Petition of Tooker

403 P.2d 204 (1965)

Petition of ALBERT Jay TOOKER.

No. 10984.

Supreme Court of Montana.

June 24, 1965.

Albert Jay Tooker, pro se.

PER CURIAM.

Albert Jay Tooker, an inmate of the Montana State Prison, appearing pro se, has filed with this court a petition for a writ of habeas corpus. He alleges that upon a trial by jury in Hill County District Court he was convicted of murder in the second degree and sentenced to a term of forty years.

He further alleges that his confinement is illegal in that he was denied (1) confrontation with witnesses against him; (2) effective assistance of counsel; (3) a fair trial; (4) equal protection of the laws. To substantiate these allegations he asserts he was arrested on June 7, 1963, and informed he was being held on a charge of first degree murder; that he was held incommunicado; that he requested the right to use the telephone to contact friends and seek advice and was not permitted to do so; that he appeared before a Justice of the Peace and inquired if he could have a lawyer and was informed he could but he would have to pay for one; that through error and confusion he waived preliminary hearing without the assistance of counsel; that while depositions of two State witnesses were duly taken as provided by Montana law, upon the trial neither the officers of the State nor court-appointed counsel made any effort to bring said witnesses into court during the course of the trial; that immediately following the trial he requested his court-appointed counsel to appeal the case but no such appeal was taken.

Because of the many contentions of the petitioner we have secured the district court files, minutes of the court, and investigated with public officers of Hill County. It appears that while petitioner on May 25, 1964, applied to that district court by motion to secure transcript, judgment roll and minutes of the court for the purpose of an appeal, since the time for filing notice of appeal under the law had expired the district court denied the motion.

Petitioner has never placed before the district court the contentions he raises here and by reason thereof that court has never had an opportunity to consider the same, hear and determine the truth thereof. Since none of the contentions of the petitioner occurred in the presence of the court upon the trial, the court records make no reference to them. It is our belief that the district court situate at the place where all questioned matters occurred should be given *205 an opportunity to take such action herein as it deems appropriate.

It is therefore ordered that the petition of Albert Jay Tooker be transmitted to the district court of Hill County, Montana, for such action as it deems appropriate, and that such court make and enter findings of fact and conclusions upon each of the contentions raised by petitioner, and that such petition then be returned to this court, accompanied by copy of the findings and conclusions of the district court.