State v. Magrum

• Court: North Dakota Supreme Court
• Citation: State v. Magrum, 76 N.D. 527, 38 N.W.2d 358 (N.D. 1949)
• Decision Date: 13 June 1949
• Docket Number: 214.
• Parties: STATE v. MAGRUM.

38 N.W.2d 358

76 N.D. 527

STATE v. MAGRUM.

No. 214.

Supreme Court of North Dakota

June 13, 1949

Syllabus by the Court.

1. Remedy by motion in the original action is available, after the statutory time for a motion for a new trial has expired to a defendant who seeks to have a judgment of conviction against him set aside upon the grounds that such judgment was obtained by fraud or under such circumstances that the court was without jurisdiction.

2. A judgment of conviction obtained by fraud or duress will be set aside upon a properly supported motion made in the action in which the judgment of conviction was rendered.

3. In the absence of an effective waiver of counsel, the pronouncement of judgment of conviction upon a plea of guilty to the crime of murder in the first degree, against a defendant who did not have the assistance of counsel, who was only nineteen years of age, who had only an eighth grade education, who was not permitted to see or have the advice of his relatives and against whom the proceedings from preliminary hearing to arraignment and plea were rushed to completion in a little over an hour's time, is 'offensive to the common and fundamental ideas of fairness and right' and constitutes a denial of due process of law under the 14th Amendment to the Constitution of the United States.

4. A waiver of counsel by a defendant in a criminal case is not effective unless it is freely and understandingly made.

5. Upon a motion to set aside a judgment of conviction upon the grounds of fraud, duress or the denial of counsel, the burden of proof is upon the defendant to establish the facts upon which he relies as a basis for relief.

6. The evidence is considered and it is held: That defendant's plea of guilty and waiver of counsel in this case were not freely and understandingly made.

NUESSLE C. J., dissenting.

Nels G. Johnson, Attorney General, State of North Dakota, and James A. Clement State's Attorney, Adams County, Hettinger, for plaintiff-respondent.

Strutz & Jansonius, Bismarck, for defendant-appellant.

BURKE, Judge.

On November 27, 1935, in the District Court of Adams County, the defendant, Clarence Magrum, pleaded guilty to the crime of murder in the first degree. Judgment was entered pursuant to such plea and the defendant was sentenced to life imprisonment in the state penitentiary. On October 9, 1947, the defendant filed a motion in the same action, to set aside the judgment of conviction rendered against him, for permission to withdraw his plea of guilty, and for a new trial. The motion came on for hearing on February 13, 1948, before the Hon. G. Grimson, District Judge, sitting by request of one of the Judges of the District Court of Adams County. Thereafter the district court made and entered an order denying the motion and the instant appeal is from that order.

The grounds upon which the defendant asked relief are:

1. That the Judgment of Conviction was obtained by fraud and deceit, and is therefore, absolutely void.

2. That the defendant was not accorded the right of assistance of counsel, as guaranteed by the Constitution of the United States and the Constitution of the State of North Dakota, and that therefore, the imprisonment of said defendant is illegal.

3. That defendant was not informed of his Constitutional rights by the trial court, as provided by Law, and the Constitution, and was not apprised of the consequences of his act in pleading guilty to the charge preferred against him, and that therefore, the imprisonment of the defendant is illegal.

4. That no Clerk of Court was present at the time the defendant was brought before the Court for trial, and sentenced, and said court was not a duly constituted Court to try this defendant.

Although no question is raised as to the propriety of the procedure followed by the appellant in the district court, we believe we should state, that even though the statutory time for making a motion for a new trial had expired, the remedy by a motion to set aside the judgment, made in the action in which the judgment was rendered, is available to the defendant when the grounds of his motion are that the judgment was obtained by fraud or under such circumstances that the court was without jurisdiction. This has long been the rule in this state in civil actions. Yorke v. Yorke, 3 N.D. 343, 55 N.W. 1095; Williams v. Fairmount School District, 21 N.D. 198, 129 N.W. 1027; Lamb v. King, 70 N.D. 469, 296 N.W. 185; Baird v. Ellison, 70 N.D. 261, 293 N.W. 794; Schillerstrom v. Schillerstrom, N.D., 32 N.W.2d 106. While the rule has never been applied in criminal actions, the reasons for its application there are more cogent than for its application in civil actions. The power to grant such relief is inherent in courts of general jurisdiction. Williams v. Fairmount School District, supra. In a criminal case the motion is analogous to an application for a writ coram nobis. People v. Reid, 195 Cal. 249, 232 P. 457. 36 A.L.R. 1435; People v. Paysan, 123 Cal.App. 396, 11 P.2d 431; People v. Lyle, 21 Cal.App.2d 132, 68 P.2d 378.

If the evidence adduced by the defendant at the hearing established the facts set forth in his motion as grounds for relief he is entitled to have the motion granted. In People v. Campos, 3 Cal.2d 15, 43 P.2d 274 it was said: 'Where on account of duress, fraud, or other fact overreaching the free will and judgment of a defendant he is deprived of the right of a trial on the merits, the court in which of was sentenced may after judgment and after the time for appeal has passed, if a properly supported motion is seasonably made, grant him the privilege of withdrawing his plea of guilty and of reassuming the situation occupied by him before plea of any kind was entered. People v. Schwarz, 201 Cal. 309, 314, 257 P. 71;' See also State v. Calhoun, 50 Kan. 523, 32 P. 38, 18 L.R.A. 838, 34 Am.St. 141; Sanders v. State, 85 Ind. 318, 44 Am.St.Rep. 29; Ernst v. State, 179 Wis. 646, 192 N.W. 65, 30 A.L.R. 681.

It is also clear that the failure of a trial court to provide an attorney for a defendant upon his arraignment may in some instances deprive the defendant of 'due process of law' under the 14th Amendment to the Federal Constitution and thereby render the judgment against him void. This is so if the conviction and incarceration are 'offensive to the common and fundamental ideas of fairness and right.' Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 1262; 86 L.Ed. 1595; 1607; See also Bute v. Illinois, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 735. Recently in the case of Uveges v. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 185, the Supreme Court has made clear the views of its members upon the question of when a failure to furnish counsel to a defendant in a criminal case 'is offensive to the common and fundamental ideas of fairness and right.' In the decision in that case it was held: 'Some members of the Court think that where serious offenses are charged, failure of a court to offer counsel in state criminal trials deprives an accused of rights under the Fourteenth Amendment. They are convinced that the services of counsel to protect the accused are guaranteed by the Constitution in every such instance. See Bute v. People of Illinois, 333 U.S. 640, dissent, 677-679, 68 S.Ct. 763, 782, 783, 92 L.Ed. 986. Only when the accused refuses counsel with an understanding of his rights can the court dispense with counsel. Others of us think that when a crime subject to capital punishment is not involved, each case depends on its own facts. See Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595 [1601]. Where the gravity of the crime and other factors--such as the age and education of the defendant, the conduct of the court or the prosecuting officials, and the complicated nature of the offense charged and the possible defenses thereto--render criminal proceedings without counsel so apt to result in injustice as to be fundamentally unfair, the latter group hold that the accused must have legal assistance under the Amendment whether he pleads guilty or elects to stand trial, whether he requests counsel or not. Only a waiver of counsel, understandingly made, justifies trial without counsel.'

While there is a division of opinion among the members of the Supreme Court of the United States upon the question of when a failure to provide counsel to a defendant in a criminal case violates the due process clause of the 14th Amendment, they are unanimous that in a case of this nature, where in the crime charged, there are several included offenses of a lesser degree, where the defendant is a youth of 19 years and his education is scant and where it is contended that the conduct of the prosecuting officers justifies an inference that they were seeking to protect other persons who were to some extent involved in the crime, the failure to provide counsel does constitute a violation of the due process clause in the absence of an effective waiver.

In order for a waiver of counsel to be effective it must be freely and understandingly made. In his separate opinion in Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 325, 92 L.Ed. 309 Justice Frankfurther stated: 'Of course an accused 'in the exercise of a free and intelligent choice, and with the considered approval of the court * * * may * * * competently and intelligently waive' his right to the assistance of counsel guaranteed by the Sixth Amendment. Adams v. United States, 317 U.S. 269, 275, 63 S.Ct. 236, 240, 87 L.Ed. 268, 272, 143 A.L.R. 435; and see Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263; and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357. There must be both the capacity to make an understanding choice...