Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges.
Petitioner, confined in the Indiana State Prison, appeals in forma pauperis from an order of the District Court discharging a writ of habeas corpus previously issued and remanding petitioner to the custody of respondent. By order of this court Mr. Theodore R. Scott was appointed counsel for petitioner for the purposes of this appeal. He has ably and efficiently represented petitioner; the court expresses its gratitude to him for his painstaking efforts.
On December 20, 1937, petitioner was convicted, in the Criminal Court of Lake County, Indiana, of the crime of second degree murder, despite his assertion of self-defense, and sentenced to life in prison. Having exhausted his state remedies, he filed in the District Court his petition for a writ of habeas corpus, averring, inter alia, that his trial had been conducted and his conviction obtained in violation of the rights guaranteed him by the Due Process Clause of the Fourteenth Amendment, in that he had been denied the assistance of counsel. Respondent, in his answer, denied all material averments of the petition. Two hearings were held, at which witnesses were heard orally and documentary evidence was submitted in behalf of both parties. The District Judge rendered an unpublished memorandum opinion, designated as his findings of fact and conclusions of law, in which he included the following:
"Several witnesses testified about their recollections of whether the petitioner was represented at his trial. * * * Their testimony was conflicting. It was also vague, understandably so, because of the long lapse of time since the trial.
"The Lake County Criminal Court docket shows that when the petitioner's case was called for trial on December 20, 1937, he waived jury trial and was tried by the court. The order entered by the trial court on that date recites that at the trial, the petitioner was represented by counsel and that the defendant as well as the state presented evidence.
"The petitioner has the burden of establishing his allegations by a preponderance of the evidence. To meet that burden the petitioner's proof must be of such a convincing nature as to require the court to find that the recital in the trial court's order that the petitioner was represented by counsel at the trial is not true. Such proof is lacking in this case. It is accordingly concluded that the petitioner's conviction was not violative of due process." We are asked to overrule these findings on the ground that the evidence, viewed as a whole, preponderates in favor of petitioner and fails to sustain the findings, indeed, that it shows conclusively that he was wholly without assistance of counsel at the time of his trial and conviction.
Preliminary to consideration of the factual issue we observe that under the circumstances presented petitioner was constitutionally guaranteed the assistance of counsel. The evidence established beyond peradventure that he was uneducated and illiterate, ignorant of the intricacies of the law, and totally unaware of the fundamental elements of a fair trial guaranteed by the Constitution. In view of these facts and the gravity of the charge against him, there can be no doubt that the failure to provide him with counsel, if it occurred, constituted an unlawful abridgement of his constitutional rights vitiating his conviction and resultant sentence. See Smith v. O'Grady, 312 U.S. 329, 61 S. Ct. 572, 85 L. Ed. 859; De Meerler v. Michigan, 329 U.S. 663, 67 S. Ct. 596, 91 L. Ed. 584; Uveges v. Pennsylvania, 335 U.S. 437, 69 S. Ct. 184, 93 L. Ed. 127.
We turn then to the substantial question presented, namely, in view of the evidence adduced at the two hearings, was the District Court justified in finding that petitioner's conviction was not violative of due process?
Both parties agree that if petitioner was represented by counsel, the service of an advocate was rendered by one Robinson, an attorney who was then practicing law in Gary, Indiana. Unfortunately this gentleman died prior to the institution of this proceeding. The same fate has befallen the court reporter. Furthermore, a transcript of the evidence was never transcribed from the original shorthand notes and the latter had been destroyed shortly after the death of the reporter. The trial judge was not called as a witness by either party. Thus, those documents and persons, which, in the usual course of events, would be most helpful in shedding light on the pertinent question were either not available or not utilized. In this setting it became necessary to consider other documentary evidence offered and the testimony of any person who could recall the events of the trial.
Of those documents introduced from the filed of the state court which pertain to petitioner's trial, one of the most significant is a certified copy of the order of commitment, i.e. the judgment in the cause of the State of Indiana v. Leroy Hunter. The written judgment is enscribed on an ordinary printed form, with blanks available for the insertion of the variant factors such as the date, name of the defendant, attorneys, and judgment. The caption is: "State of Indiana vs.", followed by a blank in which is inserted in typing "Leroy Hunter." The printed form follows:
"Comes now the State of Indiana, by Prosecuting Attorney; comes also the defendant in person and by counsel and the court finds that the defendant is years of age, and that said defendant is guilty of the crime charged, namely: " The indicated blanks are typed in as follows: "Fred A. Egan"; "Leroy Hunter"; "Leroy Hunter"; "32"; "murder second degree". The language of the form, absent the filling words, impels us to the conclusion that the blank following the phrase "comes also the defendant in person and by counsel " was intended to contain the name of petitioner's attorney, namely, Robinson. Instead, petitioner's own name appears therein. In short, we have a court order which recited unequivocably that petitioner had no counsel other than himself. Nor can this conclusion be impeached by an argument that this blank was intended to bear the name of the defendant, for his name appears as defendant in the caption and again in the phrase following the one in question. The State of Indiana is named as party plaintiff and her prosecuting attorney is named with precision and with equal certainty the court finds that the name of petitioner's counsel is that of petitioner himself.
A second court record which lends credence to petitioner's contention that he had no counsel is the docket sheet in the case of "State of Indiana v. Leroy Hunter." Here are recorded all of the individual steps in the cause. The several entries from November 3, 1937 through January 4, 1946, recite the return of the indictment; arraignment; trial, conviction and sentence; a petition for writ of error; a motion to vacate judgment and a petition for writ of error coram nobis. None of these entries contain the name of counsel for petitioner or show that he had counsel. However, the later entries from January 8, 1946 through March 6, 1950 are significantly different. In them, it is recited that the petition for writ of error coram nobis was heard and denied; reheard and again denied; that on the several instances petitioner was represented by attorney Cleve Stenhouse or by H. L. Golden, his partner or associate. Thus it is clear that the name of counsel was customarily recorded on the docket sheet. Absence of any indication of counsel in the earlier entries necessarily implies that petitioner was not in fact represented at his trial.
Two additional court records warrant attention. They consist of entries in the so-called order book. The first was made November 22, 1937, the date of petitioner's arraignment. It recites: "Comes now the State of Indiana by its Prosecuting Attorney and comes also the defendant in his own proper person and by counsel, in open court, and the defendant * * * says that he is not guilty." The second entry bears the date of trial. It recites in identical language "Comes now the State of Indiana by its Prosecuting Attorney and comes also the defendant in his own proper person and by counsel * * *." Both entries imply ...