Higbee v. Thomas
| Decision Date | 13 December 1963 |
| Citation | 376 S.W.2d 305 |
| Parties | David W. HIGBEE, Appellant, v. Luther THOMAS, Warden Kentucky State Penitentiary, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
David Higbee, pro se.
John B. Breckinridge, Atty. Gen., Ray Corns, Asst. Atty. Gen., for appellee.
In October of 1960 the appellant, David Higbee, pleaded guilty to an indictment in the Hopkins Circuit Court charging him with incest and was sentenced to 21 years in prison. KRS 436.060. He was committed to the penitentiary at Eddyville and in May of 1962 filed in the Lyon Circuit Court a petition for habeas corpus based on sworn allegations to the following effect:
(1) On the date of the trial in circuit court 'counsel for the defense spent approximately three to five minutes with defendant prior to his assignment and therefore your petitioner did not and could not have a reasonable length of time to make prepare and present an adequate defense * * * all of which denied to your petitioner effective 'assistance of counsel for his defense," etc.
(2) After 'the approximate three to five minute conference with said court appointed counsel who dominatedly insisted on entering a 'plea of guilty,' and further your petitioner being overwhelmed by both court and aforesaid counsel also being deceived by an oral statement from the Hopkins County Sheriff to your petitioner's wife in words to the effect that if Dave (meaning me--the petitioner) will plead guilty, he won't get over two to five years, and therefore your petitioner being deceived and under duress and coercion made the plea to the court but not of his own free will.'
(3) The prosecuting witnesses, Betty L. Higbee and Rowena Higbee, had demanded withdrawal of the incest charge in October of 1960.
The Lyon Circuit Court sustained the Commonwealth's motion to dismiss the petition for habeas corpus on the ground it did not state facts upon which relief could be granted. Higbee then appealed to this court in forma pauperis. Our decision affirming the dismissal was expressed as follows in a memorandum opinion written by Judge Moremen:
'(1) The broad allegation contained under this item is not sufficient to cause the writ to issue. Three to five minutes of time on the day of the trial may have been sufficient if defendant intended to plead guilty. Etherton v. Jones, Warden, Ky., 350 S.W.2d 151.
'(2) Item two is subject to the same criticism because it is merely alleged that counsel 'dominatedly insisted on entering a plea of guilty' and petitioner was overwhelmed by the court and counsel. The allegation is entirely too general to be the basis for the issuance of the writ. The allegation that reliance was had upon the statement made by the sheriff to his wife indicates that he was willing to plead guilty in order to receive a short sentence. The sheriff has no right or authority to bind the court or the Commonwealth's attorney or the jury with such a promise.
'(3) The alleged crime was committed against the peace and dignity of the Commonwealth of Kentucky and the right of prosecution was not a personal one vested in the two complaining witnesses. As was pointed out in Roberson's New Kentucky Criminal Law and Procedure, 3d Edition, page 7, wrongs are either public or private
The Supreme Court of the United States has sustained Higbee's petition for a writ of certiorari and remanded the case to this court 'for further consideration in light of Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.ed. 126.' Higbee v. Thomas, 375 U.S. 13, 84 S.Ct. 79, 11 L.Ed.2d 41 (1963).
The opinion in Commonwealth of Pennsylvania ex rel. Herman v. Claudy...
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