Voigt v. Webb

• Decision Date: 13 November 1942
• Docket Number: No. 89.,89.
• Citation: 47 F. Supp. 743
• Court: U.S. District Court — District of Washington
• Parties: VOIGT v. WEBB, Superintendent, Washington State Penitentiary.

47 F. Supp. 743

VOIGT v. WEBB, Superintendent, Washington State Penitentiary.

No. 89.

District Court, E. D. Washington, S. D.

November 13, 1942.

COPYRIGHT MATERIAL OMITTED

William Voigt, Jr., pro se.

Smith Troy, Atty. Gen. of Washington, Shirley R. Marsh, Harold P. Troy, and Fred E. Lewis, Asst. Attys. Gen. of Washinton, for respondent.

SCHWELLENBACH, Judge.

The petitioner, an inmate of Washington State Penitentiary, seeks release therefrom through the process of habeas corpus. With one exception discussed later, the facts are not in dispute. They are that on March 5, 1918, by information filed in the Superior Court of the State of Washington, Cowlitz County, the petitioner was charged with the crime of murder alleged to have been committed on November 28, 1917. The information was entitled one charging murder in the first degree. The charging part failed to include any allegation that the killing was "with a premeditated design to effect the death of the person killed" as required by the statute, Rem. Rev.Stat. § 2392, or any other allegation of premeditation. After a discussion by the petitioner and the prosecuting attorney of the county, petitioner, on March 11, 1918, appeared before the Superior Court Judge of the County and entered a plea of guilty to First Degree Murder.

At no time was petitioner represented by counsel nor was he, at any time, advised as to his right to counsel. The prosecuting attorney advised the court that petitioner waived his right to counsel. Upon the entry of the plea of guilty, the judge heard a statement from the prosecuting attorney. No witnesses were called nor was a jury impaneled to determine the degree of the petitioner's guilt. The court immediately imposed upon petitioner the sentence of life imprisonment which was the maximum under the law. He has served some twenty-four and a half years (24½) of that sentence. According to respondent, the records of the penitentiary disclose that during that term the conduct of petitioner has been exemplary. The petitioner is uneducated and almost illiterate. Since 1918, petitioner has presented to the Supreme Court of the State of Washington two petitions for habeas corpus. The first was in 1924. It was denied. See In re Voight, 130 Wash. 140, 226 P. 482. The second was presented in 1941. It also was denied. See Voigt v. Mahoney, 10 Wash.2d 157, 116 P.2d 300. This petition is based upon the contention that the judgment and sentence is void because of the deprivation of the petitioner of his right to be protected by the due process of law clause of the Fourteenth Amendment to the Constitution of the United States.

The one disputed point concerns a conversation in reference to the length of time petitioner would be compelled to serve under a life sentence. Admittedly, there was such a conversation. Petitioner says it was before he was taken to court. Mr. A. H. Imus, the Prosecuting Attorney who handled the case, asserts that it was after the sentence was imposed. For the purpose of this decision, I accept the affidavit of Mr. Imus on this question.

The Constitution of the State of Washington guarantees the right of trial by jury in criminal cases. Article I, § 21. In the exercise of its power, the Legislature of the State of Washington has determined and defined the terms and conditions under which and by which that constitutional right may be waived. Since the first session of its earliest Territorial Legislature, the law of the State of Washington has provided that one charged with first degree murder could, under no circumstances, waive the constitutional guaranty. The provisions of Section 2116, Rem.Rev.Stat., have remained untouched since 1854. It provides: "If, on the arraignment of any person, he shall plead guilty, if the offense charged be not murder, the court shall, in its discretion, hear testimony, and determine the amount and kind of punishment to be inflicted; but if the defendant plead guilty to a charge of murder, a jury shall be impaneled to hear testimony, and determine the degree of murder and the punishment therefor." Between the years 1913 and 1919, the crime of murder in the first degree was punishable only by life imprisonment. However, during all of that time, the statute, Rem.Comp.Stat. § 2167, provided that upon an indictment or information for an offense consisting of different degrees, the jury might find the accused not guilty of the degree charged and guilty of any inferior degree. The rule in reference to included crimes has been stated in State v. Gottstein, 111 Wash. 600, 191 P. 766, 767: "The correct rule is that the lesser crime must be submitted to the jury along with the greater, unless the evidence positively excludes any inference that the lesser crime was committed, and it is not incumbent upon the defendant, before such an instruction will be given, to show facts from which a jury might draw the conclusion that the lesser crime and not the greater was in fact committed." Murder in the first degree is defined as "the killing of a human being, unless it is excusable or justifiable, is murder in the first degree when committed either — (1) With a premeditated design to effect the death of the person killed or of another;" Rem.Rev.Stat. § 2392. Murder in the second degree is defined as "The killing of a human being, unless it is excusable or justifiable * * * when — (1) Committed with a design to effect the death of the person killed or of another, but without premeditation;" Section 2393. Manslaughter is defined, Rem.Rev.Stat. 2395: "In any case other than those specified in sections 2392, 2393 and 2394, homicide, not being excusable or justifiable, is manslaughter." Section 2394 refers to "Killing in duel".

I am not here concerned with the question of the guilt or innocence of the petitioner. "Constitutional safeguards for the protection of all who are charged with offenses are not to be disregarded in order to inflict merited punishment on some who are guilty." Ex parte Quirin et al., 63 S.Ct. 2, 3, 87 L.Ed. ___, decided Oct. 29, 1942. The right of the State to modify or even abolish the jury trial has been recognized consistently by the Supreme Court. Walker v. Sauvinet, 92 U.S. 90, 23 L.Ed. 678; Maxwell v. Dow, 176 U.S. 581, 20 S. Ct. 448, 44 L.Ed. 597; Wagner Electric Mfg. Co. v. Lyndon, 262 U.S. 226, 232, 43 S.Ct. 589, 67 L.Ed. 961. The construction of Constitution and Statutes of the State lies exclusively within the province of the state courts. Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859. The problem here is to determine whether the combination of facts and circumstances under which this petitioner was adjudged guilty and sentenced did such violence to the fundamental principles of liberty and justice, which right is at the base of all our civil and political institutions, Hebert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 71 L.Ed. 270, 48 A.L.R. 1102, as to contravene the protective provision of the due process of law clause of the Federal Constitution. The question of what is and what is not due process of law, as envisaged by the Fourteenth Amendment, has been the subject of too many decisions and too much discussion to justify a review of all of the decisions and discussions in this opinion. "The line of division may seem to be wavering and broken if there is a hasty catalogue of the cases on the one side and the other." Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288. "The state is free to regulate the procedure of its courts in accordance with its own conceptions of policy, unless in so doing it `offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" But "the state may not permit an accused to be hurried to conviction * * * — where the whole proceeding is but a mask — without supplying corrective process. Moore v. Dempsey, 261 U.S. 86, 91, 43 S.Ct. 265, 67 L.Ed. 543. * * * Nor may a state, through the action of its officers, contrive a conviction through the pretense of a trial which in truth is `but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured.' Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 342, 79 L.Ed. 791, 98 A. L.R. 406. And the trial equally is a mere pretense where the state authorities have contrived a conviction resting solely upon confessions obtained by violence." Brown v. Mississippi, 297 U.S. 278, 286, 56 S.Ct. 461, 464, 465, 80 L.Ed. 682. That the state's failure to afford opportunity for counsel for the defense is violative of the due process clause is no longer doubted. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L. Ed. 158, 84 A.L.R. 527. This court must have a vigorous concern for the maintenance of the constitutional right of an accused to the the assistance of counsel. Avery v. Alabama, 308 U.S. 444, 445, 60 S.Ct. 321, 84 L.Ed. 377. The waiver of the right of counsel must be exercised "competently and intelligently," Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461. The action of prosecuting officers on behalf of the State, like that of administrative officers in the execution of its laws, may constitute state action within the purview of the Fourteenth Amendment. That Amendment governs any action of a State, "whether through its legislature, through its courts, or through its executive or administrative officers." Carter v. Texas, 177 U.S. 442, 447, 20 S.Ct. 687, 689, 44 L.Ed. 839; Rogers v. Alabama, 192 U.S. 226, 231, 24 S.Ct. 257, 48 L.Ed. 417; Chicago, Burlington & Quincy R. Co. v. Chicago, 166 U.S. 226, 233, 234, 17 S.Ct. 581, 41 L.Ed. 979. On the other hand, the burden of proving that he did not competently and intelligently waive his right to counsel is upon petitioner. Johnson v. Zerbst, supra, 304 U.S. page 468, 58 S.Ct. 1019, 82 L.Ed. 1461. The possibilities of prejudice must be...