Medberry v. Patterson

• Decision Date: 14 March 1960
• Docket Number: No. 19166,19166
• Citation: 350 P.2d 571,142 Colo. 180
• Parties: Ellsworth MEDBERRY, Plaintiff in Error, v. Wayne K. PATTERSON, Warden of the Colorado State Reformatory, and Harry C. Tinsley, Warden of the Colorado State Penitentiary, Defendants in Error.
• Court: Colorado Supreme Court

Page 571

350 P.2d 571

142 Colo. 180

Ellsworth MEDBERRY, Plaintiff in Error, v. Wayne K. PATTERSON, Warden of the Colorado State Reformatory, and Harry C. Tinsley, Warden of the Colorado State Penitentiary, Defendants in Error.

No. 19166.

Supreme Court of Colorado, En Banc.

March 14, 1960.

Rehearing Denied April 11, 1960.

Samuel D. Menin, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John W. Patterson, Asst. Atty. Gen., for defendants in error.

MOORE, Justice.

Plaintiff in error will be referred to as Medberry.

In order that the facts which form the background for this action may be properly understood in sequence, we direct attention to the first paragraph of the opinion in Medberry v. People, 107 Colo. 15, 108 P.2d 243, 244, where we find the following:

'Plaintiff in error, defendant below and so hereinafter designated, was charged in an information filed March 10, 1939, in the district court of Washington county, with murder in the first degree. In due course he and his family employed T. E. Munson, and Samuel Chutkow, members of the bar of the Thirteenth Judicial District of which Washington county forms a part, to represent him on the trial of such charge, to which a plea of 'not guilty' was entered. The trial opened on June 15, 1939, and was concluded on the 24th. On the latter date the jury returned its verdict finding defendant guilty of murder in the first degree and, in the exercise of its discretion to fix the penalty therefor at either death or life imprisonment, decreed the latter. Motion for new trial, based on thirty-five alleged grounds, was filed July 22, and overruled July 31, 1939, following which and upon the same date, in accordance with the verdict, judgment was pronounced sentencing defendant to life imprisonment in the penitentiary, where he has since been incarcerated.'

It further appears from the opinion in the case above cited that following the return of the verdict of the jury and at the time a supplemental motion for new trial was overruled, new counsel for defendant (who came from Wisconsin to participate in the post trial proceedings)

'* * * requested the court to order the preparation of a transcript of the evidence and proceedings in the trial court at public expense to enable defendant to procure a review of the judgment of conviction. This motion also was denied.'

Upon consideration of the record submitted, this court affirmed the conviction of Medberry, holding that the trial court committed no error in denying the request for a bill of exceptions at the expense of the County. The judgment of the trial court was affirmed December 2, 1940.

This action was commenced in May, 1959, at which time Medberry filed a petition for a writ of habeas corpus in the District Court of Washington County. He alleged that his confinement in prison under the judgment above mentioned 'was and is illegal.' The allegation in said petition which is pertinent to the questions hereinafter discussed reads as follows:

'That the illegality of the confinement, imprisonment and restraint of your petitioner results from the refusal by the judge of the District Court of Washington County, Colorado upon request of petitioner on the ground of indigency to appoint counsel for him, and at the expense of the county to order a transcript of the record of the proceedings of the trial in order to accord petitioner the right to an adequate appellate review and adequate legal representation to appeal his conviction on the charge of murder. That the action of the trial court in denying such request, at a time when petitioner was unable to employ competent counsel admitted to practice in Colorado and pay for the transcript of the proceedings when he was destitute and without funds, resulted in a denial to petitioner of the equal protection of the law and due process of law in violation of the Fourteenth Amendment of the United States Constitution for the reason that persons who are not indigent and have sufficient funds to secure counsel at all stages of the proceedings and who, likewise, can afford to pay for a transcript of the record of the proceedings of the trial are as a matter of right under Colorado law, able to receive and do receive an adequate appellate review properly represented by competent counsel pursuant to the due process of law.

'That this violation of petitioner's constitutional rights was erroneously approved by the Supreme Court of Colorado in a decision rendered by said Court on December 2, 1940, sustaining the trial court. Said decision appears in the official Colorado Supreme Court reports as Medberry v. The People, 107 Colo. 15, and in the Pacific Reports 108 P.2d 243.'

Another allegation of the petition is as follows:

'Your petitioner further shows that recently when he was able to acquire some funds he attempted to secure a transcript of the record of the proceedings and was informed by the clerk of the Distirct Court of Washington County that such transcript is not available and there is now no way to correct the wrong done this petitioner except by the granting of a writ of habeas corpus.'

The Attorney General made return to the writ of habeas corpus which issued on Medberry's petition. This return contained the following, inter alia:

'Petitioner herein was convicted of murder in the first degree and a life sentence in the State Penitentiary imposed July 31, 1939 in case number 2658 in the District Court in and for the County of washington, State of Colorado.

'Thereafter, on January 7, 1955 petitioner was transferred by executive order from the penitentiary to the State Reformatory pursuant to law.

'Petitioner is being lawfully confined and detained pursuant to the aforesaid judgment and sentence of the District Court and the aforesaid order or transfer.'

The trial court entered a judgment as follows:

'It Is Therefore Ordered, Adjudged And Decreed, That the petition for Writ of Habeas Corpus as heretofore filed should have been and hereby now is denied; that the temporary Writ which was issued should be and now is quashed and the Writ as requested shall not issue.'

Medberry seeks review of this judgment by Writ of Error.

Questions to be Determined

First: Where a person is accused of murder by information filed in a court which admittedly has jurisdiction over the alleged offense and the person of the defendant; where the said accused, appearing by counsel selected and paid by him, is tried, convicted and sentenced to life imprisonment; where that conviction is reviewed by writ of error to this court, and the judgment is affirmed; will said defendant be entitled to a release from prison in habeas corpus proceedings, instituted twenty years after the judgment, upon the ground that the court conducting the murder trial erred in refusing to furnish a bill of exceptions at public expense, as a part of the record on writ of...