State v. Huffman

• Decision Date: 23 May 1956
• Citation: 207 Or. 372,297 P.2d 831
• Parties: The STATE of Oregon, Respondent, v. Sam HUFFMAN, Appellant.
• Court: Oregon Supreme Court

Page 831

297 P.2d 831

207 Or. 372

The STATE of Oregon, Respondent, v. Sam HUFFMAN, Appellant.

Supreme Court of Oregon, En Banc.

Argued Dec. 7, 1955.

Decided May 23, 1956.

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

No brief filed and no appearance for respondent.

BRAND, Justice.

On 21 September 1950 in the circuit court for Lincoln county, the defendant, Sam Huffman, was sentenced to the penitentiary for a maximum term of three years upon the charge of larceny by bailee. On the 18th day of December, 1952, the defendant filed in that court and cause a motion in the nature of coram nobis, seeking an order vacating the judgment previously entered on the 21st day of September, 1950, and granting the defendant leave to withdraw his plea of guilty and to enter a plea of not guilty. The record fails to show any action by the court upon the original motion, except as hereinafter indicated. On 30 December 1954 the defendant filed a supplemental motion to vacate judgment, accompanied by affidavits. On 21 March 1955 an order was entered denying the defendant's motion and supplemental motion, from which order the defendant has appealed.

The history of the original Lincoln county prosecution and trial is as follows: On 18 September 1950 there was filed in the circuit court of Lincoln county an information of the district attorney on waiver of indictment, charging the defendant Sam Huffman with the crime of larceny by bailee, and on the same day there was entered in said court an order entitled 'Waiver and presentment of indictment'. The order recited that the defendant appeared in person and by his attorney and that said defendant.

'having heretofore expressed his desire to waive indictment and presentment by the grand jury * * * and having communicated to the district attorney his desire to waive indictment as aforesaid and to enter his plea of guilty to said charge and now in open court, states that he waives the finding and presentment of an indictment by the grand jury * * * and requests the court to enter an order authorizing and directing that the waiver of the defendant be entered in the records of this court and directing the district attorney to file in this court an information charging * * * the crime of larceny by bailee.'

The order further recites that

'the court being fully advised does here and now fully advise said Sam Huffman of his right to demand indictment for said crime by the grand jury * * * but notwithstanding said defendant still waives his right to being indicted and requests proceedings in accordance with the foregoing waiver.'

Therefore the court ordered that the waiver be entered of record and that the district attorney file an information. On the same day the defendant signed a 'waiver', which reads as follows 'The undersigned, Sam Huffman, having been accused of the crime of larceny by bailee, committed in Lincoln County, Oregon on August 1, 1950, and being fully advised as to my statutory and constitutional rights, including my right to have said matter presented to the Grand Jury, and after being so advised, freely and voluntarily waive presentment of said matter to the Grand Jury and consent to the filing of an information by the District Attorney of Lincoln County, Oregon charging me with the crime of larceny by bailee.

'Dated this 18th day of September, 1950.

'Sam Huffman'.

On the same day the record shows by journal entry that the defendant appeared in court; was arraigned in open court on information of the district attorney, and that he entered a plea of guilty. It is further recited that the 'defendant waived time to be sentenced 'now". Sentence was postponed until September 25, 1950. On September 20, 1950 a journal entry shows that the defendant appeared in court in person. 'Witnesses were questioned by the court.' The defendant was given until 1:30 for sentence. After the noon recess the defendant asked to change his plea to not guilty. The State of Oregon objected to a change of plea at that time. The court postponed sentence to consider the defendant's request. On September 21, 1950 the court denied the motion of the defendant for leave to change his plea and sentenced the defendant to the state penitentiary for not to exceed three years.

The motion filed by the defendant on 18 December 1952 wherein he sought an order vacating the sentence theretofore imposed, was based upon the following allegation as contained in the motion, to wit: On the ground that the defendant's plea of guilty was induced and 'brought about by fraud, misrepresentation and trickery directed to and perpetrated upon the above entitled court, the State of Oregon and the defendant in the prior proceedings herein', and upon the further ground that the denial on September 21 of the defendant's request to withdraw his plea of guilty 'was based upon fraud, misrepresentation, trickery and perjury on the part of one Roy Myers, the complaining witness herein directed to and perpetrated upon the above entitled court, the State of Oregon and the defendant.' In support of the motion the defendant attached five affidavits.

It appears from the information charging defendant with the crime of larceny by bailee that the charge was based upon the allegation that defendant was bailee of certain personal property, to wit: a power saw of the value of $150, the property of Roy Myers, and it was alleged that the defendant did wilfully, unlawfully and feloniously fail and neglect and refuse to deliver, keep and account for said property, according to the nature of his trust.

The affidavit of the defendant Huffman was to the effect that he was innocent of the crime stated in the information; that he was the owner of the power saw, which he had purchased, and that at the time he asked permission to enter a plea of not guilty on September 20, 1950 he had been told 'by persons close to, and apparently officers of the court, and 'it was my understanding that the criminal charges were going to be dropped and that the case was to go on as a civil case to collect money that I owed Roy Myers.'' He further swears that with reference to the journal entry of September 20, 1950, reciting that witnesses were questioned by the court, the principal witness questioned was Roy Myers, and that Roy Myers deliberately lied to His Honor Judge Fred McHenry, when he told the court that he had only loaned the saw to him. He states further that when he realized that the charges were not going to be dropped, he tried in every way possible to obtain legal counsel but was unable to do so. It was not possible for him to communicate his desire for counsel to the court for the reason that he was denied all avenues of communication to counsel and to the court.

An affidavit filed by one Mary Taylor supported the affidavit filed by the defendant Huffman. She swore, in substance, that she had heard conversation between Myers and Huffman indicating that Myers had actually sold the saw to Huffman. The affidavit of L. E. Crow was to the same effect. Affidavits of C. R. Harrison and Kenneth Donald Ridenour were to the effect that they were in the Lincoln County Jail when Huffman was there, and their statements tend to support Huffman's claim that he was denied counsel.

On the 30th day of December 1954 Huffman filed in the circuit court for Lincoln county a supplemental motion to vacate the judgment of conviction. The motion, after reciting defendant's conviction and sentence, alleges that on 22 August 1951 defendant Huffman as plaintiff filed a petition for a writ of habeas corpus in the circuit court for Marion county, alleging that his conviction was void. The motion further alleges (and the facts in this respect are as alleged), that the circuit court of Marion county dismissed the habeas corpus proceeding; that Huffman appealed to this court, and that on 6 December 1952 this court reversed the judgment of dismissal and remanded the habeas corpus case to the circuit court for Marion county for further proceedings. See Huffman v. Alexander, 197 Or. 283, 251 P.2d 87, 253 P.2d 289. Defendant recites the further facts that the defendant warden of the penitentiary filed a petition for rehearing which was denied by this court and that we then dismissed the habeas corpus proceeding on the ground that the case was moot because the defendant had already been released from the penitentiary. See our opinion, 197 Or. 331, 253 P.2d 289. Huffman as plaintiff in the habeas corpus case filed a petition for rehearing which was denied. The supplemental motion filed in the circuit court for Lincoln county continues as follows:

'On the 22nd day of September 1952, after the habeas corpus case hereinabove identified had been argued and submitted in the Supreme Court of Oregon, and while the Cause was pending therein, the Defendant therein, George Alexander, discharged the Defendant herein, Sam Huffman, from the Oregon State Penitentiary.

'Said discharge of Sam Huffman was unauthorized by law or by any Court, and was and is wholly unlawful in that at the time of discharge he had not and would not have completed service of said sentence by the time of the aforesaid decision of the Supreme Court of Oregon, rendered on the 6th day of December 1952, remanding the Cause for new trial, even after deducting therefrom the maximum amount of time authorized by statute for good behavior; and that the Defendant in said habeas corpus proceeding neither obtained nor requested permission of the Supreme Court of Oregon to release the said Sam Huffman from custody, and said discharge by the Warden of the Oregon State Penitentiary, Defendant in the said habeas corpus case then pending as aforesaid, was not upon order or authorization of any other Court, or of any person official, board or agency.

'Neither party to said habeas corpus proceeding ever at any time requested that the said case be dismissed because...