Suit v. Ellis
| Decision Date | 07 September 1960 |
| Docket Number | No. 18128.,18128. |
| Parties | Lowell Edward SUIT, Petitioner, v. O. B. ELLIS, Director of Texas Department of Corrections, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard C. Baldwin, New Orleans, La., Lowell Edward Suit, Huntsville, Tex., for petitioner.
John L. Estes, Asst. Atty. Gen., Tom I. McFarling, B. H. Timmins, Jr., Linward Shivers, Asst. Attys. Gen., for respondent.
Before RIVES, Chief Judge, and CAMERON and WISDOM, Circuit Judges.
The sole question we shall discuss in this appeal is whether the Texas Court which tried the appellant did so in such manner as to deprive him of due process of law or its equal protection by failing to give due effect to Texas rules of criminal procedure. Petitioner makes no attack upon the statute1 of Texas which governs applications for continuance nor upon its application as reflected in the Texas decisions.
This case originated in the trial and conviction of petitioner in a Texas court, on the charge of possession and sale of heroin in violation of a state law, after his written application for continuance because of his alleged inability to obtain the attendance of a material witness had been denied. Subsequent thereto, petitioner perfected his appeal to the Court of Criminal Appeals of Texas whose opinion, dealing with this question and affirming the conviction, is reported in Suit v. State, 1955, 161 Tex.Cr.R. 22, 274 S.W.2d 701. The appellant's application for writ of certiorari from that decision was duly denied by the United States Supreme Court, 1959, 359 U.S. 920, 79 S.Ct. 601, 3 L.Ed.2d 582.
Petitioner then filed petition for writ of habeas corpus in the court below, invoking federal jurisdiction pursuant to § 2241 et seq., Title 28 U.S.C.A., claiming that his rights under the Fourteenth Amendment of the Constitution had been denied him because of the trial judge's refusal to grant his motions for continuance and for a new trial. The court below did not issue the writ prayed for by petitioner nor did it issue a show cause order to the respondent. The correctness of the ruling of the court below is, therefore, to be tested entirely on the face of the application and its exhibits. These control wherever there is conflict between them and the allegations of the petition.
In the petition for writ of habeas corpus petitioner alleges that his "restraint is illegal, contrary to and violative of the Fourteenth Amendment of the Constitution of the United States in that he was denied a compulsory process for obtaining a witness in his favor, and deprived of a witness who would have testified the petitioner was not guilty, and completely out of County of Harris, Texas when the offense was committed and testimony of witness was very material to defense of petitioner in that he was relying upon the testimony for an acquittal." Exhibited with the petition is a copy of his motion for continuance, which was filed in the state court, sworn to by petitioner and containing these recitals:
* * *"
The petition for writ of habeas corpus also had attached to it a copy of a motion for new trial, which was filed in the trial court in Texas on June 11, 1954, after the indictment had been returned and filed April 15, 1954 and the motion for continuance had been filed on June 8, 1954.2
In construing the sections of the Revised Statutes governing motions for continuance, the Texas Courts have been, as far as we can find, of one mind in holding that the motion must be accompanied by an affidavit of the absent witness himself, or by an affidavit of someone who knows both that the witness would testify to the facts set forth and that his attendance at court to give such testimony can be procured. In a leading Texas case, Morris v. State, 1952, 158 Tex.Cr.R. 516, 251 S.W.2d 731, 733, the court, called upon to rule on the denial of motions for continuance and a new trial by the trial judge, said:
"The motion should have had the affidavit of the missing witness or a showing, under oath, from some other source that the witness would have actually testified to such facts."3
As stated, the court below was called upon to test the action of the Texas trial court by the statute under which the motion was made, as construed by the Texas courts. If his motion for continuance was denied in line with the rules thus laid down, he can have no complaint that he was denied due process or equal protection of the laws, because he was afforded exactly the same protection of his rights which was granted to all other citizens of Texas. Applying these principles to the averments of petitioner's motion, we cannot say that the Texas trial judge failed faithfully to apply the law of Texas, nor that he abused his discretion in failing to grant the motion for continuance or for new trial.
When the state courts of Texas have been called upon to examine this problem they have, without exception as far as we are advised, not sanctioned the use of such a term as "can testify" as satisfying the requirements of the quoted statute. Petitioner here used that term, which merely indicated to the Texas trial court that the witness had the physical ability to give the testimony referred to. This is far short of saying that the witness will give the testimony. The oath which petitioner made to the motion implies merely a possibility that he can get the witness to court and that he will testify as represented; while the other facts he alleges in his motion have a contrary implication.
Several days intervened between the filing of the motion for continuance and the motion for new trial, and the petitioner failed during that period to obtain the attendance of the absent witness. The motion for continuance further shows affirmatively that the witness was dodging the service of process upon him, and it fails to show that he would not continue to dodge service on him. In fact, the affidavit of the absent witness, which was appended to the petition for writ of habeas corpus, was not obtained until January 5, 1958, about three and one-half years from the time the Texas trial court had been called upon to pass on the motion, its adequacy and...
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