: 16 N.W.2d 161,145 Neb. 268
• Parties: Ex parte TAIL. TAIL v. OLSON, Warden.
• Court: Nebraska Supreme Court

16 N.W.2d 161

145 Neb. 268

Ex parte TAIL.

TAIL v. OLSON, Warden.

No. 31795.

Supreme Court of Nebraska

October 20, 1944

Syllabus by the Court.

1. The constitutional right of accused to have the assistance of counsel may be waived, and a waiver will be implied where accused, being without counsel, fails to demand that counsel be assigned him.

2. 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.

3. The right of a person to the writ of habeas corpus depends on the legality or illegality of his detention, and this in turn depends on whether the fundamental requirements of law have been complied with, and not at all on the guilt or innocence of the prisoner.

4. The petition must set forth the facts constituting the illegal detention. It is not sufficient to state the reason the detention is illegal in the form of conclusions. It should show in what the illegality consists and this should be done by stating facts as contradistinguished from mere conclusions of law.

5. In an application for a writ of habeas corpus if the applicant or petitioner sets forth facts which, if true would make out a case which would entitle him to his discharge, then the writ is a matter of right and the petitioner should be produced and a hearing held thereon to determine the question of fact presented. But, if he shows by the facts which he sets forth in his application for the writ that he is not entitled to relief, then the writ should be denied.

Lee Card, of Chadron, for appellant.

Walter R. Johnson, Atty. Gen., Rush C. Clarke, Asst. Atty. Gen., and H. Emerson Kokjer, Deputy Atty. Gen., for appellee.

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

WENKE, Justice.

This habeas corpus proceeding was instituted in the district court for Lancaster county by the relator, Irving Tail, against Neil Olson, Warden of the Nebraska penitentiary, as respondent, to obtain the relator's release. From an order denying the writ, the relator has appealed to this court.

The relator's application discloses that a complaint for second degree murder was filed against him in the county court of Sheridan county on August 5, 1939, and on the same day, after entering a plea of guilty, he was bound over to the district court for Sheridan county. Information was then filed in the district court on August 18, 1939, and on August 21, 1939, after relator had entered his plea of guilty, he was sentenced to the Nebraska state penitentiary for the period of his natural life and is confined and being held in said institution pursuant thereto.

It is not entirely clear from the relator's brief whether he claims the state court was without jurisdiction because he was an Indian ward and therefore under the exclusive jurisdiction of the federal government. However, chapter 15, title 18 U.S.C.A. § 548 of the federal penal code, vests such jurisdiction in the state courts. See In re Application of Rice (Rice v. Olson), 144 Neb. 547, 14 N.W.2d 850.

Relator contends that the failure of the court to appoint counsel for him is contrary to the provisions of both the state and federal Constitutions and the federal statutes; that such failure was jurisdictional and because thereof the court was without jurisdiction to impose sentence. The record does not disclose that application was ever made for the appointment of counsel. We have held in Re Application of Rice (Rice v Olson), supra; Alexander v. O'Grady, 137 Neb. 645, 290 N.W. 718; Davis v. O'Grady, 137 Neb. 708, 291 N.W.

82, 86 'The constitutional right of accused to have the assistance of counsel may be waived, and a waiver will be implied where accused, being without counsel, fails to demand that counsel be assigned him.'

Relator's application sets forth that at the time the information was filed he was an Oglala Sioux, 16 years of age, residing with his parents on a farm on the Pine Ridge Sioux Indian Reservation in South Dakota and a ward of the United States government; that he had about a fifth grade education; that he was unfamiliar with and inexperienced in court procedure and ignorant of his legal rights; and that he was without means to employ counsel. He has presumably set forth his age, education, nationality, inexperience with court procedure and lack of knowledge of his legal rights, as a basis for questioning the fact that he was capable of waiving his right to counsel. However, the journal of the county judge on preliminary hearing binding the relator over to the district court recites: '* * * and the Defendant appearing in open Court in person, and by Frank F. Aplan, his Attorney.' The journal of the judgment of the district court for Sheridan county sentencing the relator to life imprisonment in the state penitentiary after his plea of guilty recites: '* * * and the defendant appearing in open Court in person with his attorney, Frank F. Aplan; * * *.' Frank F. Aplan was at the time admitted to the practice of law in Nebraska and in good standing as an active practitioner. Having been represented by counsel, all the statutory and constitutional provisions giving him the right thereto have been met and the question of his waiver thereof is not before the court. In the absence of any statement of facts to the contrary it will be presumed that the relator had the benefit of his counsel.

The relator seriously contends he is innocent, but this is not before the court in this proceeding. 'Habeas corpus is a collateral not a direct, proceeding when regarded as a means of attack upon a judgment sentencing a defendant. In cannot be used as a substitute for a writ of error.' In re Application of Maher (North v. Dorrance), 144 Neb. 484, 13 N.W.2d 653. 'A judgment or sentence of a court of record in a criminal case is thus supported by the usual presumptions of validity and regularity when thus attacked. To obtain release from a sentence of imprisonment by habeas corpus, such sentence must be absolutely void.' State ex rel. Gossett v. O'Grady, 137 Neb. 824, 291 N.W. 497, 500. 'The right of a person to the writ of habeas corpus depends on the legality or illegality of his detention, and this in turn depends on whether the fundamental requirements of law have been complied with, and not at all on the guilt or...