Smallman, Application of

Citation291 P.2d 749,206 Or. 262
PartiesApplication of Claude Revington SMALLMAN for a Writ of Habeas Corpus. Claude Revington SMALLMAN, Appellant, v. Clarence T. GLADDEN, Warden of the Oregon State Penitentiary, Respondent.
Decision Date30 December 1955
CourtSupreme Court of Oregon

Merlin Estep, Jr., Salem, argued the cause for appellant. On the brief were Hewitt, Estep & Sorensen, Salem.

Lloyd G. Hammel, Asst. Atty. Gen., argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen.

BRAND, Justice.

The plaintiff filed a petition for a writ of habeas corpus in the Circuit Court of the State of Oregon for Marion County. The defendant Gladden as warden of the penitentiary made his return against which the plaintiff filed an amended and supplemental traverse. The defendant demurred to portions of the traverse and filed a general denial as to the rest. The demurrer was sustained. Thereafter the issues of fact were tried by the court. The proceeding was dismissed and the defendant was remanded to the custody of the defendant. Plaintiff appeals.

The return to the writ is in usual form. It sets forth the judgment of conviction under the authority of which the defendant was holding the plaintiff as a prisoner. The judgment reads as follows:

'Now, on this day comes the State or Oregon, by Ben C. Flaxel, District Attorney, and the defendant above-named, in person, the said Claude Revington Smallman having heretofore duly entered his plea of Guilty of the crime of assault with intent to kill and said defendant waived further time and asked the Court to pronounce judgment against him at this time, no motion having been filed in arrest of judgment, the said defendant being asked by the Court if he had anything to say why judgment should not be pronounced against him answered, showing no good or sufficient cause.

'It Is, Therefore, Considered, Ordered And Adjudged, by the Court, that said defendant be confined in the penitentiary of this state, a prisoner, and there kept a prisoner for a maximum period of Twenty (20) Years.

'Dated November 4, 1947.'

In his traverse the plaintiff admits that he is in custody of the warden and denies the other allegations of the return except as specifically admitted or alleged. Plaintiff alleges that he was arrested on 25 October 1947, charged with assault with intent to kill, and that he made no appearance in the circuit court or before any judge thereof except on 4 November when sentence was imposed. Plaintiff then alleges substantially all recognized grounds for holding that the proceedings were violative of constitutional rights. The allegations may be summarized as follows: He was subjected to torture; he was threatened with long-continued incarceration without trial unless he would waive grand jury investigation and his right of counsel; he was at all times denied counsel or contact with counsel; to avoid torture he signed a waiver of indictment and agreed not to ask for counsel, and to plead guilty; he was 'rushed' into court 'whereupon the presiding judge, after asking plaintiff a few questions, imposed sentence upon him'; he was then 'in great pain and in an advanced state of fatigue'; he was not guilty of the crime charged. The defendant warden denied the allegations. The charges, if proven true, would classify the case as on a par with the most perverted and depraved practices of the Nazi judicial system at its worst.

The issues were tried. Counsel for plaintiff expressly conceded that the question of guilt or innocence was not before the court. Plaintiff identified no one who committed the alleged acts of coercion and torture. He admitted he knew of his right to counsel. He admitted he signed the waiver. He admitted he knew the effect thereof. He understood he had waived his rights. He admits a lawyer consulted with him. His arrest was on 25 October 1947, at which time he claims he was grossly intoxicated. The record shows that on 28 October an information was filed in justice court charging assault with intent to kill. An order was made fixing his bail and committing him to the custody of the sheriff. The order is in evidence and contains the following recitals:

'That on October 28, 1947, the Defendant appeared in this Court on the above charge. Defendant was informed of the charges against him, and of his right to the aid of counsel before any further proceedings were had. Defendant waived his right to have an attorney, and said that he did not want an attorney. The rights of the Defendant were duly explained to him after the information was read to him and the charge explained. The Defendant said that he did not desire to have a preliminary examination; that he wanted to waive everything in this court; that he did not care to have witnesses called, and did not desire to make a statement; that he wanted his case disposed of as soon as possible without waiting for the Grand Jury.'

On 4 November plaintiff signed a waiver of grand jury indictment and consented to the filing of an information. The instrument was acknowledged in usual form by the county clerk. We quote from the signed waiver:

'Comes Now Claude Revington Smallman the above named defendant and being of the age of _____ years, and after being fully advised of and well knowing his right to Grand Jury investigation and to be tried in this Court upon the charge of Assault with Intent to Kill only after the return by the Grand Jury of Coos County, Oregon, of an Indictment charging him with such offense, unless he waive the same, and

'Whereas, the said Claude Revington Smallman, defendant, is charged by an information filed in the Justice's Court for Justice of the Peace and Constable District Number 2 for Coos County, Oregon, with the crime of Assault with Intent to Kill and has been duly held to answer by said magistrate and which said charge on said information is now pending action of the Grand Jury of Coos County, Oregon.

'Now Therefore, the said Claude Revington Smallman, being fully advised as above set forth and being accused as hereinabove stated, does hereby freely and voluntarily in open Court and also by this, his written waiver by him duly signed and executed, hereby waive and relinquish his right to investigation by the Grand Jury of Coos County, upon the said information and charge and does hereby consent that the District Attorney for Coos County, Oregon, may file an information in the Circuit Court of the State of Oregon for Coos County charging him with the said crime and does hereby by this written waiver and appearance herein, agree that he may be tried upon the said charge upon such information to be filed by the District Attorney of Coos County, Oregon. * * *.'

The trial judge made an order on the waiver reciting in part that the defendant (plaintiff here) 'now, in open court, states that he waives the finding and presentment of an indictment * * *', etc. Another journal entry signed by the trial judge recites that the defendant 'being now in Court * * * was by the Court informed of his right to counsel * * * but waived his right to counsel', and also that defendant 'waives all further time * * * and prays the Court to answer at this time.' A third journal entry recites his waiver of right to counsel, and his plea of guilty.

Testimony of the former county clerk, the then district attorney, the sheriff, and the lawyer who consulted with defendant, was heard in the habeas corpus proceedings in the circuit court of Marion County. Officers denied any acts of violence and testified that they had no knowledge of any misconduct. They verified, though it was unnecessary to do so, the recitals in the journal, entries. Huffman v. Alexander, 197 Or. 283, 251 P.2d 87, 253 P.2d 289. They contradicted other statements of the plaintiff. The only witness at the Marion County hearing who partly corroborated small portions of plaintiff's testimony was a former inmate of the county jail, who testified that he was a trusty. This was denied by the sheriff.

The evidence was such that the trial court was warranted in finding that the plaintiff was unworthy of belief and, in an opinion, it held that the plaintiff 'has failed to establish his case by a preponderance of the evidence' and that the habeas corpus proceedings should be dismissed. It was so ordered.

Three assignments of error are submitted as to the portion of the case involving the trial on the merits. They assert error in regard to (1) the decision on the waiver of indictment, (2) waiver of right to counsel, and (3) waiver of right to trial by jury. The plaintiff had the burden of impeaching the validity of the process under which he was being held. In re Application of Loundagin, 129 Or. 652, 278 P. 950; Anderson v. Alexander, 191 Or. 409, 229 P.2d 633, 230 P.2d 770, 29 A.L.R.2d 1051. The proceeding is in the nature of an action at law resulting in a judgment. The statute provides for appeal 'in like manner and with like effect as in an action.' ORS 34.710. The credibility of the plaintiff and his witness was for the trial court. Its decision on the facts is conclusive here.

The other issues in this case relate to the orders of the trial court sustaining demurrers of the defendant to several affirmative pleas in the plaintiff's traverse by which plaintiff sought to impeach the validity of the judgment of conviction set forth in the return of the warden. The issues will be considered in the light of the well-established rule that unless it is made to appear that the judgment was absolutely void no relief can be had in habeas corpus. Mere errors or irregularities which render the proceedings merely voidable cannot be reached by this procedure. ORS 34.330; Ex parte Tice, 32 Or. 179, 182, 49 P. 1038; Ex parte Foster, 69 Or. 319, 138 P. 849; In re Application of Davis, 118 Or. 693; 247 P. 809; Kelley v. Meyers, 124 Or. 322, 263 P. 903, 56 A.L.R. 661; In re Application of Loundagin, 129 Or. 652, ...

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  • City of Klamath Falls v. Winters
    • United States
    • Oregon Supreme Court
    • October 21, 1980
    ...P.2d 921. This same determination that the conviction would be void will also support a habeas corpus petition. Smallman v. Gladden, 206 Or. 262, 269-70, 291 P.2d 749 (1956).Next, in holding that a delayed appeal was appropriate relief under the Post-Conviction Hearing Act by virtue of ORS ......
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