Huffman v. Alexander

• Decision Date: 11 February 1953
• Citation: 197 Or. 283,251 P.2d 87
• Parties: HUFFMAN v. ALEXANDER.
• Court: Oregon Supreme Court

Page 87

251 P.2d 87

197 Or. 283

HUFFMAN v. ALEXANDER.

Supreme Court of Oregon.

Argued and submitted Sept. 2, 1952.

Decided Dec. 6, 1952.

Rehearing Denied Feb. 11, 1953.

See 253 P.2d 289.

Merlin Estep, of Salem, argued the cause for appellant. On the brief were Hewitt, Estep & Sorensen, of Salem.

Lloyd G. Hammel, Asst. Atty. Gen., argued the cause for respondent. With him on the brief was George Neuner, Atty. Gen.

Before BRAND, C. J., and ROSSMAN, LUSK, LATOURETTE, WARNER and TOOZE, JJ.

BRAND, Chief Justice.

This is an appeal from an order dismissing a petition for a writ of habeas corpus and remanding the petitioner to the custody of the warden of the penitentiary. The petitioner, Sam Huffman, on 22 August 1951, filed in the circuit court for Marion county a petition for a writ of habeas corpus against George Alexander as warden of the state penitentiary. He alleges that he has been incarcerated in the penitentiary since 21 September 1950. The 'cause and pretense' of such imprisonment being the fact that on said date the circuit court of the state of Oregon for Lincoln county sentenced the petitioner to a maximum term in the penitentiary of three years. The petitioner alleges that he is not imprisoned by virtue of any judgment of a competent tribunal of a criminal jurisdiction or of an execution thereon. The petition complies as to form with the other requirements set forth in O.C.L.A. §§ 11-402 and 11-404. Since the issues are made up by the reply to the return on the writ we omit the petition for the writ which 'ceases to function when the writ is issued.' In re Davenport, 114 Or. 650, 236 P. 758, 760; 25 Am.Jur., Habeas Corpus, § 143, p. 243. As required by statute, the petition sets forth a copy of the judgment and sentence by virtue of which he is confined. It reads as follows:

'Now at this time the defendant, Sam Huffman, appeared in open court in custody of the sheriff of Lincoln County, and on his own motion having waived the indictment by a Grand Jury and now waives further time to plead to the information charging him with the crime of larceny by bailee, filed against him by the District Attorney of Lincoln County, Oregon, and said defendant being fully advised in the premises by the court of his right to demand an indictment by the Grand Jury of said county, said defendant did then and there waive his said right of indictment as aforesaid, and requests the court here and now to accept his plea of guilty to the information filed by the District Attorney and requests the court to pass sentence without further delay, on said information charging him with the crime of larceny by bailee.

'Thereupon the court instructed the District Attorney to arraign said defendant, which was immediately done, and when asked to enter his plea to said information defendant answered 'Guilty as Charged in Said Information.'

'Now, Therefore, It is considered, ordered and adjudged by the court that the defendant, Sam Huffman, is guilty of the crime of larceny by bailee, and that he be confined in the penitentiary at Salem, Oregon, for a period without limitation of time, the maximum of which is hereby fixed at three years * * *.'

On 22 August the judge of the Marion County circuit court ordered that a writ of habeas corpus issue. By way of return to the writ, the defendant warden, in addition to formal matters, set forth as his authority for the imprisonment the above mentioned judgment of the circuit court of Lincoln county. The traverse of the return to the writ of habeas corpus reads in part as follows:

'II

'Denies each and every allegation contained in paragraph III, save and except as herein specifically admitted or alleged.

'III

'The imprisonment, incarceration and restraint of plaintiff was and is illegal and the illegality thereof consists of the following:

'1. The plaintiff's arrest was brought about by the fraudulent, perjured and malicious statements of one Roy Myers, then of Cutler City, Oregon, who represented to the authorities that the plaintiff had committed the crime stated in the order of sentence referred to in defendant's return on file herein, though the plaintiff was and is innocent of said crime, and the said Roy Myers at all times here involved had actual knowledge that the plaintiff was innocent.

'2. The plaintiff has little or no education, is almost totally illiterate, and does not and never has had any knowledge or understanding whatever of legal proceedings, and, specifically, the plaintiff had neither the ability to understand, nor did he in fact understand the proceedings subsequent to his arrest and which terminated in the order of sentence under which he is now held. Furthermore, plaintiff had no knowledge of the rights of one accused of crime, and, specifically, plaintiff did not know and was not informed of his legal rights in the matter here involved.

'3. From the time when he was taken into custody, under arrest for the crime stated in the purported order of sentence hereinabove mentioned, until the time of his incarceration in the Oregon State Penitentiary the plaintiff was at all times unqualifiedly denied the assistance of legal counsel, and was at all times denied permission to contact counsel in any manner whatsoever though during said period the plaintiff often demanded of those in whose custody he was held, and whose exact identity the plaintiff does not and never has known, that he be permitted to contact legal counsel and that he be given the assistance of legal counsel.

'4. The plaintiff was not indicted by a grand jury, and although, while in jail, plaintiff signed a paper entitled 'Waiver,' his signature thereon was obtained by the false, fraudulent and malicious representations of the person who presented it to him, and whose identity the plaintiff does not and never has known, that the said paper was of no consequence and that his signature thereon would speed his release from jail; and, in fact, plaintiff did not know the true nature of the said paper at the time he signed it, nor did he ever intend to waive indictment.

'5. At no time here involved did the plaintiff intend to waive his right to legal counsel.

'6. When plaintiff was taken into court in connection with the proceedings here involved, he was asked several isolated questions by the presiding judge, some of which he did not understand, but nevertheless answered to the best of his ability, and upon the basis of the plaintiff's answers to said questions the said judge pronounced plaintiff guilty of the crime of larceny by bailee, though the said judge had not questioned plaintiff concerning the ownership of the property in question, which property in fact was owned by plaintiff at the time when plaintiff was alleged to have committed the crime stated.

'7. Upon learning that the judge had construed his answers, as aforesaid, to be equivalent to a plea of guilty, the plaintiff requested and was denied permission to change his plea.

'8. Although both the said presiding judge and the district attorney did, in court, and in plaintiff's presence question the said Roy Myers, at no time while in court, as aforesaid, was the plaintiff permitted to question the said Roy Myers, or to subpoena witnesses, or to contact witnesses in any other manner, in his own behalf, although plaintiff repeatedly requested such permission. If plaintiff had been given any opportunity whatever to contact witnesses, as aforesaid, he could have and would have then and there proven his innocence, said witnesses then being in the immediate vicinity, and having actual and complete knowledge of all of the facts involved in the matter.

'9. At the time of his incarceration in the Oregon State Penitentiary, and continuously thereafter, the plaintiff desired to prosecute an appeal to the Supreme Court of Oregon, and pursuant to said desire the plaintiff made every possible effort to gain access to the courts. Specifically,

'(a) plaintiff wrote numerous letters to legal counsel requesting their services, and to other persons requesting them to obtain legal assistance for him, each and every of said letters being written so as to comply with all prison regulations pertaining to the writing of letters, and in each and every instance, except as hereinafter alleged, the petitioner's said letters were destroyed and withheld from the United States Mails by those to whom they were properly submitted for censoring and mailing; and

'(b) The plaintiff personally requested the defendant to permit him to contact legal counsel by any other means whatsoever.

'Each and every effort and request of plaintiff to gain access to the courts, as hereinabove alleged, was denied without qualification until after the time limited by law for the filing of a notice of appeal had expired.

'IV

'Plaintiff denies that the Journal Entry, a certified copy of which is attached to and by reference made a part of the Return to Writ of Habeas Corpus herein, marked 'Exhibit A,' states the true facts of the judicial record; and alleges that the true judicial record of the proceedings is as stated hereinabove; and, specifically, plaintiff alleges that that portion of said Journal Entry constituting the words, 'Guilty as Charged in Said Information,' shown as the last six words of the third paragraph of the body of 'Exhibit A,' attached to defendant's return on file herein, is entirely false, fraudulent and malicious.'

A demurrer to the traverse was overruled. The order of the court dismissing the writ of habeas corpus recites that the case was tried:

'* * * upon the sufficiency of plaintiff's traverse to defendant's return to plaintiff's writ of habeas corpus with respect to plaintiff's allegation that his incarceration in the Oregon state penitentiary is illegal and void because the Circuit Court of the state of Oregon for the county of Lincoln was without jurisdiction to sentence plaintiff to the Oregon state penitentiary because said court denied plaintiff his right...