United States v. Nierstheimer
| Decision Date | 23 December 1947 |
| Docket Number | Civ. A. No. 750-D. |
| Parties | UNITED STATES ex rel. GASH v. NIERSTHEIMER. |
| Court | U.S. District Court — Eastern District of Illinois |
James Thomas Gash, pro se.
George F. Barrett, Atty. Gen., for respondent.
The relator, James Thomas Gash, in his petition for a writ of habeas corpus, avers that he is unlawfully detained upon a sentence, by virtue of a verdict of guilty by a jury, for murder; that "he is being deprived of his liberty without due process of law"; that in the trial "he was denied protection of his rights guaranteed him by the constitution"; that the court refused to hear witnesses in his behalf; that "before the time of the crime and afterwards, he was suffering from a mental ailment"; that "the court refused him counsel when it rendered judgment"; that "the court refused to postpone the judgment so that petitioner could have counsel prepare a motion for a new trial and a motion in arrest of judgment"; that "if the records would be produced before the court, they would show a continued denial of due process of law guaranteed him under the constitution"; that the state of Illinois has denied him his common law record and his bill of exceptions; that the remedies afforded by state laws have proved unavailable and seriously inadequate; that he is not detained by virtue of any process issued by any court in a case where such court "has exclusive jurisdiction" nor by virtue of a final judgment or decree of any competent court.
Many of the averments are obviously the conclusions of the pleader. Those of fact are that the trial court refused to hear witnesses as to relator's mental condition, refused him counsel when judgment was entered, refused him an opportunity to present a motion for new trial and refused him a bill of exceptions or transcript of record.
Though there may be some doubt, in view of the averments of the relator, that he has exhausted his state remedies, I am inclined to believe that the court has jurisdiction in view of the language of the Supreme Court in the case of White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 982, 89 L.Ed. 1348, wherein the court said: It appears that petitioner has sued out a writ of error to the Supreme Court of Illinois, which affirmed the judgment; that he has applied for a writ of habeas corpus in the Circuit Court of Randolph County within which he is confined and, upon denial thereof, sought certiorari in the United States Supreme Court; that that court denied certiorari on October 8, 1945. 326 U.S. 750, 66 S.Ct. 55, 90 L.Ed. 449. He asserts also that he has filed a petition for a writ in the Circuit Court of Richland County, where he was convicted and that that petition was denied. In view of the fact that he has not sought certiorari in the Supreme Court from the denial of his petition filed in Richland County, respondent takes the position that relator has not exhausted his state remedies. I prefer to hold, however, that, under the language quoted from the Supreme Court of the United States in White v. Ragen, supra, to require him to file another petition for certiorari would be an idle gesture. I assume that I have jurisdiction.
The relator's claim that he has been denied a transcript of the record by the state court is refuted by the record. In the first place, he had to have a record before he could present his writ of error to the Supreme Court of Illinois and, in the second place, a transcript of all proceedings in the trial court is attached to the return. From this it appears that on September 14, 1939, in the Circuit Court of Edwards County, Illinois, relator was indicted for murder; that, on October 13, 1939, he and his counsel being present in open court and having received a copy of the indictment and a list of the witnesses against him, relator was formally arraigned upon the indictment and entered his plea of not guilty; that his petition for a change of venue, alleging prejudice in the county where he was indicted, was granted to the county of Richland and the case set for trial on Monday, November 6, at 9 a. m.; that in the Circuit Court of Richland County, pursuant to said change of venue, on Monday, November 6, 1939, relator and his attorneys were present in open court; that the People were present by the State's Attorney; that the People moved for leave to submit names of additional witnesses; that proof of notice of the motion was admitted by relator and that he made no objection to the motion; that leave as prayed was granted and names of additional witnesses so endorsed; that the People announced ready for trial; that relator announced that he was ready for trial; that a jury was legally selected to try the case; that a list of the jurors had been furnished relator; that thereupon the trial proceeded in due course; that evidence in behalf of the People and evidence in behalf of relator was presented and all evidence concluded; that on the 8th day of November arguments were heard; that the jury, after having retired for consideration of their verdict, returned their verdict finding relator "guilty of murder in manner and form as charged in the indictment," fixing his punishment "at imprisonment for the term of his natural life"; that the verdict was signed by the twelve jurors; that, on request of relator, the jury was polled and each juror announced that the verdict as returned was his verdict and that he had signed the same and was still satisfied with it; that, thereafter, on the 9th day of November, relator stated in open court that no motion was to be filed for new trial or in arrest of judgment; that, thereupon the court entered judgment on the verdict, sentencing relator to the penitentiary for the term of his natural life.
The formal judgment recites that, the People being present by the State's Attorney and the relator in his own proper person as well as by his counsel, L. J. Voyles and H. S. Burgess, and neither relator nor his counsel saying anything further for him why the judgment of the court should not now be against him on the verdict finding him guilty of murder, judgment was entered. Thus a complete record of what occurred is before the court, and relator's averment that he is unable to secure a record is as I have said belied by the undisputed facts before me.
However, this does not dispose of his averment that he has been unable to secure a bill of exceptions. No facts justifying such a statement are presented and it would seem sufficient answer to his suggestion in this respect that he had open to him, if he was denied a bill of exceptions, the remedy of mandamus to compel the court to grant him such a bill. Undoubtedly, he had the right to protect himself in this respect when he prosecuted his writ of error to the Supreme Court of Illinois. In other words, a motion for a bill of exceptions addressed to the trial court in the prosecution of that writ of error was a proper, if not essential, remedy in his behalf. If the court refused to grant it, such action would have been error for which petitioner had his remedy in the further prosecution of the writ of error to the Supreme Court. Speaking otherwise, if relator was denied a bill of exceptions, it was because he failed to apply for same as indicated by the record or because he did not assign the action by the trial court denying him the bill as error in his review before the Supreme Court. In other words, this was an error arising in the trial of the cause.
The situation with regard to his averment that he was refused witnesses to prove his insanity is in no wise different legally. He was represented by counsel. He called his witnesses, and if the trial court refused to admit testimony which his counsel thought pertinent and relevant, such ruling was error on the part of the trial court, arising in the course of the trial, which he had a right to review in the prosecution of a writ of error to the Supreme Court.
By Chapter 38, Section 806 of the Illinois Statutes, being a part of the Criminal Code, an official statement must be made by the judge and state's attorney to the Department of Public Welfare, stating all of the facts relative to the conviction. Such a statement was filed, the two officials reporting, among other things, that the deceased was the divorced wife of relator; that on the day in question he engaged her in conversation in a village store in the presence of several people; that she was afraid of him; that she asked the storekeeper to call the sheriff and that thereupon he shot and killed her; that relator had pleaded insanity and that the jury evidently rejected this plea. Apparently, therefore, he was permitted to offer evidence as to his sanity and the issue was decided against him. The relator controverts this averment of fact and, upon a determination of the sufficiency of his petition, I have no right to pass upon such controverted questions; but the fact remains that if he had witnesses whom the court refused to hear, an error of law occurred in the course of the trial, of which he had a right to complain in the Supreme Court in his prosecution of a writ of error to that court.
From an examination of all of relator's voluminous briefs and...
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