Skiba v. Kaiser

• Decision Date: 16 February 1944
• Docket Number: 38952
• Citation: 178 S.W.2d 373,352 Mo. 424
• Parties: Chester Skiba, Petitioner, v. Paul E. Kaiser, Warden, Missouri State Penitentary
• Court: Missouri Supreme Court

178 S.W.2d 373

352 Mo. 424

Chester Skiba, Petitioner, v. Paul E. Kaiser, Warden, Missouri State Penitentary

No. 38952

Supreme Court of Missouri

February 16, 1944

Writ quashed.

Scott Peters for petitioner.

Roy McKittrick, Attorney General, for respondent.

OPINION

Tipton J.

Habeas Corpus.In the circuit court of Lincoln County, Missouri, the petitioner pleaded guilty to the charge of robbery in the first degree, by means of a dangerous and deadly weapon, as that crime is defined by Section 4453, R.S Mo. 1939, and his punishment was assessed by the trial court at imprisonment in the State Pententiary for a term of thirty-five years.

The facts developed at the hearing of this case are as follows On August 11, 1943, the Peoples Bank at Hawk Point, Lincoln County, Missouri, was robbed.The petitioner testified at the hearing before this court, stating that he and two other men were arrested by the State Highway Patrol near Clarksville, Missouri, on August 11, 1943, and were taken by the State Highway Patrol to Kirkwood, Missouri, where they were questioned by these officers that day and then put in the jail at St. Charles, Missouri, for the night.The next day they were again taken to Kirkwood and the officer told him that one of his companions had confessed to the robbery and implicated him, that he, too, should confess.Petitioner, also, testified that he was told that if he did not confess, he would get "beat up" in the same manner that he had seen one of his companions treated the day before.He then signed a confession and was taken to the Lincoln County jail.On August 12, 1943, petitioner and his two companions were taken before a justice of the peace, A. T. Norton, for a preliminary hearing.Petitioner testified before us that he asked the justice of the peace for counsel and was told if he had any money he could hire one.The petitioner told the justice of the peace that the officers had his money, to which the justice of the peace replied, "That is not your money, it belongs to the bank."He told the justice of the peace that sixty dollars of the money the officers held did belong to him.He said that he waived a hearing before the justice of the peace on the advice of one of his companions.Also, he asked permission of the sheriff to telegraph his relatives in Ohio, but this request was denied him.He, also, stated that relying upon what the justice of the peace told him about having a lawyer, he did not ask the court to appoint him one at the time he was arraigned in the circuit court.At that time, he and his two companions pleaded guilty and he was given a thirty-five year sentence in the penitentiary.

In presenting this case, his attorney stated to this court that they did not deny the petitioner's guilt, but that petitioner contended his conviction was illegal because an attorney was not appointed to represent him.Other pertinent facts will be stated during the course of this opinion.

Petitioner first contends that the judgment and sentence of the trial court is illegal because he was not furnished an attorney at his preliminary hearing.We have recently ruled adversely to petitioner's contention in the case of Lambus v. Kaiser,352 Mo. 122, 176 S.W.2d 494.In that case, we said, "It has long been established by our decisions that a preliminary examination may be waived and is now so provided by statute.If the accused pleads and goes to trial without calling the court's attention to the State's failure to accord him such examination, he is held to waive it."The record shows that the petitioner, by affirmative action, waived the preliminary examination.If he had had counsel at that time, the magistrate would have been required to send for him if requested, (SeeSection 3867, R.S. Mo. 1939) but there is no constitutional provision, statute, or decision in this State requiring the justice to appoint counsel for prisoner at a preliminary examination.

Petitioner next contends that the circuit court should have appointed him counsel when he was arraigned.It is to be remembered that petitioner did not request the court to appoint him counsel.On the other hand, the petitioner pleaded guilty when he was arraigned.Even in this court, his counsel states in open court that "he did not deny his guilt."If he had made such request, no doubt the trial court would have appointed him counsel.Section 22, Article II, of our State Constitution provides, "In criminal prosecutions the accused shall have the right to appear and defend, in person and by counsel; . . ."This provision gives the accused only the right to be defended by counsel, a right denied him by English law until 1836.SeePowell v. Alabama,287 U.S. 45, 53 S.Ct. R. 55, l.c. 61, 77 L.Ed. 158, 84 A.L.R. 257, andBetts v. Brady,316 U.S. 455, l.c. 466, 62 S.Ct. R. 1252.No doubt this provision was embodied in our State Constitution to correct this abuse.

In aid of this constitutional provision, the Legislature of this State passed what is now known as Section 4003, R.S. Mo. 1939: "If any person about to be arraigned upon an indictment for a felony be without counsel to conduct his defense, and be unable to employ any, it shall be the duty of the court to assign him counsel, at his request, not exceeding two, who shall have free access to the prisoner at all reasonable hours."In this case, petitioner did not request counsel, and, therefore, waived the right to counsel.State v. Terry,201 Mo. 697, 100 S.W. 432;State v. Miller,292 S.W. 440.Under these circumstances, there is no duty on the trial court to appoint him counsel.

Petitioner, also, contends that under the Fourteenth Amendment of the Constitution, his conviction was invalid because the trial court failed to appoint him counsel.

To sustain his contention, he relies principally upon the case of Powell v. Alabama, supra.In that case, the Supreme Court of the United States said, "Under the circumstances . . . the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process . . ."That Court, further, said, "Whether this would be so in other criminal prosecutions, or under other circumstances, we need not determine.All that it is necessary now to decide, as we do decide, is that in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law . . ."

The facts in the case at bar, however, are very different from the facts in the Powell case.When the petitioner testified before us, he appeared to be a man above thirty years of age, and a man of average intelligence.He answered the questions propounded to him intelligently.He pleaded guilty in the trial court, and even in this court his counsel voluntarily stated that he did not deny his guilt.He stated to the justice of the peace that of the money the officer took from him, sixty dollars of that amount belonged to him, implying that the balance belonged to the robbed bank.

Neither can the case of Johnson v. Zerbst,304 U.S. 458, 58 S.Ct. R. 1019, be an authority for the petitioner's contention.That was a case in the Federal Court and involved the Sixth Amendment to the United States Constitution.That amendment applied only to trials in the Federal courts.Betts v. Brady, supra.

We think this case comes within the principle of law announced by the Supreme Court of the United States in the case of Betts v. Brady, supra.In that case, Betts was charged with the crime of robbery in the State of Maryland.He was unable to employ counsel to defend him, but the trial court refused to do so.He then brought a habeas corpus action in the Supreme Court of the United States on the ground that he had been denied due process as guaranteed by the Fourteenth Amendment in that he was forced to defend himself without the aid of counsel.That cou...