Opinion
No. 37056
Decided June 19, 1963.
Criminal law — Appeal — Bill of exceptions — Accused entitled to, when — Assignments of error presenting questions of fact.
ON REMAND from the Supreme Court of the United States.
Appellant, Harry F. Winters, was convicted as a habitual criminal in Champaign County in 1957. In an action in habeas corpus in the Court of Appeals for Franklin County his conviction was found to be void on the ground that there had been a failure to file a written waiver of jury. The appellant was remanded to the custody of the sheriff of Champaign County who returned appellant to Champaign County where he was tried to and convicted by a jury as a habitual criminal. This judgment was affirmed by the Court of Appeals and a motion for leave to appeal was denied by this court. Certiorari was granted by the Supreme Court of the United States which vacated the judgment of this court denying the motion for leave and remanded the case to this court for further proceedings, citing as its sole authority for so doing the case of Griffin v. Illinois, 351 U.S. 12. The Griffin case held in essence that the failure to furnish a bill of exceptions to an indigent for the purpose of an appeal violated the constitutional rights of the indigent. It would appear that Winters requested a bill of exceptions in this action but one was never furnished to him.
Mr. Richard Harris, prosecuting attorney, for appellee.
Mr. Harry F. Winters, in propria persona.
The sole ground for the vacation of this judgment in this court as indicated by the Supreme Court of the United States was the failure to furnish the bill of exceptions, and we must proceed on that ground.
An examination of the opinion of the Court of Appeals in this case shows that, although seven assignments of error were made in that court, five related to pure questions of law which would not require a bill of exceptions for the disposal thereof. Of the other two, one related to a claim of fraud in procuring the pleas of guilty by appellant on which his subsequent conviction as a habitual criminal was based, this alleged fraud being that certain promises were made to him by the prosecuting attorney. This is a question of fact, and a bill of exceptions is necessary to properly consider this point. The other assignment of error related to an alleged insufficiency or inadequacy of the counsel who had been appointed to represent him during his various trials. Here, clearly, the decision of the Court of Appeals indicates that it was hampered by the lack of a bill of exceptions, the court stating: "In the absence of a bill of exceptions we are unable to find that defendant was denied a substantial right to the effective assistance of counsel."
Thus, it is clear that the Court of Appeals did not have an opportunity to consider these questions in the light of a bill of exceptions, and appellant is entitled to have his case so considered. Therefore, under the decision of the Supreme Court of the United States, we must remand the cause to the Court of Appeals with instructions to procure a bill of exceptions and re-examine appellant's arguments in relation to the facts shown therein.
Judgment accordingly.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.