Hendrickson v. Overlade, Civ. No. 1715.

• Decision Date: 07 June 1955
• Docket Number: Civ. No. 1715.
• Citation: 131 F. Supp. 561
• Parties: Elwood R. HENDRICKSON v. J. Ellis OVERLADE, as Warden of the Indiana State Prison.
• Court: U.S. District Court — Northern District of Indiana

131 F. Supp. 561

Elwood R. HENDRICKSON v. J. Ellis OVERLADE, as Warden of the Indiana State Prison.

Civ. No. 1715.

United States District Court N. D. Indiana, South Bend Division.

June 7, 1955.

Perry W. Cross, Deputy Public Defender, Munice, Ind., for petitioner.

Robert S. Baker, Deputy Atty. Gen. of Indiana, for respondent.

PARKINSON, District Judge.

This is a habeas corpus proceeding which was heard by this court on the merits even though the petitioner had made no application to the Supreme Court of the United States for certiorari after the Supreme Court of Indiana had affirmed his conviction on direct appeal. Hendrickson v. State, 118 N.E.2d 493.

The petitioner, without objection or at the most without serious objection on behalf of the respondent, practically retried the criminal case in this court. Accordingly this court does now have before it the entire transcript of the record on appeal; the parol testimony of the petitioner and other witnesses called by him, and that of counsel who represented him in the trial of the criminal case. Whether that be proper in a habeas corpus proceeding in the federal court is unimportant. That is the manner in which the parties tried this cause in this court and perhaps it is well because this court has all of the facts before it.

It, therefore, is the cause on the merits which now solicits the decision of this court and because the special findings of fact and conclusions of law appear in this opinion, it will be filed and will serve as such.

It is the contention of the petitioner that he is unlawfully restrained of his liberty by the respondent, as Warden of the Indiana State Prison, in violation of the Fourteenth Amendment to the Constitution of the United States because of incompetency of his counsel and alleged errors occurring at his trial which resulted in his conviction.

The undisputed evidence is that counsel who represented the petitioner in the trial of his criminal case in the Shelby Circuit Court is a member of the Indianapolis, Indiana bar and was employed and retained by petitioner's wife for the petitioner and that employment was ratified by the petitioner and the services of counsel were rendered for and on behalf of the petitioner. In other words, under the evidence, the petitioner was represented by counsel of his own choice and employment.

Some courts have held by inference that there is no distinction between representation of court appointed counsel and employed counsel of the defendant's own choice on the question of denial of due process. We hold that there is a distinction and that a lack of skill or the incompetency of counsel employed, and, at the choice of the accused, representing him is imputed to the client, the acts of his counsel thus becoming those of the client and so recognized and accepted by the court, unless the defendant repudiates them by making known to the court his objection to or lack of concurrence in them. A defendant cannot acquiesce in his attorney's defense of him or his lack of it and, after the trial has resulted adversely to the defendant, obtain a new trial because of the negligence, incompetency or unskillfulness of his attorney, unless the representation was such as to amount to practically no representation and reduced the trial to a farce or a sham.

It is the further contention of the petitioner that because the trial court gave to the jury four instructions wherein he referred to the degree of proof as by a preponderance of the evidence instead of beyond a reasonable doubt his conviction is in violation of the Fourteenth Amendment to the Constitution of the United States.

The court has before it the entire transcript of the proceedings in the state court. The transcript shows that the trial court gave to the jury 50 instructions on its own motion and 5, which were tendered by the defendant. In those instructions the jury was specifically instructed some 16 times that the defendant could not be convicted unless proven guilty beyond a reasonable doubt and in the court's instruction No 26 the jury was instructed that:

"The defendant is by law presumed to be innocent of the crime charged until his guilt shall have been established by the evidence, beyond a reasonable doubt. This presumption remains with him throughout the trial, and he is entitled to its benefits unless the evidence convinces you beyond a reasonable doubt as to his guilt. You should weigh the evidence in the light of this presumption, and if you can reasonably and fairly reconcile all the evidence given with the presumption of the defendant's innocence, it is your duty to do so."

and again and again the jury was instructed by the court that the burden was on the State to prove the defendant guilty beyond a reasonable doubt; that the defendant could not be convicted of any crime charged or included unless the jury was convinced of his guilt beyond a reasonable doubt and that if any juror...