Thomas v. United States, 14249.

• Decision Date: 17 April 1951
• Docket Number: No. 14249.,14249.
• Parties: THOMAS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

188 F.2d 6 (1951)

THOMAS v. UNITED STATES.

No. 14249.

United States Court of Appeals Eighth Circuit.

April 17, 1951.

Charles C. Allen, III, St. Louis, Mo., appointed by the Court (Lehmann & Allen, St. Louis, Mo., on the brief), for appellant.

William J. Costello, Asst. U. S. Atty., St. Louis, Mo. (Drake Watson, U. S. Atty., St. Louis, Mo., on the brief), for appellee.

Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal from an order of the District Court entered October 18, 1950, overruling a motion of the appellant to vacate two sentences of imprisonment which the court imposed on April 16, 1942. The sentences were based upon the appellant's conviction under two indictments, returned December 17, 1941, and March 13, 1942, charging him with two separate attempts to escape from federal custody. He contends that the indictments were fatally defective and that the court was therefore without jurisdiction to impose the sentences.

The appellant has, apparently, on five previous occasions unsuccessfully attacked the legality of these same sentences. He asserts, however, that his previous motions and petitions were not based upon the same grounds as his present motion. For the purposes of this appeal, we shall assume, without deciding, that the challenged sentences still lack complete finality after having survived repeated attacks for more than eight years.

The appellant has adopted the statement of facts which appears in the appellee's brief. The statement reads as follows:

"On October 25, 1941, a complaint was filed before the United States Commissioner for the Eastern District of Missouri, charging the Appellant with violation of the Dyer Act now 18 U.S.C.A. §§ 2311-2313, upon which complaint the Commissioner duly issued his warrant of arrest, which warrant was served by the Deputy United States Marshal for the Eastern District of Missouri by arresting the Appellant under said warrant, following which, upon default of bail, the Commissioner on the same day issued his final mittimus committing the Appellant to the keeper of the Cape Girardeau County Jail. Thereafter, on November 10, 1941, the Grand Jury returned an indictment against Appellant in said cause (District Court Docket No. 2209).

"While Appellant was committed to the Cape Girardeau County Jail under the aforementioned warrant and commitment, he attempted to escape from Custody on November 21, 1941, for which offense the Grand Jury returned an indictment on December 17, 1941, under Docket No. 2219. Then again on January 8, 1942, Appellant made a second attempt to escape from said custody, for which the Grand Jury returned another indictment on March 13, 1942, under Docket No. 2238.

"Following the return of each of the three indictments above enumerated, the cases came on for hearing before the Honorable George H. Moore at the regular April, 1942, term of the District Court for the Southeastern Division at Cape Girardeau, Missouri, at which term the Appellant, being represented by counsel designated by the Court, entered his plea of guilty to the Dyer Act indictment, and on April 16, 1942, the Court imposed a sentence of four years. Under each of the attempted escape indictments, which were consolidated for trial, the Appellant was found guilty by a jury, upon which verdicts the Court imposed a sentence of five years for each attempted escape, the terms to run consecutively with each other and consecutively with the sentence of four years imposed for the Dyer Act violation."

The indictments charging attempts to escape were based on Section 753h of Title 18 U.S.C. 1948 Revised Criminal Code, 18 U.S.C.A. § 751, as it existed when the indictments were returned. That section made it an offense for any person in custody by virtue of any process issued under the laws of the United States by any court, judge, or commissioner, to escape or attempt to escape from such custody. Each of the indictments under attack alleged that the appellant, while held in federal custody in the jail of Cape Girardeau County, Missouri, "did wilfully, unlawfully, knowingly and feloniously attempt to escape from the custody of the * * * United States Marshal and from the custody of the keeper of the said Cape Girardeau County Jail * * *." While each of the indictments conforms to the language of the applicable statute, it is contended that, where an attempt to escape is charged, such an indictment is void unless the acts constituting the attempt are specified.

The precise question before us is not whether these indictments could have been successfully challenged at or before trial, but whether, after trial, conviction and sentence, they must be held to be so defective as to require the vacation of the sentences imposed upon the appellant.

Counsel appointed by this Court, who has ably represented the appellant, calls our attention to two federal cases which hold that an...