Bens v. United States

Decision Date30 March 1920
Docket Number205.
Citation266 F. 152
CourtU.S. Court of Appeals — Second Circuit

Charles Driggs Lewis, of Rockville Centre, N.Y., and Edmund F Driggs, of Brooklyn, N.Y., for appellant.

Leroy W. Ross, U.S. Atty., of Brooklyn, N.Y. (Charles J. Buchner Asst. U.S. atty., of Brooklyn, N.Y., of counsel), for the United States.

Before WARD, ROGERS, and MANTON, Circuit Judges.

ROGERS Circuit Judge.

The petitioner is in this court on an appeal from an order entered in the District Court on June 25, 1919, which dismissed a writ of habeas corpus previously issued, and remanded the petitioner to the custody of the United States marshal.

It appears that on February 18, 1919, the petitioner was indicted in the Eastern district of New York, being charged with the crime of conspiracy. The charge is that Bens conspired with one James Hanse to violate section 6 of the Selective Service Act, approved May 18, 1917 (Comp. St. 1918 Comp. St. Ann. Supp. 1919, Sec. 2044f), and acts amendatory thereof. At the time of the conspiracy the petitioner, Bens was a member of the Legal Advisory Board No. 3, county of Nassau, state of New York, and Hanse was chairman of Local Exemption Board No. 3 of the same county. It was charged that Bens and Hanse conspired to aid one Joseph Gitter to evade the above-mentioned act, by advising and procuring him to register falsely and unlawfully under the provisions of the act, and by aiding, assisting, and directing Gitter to answer and file a false and perjurious questionnaire, and by granting and procuring the granting to Gitter of a deferred classification, to which he was not entitled by law.

The petitioner was tried on the indictment, and a verdict of not guilty was rendered on May 23, 1919. On the day of his acquittal one John S. Gillies made an affidavit in which he charged that Bens had aided Gitter to evade the requirements of the Selective Service Law and the amendatory acts, by advising and procuring Gitter to register falsely and unlawfully under the provisions of the said act, and by knowingly, willfully, and unlawfully writing in false answers to the questions contained in the questionnaire. Thereupon a United States commissioner issued a warrant for Bens' arrest, and he was apprehended and arraigned and entered a plea of not guilty. He was admitted to bail, but was surrendered by his bondsman on May 31, 1919, into the custody of the United States marshal.

Bens thereupon applied for a writ of habeas corpus upon the ground that he was being restrained of his liberty without due process of law and was being twice placed in legal jeopardy for the same offense. In obedience to the writ the United States marshal made a return to the effect that the charge upon which he was holding the petitioner in custody was not the same charge as that under which he had been put in former jeopardy. He alleged that the crime charged in the indictment, and of which Bens was acquitted, was the crime of conspiracy, a violation of section 37 of the Criminal Code (Comp. St. Sec.

10201), and that the crime charged in the affidavit upon which the warrant issued was the crime of aiding and assisting another to evade the requirements of the Selective Service Law.

The District Judge heard the matter on June 7, 1919, and adjourned it to June 18, and on that day adjourned it once more, and to June 23, when he dismissed the writ and remanded the petitioner to the custody of the marshal. There are two assignments of error:

'(1) The learned court erred in dismissing the petition of said petitioner for a writ of habeas corpus and remanding him to custody.
'(2) The learned court erred, in that it failed and refused to sustain said petition and to grant petitioner's discharge from imprisonment upon the ground that he was unlawfully restrained of his liberty upon a criminal complaint charging him with the same crime, upon which charge he had been formerly duly acquitted after a trial by jury.'

From what has been said it is apparent that the first assignment of error is itself an error. The District Judge did not dismiss the petition for a writ. The petition was sustained to the extent of issuing the writ, and afterwards granting a hearing. Then upon the hearing which followed the granting of the writ the court entered its order which was:

'That the said writ of habeas corpus issued out of this court on the 31st day of May, 1919, be and the same is hereby dismissed, and the petitioner is remanded to the custody of the respondent, James N. Power.'

This brings us to the second assignment of error. The error assigned is that the court erred, in that it failed to sustain the petition. But, if the court erred, the error did not consist in that it failed to sustain the petition. If there were error it was in the failure to sustain the writ. In Ex parte Bollman, 4 Cranch, 75, 94 (2 L.Ed. 554), Chief Justice Marshall said:

'The power to award the writ (of habeas corpus) by any of the courts of the United States must be given by written law.'

The statutes of the United States provide as follows:

'The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof; or is in custody in violation of the Constitution or of a law or treaty of the United States; or, being a subject or citizen of a foreign state, and domiciled therein, is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, or order, or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations; or unless it is necessary to bring the prisoner into court to TESTIFY. ' U.S. Compiled Statutes (1916) Ann. vol. 2, Sec. 1281; Barnes' Federal Code (1919) Sec. 1080.

Under the provision above cited it is not claimed that the District Judge was in error in his original issuance of the writ. The error alleged is, as already said, the dismissal of the writ and the remanding of the petitioner to custody. The writ of habeas corpus is a legal process, used to obtain summary relief from unlawful restraint of personal liberty. Its purpose is simply to free the person from the unlawful restraint. It inquires into the jurisdiction, but it is seldom that mere errors of law not going to the question of jurisdiction can be reviewed on habeas corpus. Spelling on Extraordinary Remedies, vol. 2 (2d Ed.) Sec. 1152.

The courts agree that the writ is not intended to bring in review mere errors or irregularities, whether they relate to substantive law or to the law of procedure, if they are committed by a court which has jurisdiction over the person and subject-matter. In such cases the remedy lies in an appeal or through a writ of error. The writ cannot be used as a substitute for a writ of error. It is well established that mere errors in point of law, no matter how serious, committed by a criminal court in the exercise of its jurisdiction over a case properly subject to its cognizance, are not to be reviewed by habeas corpus. See the cases cited in the margin. [2]

In the recent case of Jones v. Perkins, 245 U.S. 390, 38 Sup.Ct. 166, 62 L.Ed. 358, the Chief Justice said it was well settled that, in the absence of exceptional circumstances in criminal cases, the regular judicial procedure should be followed, and that habeas corpus should not be granted in advance of a trial. The appellant alleged that he was illegally deprived of his liberty, because the statute under which he was held was unconstitutional. In Johnson v. Hoy, 227 U.S. 245, 247, 33 Sup.Ct. 240, 241 (57 L.Ed. 497), the court declared that . . .

'The writ of habeas corpus is not intended to serve the office of a writ of error, even after verdict, and, for still stronger reasons, it is not available to a defendant before trial, except in rare and exceptional cases, as pointed out in Ex parte Royall, 117 U.S. 241.' In Glasgow v. Moyer, 225 U.S. 420, 428, 32 Sup.Ct. 753, 755 (56 L.Ed. 1147), the court declared that . . .

'The writ of habeas corpus cannot be made to perform the office of a writ of error.'

In Harlan v. McGourin, 218 U.S. 442, 31 Sup.Ct. 44, 57 L.Ed. 1101, 21 Ann.Cas. 849, the court said:

'Upon habeas corpus the court examines only the power and authority of the court to act, not the correctness of its conclusions.'

In Re Chapman, 156 U.S. 211, 15 Sup.Ct. 331, 39 L.Ed. 401, an application was made to the Supreme Court for the writ of habeas corpus. The petitioner had been indicted in the Supreme Court of the District of Columbia and had demurred to the indictments. His demurrer was overruled and he appealed to the District Court of Appeals, where the indictment was again sustained and the case remanded. The Supreme Court held that it was a judicious and salutary general rule not to interfere by writ of habeas corpus with proceedings pending in the courts of the United States in advance of their final determination. Mr. Chief Justice Fuller, speaking for the court, said:

'The general rule is that the writ of habeas corpus will not issue unless the court, under whose warrant the petitioner is held, is without jurisdiction, and that it cannot be used to correct errors.'

And see In re Huntington, 137 U.S. 63, 11 Sup.Ct. 4, 34 L.Ed. 567; In re Lancaster, 137 U.S. 393, 11 Sup.Ct. 117, 34 L.Ed. 713; Ex parte Mirzan, 119 U.S. 584, 7 Sup.Ct. 341, 30 L.Ed. 513.

In Riggins v. United States, 199 U.S. 547, 548, 26 Sup.Ct....

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