Appeal from the District Court of the United States for the District of Kansas, First Division; Richard J. Hopkins, Judge.
Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.
Milton F. Amrine, Warden of the Kansas State Penitentiary, appeals from a judgment of the United States District Court of Kansas ordering the appellee, Jesse B. Tines, discharged from his custody pursuant to a hearing on appellee's application for a writ of habeas corpus.
In his application for the writ, appellee alleges in substance that he is illegally restrained of his liberty in the custody of the appellant because his trial and conviction in the state court, pursuant to which he is imprisoned, was lacking in those constitutional safeguards essential to due process and equal protection of the law under the Sixth, Thirteenth and Fourteenth Amendments to the Constitution of the United States. Specifically he alleges that he was, (1) denied compulsory process of witnesses in his behalf; (2) denied the benefit of counsel at all necessary stages of the trial which resulted in his conviction and servitude; and (3) twice placed in jeopardy for the same offense.
The judgment of the trial court is twofold: (1) the appellee did not have the benefit of counsel at all necessary stages of the proceedings, which resulted in the conviction and sentence in violation of his constitutional guarantee under the Sixth Amendment to the Constitution of the United States; and (2) the appellee was twice placed in jeopardy for the same offense in violation of the Fifth Amendment to the Constitution. The findings and judgment of the trial court are void of any reference to violation of constitutional rights and immunities secured under the Fourteenth Amendment to the Constitution, generally thought to be essential to Federal jurisdiction to correct state process in a criminal proceedings. The facts as reflected by the record before us may be summarized as follows.
On September 20, 1930, the appellee, as Jesse B. Tines, was charged by information No. 73494 in the District Court of Sedgwick County, Kansas. The information containing two counts charged that on April 26, 1930, the appellee forged a certain bank check drawn on the Union National Bank at Wichita, Kansas, and with falsely uttering the same. The case came on for trial on or about November 26, 1930, in the District Court of Sedgwick County, Kansas. A jury was duly impanelled; the state completed its case and rested, whereupon the court, apparently upon its own motion, but without objection from either party, entered the following order: "Now, on this cause is dismissed - defective information, at the cost of the plaintiff, without prejudice." It does not appear that the appellee was discharged or released from custody, but on January 6, 1931, he was again charged by information No. 74984 in the same jurisdiction. The information contained two counts charging forgery of the same instrument as described in information No. 73494, and with falsely uttering the same. The only material change in the language employed to describe the offense is found in the first count of the second information, wherein it is alleged that "Tines did then and there affix fictitious names, to-wit: F. J. Mannett and K & M Desicating Company." The first information did not so allege, and the second information was no doubt designed to cure the defect in the first by alleging in statutory language that the names affixed to the forged checks were fictitious. See General Statutes of Kansas, 1935, 21-628.
The appellee was represented by Attorney Helm at the preliminary hearing on the second information of which there is no record. The transcript of the proceedings in the state court, which was introduced by the appellee in the proceedings below as an exhibit, reflects that when on January 12, 1931, appellee appeared before the state district judge, he was by the court asked if Helm represented him, to which he replied that Helm had represented him in the preliminary hearing only and did not then represent him. The court then asked if he wished to have another attorney appointed, to which he replied, "No Sir." The cause was set for trial on January 20, 1931, and the appellee was returned to jail. Two days thereafter and on January 14, 1931, the appellee again appeared in court before the same judge when the court stated, "You were over here on the first day of the term. I told you at that time that your case was set for the 20th of January." Answer, "Yes, sir." The court, "You stated at that time you didn't have any attorney and that you didn't expect to get one?" Answer, "Yes, sir." The court, "How do you expect to get your witnesses?" Answer, "Well, I supposed that they would let me come over here or bring a list over here." The court, "Do you have your list made up?" Answer, "I could make it out in a very few minutes." Whereupon the court told the defendant to make up a list of witnesses and file it with the clerk so they could be subpoenaed in order not to delay the trial, and "In order that you may have someone to represent you on the outside while you are waiting, I am appointing Benjamin H. Brown to represent you up to the time of trial, at least, so he can help you to prepare to get your evidence before the court." The appellee thanked the court and the court again told the appellee to get his witness list ready, that he would get word to Mr. Brown that he had been appointed.
The transcript further reveals that on January 20, 1931, the case came on regularly for trial pursuant to assignment. The appellee appeared in person and by his attorney Benjamin H. Brown. The court inquired if the parties were ready in State vs. Tines to which Mr. Brown answered. "The defendant is ready." The court observed that the defendant had not been arraigned, to which the defendant (appellee here) answered, "Waive arraignment." The court said, "Do you waive arraignment?" The attorney, Mr. Brown, answered, "Waive arraignment and plead not guilty." Defendant, "A number of my witnesses are not present yet." The court, "You probably won't need them for some time. Bring in a jury." Prospective jurors were called and sworn to answer questions touching their qualifications. At this point, the defendant stated that before any questions were asked the prospective jurors, he would like to ask a question, "I would like to enter a motion. This case was tried in Division Number Three before Judge Pierpont and the State's evidence went to the jury." The court overruled the motion and a jury was selected to try the case, at which point the defendant stated, "I wish to enter an objection to proceeding further until my motion is heard," to which the court replied, "Your motion is heard and overruled."
Mr. Mayall, state counsel, stated, "I would like to ask that the court appoint an attorney for Mr. Tines if he so desires." The court, "I have appointed one for him. Do you wish another appointed for you?" The defendant answered, "No, sir." The defendant questioned the prospective jurors on voir dire, intelligently exercising his peremptory challenges; made his opening statement to the jury in which he defined the issues, and stated his defense with clarity and without evidence of ignorance or unfamiliarity with the law of the case or proper procedure. The appellee crossexamined the state's witnesses, introduced evidence in his own behalf, and took the witness stand in his own defense. In the course of the trial, the appellee observed, "It seems to be the attitude of everybody in here to try to hamper the defendant," whereupon the court said, "The court appointed an attorney for you and you would not allow him to serve and you will have to do the best you can for yourself." The appellee demurred to the evidence of the state which was overruled. On cross-examination, the defendant testified that he had been convicted three times previously, had served two terms in the Kansas State Penitentiary, and one in the federal penitentiary. After argument by the state and the defendant, the case was submitted to the jury on the second day of the trial.
A verdict of guilty was returned on the first count of the informaiton. (Apparently the appellee was acquitted on the second count.) On March 28, 1931, the case came on for hearing on motion for new trial. The appellee appeared in person and by his attorney J. W. Ward. It is not clear just how or in what manner, but the record discloses that the plea of former jeopardy was again raised, considered by the court, and overruled. When the defendant was asked if he had any reason to assign why sentence should not be passed upon the verdict of the jury, the defendant called the court's attention to his plea of former jeopardy at the beginning of the trial, and to his lack of assistance of counsel, to hwich the court answered, "You will admit the court offered to provide you with counsel," to which the defendant answered, "Yes, sir. I admit that but I tried to express to the court my personal reasons why I didn't care to accept the counsel that the court wished to appoint but you overruled me and wouldn't hear to it."
By reason of the established fact that the defendant had thrice before been convicted of a felony, the court imposed a mandatory sentence of life imprisonment. After sentence was imposed, the appellee asked that the execution of the sentence be stayed for ninety days in order to perfect an appeal to the Supreme Court of Kansas, and the court granted a thirty day stay. No appeal was taken from the judgment of the sentencing court and the appellee was duly committed to the custody of the appellant.
On the trial of the case below the appellee testified, in contradiction of the record which he had introduced in evidence, that the sentencing court did not appoint Benjamin H. Brown as his attorney as reflected by the record, but that Lawyer Woodward was appointed, took the list of witnesses, and had them subpoenaed; that Brown did not appear in the case at any stage of the proceedings. He did not testify however, that he was not represented by counsel on the date he waived arraignment, entered his plea of not guilty, and announced ready for trial. The record indicates that he was not represented by an attorney in the trial proceedings. In the habeas corpus proceedings below, the appellee testified that his attorney, Fred Helm, raised the question of double jeopardy on preliminary hearing before the justice court, and this is not contradicted on the record here.
On June 4, 1935, June 3, 1936, and May 15, 1937, the Supreme Court of Kansas summarily considered separate applications of the appellee for a writ of habeas corpus, and severally denied the same without opinion. These applications are not incorporated in the record before us, however we will assume that they were sufficient in form to adequately invoke all of his constitutional rights available to him there, as well as here. On October 29, 1940, the District Court of Sedgwick County, Kansas, sustained a demurrer to the application of the appellee for a writ of coram nobis, in which application the appellee sought release from custody on the grounds that he had been twice placed in jeopardy for the same offense. The instant case was ...