Freeman v. State

• Decision Date: 27 April 1964
• Docket Number: No. 9409,9409
• Citation: 87 Idaho 170,392 P.2d 542
• Parties: Rufus William FREEMAN, Petitioner-Appellant, v. STATE of Idaho, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 542

392 P.2d 542

87 Idaho 170

Rufus William FREEMAN, Petitioner-Appellant, v. STATE of Idaho, Defendant-Respondent.

No. 9409.

Supreme Court of Idaho.

April 27, 1964.

Rehearing Denied June 17, 1964.

Andrew M. Harrington, Boise, for appellant.

Allan G. Shepard, Atty. Gen., and Thomas G. Nelson, Asst. Atty. Gen., Boise, for respondent.

KNUDSON, Chief Justice.

On September 6, 1961, appellant, Rufus William Freeman, and one Jerry McGuire were arrested and jointly charged with the crime of robbery. A preliminary hearing was held September 19, 1961, at which time they were bound over to the district court of Twin Falls County. On September 28, 1961, they were arraigned before the said district court and at that time, pursuant to their request, the court appointed counsel to represent them. Trial was had and the jury returned a verdict of guilty as charged against both defendants.

On November 10, 1961, they were each sentenced to be imprisoned in the penitentiary of the state of Idaho for a term of not more than life imprisonment, the precise period of confinement to be determined by other authorities, according to law.

Thereafter said parties jointly appealed to this court from the judgment of conviction, which appeal was heard and disposed of in State v. Freeman, 85 Idaho 339, 379 P.2d 632 (hereinafter referred to as case No. 9173), wherein this court affirmed the judgment of conviction and remanded the cause to the trial court in Twin Falls County, with directions 'to set aside the sentences heretofore pronounced and to afford appellants an opportunity to make a showing in support of their application for clemency; to grant or deny the application in whole or in part and to again pronounce sentence.'

Pursuant to said mandate the trial court fixed 2:00 o'clock p. m. July 9, 1963, as the time it would hear appellant's application for clemency, at which time appellant and Jerry McGuire, together with their counsel, appeared. No evidence was introduced on their behalf, however oral argument was presented in support of their plea for clemency, following which the court pronounced judgment under which appellant and Jerry McGuire were each sentenced to 'imprisonment in the penitentiary of the state of Idaho for the term of seventeen (17) years, such term to begin upon arrival of the defendants at the penitentiary of the state of Idaho.'

On August 21, 1963, appellant filed, in the District Court of the Third Judicial District, in and for Ada County, his petition for writ of habeas corpus alleging that he was being illegally restrained of his liberty by the warden of the Idaho State Penitentiary under an illegal and void commitment and in violation of his constitutional rights. A writ of habeas corpus was issued under date of August 23, 1963. Thereafter answer and return on said writ together with a traverse to the answer and return were regularly filed.

On September 12, 1963, a hearing was regularly had upon appellant's petition at which appellant appeared on his own behalf. After hearing and considering the evidence submitted, the trial court, on September 18, 1963, entered findings of fact, conclusions of law and judgment, whereby the writ of habeas corpus theretofore granted was ordered quashed and appellant remanded to the custody of the warden of the penitentiary of the state of Idaho. This appeal is from said judgment.

Concurrently with the filing of his notice of appeal appellant filed his affidavit stating that he was without money, means or properties with which to pay fees or employ counsel. Thereafter counsel was appointed to represent appellant upon this appeal.

Under appellant's first and second assignments of error it is contended that failure to appoint counsel to represent appellant at the preliminary hearing held September 19, 1961, following appellant's arrest upon the charge of robbery, constituted a denial of due process to appellant.

We have reviewed the record on appeal in case No. 9173, which contains certified copies of all docket entries and papers filed in said cause in the office of the committing magistrate before whom the preliminary hearing was held. The record of the committing magistrate does not disclose that any request whatever was made by appellant for the appointment of counsel, although it does disclose that the defendants (appellant and Jerry McGuire) were informed by the magistrate 'of the charge against them and of their right to the aid of counsel on every stage of the proceedings.'

The appeal record in case No. 9173 discloses that said defendants were arraigned before the district court on September 28, 1961, at which time the defendants advised the court that they were without funds with which to employ counsel and pursuant to their request counsel was appointed to represent them; that on the following day the defendants, with their counsel, appeared and entered their respective pleas of not guilty. The record does not show, nor does appellant contend, that any motion was, at any time, made to the district court to quash or set aside the information or to otherwise challenge its validity upon the ground that the preliminary hearing had not been held according to law. In Cobas v. Clapp, 79 Idaho 419, 319 P.2d 475, this court stated:

* * * 'Any objections to the information because of failure to comply with rules governing a preliminary examination are waived unless raised on motion to quash or set aside the information before plea.'

See also I.C. § 19-1602; State v. Clark, 4 Idaho 7, 35 P. 710. Said record does not disclose that any complaint or mention whatever was made to the district court relative to the preliminary hearing nor was any error claimed or discussed in that regard before this court during its review of appellant's appeal (case No. 9173) on its merits. The first time that any such claim or contention on the part of appellant appeals in either of the records before us is in the petition for writ of habeas corpus and accompanying affidavit.

We recognize that habeas corpus is an essential remedy to safeguard a citizen against imprisonment in violation of his constitutional rights (Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761); however, this court has repeatedly held that such proceeding may not be resorted to as an appellate remedy for the purpose of correcting errors occurring during trial which are not of such nature as to affect the jurisdiction of the court. Ex parte Olsen, 74 Idaho 400, 263 P.2d 388; Cobas v. Clapp, supra.

In In re John Knudtson, 10 Idaho 676, 79 P. 641, this court stated:

'This is a court of original jurisdiction in matters of habeas corpus, and upon such application it cannot exercise the jurisdiction of an appellate court, or for such purpose convert itself into an appellate court for the examination of questions reviewable upon appeal.'

Among the cases cited by appellant in support of his contentions that he was denied due process are Hamilton v. State of Alabama (Nov. 13, 1961), 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; Walton v. Arkansas (Oct. 22, 1962), 371 U.S. 28, 83 S.Ct. 9, 9 L.Ed.2d 9; Gideon v. Wainwright (Mar. 18, 1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. In Hamilton v. Alabama, supra, the appellant contended that his constitutional rights had been violated since he had been denied counsel at the time of his arraignment. In discussing the importance of the arraignment involved, Justice Douglas pointed out that

'Arraignment under Alabama law is a critical stage in a criminal proceeding. It is then that the defense of insanity must be pleaded (15 Ala.Code § 423), or the opportunity is lost. Morrell v. State, 136 Ala. 44, 34 So. 208. Thereafter that plea may not be made except in the discretion of the trial judge, and his refusal to accept it is 'not revisable' on appeal. [citations] Pleas in abatement must also be made at the time of arraignment.' * * *

'Whatever may be the function and importance of arraignment in other jurisdictions, we have said enough to show in Alabama it is a critical stage in a criminal proceeding. What happens there may affect the whole trial. Available defenses may be as irretrievably lost, if not then and there asserted, as they are when an accused represented by counsel waives a right for strategic purposes.' * * *

In Walton v. Arkansas, supra, the petitioner, in the course of his arraignment proceedings, stated that his prior confession had been voluntarily and freely given. This acknowledgment was later used in evidence against him at the trial. The Supreme Court of the United States, in a per curiam decision, stated:

'* * * we are unable to conclude from the record filed in this Court either that petitioner had counsel at the time of the arraignment proceedings or, if not, that he was advised of his right to have counsel at such proceedings and that he understandingly and intelligently waived that right.

'In these circumstances we conclude that the judgment of the Supreme Court of Arkansas should be vacated and the case remanded to that court for further consideration in light of Hamilton v. Alabama (US) supra, * * *'

The case of Gideon v. Wainwright, supra, concerned the right of an accused to counsel at trial and did not involve the right of counsel at a preliminary hearing or arraignment. It is clear from the aforementioned cases that the state is required to furnish an indigent defendant, who is charged with a serious crime, representation by counsel at any critical stage of a criminal proceeding. Consequently, our problem in this case necessitates the determination as to whether the preliminary hearing, under the facts of this appeal, constituted a critical stage of the criminal proceedings against appellant.

Proceedings in criminal actions prior to arraignment before the district court are prescribed by I.C. title 19 chap. 8, which provides, among other things, that when a defendant is brought before a magistrate, he must be informed of his...