In Re Ward

California Supreme Court Jul 5, 1946 No. Crim. 4636Published

Before: Gibson

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Holding. The court held that the petitioner was not entitled to relief because he was represented by counsel of his own choosing, and his prior conviction for automobile theft in Wisconsin qualified as a felony under the state's habitual criminal statute.

Issues

Whether the petitioner's conviction is invalid because his trial counsel was not a licensed attorney.
Whether a prior Wisconsin conviction for automobile theft supports a sentence as an habitual criminal under Penal Code section 644.

Disposition. remanded to custody

Quotations verified verbatim against the opinion

“The evidence and findings reveal that upon his trial petitioner was represented by a person of his own choosing and he must, therefore, abide the results of his selection of a representative.”

“The writ is discharged and petitioner is remanded to custody.”

GIBSON, C. J.

Petitioner was convicted in Los Angeles County in 1937 of issuing a check without sufficient funds, and having admitted two prior convictions of felony as charged, he was sentenced as an habitual criminal.

He seeks his discharge on habeas corpus upon the ground that he has discovered that the person who represented him on the trial had not been admitted to practice law in this state. As a second ground he urges that one of the two prior convictions does not come within the purview of section 644, Penal Code, and will not therefore support his sentence as an habitual criminal.

In order to ascertain the facts relative to the appointment and status of the person who represented petitioner upon his

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trial, a reference was ordered and Judge W. Turney "Fox of the Superior Court of Los Angeles County was appointed referee to take evidence and submit findings.

Petitioner testified before the referee that he was not represented by counsel upon his preliminary hearing in the municipal court nor upon his arraignment for plea in the superior court before Judge Charles W. Fricke. He testified further that when he came on for trial he told Clifford Crail, the prosecuting officer, he would like a continuance in order to employ an attorney; that Crail'then introduced R. Mc-Curdy, who was in the courtroom, to petitioner, representing him to be an attorney; and at the same time Judge Frank M. Smith, who was presiding, stated in open court that he had known McCurdy for years and thereupon, with the consent of petitioner, appointed McCurdy to represent him as his attorney.

Judge Smith testified that he did not know a person by the name of R. McCurdy and that the only attorney he knew named McCurdy was J. Edward McCurdy, who testified before the referee that he did not represent petitioner. Judge Smith further testified that because of the intervening years he had no recollection of either petitioner or of his trial and therefore could not recall how petitioner had procured his counsel.

Mr. Crail denied that he had introduced McCurdy to petitioner and stated he never recommended defense counsel to persons being prosecuted by him.

In Re Ward

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GIBSON, C. J.

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