Wilson v. United States

• Decision Date: 25 April 1928
• Docket Number: No. 7998.,7998.
• Citation: 26 F.2d 215
• Parties: WILSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

26 F.2d 215 (1928)

WILSON v. UNITED STATES.

No. 7998.

Circuit Court of Appeals, Eighth Circuit.

April 25, 1928.

John T. Harley, of Tulsa, Okl., for plaintiff in error.

John M. Goldesberry, U. S. Atty., of Tulsa, Okl.

Before LEWIS, Circuit Judge, and SCOTT and DAVIS, District Judges.

LEWIS, Circuit Judge.

Pursuant to order of court the district attorney filed an information charging defendant (plaintiff in error here) with criminal contempt, in that, defendant on June 4, 1927, while acting as guard at the Tulsa county jail, committed an inexcusable and unjustifiable assault and battery on one Leonard Grant, who was then and there held and detained in said jail as a federal prisoner on a mittimus regularly issued by a United States commissioner for the Northern district of Oklahoma on default of his giving bail to appear and answer the charge of having in his possession intoxicating liquor, which had been made against him. On trial by jury defendant was found guilty and sentenced both to imprisonment and to pay a fine. He brings the case here and specifies as reversible error (1) the overruling of his motion to quash the information, (2) the overruling of his motion for an instructed verdict of not guilty at the close of all the evidence, (3) the admission of incompetent, irrelevant, and immaterial evidence, and (4) the imposition of a sentence of both fine and imprisonment. Admittedly the last assignment is well taken. A contemner cannot be punished with both fine and imprisonment. Section 385, title 28 USCA. Without more the case would have to go back for resentence, but we think there are more serious errors on the record that require consideration. We are confined to errors of law. Binkley v. United States (C. C. A.) 282 F. 244.

The court, over defendant's objections, permitted the inquiry to take too wide a scope, prejudicial, we think, to the defendant. The general conduct of the jail was gone into; it being made to appear that the inmates maintained a court of their own and inflicted punishment on some of their number for violation of their own rules, one of which was not to report on other inmates; which had something to do, it was thought, with the assault on Grant. The evidence in that regard clearly had a prejudicial tendency to hold the defendant in some way responsible for the intimated had management and control, though put in against his persistent objection that he was in no way responsible therefor, even if true. It had no tendency to show that the assault was without excuse or justification, and defendant claimed no such defense. When the judge persisted in asking questions about a kangaroo court, so called, defendant's counsel continued to object and said, "But defendant is not responsible for that and he excepts to it." Then this occurred:

"The Court: Now, let me understand you, Mr. Harley. Do you mean to say the man in charge of the jail is not familiar with what is going on up there? Is that what you want to tell me?

"Mr. Harley: Your honor, I just wanted to tell you just what I said.

"The Court: What is your contention on the matter?

Mr. Harley: My contention is that those questions are incompetent against this defendant because it is not shown that he is responsible for that if it does exist.

"The Court: Overruled.

"Mr. Harley: And he excepts to the court's questions on that."

There is always some hazard about a judge taking over the examination of a witness. It is said he may under circumstances do it, but he does enough if he lets counsel do it, especially where counsel is competent and knows his case, as was the district attorney here, who had asked nothing about the jail management. A jury usually thinks a judge possesses superior knowledge of the law and when he asks a question they are impressed with its importance. Then the court's argument with counsel made it still more important and impressive. But there are other questions of law that should receive attention.

As many states have done, so Oklahoma passed a statute admitting federal prisoners to its jails for detention. Section 8365, Oklahoma Compiled Statutes 1921, reads:

"All sheriffs, jailers, prison keepers, and their deputies, within this state, to whom any persons shall be sent or committed, by virtue of legal process, issued by or under the authority of the United States, shall receive such persons into custody, and keep them safely until discharged by due course of the laws of the United States; and all such sheriffs, jailers, prison keepers and their deputies, offending in the premises, shall be liable to the same pains and penalties, and the parties aggrieved shall be entitled to the same remedies against them, or any of them, as if such prisoners had been committed to their custody by virtue of legal process issued under the authority of this state."

As early as 1815 the Supreme Court had under consideration a statute of Virginia, similar to that of Oklahoma. A debtor on a judgment rendered in the federal court was taken on execution and confined to Botetourt county jail. The judgment creditor recovered damages of the United States marshal for the escape of the judgment debtor from jail. This was reversed. The court in Randolph v. Donaldson, 9 Cranch, 76, 86, 3 L. Ed. 662, speaking through Mr. Justice Story, said:

"When a prisoner is regularly committed to a state jail by the marshal, he is no longer in the custody of the marshal, nor controllable by him. The marshal has no authority to command or direct the keeper in respect to the nature of the imprisonment. The keeper becomes responsible for his own acts, and may expose himself by misconduct to the `pains and penalties' of the law. For certain purposes, and to certain intents, the state jail lawfully used by the United States, may be deemed to be the jail of the United States, and that keeper to be keeper of the United States."

We do not find the principle there announced has been since challenged. The jailer and his assistants, in holding a federal prisoner under such circumstances, become pro hac vice officers of the United States court; and section 385, supra, invests the court with power to punish as a contempt "the misbehavior of any of the officers of said courts in their official transactions." The District Judge, in submitting the case to the jury, did not put it on that ground. In his instructions to the jury we find here and there these statements:

"The charge is against his violation of an order of the court. So this charge has relation to disobedience of an order of the court. But this contempt of court here is by reason of a violation of an order of court. The order of commitment in this case provides that he shall be safely kept in the jail. Now, the charge is, that there has been a violation of that order. And it is contempt of court to disobey an order of the court or decree or judgment of the court, to disobey it."

As a matter of fact the information did not charge contempt in violation or disobedience of an order of court. It alleged the facts and charged that defendant's conduct was in unlawful and willful contempt of court.

In giving its instructions the court must have had in mind that clause of section 385 which makes it contempt, or rather recognizes the rule that it is contempt, for an officer to disobey or resist "any lawful writ, process, order, rule, decree, or command of the said courts." Cases like Ex parte Shores (D. C.) 195 F. 627, Sweptson v. United States (C. C. A.) 251 F. 206, In re O'Rourke (D. C.) 251 F. 768, and United...