Barkman v. Sanford, 11941.

• Decision Date: 24 June 1947
• Docket Number: No. 11941.,11941.
• Parties: BARKMAN v. SANFORD.
• Court: U.S. Court of Appeals — Fifth Circuit

162 F.2d 592 (1947)

BARKMAN v. SANFORD.

No. 11941.

Circuit Court of Appeals, Fifth Circuit.

June 24, 1947.

David B. Alford, of Middleburg, N. Y., for appellant.

J. Ellis Mundy, U. S. Atty., Joel B. Mallet and Harvey H. Tysinger, Asst. U. S. Attys., all of Atlanta, Ga., for appellee.

Before HUTCHESON, McCORD, and WALLER, Circuit Judges.

WALLER, Circuit Judge.

The sole question presented by this appeal is, do subsections (a) and (b) of Rule 7, Federal Rules of Criminal Procedure, 18 U.S.C.A. following section 687, authorizing the prosecution of a defendant, in a noncapital felony, upon information, provided he waives an indictment by a grand jury, violate the provision of the Fifth Amendment that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury"?

The information in the present case charged the Petitioner with a noncapital felony, punishable by imprisonment for more than one year, and, therefore, an infamous crime. Antecedent to the filing of the information, Petitioner had waived the right to be tried under an indictment and had consented to be tried under the information. He then entered a plea of guilty and received the sentence from which he now seeks his release by habeas corpus. He asserts that the constitutional provision for an indictment upon which to try one for an infamous crime is not a personal right that may be waived but that it is jurisdictional — a limitation upon the court rather than a privilege to the defendant. He insists that in words and in substance there is a difference between prohibitions in limitation of the court's power and rights inhering in the individual such as right to trial by jury, the right to have counsel, the right to be confronted by witnesses, the right to have a speedy trial, and the like, which concededly may be waived.

In a discussion of the question it is appropriate that sight be not lost of certain considerations, viz.:

(a) That jurisdiction cannot be conferred upon a federal court by consent, for its jurisdiction springs wholly from the Constitution and statutes of the United States;

(b) That neither Congress nor the Supreme Court can alter such jurisdiction of such courts as is prescribed by the Constitution;

(c) That the rule here under assault was approved and projected by the Supreme Court under purported authorization by Congress;

(d) That Congress reserved the power to veto the rule but failed to do so, thereby according to it the sanctity of legislative acquiescence and rendering it appropriate that we consider it as a legislative enactment of the usual pattern, carrying with it the shield of presumptive validity.

The fact that the rule was approved and proposed by the Supreme Court also supplies it with an armor of great, but not complete, invincibility. The fact that a rule was promulgated by the Supreme Court does not raise it above the Constitution, nevertheless, the source of the rule is such as to suggest strongly that all who enter into its forum of controversy should tread lightly even though we consider it merely as a congressional enactment. Cf. Harris v. Zion's Savings Bank & Trust Co., 10 Cir., 127 F.2d 1012; In re Bronx Ice Cream Co., 2 Cir., 66 F.2d 620.

It must be conceded, also, that if the Fifth Amendment is a limitation upon the power, or jurisdiction, of the federal courts, the waiver by Petitioner would be ineffective and his conviction and sentence illegal.

On the other hand, if the constitutional provision was designed merely to confer a right or privilege upon the person, then it could be waived in the same fashion as can a trial by jury Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263; a right to have counsel Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357; and a right to be confronted by witnesses Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500, Ann.Cas.1913C, 1138.

In addition to the provision that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury," it is well to observe that the four other protective provisions of the Fifth Amendment may be waived. The SECOND, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb," is a personal privilege which may be waived. Trono v. United States, 199 U.S. 521, 26 S.Ct. 121, 50 L.Ed....