Thompson v. Harris

• Decision Date: 04 October 1944
• Docket Number: 6655
• Citation: 152 P.2d 91,107 Utah 99
• Court: Utah Supreme Court
• Parties: THOMPSON v. HARRIS

152 P.2d 91

107 Utah 99

THOMPSON v. HARRIS

No. 6655

Supreme Court of Utah

October 4, 1944

Rehearing denied October 4, 1944.

Certiorari denied by U. S. Supreme Court.

Petition for rehearing denied.

Dorothea Merrill Dryer, of Salt Lake City, for plaintiff.

Grover A. Giles, Atty. Gen., and Brigham E. Roberts, Dist. Atty., of Salt Lake City, for defendant.

WOLFE Chief Justice. McDONOUGH and WADE, JJ., concur. LARSON Justice, dissenting. MOFFAT, J., deceased.

OPINION

WOLFE, Chief Justice.

On petition for rehearing.

Petition denied.

For former opinion, see 106 Utah 32, 144 P.2d 761.

WOLFE Chief Justice.

In support of his petition for rehearing the plaintiff, Grover Thompson, has set forth two propositions upon which he alleges that this court erred in its former opinion. He first contends that the court erred in holding that plaintiff was not denied his liberty without due process of law. This contention again places in focus the procedure followed by the trial court in convicting Thompson of the crime of robbery. In the information upon which the conviction is based, Thompson was charged with the commission of the crime of robbery and with being an habitual criminal. The two previous convictions upon which the state was to rely to show that Thompson was in the status of an habitual criminal were set forth. By these allegations regarding the two previous convictions the jury was apprised of the previous criminal record of the accused before he had an opportunity to elect whether he would place his credibility in issue by taking the witness stand in his own behalf. Thompson contends that this deprived him of this right of election and of a trial by a fair and impartial jury and thus took his liberty from him without due process of law. He also contends that the wrongful inclusion of previous convictions of felonies if only error was so gross as to amount to a deprivation of substantive due process.

The second contention set forth is that the trial court was without jurisdiction to sentence Thompson under the Habitual Criminal Act. This argument is based upon the fact that the information affirmatively disclosed that the two previous convictions upon which the state would rely to show that Thompson was an habitual criminal were not sufficient to support a conviction under the Habitual Criminal statute.

We have considered the arguments and authorities cited in support of each of these contentions. In the former opinion we held that the writ of habeas corpus could be used to correct jurisdictional errors and to determine whether or not the petitioner had been deprived of any constitutional right. Except in these two respects, errors in proceedings before a trial court must be corrected by appeal. One of the basic difficulties inherent in a contrary holding is the question of where to draw the line. Somewhere and sometime there must be an end to litigation. The writ of habeas corpus must not be used to discover and correct all errors which might creep into a criminal trial. The time for taking an appeal has wisely been limited by law. If the writ of habeas corpus were to be used to reach all defects in the trial which could be raised by a timely appeal, no conviction could ever become final. We recognize that some errors are more prejudicial to a defendant than are others, but if habeas corpus is to be used to correct error, where can we draw the line? Should we leave the determination as to when there has been and has not been sufficient error to warrant interference by the use of a writ of habeas corpus entirely to the discretion of each judge based on standards which he may invoke from his own mind? We believe that the only sound line that can be drawn is to restrict the use of the writ of habeas corpus to the correction of jurisdictional errors and to errors so gross as to in effect deprive the defendant of his constitutional substantive or procedural rights. Anything short of that must be corrected on appeal or by the Board of Pardons. And this of course is true whether the constitutional right is granted by the State Constitution or by the Federal Constitution through absorption in the Fourteenth Amendment. Even here Mr. Justice Cordozo in Palko v Connecticut, 302 U.S. 319, 58 S.Ct. 149 151, 82 L.Ed. 288, warned us that "there is no such general rule" that "whatever would be a violation of the original bill of rights (Amendments 1 to 8) if done by the federal government is now equally unlawful by force of the Fourteenth Amendment if done by a state." We must therefore exercise some care in relying on Federal cases which hold that certain procedures in Federal courts have denied constitutional rights (constitutional under the Federal Constitution) to a defendant. However, illustrations of denials of rights granted to a defendant in a criminal case, both by our state constitution and to defendants tried under Federal jurisdiction, are furnished by such cases as a refusal of counsel to the defendant; where the trial is a sham or pretense, one form of which would be where officials having to do with the prosecution knowingly procured or introduced false testimony; denial of the right to be confronted with witnesses against him; where defendant was required to testify against himself, although Mr. Justice Cardozo in Palko v. Connecticut, supra, thought that "immunity from compulsory self-incrimination" was not such requirement, the absence of which would violate a "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" And in Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97, it was held that the Fourteenth Amendement does not insure the privilege against self-incrimination where the state withdraws it.

The plaintiff must necessarily assert that he has not been accorded due process of law in order to claim constitutional protection. The question then resolves itself at bottom as to whether introduction of previous convictions of unrelated crimes in the trial of the instant charge denies him due process. A much cited case on the history and nature of due process, Hurtado v. State of California, 110 U.S. 516, 4 S.Ct. 111, 121, 292, 28 L.Ed. 232, involving the question of California's change from indictment to information as a method of charging felonies, states:

"The supreme court of Mississippi, in a well-considered case ( Brown v. Levee Comm'rs, 50 Miss. 468), speaking of the meaning of the phrase 'due process of law,' says: 'The principle does not demand that the laws existing at any point of time shall be irrepealable, or that any forms of remedies shall necessarily continue. It refers to certain fundamental rights which that system of jurisprudence, of which ours is a derivative, has always recognized. If any of these are disregarded in the proceedings by which a person is condemned to the loss of life, liberty, or property, then the deprivation has not been by due process of law."'

* * * *

"It follows that any legal proceeding enforced by public authority, whether sanctioned by age or custom, or newly devised in the discretion of the legislative power in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law."

Says Mr. Chief Justice Fuller in Leeper v. Texas, 139 U.S. 462, at page 467, 11 S.Ct. 577, at page 579, 35 L.Ed. 225:

"* * * That by the fourteenth amendment the powers of states in dealing with crime within their borders are not limited, except that no state can deprive particular persons, or classes of persons, of equal and impartial justice under the law. That law in its regular course of administration through courts of justice is due process, and when secured by the law of the state the constitutional requirement is satisfied; and that due process is so secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government unrestrained by the established principles of private right and distributive justice. Hurtado v. California, 110 U.S. 516, 535, 4 S.Ct. 111 [292, 28 L.Ed. 232], and cases cited."

The same language is repeated in Caldwell v. Texas, 137 U.S. 692, at page 697, 11 S.Ct. 224, 34 L.Ed. 816.

Due process may mean something more than the existing law of the land for as observed in Hurtado v. State of California, supra, "otherwise it would be no restraint upon legislative power". Nor according to Mr. Justice Matthews in the Hurtado case do the "settled usages and modes of proceeding existing in the common and statute law of England before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country" "furnishes an indispensable test of what constitutes 'due process of law;' [so] that any proceeding otherwise authorized by law, which has not been sanctioned by usage, or which supersedes and displaces one that is, cannot be regarded as due process of law." The fact that the early English cases judicially condemned the introduction into the instant case of evidence of previous unrelated crimes cannot be the test of due process at least in a situation where this evidence is not introduced as proof of the commission of the instant crime but of a status of habitual criminality even though that charge is joined with that of the instant crime.

In Munn v. Illinois, 94 U.S. 113, 134, 24 L.Ed. 77, it was said:

" A person has no property, no vested interest, in any rule of common law. That is only one of the forms of municipal law and is no more sacred than any other. Rights of property which have been created by the common law...