92 F.2d 748 (5th Cir. 1937), 8562, Johnson v. Zerbst

Docket Nº:8562, 8563.
Citation:92 F.2d 748
Party Name:JOHNSON v. ZERBST, Warden. BRIDWELL v. ZERBST, Warden.
Case Date:November 24, 1937
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 748

92 F.2d 748 (5th Cir. 1937)



ZERBST, Warden.



ZERBST, Warden.

Nos. 8562, 8563.

United States Court of Appeals, Fifth Circuit.

November 24, 1937

Page 749

Elbert P. Tuttle, of Atlanta, Ga., for appellants.

Bates Booth, Sp. Asst. to Atty. Gen., and Lawrence S. Camp, U.S. Atty., and Harvey H. Tisinger and H. T. Nichols, Asst. U.S. Attys., all of Atlanta, Ga., for appellee.

Before FOSTER, SIBLEY, and HOLMES, Circuit Judges.

FOSTER, Circuit Judge.

These cases present appeals from judgments dismissing petitions for writs of habeas corpus to release appellants from the Atlanta penitentiary. The evidence is identical in both cases. By agreement only one record was printed, upon which both cases were submitted. The record discloses the following facts:

Appellants were arrested in Charleston, S.C., on November 21, 1934, charged with feloniously uttering and passing four counterfeit $20 Federal Reserve notes and with knowingly and feloniously passing 21 counterfeit Federal Reserve Bank notes, with intent to defraud. A hearing was had before a United States commissioner, at which they were represented by counsel of their own choosing. They were bound over to await the action of the United States grand jury and, being unable to give bail, were confined in a local jail, An indictment was returned against them at the next term of court, and on January 23, 1935, they were brought into court, pleaded not guilty, and were tried to a jury, with the result that a verdict of guilty was rendered. They were sentenced to be imprisoned in the Atlanta Penitentiary for 4 years and 6 months. No appeal was taken from this judgment. In December, 1935, they filed petitions in the United States District Court for the Northern District of Georgia, seeking release on habeas corpus. The petitions alleged that the judgment of conviction was an absolute nullity, on the grounds that they were innocent of the charge and were denied compulsory process for obtaining witnesses in their favor and to have the assistance of counsel for their defense, in violation of the Fifth Amendment. The District Court appointed competent counsel to represent them on the trial of the habeas corpus cases and evidence was taken on the hearing. The District Court reached the conclusion that they had been deprived of constitutional rights as alleged, but that, as the trial court had jurisdiction and the judge was not...

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