Robinson v. United States

• Decision Date: 31 July 1944
• Docket Number: No. 9754.,9754.
• Citation: 144 F.2d 392
• Parties: ROBINSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

144 F.2d 392 (1944)

ROBINSON v. UNITED STATES.

No. 9754.

Circuit Court of Appeals, Sixth Circuit.

July 31, 1944.

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Robert E. Hogan, of Louisville, Ky., for appellant.

Eli H. Brown, III, of Louisville, Ky., for appellee.

Before HICKS, ALLEN, and MARTIN, Circuit Judges.

HICKS, Circuit Judge.

On October 20, 1934, a grand jury returned an indictment, containing two counts, against appellant, his wife and father, charging them with kidnapping Mrs. Alice Stoll on October 10, 1934, in violation of Sec. 408a of Title 18 U.S.C.A., and with a conspiracy to kidnap Mrs. Stoll. Sec. 408c Title 18 U.S.C.A. While appellant was at large his codefendants were tried and acquitted on both counts.

Appellant was apprehended by the FBI in Glendale, Calif., on May 11, 1936, waived removal proceedings, was brought by airplane to Louisville, Kentucky, where the alleged kidnaping occurred, and on May 13, 1936, was arraigned in the United States District Court for the Western District of Kentucky on the kidnaping count only, plead guilty and the court sentenced him to imprisonment for life. He was incarcerated in the Federal Penitentiary at Atlanta, was later transferred to the Federal Penitentiary at Leavenworth, and from there he was transferred to the Federal Penitentiary on Alcatraz Island, California.

In 1940, while appellant was serving his sentence in Alcatraz, he applied to the District Court for the Northern District of California for a writ of habeas corpus, which was denied. He appealed to the Circuit Court of Appeals, where the order of the lower court was affirmed. See Robinson v. Johnston, Warden, 9 Cir., 118 F.2d 998. The Supreme Court granted certiorari and remanded the case to the Circuit Court of Appeals for further proceedings. See United States ex rel. Robinson v. Johnston, Warden, 316 U.S. 649, 62 S.Ct. 1301, 86 L.Ed. 1732. Thereupon that court reversed the order of the District Court and remanded the case with directions to issue the writ of habeas corpus and proceed to a hearing upon the merits. Robinson v. Johnston, Warden, 9 Cir., 130 F.2d 202. After a hearing the District Court found that appellant did not intelligently waive counsel when he plead guilty in the District Court for the Western District of Kentucky, and therefore that that court was without jurisdiction, and that the judgment and sentence of life imprisonment were illegal and void. The California District Court followed Johnson v. Zerbst, Warden, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357, and granted the writ of habeas corpus Robinson v. Johnston, Warden, D.C., 50 F.Supp. 774 but directed that appellant be returned to the Kentucky District Court for further proceedings upon the indictment.

Pursuant to that order, appellant was returned to Louisville, was brought into court, where counsel of his own choosing was appointed for him, and upon his formal arraignment upon the kidnaping count of the indictment, he plead not guilty. Upon his trial he was convicted and the death penalty imposed. Hence this appeal.

Among the errors assigned, appellant complains that the District Court should have declared Section 408a of Title 18 U.S.C.A. the Lindbergh Act to be unconstitutional; that it should have sustained his demurrer to the indictment on the ground that it was too indefinite and uncertain; that appellant was subjected to double jeopardy; that he was denied the benefit of statutory removal proceedings; that there was error in the selection of the jury; that his motion for a directed verdict should have been sustained; that the court erred in admitting certain testimony and exhibits; that it erred in the instructions to the jury and in denying certain requests for instructions; that the court's manner in charging the jury was prejudicial; that he was convicted and sentenced for what he testified of and concerning Mrs. Stoll; that the District Attorney and his Assistant made prejudicial remarks to the jury in argument; that the court erred in refusing to permit Mrs. Ann Woolet to be impeached; and finally, that his motion for a new trial should have been sustained.

We examine first appellant's complaint, made for the first time in the assignments of error, that the order of the California District Court, directing him to be returned to the Kentucky District Court, was in contravention of the provisions of the Removal Statute, Sec. 591 of Title 18 U.S.C.A. The contention fails for two reasons; (1) it comes too late; and (2) it is immaterial. The presence of appellant in the Kentucky District Court gave it complete jurisdiction over his person, regardless of how his presence was secured. See Albrecht v. United States, 273 U.S. 1, 10, 47 S.Ct. 250, 71 L.Ed. 505; Stamphill v. Johnston, 9 Cir., 136 F.2d 291, 292.

Appellant contends that Sec. 408a, Title 18 U.S.C.A., is unconstitutional in that it violates both the Fifth and Sixth Amendments. The Section follows:

"Whoever shall knowingly transport or cause to be transported, or aid or abet in transporting, in interstate or foreign commerce, any person who shall have been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away by any means whatsoever and held for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof, shall, upon conviction, be punished (1) by death if the verdict of the jury shall so recommend, provided that the sentence of death shall not be imposed by the court if, prior to its imposition, the kidnaped person has been liberated unharmed, or (2) if the death penalty shall not apply nor be imposed the convicted person shall be punished by imprisonment in the penitentiary for such term of years as the court in its discretion shall determine * * *."

We have italicized that portion which allegedly contravenes the indicated amendments. The criticism of these provisions is that they are too vague, uncertain and indefinite to form the basis of a valid indictment. The short answer is, that the provisions do not constitute an element or ingredient of the offenses denounced in Sec. 408a. They relate to the punishment and there is nothing in the Constitution which grants the accused the right to be informed of the punishment that may be inflicted upon him by law. The offense is the subject of an indictment, not the punishment. The punishment is the remedy the law provides, and is not, except perhaps in exceptional cases to be set forth in the indictment. See Bishop on Criminal Law, 3rd Ed., Vol. I, Sec. 204.

Appellant filed a demurrer to the indictment which is in most general terms, but since the case involves the death penalty, we regard it our duty to consider in detail the specific criticisms of the indictment as set forth in brief and argument.

It is contended that the kidnaping count did not allege, that Mrs. Stoll was not liberated from appellant's custody unharmed. This count not only charged the statutory elements of the offense, to wit, that the defendants named therein kidnaped Mrs. Stoll and transported her in interstate commerce and held her for ransom, but it went further and alleged, that while she was in their custody they did "beat, injure, bruise and harm and aid and abet each other in beating, injuring, bruising and harming the said Mrs. Alice Stoll and did not liberate her unharmed." It is manifest, therefore, that the demurrer, as to this feature, is a "speaking demurrer" and is bad.

But appellant goes further and alleges, that the phrase "and did not liberate her unharmed" was too indefinite as a basis for the indictment; that the word "harmed" admits of varying degrees of meaning from slight to grave, and that appellant was entitled to be advised by the indictment as to what particular injuries the Government would insist had been inflicted upon Mrs. Stoll at or before the time she was liberated. We again point out that the phrase "and did not liberate her unharmed" did not state an essential part of the offense charged. Appellant might have been convicted without any showing that Mrs. Stoll was liberated at all; or, if she was, whether she was set free either sound or unsound, in mind or body. The punishment provided by the statute varied from imprisonment from one year to life, in the discretion of the court, or to a death sentence "if the verdict of the jury should so recommend," and in determining whether it would recommend capital punishment, the jury was entitled to know from the evidence to what extent aggravation was involved. It was for this reason, no doubt, that the phrase "provided that the sentence of death shall not be imposed by the court if, prior to its imposition, the kidnaped person has been liberated unharmed" was incorporated in both the statute and the indictment. It furnishes a basis for proof as to what extent the offense was aggravated. See Seadlund v. United States, 7 Cir., 97 F.2d 742, 748. In the light of the purpose intended, there is no merit in the contention that the language "liberated unharmed" is too indefinite and uncertain. This language carried no ambiguous meaning. If we should assume ambiguity, it is completely negatived by the averments that Mrs. Stoll was beaten, bruised and injured. It follows logically that there is no merit in Assignment #16 that the court erred in admitting the testimony of various witnesses as to Mrs. Stoll's physical condition when she was released.

Appellant complains that he has been placed in double jeopardy, in contravention of the Fifth Amendment. This contention cannot be sustained for two reasons: (1) Because, as hereinabove indicated, it has been judicially determined that the original judgment and sentence by the Kentucky District Court were not a judgment and sentence at all; and (2) because the original judgment and sentence having been declared void at his insistence, appellant may not later introduce it as a hindrance to the further administration of...