Jones v. State

386 P.2d 74 (1963)

George JONES, Defendant and Petitioner The STATE of Montana, Plaintiff and Respondent.

No. 10650.

Supreme Court of Montana.

September 17, 1963.

George Jones, pro se.

PER CURIAM.

Petition for writ of habeas corpus filed pro se by George Jones, an inmate of the Montana State Prison.

The application states that Jones entered a plea of guilty to an information charging him with second degree murder on March 22, 1957, and he was sentenced to a term of 25 years. He requests appointment of counsel.

The grounds of his application are that an advantage was taken of him because he could neither read nor write; that his room was illegally searched without a warrant; that he has new evidence consisting of two people who can state his whereabouts at the time of the crime.

The record in the Clerk's office discloses that petitioner was represented by two competent counsel prior to and at the time of his arraignment and plea. In view of this we must assume that they fully protected the rights of petitioner, particularly so when a period of more than six years has *75 passed since the plea was entered. As to newly discovered evidence our law, section 94-7603, R.C.M. 1947, provides it may be the basis for a motion for a new trial, but a "defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, * * *." The written notice of motion must be filed within 30 days after the discovery of the facts upon which the party relies in support of his motion as provided by section 94-7604, R.C.M. 1947. Such motions must be made in the district court, and likewise applications for appointment of counsel rest in such court's discretion.

The writ is denied and the proceeding dismissed.