Kent v. Sanford, 9815.
| Decision Date | 23 June 1941 |
| Docket Number | No. 9815.,9815. |
| Citation | 121 F.2d 216 |
| Parties | KENT v. SANFORD, Warden. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Paul Crutchfield, of Atlanta, Ga., for appellant.
Lawrence S. Camp, U. S. Atty., and Harvey H. Tysinger and John J. Flynt, Jr., Asst. U. S. Attys., all of Atlanta, Ga., for appellee.
Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.
The appellant was convicted of violating Section 398 of Title 18 of the United States Code, 18 U.S.C.A. § 398. The court below denied his petition for discharge upon a writ of habeas corpus. The question is whether or not the United States District Court which sentenced him lost jurisdiction to proceed with the case because his attorney was absent when the jury returned its verdict and the court imposed its sentence.
The attorney appointed by the court to represent the defendant was a reputable lawyer, experienced in the trial of criminal cases. He was permitted to confer in private with his client, and the trial was not begun until the defense announced ready. No request was made for additional time, and the court was not asked to issue process for any witnesses for the defense. The attorney actively conducted the defense until after the evidence was adduced, arguments made, and the case submitted to the jury. After the jury had retired and before it rendered its verdict, the attorney requested permission of the court to be excused, and advised the court that he had no objection to the return of the verdict in his absence. The judge granted the permission, and assured the attorney that, should the verdict be irregular in any manner, he would send it back to the jury. The verdict of guilty was returned in the presence of the defendant but in the absence of his attorney; it was not irregular, and the judge thereupon, in accordance with his prevailing custom, pronounced sentence.
On the morning following the trial the defendant was taken from Meridian, Mississippi, to the federal penitentiary at Atlanta, Georgia. On that morning his attorney appeared in court and learned the outcome of the trial. The judge inquired as to whether a motion for a new trial would be made, and the attorney said "no". This habeas corpus proceeding is the first legal action taken subsequent to the trial below; no motion for a new trial was made, and no appeal was taken.
Petitioner's reliance is upon the construction given to the Sixth Amendment to the Constitution in the case of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. It was there held that the purpose of that portion of the Sixth Amendment relating to the right of counsel was to protect an accused from conviction resulting from his own ignorance of his rights. We think the purpose and intent of the amendment was adequately served in this case. Petitioner was at all times protected in the course of his trial by one learned in the law. He was represented by counsel until after the case was submitted to the jury, and the only two steps of which he now complains are the return of the verdict and the imposition of sentence. The court advisedly accepted for itself the duty of representing the defendant upon the return of the verdict, and fully discharged that responsibility.
The absence of the attorney from the court room when the verdict was returned and sentence imposed had no effect whatever upon the right of the defendant to move for a new trial or to appeal from the judgment; ample time for that remained after the appointed counsel was fully advised of all that transpired during his absence.
We think the record establishes that the defendant was fully protected in his constitutional right to be represented by counsel, and that, after the trial had progressed beyond the stage of submission to the jury, it was within the province of counsel and the district court to determine whether or not the temporary absence of the former was prejudicial to the defendant's rights. This is especially true when it does not appear that the defendant himself made any objection to such temporary absence or did not in fact consent to it.1
The attorney in this case did nothing unethical. He performed his duty as ably, fully, and faithfully as if he had been paid for his services. While an attorney appointed by the court is under as high a duty to his client as one employed and paid by the...
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Jenkins v. State
...892, 71 S.Ct. 200, 95 L.Ed. 647 (1950). In Martin the Fifth Circuit reversed the position it had taken nine years earlier in Kent v. Sanford, 121 F.2d 216 (1941), and held 'It may be safely said that at this time there is no question of constitutional law any more firmly established than th......
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Coates v. Lawrence
... ... 64, 77 L.Ed. 158, 84 A.L.R. 527, Martin v. State, 51 Ga. 567, and see, also, Reid v. Sanford, D.C.Ga., 42 F.Supp. 300(5), 303. With due recognition of all of these rights comprehended by the ... See Kent v. Sanford, 5 Cir., 121 F. 2d 216(2, 3), 217. If the case was not well-defended (I do not mean to ... ...
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...of could have been corrected upon direct review. See, in this connection, Lovvorn v. Johnston, 9 Cir., 118 F.2d 704, 706; Kent v. Sanford, 5 Cir., 121 F.2d 216, certiorari denied 315 U.S. 799, 62 S.Ct. 622, 86 L.Ed. 1200; Batson v. United States, 10 Cir., 137 F.2d In Frank v. Mangum, 237 U.......
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...retained is of course irrelevant in measuring the effectiveness of the representation Mason received at his plea hearing, Kent v. Sanford, 5 Cir., 1941, 121 F.2d 216 (though we do not here have to consider the result had Watts been privately retained, see Fitzgerald v. Estelle, 5 Cir., 1974......