Higgins v. Parker, 39705.

• Decision Date: 03 December 1945
• Docket Number: No. 39705.,39705.
• Citation: 191 S.W.2d 668
• Parties: WALTER W. HIGGINS, Petitioner, v. W.C. PARKER, Acting Warden, Missouri State Penitentiary.
• Court: Missouri Supreme Court

191 S.W.2d 668

WALTER W. HIGGINS, Petitioner, v. W.C. PARKER, Acting Warden, Missouri State Penitentiary.

No. 39705.

Supreme Court of Missouri.

Court en Banc, December 3, 1945.

Rehearing Denied, January 8, 1946.

Habeas Corpus.

PETITIONER REMANDED TO CUSTODY.

Scott Peters for petitioner.

J.E. Taylor, Attorney General, and Gordon Weir, Assistant Attorney General, for respondent.

ELLISON, J.

Habeas corpus. Twelve years ago the petitioner was convicted in the circuit court of Buchanan county of robbery in the first degree under Sec. 4450,¹ and also as a second offender under the habitual criminal statute. Sec. 4854. Accordingly, his punishment was assessed by the jury at the maximum, life imprisonment in the state penitentiary, as fixed by Sec. 4453.

He prosecutes this writ on the theory that the trial proceedings were at least voidable and subject to attack by this writ, because Bernard Rodin, chief counsel representing him therein, was a layman and had not been admitted to the bar of this or any other state. This, he asserts, placed him in the same situation as if he had been denied counsel altogether in violation of his constitutional rights.² And he says he did not waive the lack of counsel, because he did not know Rodin was not a duly licensed attorney, and did not find it out until a year later.

It is undisputed that Rodin had never been admitted to the bar, but was masquerading as a lawyer on a forged certificate. Furthermore, petitioner testified that Rodin botched up the case: unwisely advised him to make no testimonial admissions (even of true or obvious facts); wrongly advised him about the criminal law; provoked the trial court into fining him (Rodin) $50 for contempt, with execution suspended; and finally failed to file a motion for new trial and perfect an appeal, though instructed so to do. The trial judge, his successor in office, and an assistant prosecuting attorney who represented the State in the criminal case, all signed recommendations for a parole based on the disclosure that Rodin was not a lawyer, and because they thought petitioner had been unskillfully represented.

On the facts thus far sketched we may concede that the petitioner's position would be well taken. But there are other facts. He further testified before this court that Rodin had come to Buchanan county as a representative of the Triple A automobile association and that he had known him three or four months. Rodin had purchased an automobile from petitioner and still owed $350 on the purchase price. He agreed to defend petitioner in the criminal case, and to treat the discharge of the $350 debt as his attorney fee. But shortly before the trial he told petitioner he wanted to employ an assistant counsel to help empanel the jury, because he was not well acquainted in St. Joseph; and he asked petitioner for $50 more for that purpose. Petitioner was agreeable to having another lawyer but refused to put up the additional $50. Rodin thereupon did employ Mr. Alan S. Bullock, a duly licensed attorney of the city, who assisted in the trial. But petitioner testified before this court that after the trial had proceeded for a while Rodin and Bullock seemed to disagree about the handling of the case, and after a court recess following the testimony of two State's witnesses on the first day of the trial, Bullock never appeared again.

Mr. Bullock, the "assistant" counsel, just returning as a Lieutenant in the U.S. Navy after three years foreign service, also testified before this court, and corroborated the petitioner's testimony this far. He said he assisted in the trial of the case, but never was paid anything, and really wasn't hired but sat in more or less as a favor to Rodin; that he disagreed with Rodin about his method of conducting the case; and that he was trying to recall "when I withdrew during the trial" but couldn't remember. He declared one thing they disagreed about wholeheartedly, was that he thought petitioner shouldn't take the stand at all. But it was unnecessary to determine that question finally until near the end of the trial, since petitioner was the last of the twelve witnesses to testify. Bullock believed he remembered that Rodin was fined for contempt while he was arguing the case to the jury — after he (Bullock) had withdrawn.

A certified copy of the bill of exceptions in the criminal trial was offered in evidence at the hearing of this cause by this court. It shows on the first day of the trial that Bernard Rodin and Mr. Bullock appeared with the petitioner as his attorneys; that his plea of guilty entered over a month earlier was withdrawn; an amended information was filed; formal arraignment was waived, and a plea of not guilty entered; the jury was impaneled, and part of the evidence heard. On the second day of court the trial apparently ran all day (past the noon recess, anyway), the jury were instructed, arguments made and the verdict returned. The petitioner was granted allocution and judgment and sentence were pronounced three weeks later.

The bill of exceptions shows seven witnesses testified for the State and five for the defense (counting the petitioner). Mr. Bullock made all the objections for the defense on the direct examination of the State's two main witnesses. Buzard, who was robbed, and Faulkner, petitioner's accomplice, who had turned State's evidence; and he also cross-examined these witnesses. He further made objections during the direct examination of the State's witnesses Stroud and Swope. And at the close of all the evidence he renewed an objection made by the defense near the beginning of the trial, and moved for the discharge of the jury. The objection complained of a statement made by an assistant prosecuting attorney disclosing to the jury that petitioner had previously pled guilty and then withdrawn his plea. Bullock testified he couldn't remember making that objection, but would not say he didn't. The bill shows arguments were made to the jury but not who made them. However it is pretty clear that Bullock did not argue, for he testified that during the argument he was in the courtroom but not within the bar. The record nowhere shows that he withdrew as counsel for defense; but he said his recollection was that he so announced to Judge Gaddy, the circuit judge.

Judge Gaddy testified by deposition that Bullock sat at the counsel table all the time during the trial, but that Rodin took the laboring oar. He didn't recall that Bullock examined any witnesses, in which he obviously was mistaken, as shown by the bill of exceptions. He couldn't remember whether Bullock made an argument to the jury. Further, he stated that he would have given the petitioner a new trial if he had learned in time that Rodin was not a lawyer. In fact he suspicioned he had never practiced before and asked him, whereupon Rodin produced the forged certificate. The $50 fine for contempt was imposed for conduct...