MacKenna v. Ellis

Decision Date20 March 1959
Docket NumberNo. 17213.,17213.
Citation263 F.2d 35
PartiesEdward Morgan MacKENNA, Appellant, v. O. B. ELLIS, Director, Texas Department of Corrections, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Edward Morgan MacKenna, in pro. per.

Linward Shivers, Asst. Atty. Gen., Will Wilson, Atty. Gen., B. H. Timmins, Jr., Asst. Atty. Gen., for appellee.

Before HUTCHESON, Chief Judge, and RIVES and WISDOM, Circuit Judges.

RIVES, Circuit Judge.

This appeal is from a final judgment declining either to grant the Writ of Habeas Corpus or to enter an order to show cause. The district judge, believing the appeal to be without merit, declined to allow it to proceed in forma pauperis under Section 1915, Title 28 U.S.C.A., and also declined to issue a certificate of probable cause under Section 2253 of said Title. However, on April 4, 1958, a panel of this Court, consisting of Judges Rives, Tuttle, and Jones, granted a certificate of probable cause and the right to appeal in forma pauperis.

On December 5, 1955, an indictment was returned in the Criminal District Court of Dallas County, Texas, charging in substance:

"* * * that one Edward Morgan MacKenna on or about the 18th day of October in the year of our Lord One Thousand Nine Hundred and 55, in the County and State aforesaid, did unlawfully and fraudulently take one camera, of the value of $225.00, and one case, of the value of $25.00, all of which is of the total value of $250.00 and the aggregate value of over fifty dollars, the same being the corporeal personal property of Squire Haskins from the possession of the said Squire Haskins without the consent of the said Squire Haskins and with the intent to deprive the said Squire Haskins of the value thereof, and with the intent to appropriate it to the use and benefit of him, the said Edward Morgan MacKenna. Against the peace and dignity of the State."

On October 2, 1956, a jury in said Court returned its verdict finding the defendant guilty as charged in the indictment and assessing his punishment at eight (8) years confinement in the penitentiary. Upon that verdict, judgment of conviction was entered on the same day. On November 1, said Court overruled the defendant's motion for new trial and then sentenced him to be confined in the penitentiary for not less than two (2) nor more than eight (8) years.

Acting pro se, the defendant perfected an appeal from the judgment of conviction. On April 3, 1957, the judgment was affirmed by the Court of Criminal Appeals of Texas in an opinion reported in MacKenna v. State, 301 S.W.2d 657. On October 14, 1957, the Supreme Court of the United States denied the defendant's petition for certiorari, 355 U.S. 851, 78 S.Ct. 70, 2 L.Ed.2d 55, rehearing denied 355 U.S. 886, 78 S.Ct. 152, 2 L.Ed.2d 116. Meanwhile, on July 30, 1957, the court of original jurisdiction had, without hearing, denied a petition for habeas corpus. On October 31, 1957, the Court of Criminal Appeals of Texas refused permission to file writ of habeas corpus, without written opinion. It appears that MacKenna has exhausted the remedies available in the Courts of the State of Texas as required by 28 U.S.C.A. § 2254.

On December 3, 1957, he filed his petition for habeas corpus in the United States District Court for the Southern District of Texas. In contrast to most such petitions filed pro se, in forma pauperis, this one was extremely well written and evidenced a considerable, though at times faulty and inaccurate, knowledge of law. The explanation probably lies in facts disclosed by the transcript of evidence taken upon MacKenna's criminal trial. There it was proved that he is an educated man, two years at Tulane, and two years at Northwestern, graduating from Northwestern in 1934, and since then, working for a number of newspapers and becoming a feature writer for several periodicals. Also, on cross-examination, MacKenna admitted that he had a long record of no less than seven previous convictions for crime. Asked on re-direct examination whether he would care to explain to the jury the reason for the commission of those crimes, MacKenna answered:

"Yes; alcohol. Overindulgence. Since 1953 I have been a member of A.A. I expected two of the members of A.A. to be up here today. Unfortunately, they are not here, not able to be here."

He has consistently denied his guilt of the theft of the camera and case. His testimony upon his criminal trial was substantially in accord with the more succinct statement in his petition for habeas corpus, viz.:

"In October, 1955, petitioner inadvertently came into possession of an encased camera which, he determined subsequent to acquisition, had been apparently stolen prior to coming into his possession. The petitioner neither stole the camera, nor did he know it was stolen when acquired. The camera was left in petitioner\'s possession by an acquaintance, and upon discovery of the name and address of a Dallas commercial photographer on the bottom of the case, petitioner realized he had stolen property on his hands.
"For more than 2 weeks petitioner attempted to find a way to return the camera to its rightful owner, without jeopardy to himself. For adequate reason — petitioner was on a Governor\'s pardon from the Texas Penitentiary at the time — petitioner could not return the camera in a normal manner open to one unencumbered by such a handicap.
"After days of searching thought petitioner finally decided to see the camera safely back in its owner\'s possession by placing it in a rental locker and mailing the key to the owner.
"Putting this plan into action, petitioner brought the camera and case into the Union Bus Terminal in Dallas on the morning of November 3, 1955, placed the case containing the camera in a rental locker, locked the locker, pocketed the key and stepped into an adjacent drugstore to buy a special delivery stamp.
"Upon emerging from the drugstore petitioner was confronted and stopped by two Dallas policemen — Officer Pope, in civilian clothes and off-duty, and Officer Wise, uniformed man assigned to the bus terminal. Officer Pope, who knew petitioner by sight and name, told petitioner he was under arrest, searched him, removed the key from petitioner\'s pocket, opened the locker and took out the case. Officer Pope then opened the case, exposed the camera and told petitioner he would `* * * have to go downtown and explain it.\'
"Petitioner was taken to the City Jail and booked on a charge of theft of the camera."

The evidence to sustain his conviction consisted of his recent possession of stolen property.

Upon being presented with the petition for habeas corpus, the district court, citing Baker v. Ellis, 5 Cir., 1952, 194 F. 2d 865, entered an order requiring the respondent to file a full and detailed answer within thirty days and giving the petitioner an opportunity to reply to that answer. After the filing of respondent's answer and petitioner's reply, and after considering the record thus made of the petition, answer, and reply, the district court declined to grant the writ or to enter a show cause order.

The grounds upon which appellant seeks habeas corpus are substantially four, two of which may be briefly disposed of as without merit.

(1) Appellant claims that his conviction resulted from a conspiracy contrived by the prosecution. His sole ground for that claim is expressed in a "Note" to his petition as follows:

"(Note: Petitioner feels it significant at this point to call to the attention of this Court the fact both counsel assigned by the trial Court, within 60 days of the trial of October 2, 1956, went to work in the office of the District Attorney of Dallas County as assistant district attorneys.)"

That, of course, is the averment of a mere suspicion and does not comply with Rule 9(b), Federal Rules of Civil Procedure, 28 U.S.C.A., requiring the circumstances constituting any claimed fraud to be stated with particularity. Our full examination of the record discloses no substantial ground for suspicion of any such conspiracy, and we have no doubt as to the integrity either of the prosecuting attorney or of defense counsel.

(2) Appellant claims that he was illegally arrested and the key to the locker removed from his person by an illegal search, that the overruling of his objection to the finding of the camera and case in the locker forced him to testify in his own defense, and to be subjected to cross-examination disclosing his long previous criminal record, and that thereafter his conviction was a foregone conclusion. The Texas Court of Criminal Appeals answered that contention as follows:

"* * * Appellant, having admitted his possession of the camera and case was in no position to complain of the search and admission of the articles in evidence. Soble v. State, Tex.Cr.App., 218 S.W.2d 195 and Salinas v. State, 159 Tex.Cr.R. 619, 266 S.W.2d 388." MacKenna v. State, 1957, 301 S.W.2d 657, 658.

If we assume that the arrest and search were illegal, we are nevertheless of the opinion that the admission in evidence in a State court of the fruits of an illegal search by State Officers presents no substantial federal constitutional question. Wolf v. People of State of Colorado, 1949, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782.

The remaining two grounds which have more substance are: (3) that the trial court forced the appellant, over his objection, to accept representation of counsel appointed by the court; and (4) that he was given no reasonable opportunity to secure the presence and testimony of his witnesses.1

(3) Upon his appeal from his judgment of conviction, MacKenna presented ten formal Bills of Exception stated to be "drawn up in conformity with the provisions of Article 760 of the Code of Criminal Procedure of the State of Texas," upon which the court entered the following order:

"The foregoing ten formal Bills of Exception were to me presented in writing by the defendant, Edward Morgan MacKenna, in
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  • MacKenna v. Ellis
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 22, 1960
    ...Circuit Judge: This case is before us for the second time on an appeal from a denial of the writ of habeas corpus. See MacKenna v. Ellis, 5 Cir., 1959, 263 F.2d 35. Edward MacKenna was sentenced to eight years' imprisonment for the theft of a camera valued at $250. Since March 12, 1956, he ......
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