Ashley v. Pescor, 12911.

• Decision Date: 13 March 1945
• Docket Number: No. 12911.,12911.
• Citation: 147 F.2d 318
• Parties: ASHLEY v. PESCOR, Warden.
• Court: U.S. Court of Appeals — Eighth Circuit

147 F.2d 318 (1945)

ASHLEY v. PESCOR, Warden.

No. 12911.

Circuit Court of Appeals, Eighth Circuit.

January 8, 1945.

Motion to Withdrawn Opinion Denied March 13, 1945.

James R. Ashley, in pro. per.

Otto Schmid, Asst. U. S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., of Kansas City, Mo., on the brief), for appellee.

Before GARDNER, WOODROUGH, and JOHNSEN, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from an order discharging a writ of habeas corpus and restoring appellant to the custody of appellee as warden of the Medical Center for Federal prisoners. Appellant's petition for writ of habeas corpus charged that he was being illegally restrained of his liberty in violation of his constitutional rights and without due process of law, in that while he was insane he was placed on trial and convicted in the United States District Court for the Western District of Louisiana for the alleged violation of Section 338, 18 U.S. C.A., under indictment which in effect charged him with having devised a scheme and artifice to defraud and to have used the United States mails in furtherance of such scheme to defraud. Based on his petition the court issued the writ. Appellee in his return denied generally the allegations of appellant's petition, except that he admitted that appellant was in the custody of appellee. He attached to his return photostatic copies of the commitments and orders under which petitioner was held. We shall refer to the appellant as petitioner and to the appellee as respondent, as they were designated in the trial court.

The question of fact to be determined was whether or not petitioner was insane at the time of his trial and conviction in the United States District Court for the Western District of Louisiana, and the questions of law were whether such an issue might be tried on petition for habeas corpus, and if so, how such insanity, if established, would affect the legality of petitioner's restraint or imprisonment. Much that had been said by the Federal courts and by textwriters as to the scope of inquiry on petition for writ of habeas corpus was rendered obsolete by the decision of the Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461, 146 A. L.R. 357, and the subsequent decisions of that court following the doctrine of the Zerbst case. In that case the court among other things said: "To deprive a citizen of his only effective remedy would not only be contrary to the `rudimentary demands of justice' but destructive of a constitutional guaranty specifically designed to prevent injustice."

In the Zerbst case the accused was not represented by counsel, and the court held that failure to provide counsel for the accused, who was unable to obtain counsel, and who had not intelligently waived his constitutional guaranty, rendered the conviction void because "pronounced by a court without jurisdiction." It is then said: "A judge of the United States — to whom a petition for habeas corpus is addressed — should be alert to examine `the facts for himself when if true as alleged they make the trial absolutely void.'"

In the instant proceeding the court expressed the view that the question of the incompetency or insanity of the defendant could not be tested by habeas corpus because he had been represented by counsel at the time of his conviction. Of course, if not represented by counsel, unless he had intelligently waived the right of assistance of counsel, he could under the rule announced in the Zerbst case test by habeas corpus the validity of his restraint regardless of whether he were sane or insane at the time of the trial.

The defendant is entitled to be present at the time of trial so as to render assistance to his counsel, and if insane, while he may be physically present he is mentally absent, and his insanity may be of such a nature as to render him wholly unable to be of any assistance to his counsel. Freeman v. People, 4 Denio, N.Y. 9, 47 Am.Dec. 216; People v. Perry, 14 Cal.2d 387, 94 P.2d 559, 564, 124 A.L.R. 1123. In the last cited case, the Supreme Court of California, referring to a statute of that state, Pen.Code, § 1367, which provided that, "A person cannot be tried, adjudged to punishment, or punished for a public offense, while he is insane," among other things said:

"The principle of law by virtue of which an insane man, even though incontestably guilty of the commission of a criminal offense, may neither be tried, sentenced, nor punished for his dereliction in that regard, is of long standing. In 4 Blackstone Commentaries, 24, it is said: `Also if a man in his sound memory commits a capital offense, and before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried: for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of non-sane memory, execution shall be stayed; for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution. Indeed, in the bloody reign of Henry the Eighth, a statute was made, which enacted that if a person, being compos mentis (of sane mind) should commit high treason, and after fall into madness, he might be tried in his absence, and should suffer death, as if he were of perfect memory. But this savage and inhuman law was repealed by the statute 1 and 2 P. and M., c. 10. * * *'"

In Forthoffer v. Swope, Warden, 103 F. 2d 707, 709, a habeas corpus proceeding, the Circuit Court of Appeals of the Ninth Circuit among other things, said:

"At common law habeas corpus would lie where the judgment, sentence, or order was fatally defective upon the face of the record; the writ could be invoked only where lack of jurisdiction patently appeared if the court was of general jurisdiction; and it could not be employed to retry the issues, whether of law, constitutional or other, or of fact. 29 C.J. § 46, p. 54; 29 C.J. § 20, p. 33; Zoline's Fed. Crim. Law, Vol. 1, § 530, p. 435; Glasgow v. Moyer, etc., 225 U.S. 420, 32 S.Ct. 753, 56 L.Ed. 1147.

"However, the rights of a party on petition for a writ of habeas corpus have been considerably expanded since the filing of the opinion of the Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357), reversing 5 Cir., 92 F.2d 748."

The court in effect held that the issue might properly be presented on petition for writ of habeas corpus but "that the burden of proof rests upon the petitioner to offer facts which would justify a court of the United States in setting aside a judgment of another court of the United States, a thing not lightly to be undertaken."

We think the question is one which may properly be inquired into in a proceeding for writ of habeas corpus, especially where, as here, the fact of insanity has been judicially determined prior to petitioner's trial and conviction.

As has been observed, at common law an insane person, using that term in its broadest sense, could not be subjected to a trial in a criminal case. In re Smith, 25 N.M. 48, 176 P. 819, 3 A.L.R. 83; Hawie v. State, 121 Miss. 197, 83 So. 158, 10 A.L.R. 205; Freeman v. People, supra; Forthoffer v. Swope, supra; People v. Perry, supra. The term insanity, however, as used generally has various shades of meaning. It differs in kind and character and is not subject to a precise definition universally applicable. Usually it denotes a condition of mind so impaired or deranged as to cause a deviation from normal conduct. A reasonable test for determining whether a mental affliction renders a person incapable of binding himself absolutely by contract is whether his mind has been so affected as to render it impossible for him to understand the nature and consequences of his act or the character of the transaction in question. Various tests of insanity have been applied in determining mental...