Askins v. Overholser, 9565.

• Decision Date: 24 May 1948
• Docket Number: No. 9565.,9565.
• Citation: 170 F.2d 815,83 US App. DC 248
• Parties: ASKINS v. OVERHOLSER.
• Court: U.S. Court of Appeals — District of Columbia Circuit

83 US App. DC 248, 170 F.2d 815 (1948)

ASKINS v. OVERHOLSER.

No. 9565.

United States Court of Appeals District of Columbia.

Decided May 24, 1948.

Mr. James J. Laughlin for appellant.

Mr. George Morris Fay, United States Attorney, and Mr. Sidney S. Sachs, Assistant United States Attorney, for appellee. Mr. Oliver Dibble, Assistant United States Attorney, also entered an appearance for appellee.

Before STEPHENS, CLARK and PRETTYMAN, Associate Justices.

STEPHENS, Associate Justice:

This is a motion by the appellant Askins for reconsideration of an order entered by this court on August 6, 1947, and for leave to proceed in forma pauperis. The order of August 6 denied a motion theretofore made by Askins to be allowed to proceed on appeal on an "agreed" statement of evidence. For an understanding of the present motion a survey of previous proceedings is necessary:

Askins was indicted by a grand jury in the District Court of the United States for the District of Columbia for murder in the first degree. Upon an inquiry into his sanity he was found to be of unsound mind and on April 12, 1939, was committed to St. Elizabeths Hospital in the District of Columbia where he is now confined. On November 14, 1946, Askins filed in the District Court a petition for a writ of habeas corpus directed to the appellee Overholser, Superintendent of St. Elizabeths, seeking release from confinement upon the ground that his sanity was restored and his continued confinement therefore illegal. A writ was issued and a return made by Overholser denying restoration of sanity. Upon the issue thus joined a hearing was had in the District Court on January 23, 27, 28 and 30, 1947. The proceeding was stenograph ically reported, but no complete typewritten transcript was prepared.¹ On January 30, the trial court found Askins to be of unsound mind, ruled that the commitment proceeding should not be reopened, and ordered the writ discharged and Askins remanded to Overholser's custody in St. Elizabeths Hospital. On February 3, 1947, Askins applied to the District Court for leave to appeal from this order in forma pauperis. The application was based upon 28 U.S.C. § 832 (1940) providing:

Any citizen of the United States entitled to commence any suit or action, civil or criminal, in any court of the United States, may, upon the order of the court, commence and prosecute or defend to conclusion any suit or action, or an appeal to the circuit court of appeals, or to the Supreme Court in such suit or action, including all appellate proceedings, unless the trial court shall certify in writing that in the opinion of the court such appeal is not taken in good faith, without being required to prepay fees or costs or for the printing of the record in the appellate court or give security therefor, before or after bringing suit or action, or upon appealing, upon filing in said court a statement under oath in writing, that because of his poverty he is unable to pay the costs of said suit or action or appeal, or to give security for the same, and that he believes that he is entitled to the redress he seeks in such suit or action or appeal, and setting forth briefly the nature of his alleged cause of action, or appeal. In any criminal case the court may, upon the filing in said court of the affidavit hereinbefore mentioned, direct that the expense of printing the record on appeal be paid by the United States, and the same shall be paid when authorized by the Attorney General. Italics supplied

On February 4 the District Court denied Askins' application and certified that the appeal sought was not being taken in good faith. The certificate was made upon the ground that "the matter sought to be reviewed involved primarily a determination of fact which had been decided adversely to the petitioner and, further, counsel for said petitioner frankly stated that the appeal was being taken also for the purpose of seeking a reversal by the Court of Appeals of its recent pronouncements in the cases of Dorsey v. Gill, 80 U.S.App.D.C. 9 148 F.2d 857, and Overholser v. De Marcos, 80 U.S.App.D.C. 91 149 F.2d 23." In those cases this court ruled that, in hearings upon writs of habeas corpus involving an issue of restoration of sanity of a person confined in St. Elizabeths Hospital upon a commitment for insanity, if the District Court finds that the petitioner is of sound mind it must nevertheless not forthwith enter an order of discharge from the confinement but must require a reopening by the Commission on Mental Health of the commitment proceedings; that if that Commission finds sanity restored the court is then to enter an order of discharge.

After the denial by the District Court, on February 4, of his petition for leave to appeal in forma pauperis from the order of January 30, Askins on February 14, 1947, applied to this court for leave to appeal in forma pauperis. For lack of the showing required by Waterman v. McMillan, 1943, 77 U.S.App.D.C. 310, 135 F.2d 807, and Spruill v. Temple Baptist Church, 1944, 78 U.S.App. D.C. 324, 141 F.2d 137, that the District Court's certificate that the appeal was not taken in good faith was itself not made in good faith or was without warrant, this court on March 13, 1947, denied the application. Then, on April 25, notice of appeal from the order of January 30 was filed by Askins in the District Court, his counsel personally paying the filing fee, and thereafter, on June 5, a preliminary record — containing only copies of the order of January 30 and of the notice of appeal — was filed in this court. Also on June 5 Askins filed a motion in this court to be allowed to proceed upon what he termed an "agreed" statement of evidence. This was not, however, a statement approved by the District Court and certified as the record on appeal pursuant to Rule 76, Federal Rules of Civil Procedure, 28 U.S.C.A.² It was apparently an attempted compliance with Rule 75(c), providing in part that "A party may prepare and file with his designation a condensed statement in narrative form of all or part of the testimony, and any other party to the appeal, if dissatisfied with the narrative statement, may require testimony in question and answer form to be substituted for all or part thereof." No statement of the points on which Askins intended to rely in the appeal was included in the motion of June 5, and no such statement has ever been filed in this court; but it was averred in the motion that in the hearing before the District Court on the petition for the writ of habeas corpus and the return thereto three psychiatrists testified that Askins was of sound mind and two that he was of unsound mind, and it was asserted that "the question to be decided on this appeal is whether there was sufficient showing before Judge Keech the trial judge in the light of the Dorsey and De Marcos cases to justify the reopening of the commitment"; and it was stated that it was sought by the appeal "to accomplish . . . the overruling of the Dorsey vs. Gill and Overholser vs. De Marcos cases . . .."

To Askins' motion of June 5, the District Attorney, as counsel for Overholser, on June 13, filed in this court an opposition asserting that the "agreed" statement was not an agreed statement and that it was inadequate as a basis for review. On June 17 Askins filed a reply to the opposition in which he conceded that "There has in fact been no agreed statement of evidence," and in which he stated that "In accordance with the present Rules of Civil Procedure" he had filed in the District Court his "statement of evidence." On June 20, 1947, there was filed in this court for Askins by his counsel a supplement to the motion of June 5. In this supplement there was set forth a letter of June 17, 1947, from the District Attorney to counsel for Askins requiring that, pursuant to the provisions of Rule 75(c), referred to above, the testimony in the habeas corpus hearing, in question and answer form, be substituted for the "statement of evidence" filed in the District Court; and it was stated that "we the parties are unable to agree on a statement of evidence and the judge being without notes is unable to aid us. It would seem, therefore, that the matter should be settled by this Court." On August 1, 1947, the District Attorney for Overholser filed a memorandum supplementing the opposition of June 13. On August 6 this court denied Askins' motion of June 5; the court also extended the time for filing the record in this court to September 30, 1947. The denial of the motion was "without prejudice, however, to appellant's preparing and filing in the District Court with his designation of record a statement of his points on appeal and a further and more complete statement of the testimony in narrative form which may be satisfactory to appellee or which, if not satisfactory to appellee, may be submitted to the trial judge for settlement under Rule 75(h) of the Federal Rules of Civil Procedure."³

Thereafter Askins' counsel prepared and submitted to the District Attorney as counsel for Overholser and presented to the District Court a so-called "Additional Narrative Statement of Evidence" consisting of seven and a fraction pages, together with a transcript of the proceedings of Thursday, January 23, 1947 (i. e., the first of the four days, specified above, of the habeas corpus hearing); and Askins' counsel filed in the District Court a "Statement of Points on Appeal." In opposition to the "Additional Narrative Statement of Evidence" the District Attorney in writing...