MacKenna v. Ellis

Decision Date22 June 1960
Docket NumberNo. 18110.,18110.
PartiesEdward Morgan MacKENNA, Appellant, v. O. B. ELLIS, Director, Texas Department of Corrections, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit


Martin L. C. Feldman, New Orleans, La., Edward Morgan MacKenna, in pro. per., Huntsville, Tex., for appellant.

John L. Estes, Linward Shivers, Tom I. McFarling, Asst. Attys. Gen. of Texas, Will Wilson, Atty. Gen. of Texas, B. H. Timmins, Jr., Asst. Atty. Gen. of Texas, for appellee.

Before RIVES, Chief Judge, and CAMERON and WISDOM, Circuit Judges.

WISDOM, Circuit Judge:

This case is before us for the second time on an appeal from a denial of the writ of habeas corpus. See MacKenna v. Ellis, 5 Cir., 1959, 263 F.2d 35.

Edward MacKenna was sentenced to eight years' imprisonment for the theft of a camera valued at $250. Since March 12, 1956, he has been confined in the Dallas County Jail and in the Texas Penitentiary.

MacKenna is an educated man, a graduate of Northwestern University in 1934. He has worked as a reporter for a number of newspapers and has been a feature writer for several periodicals. But Edward MacKenna has seven convictions for crimes. He attributes his commission of these crimes to his having been an alcoholic. Since 1953 he has been a member of Alcoholics Anonymous.

Consistently, vigorously, and for the most part on his own, MacKenna has asserted that he did not steal the camera. His story is that at the Dallas State Fair in October 1955 he came into possession of the camera inadvertently.1 An acquaintance whom he had known in the Texas Penitentiary left it at one of the stands on the midway where both had been sitting. MacKenna picked it up with the intention of returning it. Somewhat later he discovered the name and address of a commercial photographer on the camera case, making him realize that he had stolen property on his hands. This presented a serious problem: MacKenna was on a Governor's pardon from the Texas Penitentiary at the time. He was afraid to return the camera, as an honest man might, for fear that he would be accused of the theft. After several days of searching thought, so he says, he decided to place the camera in a rental locker and mail the key to the owner. November 3, 1955, he brought the camera to the Union Bus Terminal in Dallas, placed the camera in a locker, pocketed the key, and stepped into an adjacent drugstore to buy a special delivery stamp. Upon leaving the drugstore, he was arrested by two Dallas policemen, one of whom knew him by sight and name. He was searched. The locker key was found. The policemen opened the locker, found the camera, took MacKenna to the Dallas Jail, and booked him for the theft of the camera.

This, of course, may be just another likely story. Then again, MacKenna may be a victim of circumstances. Likely or unlikely, it is basic to due process that an accused person have a fair opportunity to tell his story in a fair trial. He is entitled to such notice of trial that he will be able to present his witnesses in court on the day of the trial. He is entitled to the effective, wholehearted assistance of counsel and to the undivided loyalty of counsel. Finally, he is entitled to have his trial guided by a judge sensitive to the duty of protecting the accused's constitutional rights in all cases, but especially in a case when fledgeling lawyers are appointed counsel over the protest of the accused.

MacKenna was committed to the Dallas County Jail on March 12, 1956. Three times in the next six months, in April, May, and July, his name appeared on the official court docket for appearance to answer the indictment. Without apparent reason and without any explanation he was not taken into court on any of these occasions.

Friday, September 28, 1956, after six months and seventeen days in the county jail, MacKenna, for the first time, was taken to court. The district judge asked if he had counsel. MacKenna replied that he was negotiating with a Mr. Ben Henderson to represent him; at the hearing below he testified that he had managed to get together $150 for a retainer, and that Mr. Henderson had agreed to go by the jail and see him in late September. The trial judge stated that he did not see Mr. Henderson in court and that he was then and there appointing counsel to represent the defendant.2 He appointed two young attorneys just out of law school.

An important issue in the case is whether MacKenna objected to the appointment of counsel. His appointed counsel, who were present in court, state that he did not object; at least, not in their presence. Exception I of the formal bills of exception filed in the state court appellate proceedings states, in part:

"The Court asked defendant if he had counsel to represent him. Defendant replied he was negotiating with counsel of his own choice to handle the case. The Court then informed defendant that it was appointing counsel, and, over protest, proceeded to do so. Then and there, in open Court, the defendant took exception to the action."

The bills of exception were submitted to counsel for the state and certified as correct by the trial court.

MacKenna's trial was set for Wednesday, October 3, 1956. A week-end therefore intervened between his appearance on Friday, September 28, and the day of his trial. About 10:30 Tuesday morning, October 2, 1956, he was brought into court. He was told that his case had been advanced a day on the docket and that his trial was about to begin. That was his notice of trial. Within fifteen minutes to half an hour the trial began. No witnesses were put on the stand however until 2:00 P. M.

MacKenna protested against being put to trial in advance of the date set for trial, because of inability to reach his witnesses. He asked his attorneys to move for a continuance. They told him that they had done so, in a conference with the judge, and that his trial had to be held on October 2 because another case originally scheduled for October 2 had to be postponed. According to MacKenna, he told the trial judge that he had given the names and addresses of witnesses to his attorneys and that they had not summoned any witnesses. MacKenna himself then asked the court for a delay of at least one day, and he would try to reach the witnesses by telephone. The court denied the request and instructed MacKenna to let his attorneys handle it. MacKenna asserts that his attorneys then made several telephone calls, but none of the witnesses were available on such short notice. His attorneys denied having made any telephone calls, except for one call to a character witness, in the afternoon, after MacKenna had taken the stand.

The record does not show that the attorneys formally applied for a continuance and in the hearing below they testified that no motion for a continuance was presented. However, Exception II filed in the state court proceedings reads:

"Exception II
"Two court days after appointment of counsel, above, defendant was taken back to court on October 2, 1956, and advised his trial had been `moved up\' because of postponement of another trial, and that he was to be tried forthwith.
"Defendant protested he had not had time to contact the witnesses who wished to appear in his defense, and asked for a continuance. Defendant has never theretofore asked for a continuance in the cause. The defense counsel appointed by the Court advised defendant they had moved for continuance, but that the Court had overruled the motion.
"Then and there, in open Court defendant excepted."

It is clear that the application for a continuance failed to comply with the procedural requirements established in Article 543 of the Texas Code of Criminal Procedure.3 It is clear that the bill of exception was defective. "The bill of exceptions must disclose further the reasons assigned and must set out the application." 4 Tex.Jur. App. and Error — Criminal, p. 365, Section 246 and cases cited.

MacKenna was the only witness to testify for the defense. He was found guilty and sentenced to eight years imprisonment. His attorneys bowed out, although they did offer to appeal, and MacKenna himself prepared a motion for a new trial, alleging that he had new evidence. MacKenna attached to his motion the affidavits of a number of witnesses who would have testified in his favor had they been given more notice and had the case been continued. His wife would have testified as to his whereabouts the afternoon and night of the alleged theft. June Chapman, his company's bookkeeper, would have identified his time card showing that he was at work the day of the theft. Ward B. Chandler, an official of the company employing MacKenna, would have testified that he was at work the day the theft is supposed to have occurred. Dr. John F. Anderson, Jr., Pastor of the First Presbyterian Church of Dallas, Major Kenneth E. Moses, Volunteer Parole Supervisor for the County of Dallas, Salvation Army, and Mr. William Dalton, Parole Officer for the County of Dallas, would have testified as to MacKenna's character, home life, and adjustment in society. A new trial was denied; of course, none of MacKenna's "new evidence" was new evidence in a legal sense.

Acting for himself, MacKenna perfected an appeal to the Court of Criminal Appeals of Texas. That court affirmed the judgment of the trial court, April 3, 1957. MacKenna v. State, 1957, 164 Tex.Cr.R. 623, 301 S.W.2d 657. The opinion of the court did not deal with Exception I. The court held, as to Exception II: "While Bill of Exception No. II certifies that on the day the case proceeded to trial appellant `protested he had not had time to contact the witnesses who wished to appear in his defense and asked for a continuance', the bill is insufficient as the application for continuance is not shown therein." MacKenna v. State, 1957, 164 Tex.Cr.R. 623, 301 S.W.2d 657, 658. The result was inevitable under Texas law. Pena v. State, Tex.Cr.App., 1 S.W.2d 1095; ...

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