Barrow v. Owen, 8313.

• Decision Date: 14 April 1937
• Docket Number: No. 8313.,8313.
• Citation: 89 F.2d 476
• Parties: BARROW v. OWEN.
• Court: U.S. Court of Appeals — Fifth Circuit

89 F.2d 476 (1937)

BARROW v. OWEN.

No. 8313.

Circuit Court of Appeals, Fifth Circuit.

April 14, 1937.

C. L. Tubb, of Aberdeen, Miss., for appellant.

Lester G. Fant, U. S. Atty., of Holly Springs, Miss., for appellee.

Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellant, held under a fugitive complaint, sued out a writ of habeas corpus to obtain his release from custody, and prevent his removal to Louisiana to stand trial for violation of 18 U.S.C.A. § 408e, the fugitive felon act. His claim was that his arrest, detention, and proposed removal were without authority of law, in that (a) he was not guilty of the charge of rape made against him in the state court; (b) that he did not leave Louisiana to avoid prosecution for that offense; and (c) that the fugitive felon act is unconstitutional, null, and void.

The marshal's return to the writ was that appellant had been taken into his custody and was being held (1) by virtue of a warrant of arrest issued by the United States Commissioner, in proceedings to remove the appellant to the Eastern District of Louisiana, to answer a charge of violation of 18 U.S.C.A. § 408e there pending against him, and (2) by virtue of a complaint charging him with a violation of 18 U.S.C.A. § 753h, the escape act. This was the evidence offered on the hearing: The complaint charging violation of the escape act, copy of the complaint filed before the United States Commissioner for the Eastern District of Louisiana, charging that in violation of 18 U.S.C.A. § 408e, appellant did unlawfully, knowingly, and willfully move and travel from the parish of Jefferson, state of Louisiana, to Columbus, state of Mississippi, to avoid prosecution for a felony, to wit, rape; copies of the state court proceedings against appellant, including the indictment for rape, filed August 2, 1935, the appearance bond and judgment of forfeiture on the bond, November 6, 1935.

Appellant admitted his identity, and that the indictment had been returned and the complaint filed against him. He denied that he was guilty of the state offense, and of both of the federal offenses charged against him.

As to the complaint charging violation of the escape act, he specifically and abundantly established, and the court found that it was unwarranted. As to the state offense charged against him, appellant testified over the objection of the respondent as to any evidence touching the guilt or innocence of relator as to the rape charge, or the charge of unlawful flight to avoid prosecution in the Eastern District of Louisiana, and with the ruling reserved by the court, to the following facts: Though raised in Columbus, Miss., he had for some time been working in New Orleans, La., for the Southern Pacific Railway Company. Learning that a charge of rape upon a nine year old girl on July 21, 1935, had been made against him, he at first took the accusation lightly, but later, becoming worried about it, took it up with the child's father, a friend of his, as he thought, who assured him the report was bunk, and he would put a stop to it. He was, however, arrested and on July 29, 1935, gave an appearance bond of $2,500, returnable Monday, November 4, 1935. After the bond was executed, his attorney told him that he could go anywhere so long as he left his address; to keep in touch with him and he would advise him when he was needed, and that he had kept him informed of his whereabouts. Having made bond, and believing he could go where he pleased, and not at all to avoid prosecution, he left New Orleans on August 1 and came to Columbus on November 2, 1935, where his family was living. He has since lived at Columbus, operating a sandwich shop and restaurant on one of the main streets. From the time he left New Orleans until the time the federal officer came saying he had papers for him, he did not keep his whereabouts secret. In June, 1936, he went back to New Orleans to resign his position as secretary of the Railway Workers of Louisiana, registered at a hotel in his own name, and stayed three days, going all over New Orleans and visiting friends. He knew his bond specified that he was to appear on Monday, the 4th of November. He did not know the indictment was found on August 2d. He did not escape from custody at Columbus.

In addition to this testimony, appellant produced witnesses who confirmed his statement that he operated a restaurant publicly and openly and lived in the town like any other citizen. Whereupon the court ruled (1)...