Johnson v. Zerbst, 8562

• Decision Date: 24 November 1937
• Docket Number: 8563.,No. 8562,8562
• Citation: 92 F.2d 748
• Parties: JOHNSON v. ZERBST, Warden. BRIDWELL v. ZERBST, Warden.
• Court: U.S. Court of Appeals — Fifth Circuit

92 F.2d 748 (1937)

JOHNSON v. ZERBST, Warden.

BRIDWELL v. ZERBST, Warden.

Nos. 8562, 8563.

Circuit Court of Appeals, Fifth Circuit.

November 24, 1937.

Elbert P. Tuttle, of Atlanta, Ga., for appellants.

Bates Booth, Sp. Asst. to Atty. Gen., and Lawrence S. Camp, U. S. Atty., and Harvey H. Tisinger and H. T. Nichols, Asst. U. S. Attys., all of Atlanta, Ga., for appellee.

Before FOSTER, SIBLEY, and HOLMES, Circuit Judges.

FOSTER, Circuit Judge.

These cases present appeals from judgments dismissing petitions for writs of habeas corpus to release appellants from the Atlanta penitentiary. The evidence is identical in both cases. By agreement only one record was printed, upon which both cases were submitted. The record discloses the following facts:

Appellants were arrested in Charleston, S. C., on November 21, 1934, charged with feloniously uttering and passing four counterfeit $20 Federal Reserve notes and with knowingly and feloniously possessing 21 counterfeit Federal Reserve Bank notes, with intent to defraud. A hearing was had before a United States commissioner, at which they were represented by counsel of their own choosing. They were bound over to await the action of the United States grand jury and, being unable to give bail, were confined in a local jail. An indictment was returned against them at the next term of court, and on January 23, 1935, they were brought into court, pleaded not guilty, and were tried to a jury, with the result that a verdict of guilty was rendered. They were sentenced to be imprisoned in the Atlanta penitentiary for 4 years and 6 months. No appeal was taken from this judgment. In December, 1935, they filed petitions in the United States District Court for the Northern District of Georgia, seeking release on habeas corpus. The petitions alleged that the judgment of conviction was an absolute nullity, on the grounds that they were innocent of the charge and were denied compulsory process for obtaining witnesses in their favor and to have the assistance of counsel for their defense, in violation of the Sixth Amendment; and were therefore denied due process of law, in violation of the Fifth Amendment. The District Court appointed competent counsel to represent them on the trial of the habeas corpus cases and evidence was taken on the hearing. The District Court reached the conclusion that they had been deprived of constitutional rights as alleged, but that, as the trial court had jurisdiction and the judge was not prejudiced nor swayed by any improper influence, the judgment was not void and the errors and irregularities complained of could be corrected only on appeal. Bridwell v. Aderhold (D.C.) 13 F.Supp. 253. No appeal was taken from these judgments. However, in December, 1936, the applications for release on habeas corpus were renewed on the same grounds. The District Court again appointed competent counsel to represent appellants on the second trial before him, and they were represented by competent counsel on this appeal.

There is some conflict in the evidence appearing in the record, but the following facts may be considered as proved with reasonable certainty. When appellants were brought into the District Court in South Carolina, the indictment was read to them and they signed pleas of not guilty. They were asked by the judge if they were represented by counsel and replied "No," and were then asked by him if they were ready for trial and replied "Yes." They did not request the judge to appoint counsel for them, he did not do so of his own motion, and they were not represented by counsel at the trial.

Appellants are white men, and were both in the service of the United States in the Marine Corps. Bridwell had had 11 years' continuous service and was a corporal. The term of service of Johnson is not shown. Bridwell had attended a country school until he was 15 years of age. Johnson had had fifth grade education. During the trial Bridwell assumed charge of the defense for both appellants, cross-examined government witnesses, took the stand in his own defense, and at the close of the case addressed the jury. Johnson did not testify. There was evidence tending to show that Bridwell conducted the defense very well for a layman and showed some familiarity with legal procedure. During the trial Bridwell stated that he did not think that men of such limited knowledge as appellants would know counterfeit money when they saw it and asked that a witness be called to establish whether the money was counterfeit. The district attorney procured a witness, who was a deputy sheriff in charge of tax collections and handled considerable money in performing his duties. He testified that the money was counterfeit and that that fact was readily discernible. Bridwell had objected to the testimony of other witnesses, but no objection was made to the introduction of this witness nor to his testimony.

Bridwell testified the attorney who represented them before the commissioner continued to represent them until some time in January and was paid $100 for his services; that he released them because they would not follow his advice to plead guilty and they had no more money to pay him; that before the trial they made efforts to secure another lawyer, naming him, but were unable to get in touch with him because they were in jail. Bridwell also testified, and this was corroborated by Johnson, that, in the...