Barker v. United States, 12858.

• Decision Date: 21 December 1949
• Docket Number: No. 12858.,12858.
• Citation: 178 F.2d 803
• Parties: BARKER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

178 F.2d 803 (1949)

BARKER v. UNITED STATES.

No. 12858.

United States Court of Appeals Fifth Circuit.

December 21, 1949.

Harold D. Putman, San Antonio, Tex., for appellant.

H. W. Moursund, U. S. Atty., San Antonio, Tex., Wm. H. Russell, Jr., Asst. U. S. Atty., San Antonio, Tex., Joel W. Westbrook, U. S. Atty., San Antonio, Tex., for appellee.

Before HUTCHESON, HOLMES and RUSSELL, Circuit Judges.

HOLMES, Circuit Judge.

This is an appeal from an order of the court below, denying appellant's motion under Section 2255, New Title 28 of the United States Code Annotated, to vacate a sentence of five years, which had been given him for violating the Fugitive Felon Act, 18 U.S.C.A. § 408e, now Section 1073, Title 18 U.S.C.A.

The facts that resulted in the conviction, and on which appellant is seeking to have the sentence vacated, are as follows: The petitioner and Houston Hubert Barker were charged by indictment with having traveled from Leakey, Texas, within the San Antonio Division of the Western District of Texas, to Brookhaven, Mississippi, with intent to avoid prosecution under the laws of Texas for the offense of burglary, in violation of Section 408e, Title 18, U.S. C.A. Counsel was appointed by the court to represent appellant and his co-defendant. The former entered a plea of guilty to the indictment, and on March 12, 1948, was sentenced to confinement in a penitentiary for a period of five years, said sentence to begin upon the expiration of the sentence imposed against him in Criminal Cause No. 15,584, styled the United States v. Paul Dean Barker and Houston Hubert Barker. On March 14, 1949, appellant filed a motion to vacate the judgment and sentence imposed on him in this cause. After a hearing was had on the motion, appellant being represented by counsel, the court entered an order denying it.

Appellant's contention on this appeal is that the indictment was fatally defective in that it did not charge an offense within the meaning of said Section 408e; that it did not allege facts sufficient to apprise appellant of the nature and cause of the accusation against him; and was not sufficient to bar another prosecution for the same offense. The gist of appellant's contention is that the indictment should have contained the word "charged" instead of "committed" because the provisions of the act require that a violator of the statute must be charged with the State offense rather than that the person had committed the offense of burglary and thereafter traveled from the State. The indictment referred to, omitting formal parts, is as follows: "On or about January 1, 1948, Paul Dean Barker and Houston Hubert Barker traveled from Leakey, Real County, Texas, within the San Antonio Division of the Western District of Texas, to Brookhaven, Mississippi, intending thereby to avoid prosecution for an offense of burglary committed by them under the laws of the State of Texas, in Leakey, ...