Opinion
No. 8953.
February 6, 1946. Writ of Certiorari Denied March 25, 1946. See 66 S.Ct. 822.
Appeal from the District Court of the United States for the Eastern District of Wisconsin; F. Ryan Duffy, Judge.
Proceeding in the matter of the petition by Percy Arthur Whistler, for a writ of habeas corpus. From judgment denying writ, the petitioner appeals, and the Attorney General of Wisconsin moves to dismiss the appeal because of a lack of a certificate of probable cause and because of failure of petitioner to exhaust state court remedies.
Appeal dismissed.
Percy Arthur Whistler, of Waupun, Wis., in pro. per.
John E. Martin, Atty. Gen., and William A. Platz, Asst. Atty. Gen., for appellee.
Before EVANS and KERNER, Circuit Judges.
This is an appeal in forma pauperis in a habeas corpus case wherein the Attorney General of Wisconsin has moved to dismiss the appeal because of the lack of a certificate of probable cause and because of the failure of petitioner to exhaust state court remedies.
The Facts. Appellant was sentenced to life imprisonment, in 1933, by a Wisconsin state court, for the murder of his sweetheart. He alleges he made application for habeas corpus to the lower Wisconsin courts and to the Wisconsin Supreme Court, but he made no application for certiorari to the United States Supreme Court from any of these decisions which denied his application for writs of habeas corpus.
United States District Judge Duffy reviewed the facts and the law in the instant case in a careful opinion and denied the habeas corpus. 65 F. Supp. 40.
Appellant's basis for habeas corpus seems to be that such waiver of jury trial as he made was illegal. He also objects to his sanity trial being held contemporaneous with the murder trial. He objects because his criminal sentence states the killing was "without any excuse or justification of any kind" whereas he informed the District Attorney of the precise nature of the dispute with his girl friend.
It seems clear that the appeal must be dismissed for lack of a certificates of probable cause. Although not requested so to do, both of us have considered the record, and each of us finds ourself unable and unwilling to sign this necessary certificate of probable cause.
The appeal is
Dismissed.