Fouquette v. Bernard, 13274.
Decision Date | 29 February 1952 |
Docket Number | No. 13274.,13274. |
Citation | 198 F.2d 96 |
Parties | FOUQUETTE v. BERNARD. |
Court | U.S. Court of Appeals — Ninth Circuit |
John W. Bonner, Las Vegas, Nev., for appellant.
W. T. Mathews, Atty. Gen. of Nevada (Geo. P. Annand, Deputy Atty. Gen., William N. Dunseath, Deputy Atty. Gen., John W. Barrett, Deputy Atty. Gen., Roger D. Foley, Dist. Atty., Las Vegas, Clark County, Nev., of counsel), for appellee.
Fouquette, sentenced to be executed next Monday, March 3, 1952, by the Eighth District Court of the State of Nevada sitting in Clark County, seeks my order staying his execution for the murder of one Donald Brown pending his appeal in this court from the order of the United States District Court of Nevada denying him relief on his application for a writ of habeas corpus to the warden of the penitentiary where he is confined.
Although the district court denied Fouquette's motion for a stay of his execution, it gave its certificate of probable cause for the appeal which was immediately taken and permitted him to appeal forma pauperis. Obviously, if there is probable cause for the appeal it would be a mockery of federal justice to execute Fouquette pending its consideration.
The basic contention here is that Fouquette who twice confessed to the murder of Brown and another person in the State of California, while he was released as an out patient of an asylum for the insane in the State of California, had his defense of insanity tried in a county where the passion and prejudice against him was so generally aroused that a dispassionate jury could not be impaneled.
The dangerous character of Fouquette's insanity was determined by the superior court of San Bernardino County, California, on January 5, 1948. After an insanity trial the court found:
Fouquette has satisfied the requirement of 28 U.S.C. § 2254 in the exhaustion of his state remedies. He had appealed from his conviction to the Supreme Court of Nevada and the judgment was affirmed.1 He sought certiorari from the United States Supreme Court and it was denied.2 He petitioned the Supreme Court of Nevada for a writ of habeas corpus on the ground here relied upon, which was denied him.3 He sought certiorari from the United States Supreme Court, which was denied.4
The United States District Court for Nevada permitted Fouquette to file his application for the writ, forma pauperis. Without protest from the Attorney General of the state, who appeared to oppose the application, the district court proceeded to try the case on its merits. The allegations of the application were not denied. Evidence was introduced on behalf of the applicant which was not disputed by the Nevada Attorney General nor any contradictory evidence introduced.
The uncontradicted evidence consisted of an affidavit of John W. Bonner relative to the local prejudice, exhibits of statements in newspapers circulated in Clark County from the time of Fouquette's apprehension to his trial, the above judgment of a California superior court committing Fouquette for his insanity, records of his treatment in the asylum to which he was committed, and his release as an out patient still under the control of the hospital at the time the murder was committed.
It is upon the record of these undenied allegations of the application for habeas corpus and this uncontradicted evidence that the court's certificate of probable cause must be deemed to be based. It is my opinion that the record presents as a substantial question for consideration by this court on the pending appeal, the basic contention stated above as bringing the case within the rationale of such decisions as Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543; Downes v. Dunaway, 5 Cir., 52 F.2d 586.
The undenied allegations of the application are:
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