State ex rel. Baker v. Jameson

• Decision Date: 19 July 1949
• Docket Number: 9063
• Citation: 72 S.D. 638,38 N.W.2d 441
• Parties: STATE OF SOUTH DAKOTA, ex rel. ORIEN BAKER, Appellant, v. G. NORTON JAMESON, Respondent.
• Court: South Dakota Supreme Court

72 SD 638, 38 NW2d 441 (1949)

STATE OF SOUTH DAKOTA,

ex rel. ORIEN BAKER,

Appellant,

v. G. NORTON JAMESON,

Respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Lucius J. Wall, Judge

#9063—Affirmed

T. R. Johnson, Edwin C. Parliman, Sioux Falls, SD

Attorneys for Appellant.

Sigurd Anderson, Attorney General

William J. Flittie, Assistant Attorney General, Pierre, SD

Attorneys for Respondent.

Opinion Filed Jul 19, 1949

SMITH, Presiding Judge.

This appeal, in a habeas corpus proceeding from an order of the circuit court remanding appellant to the custody of the warden of the penitentiary of South Dakota, presents the question whether the trial of appellant on a charge of manslaughter in the first degree was so infected with unfairness as to impel a holding that the judgment of conviction upon a plea of guilty is void under the due process provisions of the Fourteenth Amendment of the Constitution of the United States, and § 2, Article VI of the Constitution of South Dakota.

Prior to the 31st day of August 1943, one William Sturges, an incompetent cousin of appellant, had been placed in the custody of appellant. On that day Sturges died at appellant’s ranch home. The body bore evidence of extreme violence. There were multiple cuts through to the scalp. There were also healed scalp scars. There was hemorrhage of both eyes, and crusted wounds of the forehead and face. Certain teeth were knocked out and others were hanging loose. There were multiple lacerations, crusted wounds and contusions over the body, arms and hands.

On September 1st, 1943, appellant was arrested and charged with the murder of Sturges. The record of the committing magistrate shows that appellant was brought before the court on that day; that the complaint was read to him; that he was fully advised of his constitutional rights; and that September 6th, 1943, at ten o’clock A. M. was fixed as the time for holding a preliminary hearing. The transcript of the reporter of the proceedings had on September 6th, 1943, records the appearance of the appellant in person and by his attorney, C. E. Kell. At that time the state filed and there was read to the defendant an amended complaint charging the appellant with the crime of manslaughter in the first degree. Thereupon, in the presence of appellant and his attorney, the state’s attorney said,

“At this time, the defendant having signified his desire to plead guilty to the charge of manslaughter in the first degree, the state states that his plea of first degree manslaughter will be accepted, and the plea of guilty under this information will be considered as a plea of guilty of manslaughter in the first degree.”

Neither Mr. Kell nor Baker questioned the truth of this representation by the state’s attorney. Thereafter the defendant waived preliminary examination and was bound over to circuit court on both charges.

The foregoing proceedings were had at White River, in Mellette County. On the following day the sheriff transported appellant a distance of approximately one hundred miles to Bonesteel for arraignment before the circuit court. At the arraignment appellant appeared without counsel. However, on that occasion in moving the dismissal of the charge of murder, and making the arraignment on the charge of manslaughter in the first degree the state’s attorney, in the presence of the appellant, said,

“I might say to the record that Mr. Baker was represented at the preliminary examination by Mr. C. E. Kell, and that the negotiations concerning the dropping of the murder charge and the filing of the first degree manslaughter charge were all conducted through Mr. Kell and the defendant himself.” This statement of the state’s attorney was not challenged by appellant.”

After ascertaining that applicant understood not only the meaning of the charge, but that it was a felony involving imprisonment in the penitentiary, the court informed appellant that he was entitled to be represented by counsel. Although defendant was able to provide himself with counsel, when informed that the expense of counsel would be upon him, he advised the court that he didn’t believe he wanted an attorney. Thereupon, without any further explanation of the rights of a defendant so charged, the court accepted appellant’s plea of guilty, and sentenced him to twenty years in the penitentiary.

The record of the interrogation by the court after receiving appellant’s plea includes the following questions and answers:

Q. How did this happen that caused this fight or whatever it was that caused the death of this man?

A. Well, those cuts and places on his head, I didn’t know they were on there.

Q. Well, there was some fight or something there, wasn’t there?

A. No, we didn’t have no fight.

Q. Did you beat him up?

A. Not with no clubs or anything like that.

Q. With your fists?

A. No.

Q. Didn’t hit him at all?

A. I slapped him a few times at different times, a little.

Q. What did you do that for?

A. Oh, just little arguments.

Q. How old was he?

A. Around thirty-nine, I believe.

Q. Was he any relation to you?

A. Cousin.

Q. Was he living with you?

A. Yes sir. ...

Q. What time of day did this happen?

A. When he passed away, you mean?

Q. When you slapped him.

A. Well, that had been quite a while before his death., I would say a month or so.

Q. And there was no more trouble up till the time of his death?

A. No.

Q. Did you ever kick him and beat him more than that once?

A. Well, that first time was when we was working on the dam. We had a little dispute.

Q. What happened there?

A. Oh, nothing much, I just booted his pants a little.

...

Q. You told about two altercations or fights or whatever there were with him. Weren’t there more than that?

A. More than two? No.

Thereupon the state’s attorney stated,

“I want to say to the record that, of course, what this man says now probability doesn’t make a great deal of difference. ... I want to say to the Court that those who saw this body will agree that they never before saw a human body that was pounded and beaten and in the shape this was in.”

Whereupon appellant stated, “He worked every day up till his death.” And after further questioning stated, “Well, about a week ago this Monday—no—this is Tuesday, isn’t it? About a week ago tomorrow or next day we was stacking hay and the team backed a hay buck over him and throwed him around under it.”

The testimony of appellant given at the habeas corpus hearing embraced the following statements of fact. He is a native of this state and was over forty years of age at the time in question. He had quit school when in the eighth grade. He had a wife and two daughters. The family lived upon a farm or ranch he owned, and he operated additional land. His net worth was over $5,000 at the time of his arrest. He denied any connection with the death of the deceased, and expressed the opinion that death resulted from injuries received by deceased when the team backed a hay bucker over him several days before his death. He was arrested on September 1st, 1943. He did not hire Mr. Kell as his lawyer. He talked with him just once on the morning of September 6th, 1943, but he did not relate the substance of his conference with Mr. Kell. He admits Mr. Kell was at the hearing before the committing magistrate on September 6th, 1943. He denied any knowledge of court procedure. He admitted that he was a witness for the state in a criminal case on one occasion and that he knew at the time of his plea that terms of court were held where defendants accused of crimes were tried before juries. He could not remember many of the things the record reveals about his appearance before the committing magistrate and his arraignment.

Among other things the trial court found “that defendant, Baker, while said charges were pending against him, had ample opportunity to, and did, consult freely with his said attorney, C. E. Kell, about the charges against him and his constitutional rights” and that

“Contrary to the allegations in defendant’s application for a writ of habeas corpus herein, the defendant was not denied the assistance of counsel for his defense, and that defendant knew and was advised of his right to counsel, both in the Justice Court and before the Circuit Court; and that defendant did knowingly and intentionally, and with knowledge of his rights, plead guilty and receive sentence.”

The contention here is that due process was not accorded accused because, being without counsel on the arraignment and being unfamiliar with court procedure, and uninformed as to his rights, the court failed to completely instruct and advise him as to his rights in the premises, and hence that his rights were not intelligently and competently waived. Point is made of the fact that the court did not furnish appellant with a copy of the information or advise him that he was entitled to such a copy, and that he did not further advise the accused that he was entitled to a speedy public trial before an impartial jury of Mellette County, to compulsory process for witnesses on his behalf and to be confronted with witnesses against him.

As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial: “the acts complained of must be of such quality as necessarily prevent a fair trial.” Lisenba v. California, 314 US 219, 62 SCt 280, 290, 86 LEd 166. The right to defend in a criminal prosecution in person and by counsel is assured by § 7, Art. VI of the constitution, and SDC 34.3506 provides that counsel must be assigned to an indigent accused. We are of the view that neither the described provision of §, 7 Art. VI, nor the due process requirement of § 2, Art. VI of our constitution impose a requirement that every defendant in a...