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Denial of Counsel to Indigent Defendants in State Criminal Trials Joan Moonan Marquette Law Review Volume 27 Article 4 Issue 1 December 1942 Constitutional Law - Due Process of Law - Denial of Counsel to Indigent Defendants in State Criminal Trials Joan Moonan Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Joan Moonan, Constitutional Law - Due Process of Law - Denial of Counsel to Indigent Defendants in State Criminal Trials, 27 Marq. L. Rev. 34 (1942). Available at: http://scholarship.law.marquette.edu/mulr/vol27/iss1/4 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. MARQUETTE LAW REVIEW VOLUME XXVII 1942-1943 MILWAUKEE, WISCONSIN Published by the Students and Faculty of the Marquette University School of Law TABLE OF CONTENTS VOLUME XXVII 1942-1943 ARTICLES The Assignment of Insurance Policies, Norman Baker--------- 171 Discharges Under Section 14, Sub. c (2) and (3) of the Chandler Act, Kneeland A. Godfrey ------------------------------ 1 Handling the Expert Medical Witness, Dr. William Webber Kelly 186 Rent Control and Evictions Under Emergency Price Control, E. P. - McCarron ----------------------------------------- 125 Soldiers' and Sailors' Civil Relief Act in 1942: Operation, Need for Clarification, Future Significance, Brooke Tibbs---------- 59 The Statute of Frauds Affecting the Sale of Goods, Lloyd Planert 10 Subversive Activities Against Government - Two Conflicting Theories, Roger Sherman Hoar------------------------- 72 United States Supreme Court Rule of Valuation As Applied to Corporate Reorganization, Perry G. Anderson-------------- 111 NOTES Anti-trust Prosecutions-What Constitutes "Trades"-the Prac- tice of Professions ----------------------------------- 135 Code Pleading-Impleader-A Comparison of the Wisconsin and Federal Rules of Third Party Practice --------------------- 208 Code Practice-New Trial-The Granting of Options by the Trial Court in Lieu of a New Trial ---------------------------- 86 Constitutional Law-Equal Protection of the Laws-The Consti- tutionality of Sterilization Statutes ----------------------- 99 Constitutional Law-Due Process of Law-Denial of Counsel to Indigent Defendants in State Criminal Trials --------------- 34 Evidence - Confessions - Admissability When Prisoner Is De- tained Without Arraignment-The Federal Rule ----------- 212 Labor Law-The Regulation of Picketing-Peaceful Picketing and Unfair Labor Practices ---------------------------- 145 Labor Law-Supervisory Personnel and the N. L. R. A .-------- 216 Marriage and Divorce-Judgments-Absolute or Limited Divorce Judgments Under 247.09 of the Wisconsin Statutes ---------- 40 Municipal Law-Liability of Municipal Corporations in Tort- Wisconsin's Changing Law of Liability of Municipal Corpora- tions for Negligence and Nuisance ------------------- 141 Personal Property-Consumables-Legal Relations of Owners of' Present and Future Interests in Personality, Edwin Esser Nemmers --------------------------------------- 82 Taxation of Intangibles - Rights of States Other Than the Domicile of Creditor-Double Taxation of Intangibles ------- 95 EDITORIALS Good System-Good Citizens- Good Government, George E. Morton --------------------------------------- 203 The Continuing Importance of Local Self Government, Murray Seasongood ------------------------------------ 133 A Widening Horizon, Carl B. Rix ----------------------- 80 RECENT DECISIONS Code Practice-Directed Verdicts Under Comparative Negligence Statute -------------------- 219 Code Practice-Five Sixths Jury Verdict ------------ 103 Criminal Law-Criminal Responsibility of Proprietor of Tavern for Sales of Operator in Proprietor's Absence ------------ 154 Enemy Aliens-Access to American Courts During Wartime .... 225 Federal Jurisdiction-Common Law Crimes Against U. S.----- 221 Federal Procedure-Applicability of Discovery Procedure Under Federal Rules to Suits in Which the United States Is a Party-. 158 Municipal Corporations-Limitations on the Power to License ----105 Negligence-Forseeability of Intervening Cause -------------- 45 'Sales-Warranties by Express Representation - ----- 107 Statutes-Filling Vacancy in the Office of Governor ---------- 160 Torts-Libel and Slander-Innuendo --------------------- 54 Tort Liability-Charitable Institutions -------------------- 164 War-Eemption from Military Service --------- 224 BOOK REVIEWS Burby: Real Property, Willis E. Lang -------------------- 229 Peaslee: A Permanent United Nations, Anthony Palasz------- 169 Rhyne: Municipalities and the Law in Action, Omar T. McMahon 168 Warren: Traffic Courts, Win. Smith Malloy---------------- 229 Wellmann: Success in Court, Robert T. McGraw------------- 58 MARQUETTE LAW REVIEW VOLUME XXVII DECEMBER, 1942 NUMBER ONE DISCHARGE UNDER SECTION 14 SUB. c(2) AND (3) OF THE CHANDLER ACT KNEELAND A. GODFREY* S ECTION 14 Sub. c(2) and (3) of the Chandler Act reads as follows: "The court shall grant the discharge unless satisfied that the bankrupt has * * * (2) destroyed, multilated, falsified, concealed, or failed to keep or preserve books of account or records, from which his financial condition and business transactions might be ascertained, unless the court deems such acts or failure to have been justified under all the circumstances of the case; or (3) obtained money or property on credit, or obtained an exten- sion or renewal of credit, by making or publishing or causing to be made or published in any manner whatsoever, a materially false statement in writing respecting his financial condition; * ** YY1 * LL.B., University of Wisconsin, member of the Milwaukee Bar. 111 U.S.C.A., See. 32, C(2) and (3). THE MARQUETTE LAW REVIEW [Vol. 27 The matters embraced in the foregoing provisions have received considerable attention by the Federal Courts, and there are numerous authorities construing the sections involved. It would appear that the Bar generally has not given sufficient attention to the rights afforded both the bankrupt and the creditors and also to the duties of the bank- rupt under these sections. The hazards involved to the bankrupt in obtaining a discharge are great and the penalty to him, denial of his discharge, may be very severe in many instances. I. SUB. c(2)-FAILURE TO KEEP PROPER BooKs Both Congress and the courts have indicated a disposition towards increasing the strictness of compelling the bankrupt to properly account for his assets under this section of the Act. The Act originally provided that it was necessary to establish that the bankrupt's destruction or concealment of adequate records, or his failure to keep them, was with "fraudulent intent to conceal the true financial condition and in contemplation of bankruptcy." In 1903 the Act was amended and omitted the word "fraudulent" and also the phrase "in contemplation of bankruptcy," and in 1926 the Act was amended to its present form to provide that books must be kept "from which his financial condition and business transactions might be ascertained; unless the court deems such failure to have been justified under the circumstances of the case." It was realized that the former provisions made it practically impossible to prevent a discharge under this provision, in view of the fact that it was necessary to estab- lish that the destruction of books or the failure to keep books was done with intent to conceal and in "contemplation of bankruptcy." Both Congress and the Courts have come more and more to realize the neces- sity of the keeping of proper books in any business in order that the business might be successfully conducted. Many businesses have failed because of inadequate bookkeeping and bankruptcy has thereby resulted. Under the present Act the burden of proving the intent to conceal has been taken from the objecting creditor or the trustee, and the burden of proving justification is placed upon the bankrupt. There is thus indicated on the part of Congress a purpose to lodge with the bankruptcy court a reasonably wide judicial discretion in the matter, and the cases have indicated this wide discretion on the part of the Bankruptcy Court. A finding by the trial court will not be upset unless there is an absolute abuse of discretion and the finding was clearly erroneous. Where the creditor has shown an absolute lack of any adequate records, the burden of satisfying the Court that the failure to produce 1942] DISCHARGES UNDER THE CHANDLER ACT them by the bankrupt was justified is on the bankrupt.2 Under sub- section (c) it is necessary only that the objector show to the satisfac- tion of the Court that there are reasonable grounds for believing that the bankrupt has committed any of the acts which would prevent his discharge, and then the burden of establishing otherwise is upon the bankrupt. The making of false entries is of course an absolute ground for preventing the discharge of the bankrupt under this subsection. The mere neglect to keep books, or inadvertence or mistake in keeping books showing the bankrupt's financial condition, is under many circumstances not sufficient grounds for the refusal of the discharge. It is of course not necessary that the bankrupt, in every instance, keep a set of books, and this is particularly true in the case of wage earners who are not involved in any extensive financial transactions. It has been consistently held that this class of bankrupts
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