Andersen v. Treat/Opinion of the Court
The rule that the writ of habeas corpus cannot be made use of as a writ of error being firmly established, the contention of appellant's counsel is that the judgment of the circuit court, the judgment of this court, and the action of the circuit court in pursuance of our mandate, are wholly void, because he was denied 'the assistance of counsel for his defense'; that is, the assistance of counsel of his own selection.

The petition was insufficient in not setting forth the proceedings, or the essential parts thereof, prior to August 26, 1898, on which day it was presented; and it was very properly conceded on the hearing of this appeal that the record of Andersen's trial and conviction and the proceedings on error was to be treated as part of the record, and it was referred to by counsel on both sides accordingly. Craemer v. Washington, 168 U.S. 124, 128, 18 Sup. Ct. 1.

The record disclosed that on Monday, the 8th of November, 1897, the day after Andersen had been delivered into the custody of the marshal, george McIntosh, Esq., was assigned to him as counsel upon his own request, and in accordance with section 1034 of the Revised Statutes; and that Mr. McIntosh actually represented him from thence onward, contesting every step of the way, until, after having obtained a writ of error from this court, and argued the cause here, his petition for a rehearing was denied.

But the petition averred that on November 7th petitioner had 'employed as counsel to represent him one P. J. Morris'; that on the same day Morris called at the place of detention, and asked permission to see petitioner for consultation, which was refused; that petitioner's preliminary examination was had without the aid or presence of his attorney; and that the district judge and the district attorney told his said attorney that, as petitioner's defense was 'inconsistent with the defense of others charged at the same time with complicity in the destruction of the vessel Olive Pecker,' the court would not permit the same attorney to represent them all.

The contention seems to be that petitioner was denied, at any rate in the first instance, the assistance of the attorney he had selected, and that he did not have his attorney with him when he told his story, November 8th; and that, as he was thereby deprived of fundamental constitutional rights, all subsequent proceedings were void for want of jurisdiction.

The papers introduced before the district court, by consent, tended to show that Morris had not been employed by Andersen prior to November 8th; that the five members of the crew other than Andersen authorized Morris on that day to represent them; that the district attorney had had no interview with any of the prisoners up to the morning of November 8th, which he informed the attorney it was imperatively necessary, in view of future action, that he should have, and then, if the prisoners employed him they would be at his disposal.

Apart from that evidence, however, the record of the trial showed that examination before the United States commissioner was waived by the accused; that the trial lasted several days, during which no other counsel applied to the court for leave to act for Andersen, nor did Andersen request the court to permit any other counsel to conduct or assist in conducting his defense; that Andersen admitted that the statement he made on November 8th was a voluntary one; that no such statement was put in evidence; nor was any objection raised to questions propounded to Andersen, when on the stand, as to what he had said on that occasion; nor were witnesses called to contradict his answers.

The record did not show, nor was there any pretense, that the court was requested to assign Morris as counsel for Andersen, and denied the request; and if it were true that the district judge or district attorney suggested that it would be objectionable to do so in view of his employment by the other five members of the crew, even though coupled with the intimation that the court would decline on that ground to make such assignment, the fact was not material on this application.

In Commonwealth v. Knapp, 9 Pick. 496, the supreme judicial court of Massachusetts refused to make a desired assignment because the person designated was not a member of the bar of that court, and also because 'a person of more legal experience ought to be assigned, who might render aid to the court as well as to the prisoner'; but the question under what circumstances a court may, in a given case, decline to assign particular counsel on the request of the accused, was not discussed.

In the Case of Jugiro, 140 U.S. 291, 296, 11 Sup. Ct. 770, 772, the alleged assignment at Jugiro's trial 'of one as his counsel who (although he may have been an attorney at law) had not been admitted or qualified to practice as an attorney or counselor at law in the courts of New York,' was held to be matter of error, and not affecting the jurisdiction of the trial court.

The general rule is that the judgment of a court having jurisdiction of the offense charged and of the party charged with its commission is not open to collateral attack. The exceptions to this rule when some essential right has been denied need not be considered, for whether this application was tested on the petition alone, treating the record as part thereof, or heard, without objection, as on rule to show cause, the district court could not have done otherwise than deny the writ. In re Boardman, 169 U.S. 39, 18 Sup. Ct. 291.

Order affirmed. Mandate to issue at once. 

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