Henderson v. Bannan (256 F.2d 363, 1958)

McALLISTER, Circuit Judge.

This is an appeal from an order of the district court denying appellant’s petition for a writ of habeas corpus.

Appellant was arrested on August 5, 1942, for the crime of rape. He pleaded guilty on that day and was sentenced to life imprisonment by the Circuit Court for Macomb County, Michigan. More than five years after he had been sentenced to prison, on October 20,1947, appellant filed with the Circuit Court for Macomb County an application for leave to file a delayed motion for a new trial and to set aside the sentence imposed upon him. In his motion for a new trial, he set forth, among other contentions, that his constitutional rights were disregarded on his trial, and that he did not have the assistance of counsel. He further set forth that he had not known the full consequences of a plea of guilty; but he did not claim that he was innocent of the crime charged. The Circuit Court thereafter denied appellant’s application to file a delayed motion for a new trial, on March 31, 1948.

On June 24, 1952, a further motion for a new trial was filed by counsel presently representing appellant. The Circuit Court for Macomb County denied this motion also.

Thereafter, application for leave to appeal to the Michigan Supreme Court was filed, and, in June, 1953, was denied without opinion.

A petition for a writ of certiorari was then filed with the United States Supreme Court; but before that court had taken any action upon the application, the Michigan Supreme Court, on the petition of the Attorney General of Michigan, in 1953, remanded the case to the Circuit Court of Macomb County for the purpose of taking additional evidence, and for reconsideration.

On the remand, the Circuit Court for Macomb County heard twelve witnesses in open court, including appellant, and in a written opinion, again denied the motion for a new trial.

An appeal was taken to the Michigan Supreme Court, which, in a comprehensive opinion, People v. Henderson, 343 Mich. 465, 72 N.W.2d 177, affirmed the order denying a new trial. Thereafter, a motion for rehearing was denied. Subsequently, a petition to the United States Supreme Court for a writ of certiorari was denied. 351 U.S. 967, 76 S.Ct. 1033, 100 L.Ed. 1487.

After the conclusion of all the above proceedings, appellant filed the petition for a writ of habeas corpus in this case, on August 1, 1956, in the district court, and, on December 21, 1956, Judge Led-erle, after filing findings of fact and conclusions of law, denied the petition for the writ. From the denial of the petition, appeal was taken to this court.

On this appeal from the order of the district court denying the writ of habeas corpus, Henderson claims: (1) that his conviction and sentence were not in accordance with the due process clause of the Fourteenth Amendment, under the circumstances disclosed by the record, since he was without legal counsel and was not offered counsel; and (2) that appellant was denied due process, under the circumstances disclosed by the record, since his plea and conviction took place at a specially convened night session of the court, and that he pleaded guilty because of fear of action by a mob then surrounding the courthouse.

The more detailed factual background of the case, as appears from the state court hearing on the plea of guilty, is as follows; Appellant, a Negro, had resided in Mount Clemens, Macomb County, Michigan, for about seven years before the incidents herein related. On the morning of July 29, 1942, he obtained a job at a tavern near Mount Clemens. This job required that he live on the premises. At about midnight of his first day of work, the manager of the tavern asked a waitress, who was a young married white woman, to drive appellant, in her car, to the place where he stayed in Mount Clemens, in order that he could pick up his clothing, and then to bring him back to the tavern. She agreed, and proceeded to drive appellant to the place where he stayed. It was during this drive that, after midnight, the claimed rape occurred. Immediately thereafter, appellant disappeared. In the morning, the woman filed a complaint against him, charging him with the crime of rape committed against her. It appears that appellant went that night to Detroit, afterward to Ypsilanti, and then to Chicago where he got a job for a few days. He subsequently went to South Bend, Indiana, and on August 5, came back to Ypsilanti, on his way to Mount Clemens, where he had been waiting to be drafted into the Army. He returned because he thought the time had arrived for the draft. While in Ypsilanti, he stopped with friends who told him that the police had been at their home looking for him; and they showed him a newspaper stating that he was wanted for rape. Appellant’s friends then told him that if he were not guilty, he had better go back to Mount Clemens and see what he was wanted for. Appellant replied to them that there was nothing for him to do except turn himself in. He went to the State Police Office in Ypsilanti and identified himself. The State Police then took him to their barracks near Detroit, where the Mount Clemens police met him and took him to the jail in Mount Clemens. Appellant stated that he was questioned at the jail and that he there signed a confession. Some hours later, he was taken to the courtroom of Judge James Spier, the Circuit Judge for Macomb County, about 10:00 p. m. Thereafter, Judge Spier arrived and opened court about 10:20 p. m. The case against appellant was then called and the information which charged him with rape was read, in open court. There then took place a comprehensive questioning and examination by Judge Spier, and by the Prosecuting Attorney.

Proceedings on Plea of Guilty.

Judge Spier first inquired of Henderson whether he knew what he was charged with, and appellant replied that he did. In answer to the questions of the court, appellant stated that he wanted to plead guilty of his own free will; that nobody had threatened him, or “beat up” on him, or promised him anything to get him to plead guilty; and that the reason he pleaded guilty was because he had actually forced the woman to have intercourse with him. In response to questions of the prosecuting attorney, appellant stated, in open court, that he had wanted to tell the prosecutor “all about it” when the latter came to the jail; that the prosecutor had explained what his constitutional rights were; that everything the appellant told the prosecutor was of his own free will, and done with knowledge that it could be used against him; that he wanted to make a full confession and get the matter over; that he was told, by the prosecutor, that no threats or promises or inducements of any kind could be made or offered to get him to make any statement; that no one could in any way intimidate him or use any force to make him confess; that no such tactics were used upon him, by any police or law enforcement officer; and that no one had laid hands upon him, or touched him.

Appellant told the court, further, that he had never seen the woman before that one day that he worked at the tavern, where she was a waitress. He stated that his job was to rise early in the morning, to clean the place up. It was understood that he was to stay out of the public part of the tavern. Appellant further stated that the manager of the place, in his presence, had asked the young woman if she would drive, appellant to his place to get his clothes; and that she, at the request of, and as an accommodation to the manager, agreed. Appellant then told the court that, that night he had with him a piece of steel about fourteen inches long, with black cloth around it; that, after the young woman had driven him a certain distance, he took the steel out of a bag and “made out” that it was a knife; that he then threatened her with the “knife,” to frighten her into submitting to intercourse with him; that he made her stop and get out of the car; that the girl was in fear of her life, because of his threats with the knife, and told him: “Don’t hurt me, I will do anything you want”; and that, because of her fear of being killed, she let him have intercourse with her¡ After getting into the car again, he had her continue to drive and then forced her to have intercourse again with him; that “the second time I did not threaten her, but I guess she was still scared from the first time from seeing (the knife) so she said ‘put it away, I am going to do what you said.’ ” In answer to the question of the circuit judge, appellant stated that when he had intercourse with the girl, he knew she was in fear of her life, and that that was the reason she submitted. Finally, on the highway to Detroit, appellant had the car stopped and got out. He stated that he had taken everything the girl had in her purse,, amounting to $2.90. She had practically no gasoline left, and when he was leaving her in the midst of the country, sometime after midnight, and had no money to get any gas, as he told the court, he gave her back fifty cents of the money that he had taken from her.

Appellant, at the time he pleaded guilty, told the court that he had previously been convicted of robbery, unarmed, in Detroit, Michigan, and had been sentenced to serve one to ten years. After serving eighteen months in the Ionia Reformatory, he had been released. Appellant had also been arrested in Cleveland, Ohio, for having intercourse-with a girl under the age of consent, but. told the court that he had been released because it had taken place in a disorderly house. He further admitted to Judge-Spier, at the time of the hearing on his plea of guilty, that he had had syphilis, but had been cured. As to appellant’s knowledge of the fact that his guilt of the rape might carry a life sentence, appellant stated that, in spite of that fact, he would not change his plea because he-knew he was guilty and that there was no use trying to fight it.

A reading of the long and comprehensive examination of the appellant in open court, by Judge Spier and the prosecuting attorney, that runs to twenty-seven, printed pages, leaves the impression that both the sentencing judge and the prosecuting attorney were actuated by a sincere desire to accord to appellant his eon-stitutional rights; to ascertain the facts; to make sure that appellant understood what he was charged with committing, and that his plea of guilty was of his own free will, and was not made as the result of threats, promises, or inducements of any nature, by police officers or law enforcement authorities of any character, and that no one had used any force upon appellant — that no one had “laid any hand on” him or “ever touched” him.

After the extensive examination of appellant, and upon the motion of the prosecuting attorney for the maximum sentence on the ground that Henderson was guilty not only of rape but of armed robbery, and that he was not “the type that should ever be allowed to mingle with ■society again,” the court imposed a life ■sentence.

Motion for a New Trial.

In his motion for a new trial, or, in the alternative, a motion for leave to file a delayed motion for a new trial — under the liberal Michigan practice in such cases — which was here filed ten years after he had been sentenced, appellant contended that the sentence was illegal and void for the reason that he had been interrogated, arraigned, convicted, and sentenced “without the advice of counsel or the opportunity to obtain an attorney, without the counsel of friends or the opportunity to communicate with friends, without a public trial, without the interrogation of the complaining witness against him, and solely on the basis of a confession of guilty made by the defendant following threat of mob violence by persons gathered outside the court building at the time.” Appellant, in his motion, further contended that the trial, conviction, and sentence, under the circumstances set forth in his attached affidavit, constituted a denial of due process, contrary to the provisions of the Fourteenth Amendment to the Federal Constitution ; that appellant confessed to the •crime of rape only because of the circumstances surrounding his detention ■and interrogation, and because of the threats made against him, and not because he was guilty of the crime; that he would not have pleaded guilty if he had had the opportunity of consulting with counsel or friends or relatives, and if the entire proceedings had not been hastily rushed through at a closed night session, during a period of approximately three hours; that he was entitled to have his guilt or innocence determined by an impartial jury at a public trial, with sufficient time for preparation, after being afforded the right of counsel, without intimidation by a hostile mob outside the courtroom, and after presentation of evidence against him, and particularly the testimony of the complaining witness; and that there had been a substantial miscarriage of justice and denial to defendant of his rights under the Michigan and Federal Constitutions, which could only be rectified by the granting of a new trial.

Appellant’s motion for a new trial was based upon his affidavit attached thereto, in which he set forth a number of alleged facts, which he claimed sustained his motion for a new trial.

Among the sworn statements in his affidavit attached to his motion for a new trial, appellant set forth that he was interrogated in the Mount Clemens jail, on the evening of his arrest, by the chief of police and the justice of the peace; that he had “denied that he was guilty of the crime of rape and told them of the incidents which had occurred during the night of July 29, and the early morning of July 30, 1942, negating any such crime or intent to commit any such crime; that while he was in the cell at the Macomb County jail, several policemen told him that a mob had gathered on the outside of the jail and that unless he confessed to the crime, they would turn him loose to the mob; that thereafter, and at approximately 9:00 p. m., to the best of his knowledge and belief, he was taken out of the cell and led through a tunnel from the jail to the Macomb County Court House and there taken by elevator to the 9th floor where he was brought into the court room of Judge Spier; that while in the courtroom, he was further interrogated by police, detectives and officials in an effort to obtain from him a confession of the crime; that he continued to deny that he had committed any crime and requested that his brother or some other member of his family be called so that he could talk to them. This and similar requests were denied. That during the period of this questioning, a police officer told him to look out of the window to the street below, that a mob had gathered and that he would be turned loose to the mob if he did not confess. That he did look through the window and saw a large number of people below, some of them looking up in his direction. That as the interrogation continued, he again asked to see a relative or a lawyer. He was advised by the persons who were interrogating him to confess to the crime. He was told by one of the persons who interrogated him that he would ‘get a break’ if he confessed. He asked on several occasions why the police didn’t bring the complaining witness to court. He was told that she was not available. Finally, deponent, under the continuous questioning and because of the lack of a friend, advisor, or lawyer, by reason of the threat of the mob on the street below and despite the fact that he then knew, as he does now, that he was innocent of the charges against him, agreed to confess to the crime of rape which he did not commit.” All of these claims formed the principal basis of appellant’s contention that his conviction and sentence were illegal and void, and that he had been deprived of due process of law.

In addition to the foregoing, appellant set forth in his affidavit attached to his motion for a new trial, that shortly after 10:00 p. m. on that same day of his arrest, Judge Spier convened court; that numerous statements were made by the judge and the prosecuting attorney, and that he was questioned at considerable length, during which questioning he admitted that he had committed the crime of rape; that during the entire period he was in the court room, it was not open to the public, and no members of the public, to the best of his knowledge and belief, were even permitted to come into the court room, and that the only persons present were the court officials, attachés, police, detectives, and newspaper reporters; that so far as he knew, appellant was not arraigned before the justice of the peace, nor was he asked to waive an examination, nor did he do so; that he was sentenced at approximately 11:00 p. m., and taken by the police to the prison in Pontiac, and the following day to the state prison at Jackson. Appellant further set forth that he had obtained copies of the Mount Clemens daily newspaper published on July 30, July 31, and August 6, 1942, “with respect to the threats and the mob,” which he attached to his motion for a new trial; and appellant deponed that the information was true to the best of his knowledge and belief.

Denial of New Trial.

In denying appellant’s motion for a new trial, Judge Spier in a detailed opinion that runs to ten printed pages found that appellant’s statement in his affidavit attached to the motion for a new trial were untrue, and that the principal claims set forth were, to the personal knowledge of the court, completely false.

As to the contention that appellant pleaded guilty because of fear of a mob, Judge Spier found, in his opinion denying the motion for a new trial, that the claimed existence of a mob was a fabrication. In discussing this aspect of appellant’s claim, the court referred to appellant’s affidavit in support of his motion for a new trial, in which he swore that he had been taken out of his cell and led through a tunnel from the jail to the Macomb County Court House. The court found that this statement was false, as there was no such tunnel in existence, and that the only way prisoners could be taken from the jail to the court house was across a main thoroughfare, to the opposite side of the street where the court house was located. The salient point of this circumstance is obvious. If there was a mob gathered around the court house when appellant was removed from the jail to be taken to court, he would have seen the mob at that time and have been obliged to pass through the mob to get to court. But, of course, he did not pass through such a mob; nor did he claim that he did; nor did he claim that he saw a mob when he came from the jail to court. To account for the fact that he did not see the mob at that time, and was not forced to pass through the mob to get to court, he had recourse to the story of the tunnel; and the only explanation why he concocted the story of the tunnel must be that he had remembered, from the time he was previously sentenced in Detroit, on the charge of robbery unarmed, that, in that city, prisoners came from the jail through a tunnel to the court house; and he, evidently, assumed that there was also such a tunnel at Mount Clemens. But his statement was false.

As to appellant’s statement in his affidavit that when he was taken to the court room, during the period before the judge appeared on the bench, he looked through one of the windows of the court room and could see the mob below in the street, the court observed that the affidavits of the officers who were in charge of appellant at that time declared that appellant had not been allowed to go about freely in the court room; that he was kept close to them; and that at no time, was he near any window. Furthermore, Judge Spier found that “Because of abutments it is physically impossible to see the street or sidewalks from the court room windows where defendant was arraigned, with the exception of one window from which can be seen the intersection of streets and sidewalk located one block west of the intersection on which the jail is situated. Neither the jail, nor street intersection located there, nor the sidewalk between the jail and the main entrance of the County Building, can be seen from this one and only unobstructed window.” Judge Spier further stated, in his opinion denying the motion for a new trial, that if there had been any unusual number of people interested in the proceedings, there was nothing to stop them from coming into the building or court room; that all doors were unlocked at the time, and an elevator was running for public use, as other public gatherings were going on in the building ; and that defendant’s affidavit itself indicated that only the usual persons customarily found present at arraignments — even at morning or afternoon sessions, namely, newspapermen and court attendants — were present. Judge Spier went on to say, in his opinion, that he himself would have been aware if there had been any unusual number of persons either around the jail or the court house, and would have had a lasting memory of such a situation; that, in his experience of twenty-three years as a judge, there had never been the formation of a mob, in connection with any case before his court, and that there had never been even an intimation of such a mob, prior to the filing of appellant’s affidavit. In finding that the allegation of the existence of a mob was a fabrication, the court stated that it was based upon a newspaper article that had quoted the officers as merely saying that their fear of violence was the reason for asking for an immediate hearing; but that the news article in no way intimated the existence or imminence of any mob, or even curious groups; and that the affidavits of the officers showed that no mob existed.

With regard to appellant’s claims that he had been in fear of a mob because of statements of officers at the jail before he had admitted his guilt, and that he had been denied opportunity to advise with his friends, the court remarked that he had every opportunity, while before the court, to make known any such desire in the course of the free discussion that took place at the time of his plea of guilty and his questioning, which, as mentioned, extended through twenty-seven printed pages of the record. The court further observed that appellant had some familiarity with court proceedings since he had been through an identical experience in 1936 when he pleaded guilty in court; and that, then, the next day, he had changed his plea to not guilty, and had a lawyer appointed; and then had later pleaded guilty again. Judge Spier mentioned after reviewing the record, that appellant, at the conclusion of his examination in open court, had finally stated: “I wouldn’t change my plea because I know I am guilty; no use trying to run around trying to fight it.”

While Judge Spier declared that false statements by officers to an accused, of threatened or probable mob violence could readily be held to be sufficient grounds for a new trial if the accused were intimidated thereby — even though no actual mob ever existed — nevertheless, in this case, appellant had destroyed the reliability of his claims as to threats or intimidation, by falsely swearing to the actual existence of a mob, and to having seen it with his own eyes.

In the course of his opinion denying the motion for a new trial, on January 15, 1953, Judge Spier observed that appellant had previously filed, on October 23, 1947, an application for leave to file a delayed motion for a new trial and to set aside the sentence, together with a motion for a new trial and a writ of habeas corpus ad testificandum, as well as a brief in support of the motion for a new trial and to set aside sentence; that these papers consisted of fifty typewritten pages; that the motion was argued before the court on February 9, 1948, by counsel who had filed appearance for appellant three weeks prior to that time; that, on February 24,1948, the court had filed a fifteen-page opinion denying the motion for a new trial, analyzing the principal grounds on which it had been submitted and argued, namely, the absence of counsel for the defendant at the time of arraignment; that on March 31, 1948, the motion was denied; that on May 15, 1948, counsel for appellant filed a motion for rehearing of the motion for a new trial; that in neither of the motions was there any claim that appellant had been intimidated, or that he was innocent; that the court had read every paper filed by appellant or his counsel during the ten-year period, subsequent to his plea of guilty, and that nowhere did appellant, or his counsel, make any claim that he had entered his plea of guilty by reason of any fear or intimidation or threats of violence, or mob violence, nor did any of these papers filed by appellant or his counsel discuss any claim, or give any intimation that appellant was not guilty of the crime to which he had pleaded guilty; and that the entire claim and theory of appellant and his counsel in all the proceedings during that ten-year period was only that he had been denied his constitutional rights, in that he was not represented by counsel at the time of his arraignment. In this regard, Judge Spier said that neither the Constitution nor the decisions of the Supreme Court requires that counsel be appointed in every case, when not requested; that appellant had every opportunity to make such a request; that there was no denial of this right; that the court knew, and the record showed that appellant knew what he was doing when he pleaded guilty; and that he knew the possible consequence of his plea.

Accordingly, Judge Spier found that appellant had not pleaded guilty as a result of fear or intimidation; that the plea of guilty was voluntarily made; that the court was satisfied that the defendant was guilty of the offense charged; and that he pleaded guilty because of that fact.

As above mentioned, after entry of the order denying the motion for new trial, appellant filed, with the Michigan Supreme Court, application for leave to appeal, which that court denied. Appellant then filed application for a writ of certiorari to the United States Supreme Court, and while that application was pending, the Supreme Court of Michigan, on motion of the Attorney General of that state, set aside its order denying leave to appeal, and remanded the case to the court below for the purpose of taking testimony in the trial court from witnesses who might have knowledge of the truth or falsity of appellant’s assertions.

Hearing on Remand.

On December 28 and 29, 1953, the testimony of all witnesses desired by either the appellant or the prosecution was taken in open court. Appellant was present with his counsel at all times, and unlimited cross examination was accorded appellant’s counsel. Appellant himself took the witness stand; and the prosecuting attorney confined his cross examination to the sole issue of appellant’s claim that his plea of guilty was induced by fear and intimidation. The court found that there was obvious falsity in some of the basic allegations in appellant’s affidavit; that, for instance, appellant’s claim of a lengthy interrogation and threats while in the court room to get him to confess was false — he had already signed a confession in jail; that the claim that there was “a mob in the street below” was false; and that appellant’s claim that he was led through the tunnel was false — there was no tunnel. The court further considered other claims of appellant: that he had denied to the officers that he was guilty of any crime; that he had been told there was a mob outside the jail; that there had been threats to turn him loose to the mob, if he did not confess; that his requests to see his brother, or other members of his family, while in the court room; and that he had been taken to a court room window by an officer and shown a mob, or a large number of people on the street, some of them looking up in his direction. Every one of these allegations, said the court, had been denied by several witnesses under oath. Sergeant Campbell also testified that he heard Chief of Police Rosso ask appellant if he had an attorney or wanted one, and that appellant replied no, that he would like to get it over with as soon as possible. It is not necessary to augment the details of all the facts and circumstances. The trial court observed that appellant had just procured a job in the tavern. “If he were innocent of any wrongdoing that night, why did he not return to that job and keep up his contact with his newly found and willing (as he claims) sexual outlet? Is it not more logical to assume that, having assaulted, and had intercourse with a married woman, he disappeared for a few days, banking on the possibility that the victim would not want to face the disgrace and publicity of making a criminal complaint, which frequently happens, especially in the case of a married woman with children; and that when he found she had made a complaint, he gave himself up, and, as he said, ‘wanted to get it over with as soon as possible ?’ ”

However, the trial court recognized that “there are certain features of the case requiring the closest scrutiny of all testimony of all parties. Those are the rapidity of the disposition of the matter, and the calling of a night session of the court.” But, the court went on, as to the actual arraignment, there was nothing hasty; the appellant had been examined at length in an atmosphere and surroundings that were quiet and free from any tension or antagonism and questioned by a judge who did all he could to make sure the defendant knew what he was doing and what he wanted to do. The trial court, after the remand, denied the motion for a new trial.

Appeal.

On leave granted, appeal was taken from the denial of the new trial to the Supreme Court of Michigan, which, in a comprehensive opinion by Mr. Justice Boyles, speaking for a unanimous court, held that the record left no room for doubt that appellant was guilty of the crime of rape to which he had pleaded guilty ten years before; that the claim that he was induced to plead guilty by coercion and fear was not supported by the record; that the fact that there had been such a speedy trial did not establish that justice required that appellant be given a new trial; and that appellant, having pleaded guilty, was not entitled, under the Constitution, to a trial to determine his guilt, since his plea of guilty was not refused, or set aside, by the trial court. The order denying the motion for a new trial was, accordingly, affirmed. 343 Mich. 465, 72 N.W.2d 177.

A petition to the United States Supreme Court for a writ of certiorari was subsequently denied. 351 U.S. 967, 76 S.Ct. 1033, 100 L.Ed. 1487.

Habeas Corpus.

In his petition in the district court for a writ of habeás corpus, appellant alleged that his detention was in contravention of the United States Constitution in that his confession was induced by fear of mob violence; that he was denied a public trial; and that he was denied the right to counsel.

After discussing all of the various state court proceedings, and the decision of the Supreme Court of Michigan in the case, the district court, in its conclusions of law, held that appellant’s claim that his confession was induced by fear of mob violence had been given full and fair consideration by the state courts, and no sound reason had been advanced why the district court should not accept the state court’s determination that this claim was false, citing Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469. The court further held that, while it was admittedly unusual for court proceedings to be held at 10:00 p. m., it appeared that the court house and court room were open for any spectators that had wanted to attend, and that receiving appellant’s plea of guilty at that time did not introduce such an element of unfairness into the proceedings as to justify voiding the sentence. With regard to the fairness of proceedings without counsel for a party, in noncapital cases, that, said the court, depended on the circumstances of the case, the most important of which was the ability of the accused to understand the charges against him and the consequences of his plea of guilty without the aid of counsel; and the court held that the record of the case affirmatively shows that the petitioner understood the charge made against him, and that he could be sentenced to life imprisonment on his plea of guilty.

In conclusion, the district court held that the petitioner had failed to sustain the burden of proving such a disregard of fundamental fairness in the imposition of punishment by the state as would justify a federal court’s invalidating the sentence by reason of the due process clause, citing Quicksall v. People of State of Michigan, 339 U.S. 660, 70 S.Ct. 910, 94 L.Ed. 1188, and Brown v. Allen, supra; and the court denied the writ.

Appellant claims that while the fear of mob violence motivated the police and prosecutor in the “lightning rapidity” with which they expedited the proceedings, Judge Spier had “a different motivation — concern that the Appellant might obtain counsel, change his plea, and request a trial.” In the argument before this court, appellant’s counsel stressed, more than any other consideration, this claimed motivation of Judge Spier — that the case was rushed through to keep appellant from obtaining counsel, changing his plea, and requesting a trial. This claim is based upon a statement Judge Spier made during the oral argument on the motion for a new trial, before remand by the Michigan Supreme Court. We are of the view that this contention is based upon a misreading of an excerpt of Judge Spier’s comment at that time, and appears to be an unjustified reflection upon the judicial competence and character, as well as the humane concern, of the judge for this accused man. A reading of the judge’s observations during the oral argument is convincing that the judge was not motivated by any consideration of preventing appellant from obtaining counsel, changing his plea, and having a trial.

Because of the paramount importance attached by appellant’s counsel, to the trial judge’s observations as disclosing the alleged motivation of the judge to prevent appellant from obtaining counsel, and, in order to place the matter in its proper perspective, which indicates the true concern of the trial judge that appellant should know what he was charged with, and that the court should be certain his plea was voluntary, a more extensive part of the judge’s observations during the oral argument for a new trial — in-eluding the excerpt relied upon by appellant — is set forth in the margin

Appellant stresses, as one of his principal points indicating that he was wrongfully denied counsel, the fact that, upon the remand by the Michigan Supreme Court to the Circuit Court of the motion for a new trial, he testified, on arraignment before the Justice of the Peace, that he asked the Justice “why they wouldn’t let me call my brother and why wasn’t it possible to have an attorney,” and that, to this plea, the Justice’s only answer was that there was nothing he could do and that his hands were tied; and that this testimony of appellant was uncontradicted by the Justice or by the assistant prosecutor who was present. At the hearing, as previously stated, the testimony of all witnesses desired by either the appellant or the prosecution was introduced, and unlimited cross-examination was accorded by the Court to both parties. Neither the Justice of the Peace nor the former Assistant Prosecutor was called as a witness by either party. But the testimony of appellant that the Justice of the Peace stated that '!