United States ex rel. Rooney v. Ragen

Decision Date22 March 1949
Docket Number9578.,No. 9577,9577
Citation173 F.2d 668
PartiesUNITED STATES ex rel. ROONEY v. RAGEN. UNITED STATES ex rel. BERRY v. RAGEN.
CourtU.S. Court of Appeals — Seventh Circuit

Albert E. Jenner, Jr., Roger W. Barrett, and John Paul Stevens, all of Chicago, Ill., for appellants.

Ivan A. Elliott, Atty. Gen., and William C. Wines, Asst. Atty. Gen., (George F. Barrett, Atty. Gen. of the State of Illinois, Raymond S. Sarnow and James C. Murray, Asst. Attys. Gen., of counsel), for appellee.

Before MAJOR, Chief Judge, and KERNER and DUFFY, Circuit Judges.

MAJOR, Chief Judge.

These are separate appeals from identical orders, entered December 24, 1947, in each of which a petition for writ of habeas corpus was denied, dismissed and quashed, and the relators remanded to the custody of the respondent. The issues in the two cases are substantially the same, they were heard together below and the separate appeals have here been consolidated.

Petitioner Rooney filed a petition for habeas corpus in the District Court on May 31, 1944, which was dismissed on motion of respondent on March 8, 1946. Rooney appealed, and on November 20, 1946, this court reversed the order of dismissal. United States ex rel. Rooney v. Ragen, 7 Cir., 158 F.2d 346 (hereinafter referred to as our former opinion). Petitioner Berry filed a petition for habeas corpus in the District Court on January 13, 1945. The motion of respondent to dismiss was denied on March 6, 1946.

Petitioners Rooney and Berry, with Rosalie Rizzo, were tried and convicted of murder in the Criminal Court of Cook County, Illinois, on August 5, 1933. Petitioners were sentenced to the penitentiary for life, and the judgment of conviction was affirmed by the Supreme Court of Illinois, People v. Rooney et al., 355 Ill. 613, 190 N.E. 85. Two other persons, namely, John Jilson and Herbert Arnold, were also named as defendants but, not having been apprehended, were not tried with petitioners and Rizzo.

The proceedings in the State court which resulted in petitioners' conviction are fully set forth in the Illinois Supreme Court opinion and to a lesser extent in our former opinion, which obviates any occasion for their detailed narration at this time. Briefly, a labor dispute was in progress between Goldblatt's Department Store in Chicago and the Circular Distributors' Union, of which petitioner Rooney was president. The headquarters of the Union were located near Goldblatt's. The store had been picketed by the Union, and upon payment of money to Rooney the pickets had been removed. Upon refusal to meet Rooney's further demands, the pickets were reinstated. A course of vandalism was then inaugaurated, during which windows were broken, stench bombs thrown into the store and merchandise damaged. Goldblatt's employed persons to guard the store and watch for window breakers. One of such persons was Stanley Gross, who, at about three o'clock on the morning of May 23, 1933, while seated in an automobile in front of the store, was shot and killed by persons riding in a passing automobile. It was for the shooting of Gross that petitioners were convicted.

In our former opinion, we relate in considerable detail the allegations of the petition for habeas corpus filed by Rooney, which we think unnecessary to repeat. The main issue on that appeal was whether his petition was sufficient to require a response by the respondent and to entitle Rooney to a hearing. We concluded that it was, and reversed the lower court's order of dismissal. The petition, in support of the allegation that Rooney was deprived of due process in violation of the Fourteenth Amendment, relies in the main upon two factors, (1) that certain evidence was introduced at the trial which was obtained as a result of an unlawful search and seizure by Illinois officials and, therefore, in violation of his Federal constitutional rights, and (2) that one Davidson, a witness who testified on behalf of the State and without whose testimony a conviction could not have been procured, committed perjury, and that such perjury was with the knowledge and connivance of the prosecuting officials. While other issues have been injected into the proceeding, we think they are more or less incidental to the all-important question as to whether Rooney was deprived of due process so as to nullify the judgment of conviction, and the nature of the cases is such that what is said as to Rooney is equally applicable to Berry.

It is conceded that Rooney and his co-defendant Rizzo were under surveillance by Chicago officers in Wisconsin for several days and were taken into custody by such officers on June 13, 1933, while sleeping in his cottage in Eagle River, Wisconsin. Rooney was handcuffed, taken from his cottage at the point of a gun, placed in the back seat of an automobile and forced to accompany the arresting officers back to Chicago, all without any warrant or process of extradition. The officers also searched the premises, without a warrant or other process, and as a result found in a drawer a pair of field glasses, which they seized without his consent. The police officers also entered and searched a flat occupied by Rooney and Rizzo in Berwyn, Illinois, without a warrant and without their consent. In a dresser drawer they found and seized a receipt for the purchase price of a pair of field glasses. Police officers also entered a garage on the premises of Rizzo's parents without a warrant or other process and seized an automobile belonging to Rizzo, in which petitioners were alleged to have ridden at the time of the shooting. This automobile was displayed to persons who testified at the trial and was also used by the officers in a re-enactment of the shooting before these witnesses. The police officers also searched the Union headquarters of which Rooney was head, drilled the Union safe and took papers therefrom, all without a warrant.

Prior to trial, the petitioners moved to suppress this evidence illegally seized, the States Attorney confessed that the motion should be sustained and stated that such evidence would not be offered. Of the suppressed evidence, two items, the pair of field glasses and the receipt showing payment for the same, were admitted over objection. These exhibits were offered for the purpose of corroborating certain details of the testimony given by Davidson. As to these items, Rooney's counsel in his brief filed before the Illinois Supreme Court stated, "The court, by admitting the field glasses and receipt, permitted corroboration by Davidson upon an immaterial matter." The Illinois Supreme Court expressed the opinion that the admission of these exhibits was error and criticized the States Attorney because of their introduction, but held that their admission did not constitute reversible error.

Petitioners cite cases in support of the proposition that if the seizure of the evidence in the instant case had been by Federal officers and used in connection with a trial in a Federal court, it would have constituted a violation of the Fourth and Fifth Amendments to the Constitution of the United States, which prohibit unreasonable search and seizure and compulsory self-incrimination. We need not, however, be concerned about these cases because, assuming that such is the law, they admittedly do not apply where the search was made by State officers and the evidence used in connection with a State court trial, which is the situation before us. Nevertheless, petitioners urgently insist that the evidence thus seized was used in violation of the due process clause of the Fourteenth Amendment. Petitioners, while conceding that the Supreme Court has not so broadly interpreted the due process clause, make an impressive argument that the court is headed strongly in that direction.

Numerous cases are cited and quoted from, such as Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R. 1223; Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043; Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; Bute v. Illinois, 333 U.S. 640, 68 S.Ct. 763; Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029, asserted to demonstrate that four of the Supreme Court Justices are committed to the proposition that a violation of any of the amendments known as the Bill of Rights by State officers is a violation of the due process...

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  • United States v. Reincke
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • March 22, 1965
    ...(9 Cir. 1960); Trujillo v. Tinsley, 333 F.2d 185 (10 Cir. 1964); Harrison v. Boles, 307 F.2d 928 (4 Cir. 1962); United States ex rel. Rooney v. Ragen, 173 F.2d 668 (7 Cir. 1949). Similarly, habeas corpus will not lie either to examine the failure of the trial court judge to charge the jury ......
  • United States ex rel. Johnson v. Johnson, Civ. A. No. 71-1528.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 10, 1972
    ...§ 2254; Trujillo v. Tinsley, 333 F.2d 185 (10th Cir. 1964); Judy v. Pepersack, 284 F.2d 443 (4th Cir. 1960); United States ex rel. Rooney v. Ragen, 173 F.2d 668 (7th Cir. 1949); United States ex rel. Williams v. Myers, 196 F.Supp. 280 1 Following his conviction, relator moved for a new tria......
  • Petition of Sawyer, Civ. A. No. 6477.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • January 27, 1955
    ...688, 86 L.Ed. 932; United States v. Spadafora, 7 Cir., 200 F.2d 140. It is not enough that perjury be proved. In United States ex rel. Rooney v. Ragen, 7 Cir., 173 F.2d 668, 671, certiorari denied 337 U.S. 961, 69 S.Ct. 1524, 93 L.Ed. 1759, the Court said: "But assuming that Davidson commit......
  • In re Sawyer's Petition, 11464.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 1, 1956
    ...with the knowledge of the prosecutor that it was perjured. United States v. Spadafora, 7 Cir., 200 F.2d 140; United States ex rel. Rooney v. Ragen, 7 Cir., 173 F.2d 668; Cobb v. Hunter, 10 Cir., 167 F.2d 888. The District Judge found: "* * * It is clear that Special Prosecutor Mount did not......
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