Rutledge v. Hudspeth, 37905

• Decision Date: 06 May 1950
• Docket Number: No. 37905,37905
• Citation: 169 Kan. 243,218 P.2d 241
• Parties: RUTLEDGE v. HUDSPETH.
• Court: Kansas Supreme Court

Page 241

218 P.2d 241

169 Kan. 243

RUTLEDGE v. HUDSPETH.

No. 37905.

Supreme Court of Kansas.

May 6, 1950.

Rehearing Denied June 16, 1950.

Syllabus by the Court.

A petition for a writ of habeas corpus filed originally in this court is examined and it is held that it does not state facts sufficient to entitle petitioner to a writ.

No appearance made for petitioner.

Harold R. Fatzer, Attorney General, and C. Harold Hughes, Assistant Attorney General, on the brief for respondent.

SMITH, Justice.

This is an original proceeding in habeas corpus. The petitioner is confined in the penitentiary at Lansing under a life sentence as a habitual criminal and seeks his release.

He pleaded guilty to burglary and grand larceny in violation of G.S.1935, 21-520 and 21-533. Each of these sections provides a penalty of confinement at hard labor not to exceed five years. After the plea and before sentence, the state introduced authenticated felony convictions. Thereupon pursuant to G.S.1947 Supp. 21-107a and G.S.1935, 21-109, he was sentenced to be confined at hard labor for the rest of his natural lifetime.

Petitioner assigns several reasons why he should be granted his freedom pursuant to a writ of habeas corpus. They will be considered ad seriatum.

First, he states he was denied due process of law because he was denied counsel of his own choosing. The journal entry recites and in his statement he says that the trial court when petitioner was arraigned inquired of him whether he had counsel and petitioner answered in the negative and that he had no means of employing counsel and that the trial court thereupon appointed counsel a member of the bar who was present who proceeded to represent him. We have nothing more than the bare statement of petitioner that he was denied counsel of his own choosing. There is no statement that he objected to being represented by counsel appointed. There is no statement that the appointed counsel did not serve in good faith. Unless there was such inability or neglect on the part of counsel in representing petitioner as to amount to no representation we will not consider the fact alone that petitioner was represented by appointed counsel, as a violation of the Fourteenth Amendment, and, therefore, ground for a writ. See Miller v. Hudspeth, 164 Kan. 688, 192 P.2d 147.

Petitioner next argues that he is entitled to a writ because he was held in jail from December 3, 1948, until December 8, 1948, before a warrant was read to him. A petition for a writ of habeas corpus by one being under a sentence after a plea of guilty is a collateral attack upon that judgment. In order for such an attack to be successful it must be made to appear that the judgment is void. Such a judgment carries with it a presumption of validity. See Miller v. Hudspeth, supra. We considered an argument analogous to this in Wears v. Hudspeth, 167 Kan. 191, 205 P.2d 1188, 1189. There a petitioner, who was held as a parole violator, asked for a writ and argued amongst other things that he was entitled to a writ because he was held prior to his delivery to the authorities at the penitentiary at a jail other than the one designated by the trial court. We said: 'Obviously this claim is wholly devoid of merit. Its short and simple answer is that such incarceration, which we pause to note is denied by respondent and merely supported by petitioner's uncorroborated statement, has long since ended and its legality is not now subject to consideration in a habeas corpus proceeding.'

What would have been...