State v. Hizel

• Decision Date: 28 April 1967
• Docket Number: No. 36520,36520
• Citation: 181 Neb. 680,150 N.W.2d 217
• Parties: STATE of Nebraska, Appellee, v. John HIZEL, Jr., Appellant.
• Court: Nebraska Supreme Court

Page 217

150 N.W.2d 217

181 Neb. 680

STATE of Nebraska, Appellee, v. John HIZEL, Jr., Appellant.

No. 36520.

Supreme Court of Nebraska.

April 28, 1967.

Syllabuse by the Court

1. The purpose of the Post Conviction Act, Chapter 29, article 30, R.S.S.upp. 1965, is to provide a remedy to a convicted defendant in a criminal action whose rights under the state or federal Constitutions have been denied or infringed so as to render the judgment and sentence void or voidable.

2. The Post Conviction Act specifically authorizes the trial court to examine the files and records and to determine whether or not a prisoner may be entitled to the relief he seeks. If the trial court finds from such examination that the proceeding is without foundation, an evidentiary hearing may properly be denied.

3. A motion to vacate a judgment and sentence under the Post Conviction Act cannot be used as a substitute for an appeal or to secure a further review of issues already litigated.

4. Under section 29--3004, R.S.Supp., 1965, of the Post Conviction Act, it is within the discretion of the district court as to whether or not legal counsel shall be appointed to represent a defendant on appeal to this court and, in the absence of a showing of abuse of discretion, the failure to appoint counsel is not error.

John Hizel, Jr., pro se.

Clarence A. H. Meyer, Atty. Gen., Richard H. Williams, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.

CARTER, Justice.

This is an appeal from the overruling of a motion to vacate a conviction and sentence for second degree murder brought under the provisions of the Post Conviction Act.

The record shows that on October 15, 1964, the defendant, John Hizel, Jr., was charged in the district court for Scotts Bluff County with unlawfuly and feloniously, purposely and maliciously, but without deliberation and premeditation, killing Elbert Eugene Hendren. Defendant filed proof of indigency and the trial court appointed Willard F. McGriff, the public defender of Scotts Bluff County, to represent the defendant as his legal counsel. Subsequently, on request, the court appointed Alfred J. Kortum, a member of the bar, to assist in defendant's defense. The two named attorneys represented defendant in his trial in the district court. Defendant was found guilty by a jury and sentenced to life imprisonment by the court. An appeal was taken to the Supreme Court and the judgment and sentence were affirmed in State v. Hizel, 179 Neb. 661, 139 N.W.2d 832. In his appeal to the Supreme Court, defendant was represented by the same two attorneys. The opinion of the Supreme Court was filed on January 28, 1966.

On September 19, 1966, defendant filed his motion to vacate the judgment of conviction and sentence on two grounds, first, that he was interrogated by the sheriff and other law enforcement officers without advising him of his right to remain silent and in not advising him of his right to legal counsel, and, second, that defendant was incapable of malice and wrongful intent. The trial court, after a consideration of the motion to vacate and an examination of the files and records of the case, denied an evidentiary hearing. Defendant filed notice of appeal and requested the appointment of counsel at the expense of the state which was likewise denied. Defendant brought his appeal to this court pro se. The transcript of the pleadings and the evidence taken in defendant's trial for second degree murder are before the court under the rule adopted in State v. Fugate, 180 Neb. 701, 144 N.W.2d 412.

It is contended by the motion filed in the post conviction proceeding that because of the condition of the defendant at the time of the alleged crime, defendant could not have had a purpose to kill and was incapable of the malice required to be proved by the State. This issue was tried before the jury. Defendant called a neuropsychiatrist who testified as to his mental deficiency and brain damage, and the contribution made to his mental deterioration by a history of excessive drinking. The issue of malice and purpose to kill was submitted to the jury under proper instructions. The jury found against the defendant on the issue and, on appeal, this court affirmed. The defendant is not entitled to have the issue retried in a post conviction proceeding. State v. Clingerman, 180 Neb. 344, 142 N.W.2d 765; State v. Parker, 180 Neb. 707, 144 N.W.2d 525; State v. Sheldon, 181 Neb. 360, 148 N.W.2d 301.

Defendant further alleges that he was interrogated by law enforcement authorities without being advised of his right to remain silent and to have legal counsel These do not appear to have been issues on the appeal from his conviction. The reasons why the issues were not presented are that there was no police interrogation of the defendant,...