Barry v. White

• Decision Date: 03 April 1933
• Docket Number: No. 5677.,5677.
• Citation: 64 F.2d 707,62 App. DC 69
• Parties: BARRY v. WHITE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

62 App. DC 69, 64 F.2d 707 (1933)

BARRY v. WHITE.

No. 5677.

Court of Appeals of the District of Columbia.

Argued March 6, 1933.

Decided April 3, 1933.

Foster Wood, of Washington, D. C., for appellant.

Leo A. Rover and Charles B. Murray, both of Washington, for appellee.

Before MARTIN, Chief Justice, and ROBB, HITZ, and GRONER, Associate Justices.

MARTIN, Chief Justice.

This appeal is taken from an order of the Supreme Court of the District of Columbia, dismissing the petition of appellant for a writ of habeas corpus and remanding him to the custody of the superintendent of St. Elizabeths Hospital for the Insane.

In the year 1923 the appellant was brought to trial in the Supreme Court of the District of Columbia on an indictment charging him with murder in the first degree. His defense was insanity, and the jury returned a verdict of not guilty by reason of insanity. In accordance with the provisions of section 374 of title 6, D. C. Code 1929, the court certified the verdict to the Secretary of the Interior, and by his order the appellant was committed to St. Elizabeths Hospital on December 27, 1923. On March 11, 1925, the appellant sought his release on habeas corpus on the ground that he had recovered his mental health. The case was heard by the court, and it was found that the appellant was still of unsound mind, and he was remanded to the hospital. On April 8, 1927, the petitioner again applied for release on habeas corpus on the same grounds. His application, however, was denied. The present case was brought by the appellant for the same purpose. The case was heard by the court upon evidence, and an order was entered quashing the writ and remanding the appellant to the hospital. This appeal was brought for a review of that order.

The appellant presents two assignments of error for the consideration of the court in this appeal: First, he contends that the lower court erred in overruling his demand for a jury to pass upon the issues involved; and, second, in finding upon the evidence that the petitioner was of unsound mind and remanding him to the custody of the superintendent of St. Elizabeths Hospital.

The first question accordingly presented by the appellant is whether it was error for the lower court to refuse to impanel a jury to pass upon the appellant's petition. In answer to this we may say that a review of the authorities is convincing that, whereas the court was entitled to call a jury to hear the evidence and render an advisory verdict, it was not error for the court to refuse to call a jury to function in the case.

In section 206, title 24, D. C. Code, 1929, it is provided: "On the return of the writ of habeas corpus and the production of the person detained the court or justice shall immediately inquire into the legality and propriety of such confinement or detention, and if it shall appear that such person is detained without legal warrant or authority, he shall immediately be released or discharged; or if the court or justice shall deem his detention to be lawful and proper, he shall be remanded to the same custody, or, in a proper case, admitted to bail, if he be confined on a charge of a bailable criminal offense; and if he be bailed, the court or justice shall require a sufficient bond or recognizance to answer in the proper court, and transmit the same to said court."

It will be noted that this provision makes no mention of a jury, but speaks of the court or justice as passing upon the petition.

In Church on Habeas Corpus, § 173, p. 223, it is said: "A trial by jury cannot be demanded by a prisoner or respondent in a habeas corpus proceeding as a matter of right. Might as well a trial in a preliminary examination, or in chancery, by jury be demanded. There is no provision in the constitution of the United States, neither is there in any of the state constitutions, which gives the right to have these issues of fact tried by a jury in such proceedings. * * * But the court or judge sitting on the return to a writ of habeas corpus may, in its discretion, order any controverted fact in the matter to be tried by a jury. This power may be exercised, but it is not the practice to do so, and it has met with little favor."

In the case of In re Neagle, 135 U. S. 1, 10 S. Ct. 658, 672, 34 L. Ed. 55, Neagle, who was in the custody of the California state officers, was released on habeas corpus by the Circuit Court of the United States for the Northern District of California, and the officers of the state of California appealed from this order to the Supreme Court of the the United States. In the opinion of the court, written by Mr. Justice Miller, it is said: "The circuit court of the United States was as competent to ascertain these facts as any other tribunal, and it...