Birtch v. Hunter, 3341.

• Decision Date: 13 November 1946
• Docket Number: No. 3341.,3341.
• Citation: 158 F.2d 134
• Parties: BIRTCH et al. v. HUNTER, Warden.
• Court: U.S. Court of Appeals — Tenth Circuit

158 F.2d 134 (1946)

BIRTCH et al. v. HUNTER, Warden.

No. 3341.

Circuit Court of Appeals, Tenth Circuit.

November 13, 1946.

J. Raymond Gordon, of Charleston, W. Va., for appellants.

Eugene W. Davis, Asst. U. S. Atty., of Topeka, Kan. (Randolph Carpenter, U. S. Atty., of Topeka, Kan., on the brief), for appellee.

Before PHILLIPS and MURRAH, Circuit Judges, and CHANDLER, District Judge.

MURRAH, Circuit Judge.

This is an appeal from an order denying discharge in a habeas corpus proceedings.

On January 6, 1943, two indictments were returned in the United States District Court for the Northern District of West Virginia, against the appellants, James Chester Birtch and William Arthur Denham, and others as co-defendants. The first indictment charged violations of the National Stolen Property Act, 18 U.S.C.A. § 415, and the second a conspiracy to violate such Act, 18 U.S.C.A. § 418a.

The substantive case came on for trial before a jury with appellants being represented by counsel of their own choice. At the conclusion of the Government's evidence a motion for a directed verdict was interposed and overruled. Whereupon appellants withdrew their pleas of not guilty and entered pleas of guilty to the substantive case, and the next morning entered pleas of guilty in the conspiracy case. Each appellant was sentenced to ten years for the substantive offense and ten years on the conspiracy charge, to run concurrently.

By habeas corpus proceedings appellants now challenge the validity of the convictions and sentences, urging as grounds for their release that (1) the indictment does not charge a criminal offense under Section 415; (2) the evidence offered by the Government did not prove the offense charged, and (3) they were deceived, misled and coerced by statements of the District Attorney and the presiding judge into withdrawing their pleas of not guilty and entering pleas of guilty.

The National Stolen Property Act, 18 U.S.C.A. § 415, under which appellants were indicted, provides "* * * whoever with unlawful or fraudulent intent shall transport, or cause to be transported in interstate or foreign commerce, any falsely made, forged, altered, or counterfeited securities, knowing the same to have been falsely made, forged, altered, or counterfeited * * * shall be punished by a fine of not more than $10,000 or by imprisonment for not more than ten years, or both. * * *" 18 U.S.C.A. § 414(b) defines securities as "any * * * evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, * * *; or, in general, any instrument commonly known as a `security', or any certificate of interest or participation in, temporary or interim certificate for, receipt for, warrant, or right to subscribe to or purchase any of the foregoing, or any forged, counterfeited, or spurious representation of any of the foregoing."

The indictment charged that the appellants "did unlawfully, wilfully, knowingly, feloniously and fraudulently and with unlawful and fraudulent intent, transport and caused to be transported in interstate commerce * * * a falsely made, forged and counterfeited security, knowing the same to have been falsely made and counterfeited, to-wit: a certain profit sharing agreement known as `Statement of Account'". The "Statement of Account" is set out haec verba in the indictment and purports to be a statement of account to A. Norman Breghton and L. B. Hathaway on a wager of $45,200.00, with "odds 1½ to 1" and winnings in the amount of $113,000.00. It shows a profit of $67,800.00 and states that when payment is made all of the "named clients shall be present in person and shall not be paid to any one or more, but only to all". Under "remarks" it is provided that "no more cash wagers can be made by the above named clients until this transaction is taken up".

The indictment reads upon the language of the statute and the "Statement of Account" shows upon its face that it is a "profit-sharing agreement" in a gambling enterprise and, therefore, a security within the meaning of the statute. On habeas corpus the question is not whether the indictment is vulnerable to attack by motion or demurrer, but whether it is so fatally defective as to deprive the court of jurisdiction. Rosenbloom v. Hunter, 10 Cir., 143 F.2d 673; Creech v. Hudspeth, 10 Cir., 112 F.2d 603; Hastings v. Hudspeth, 10 Cir., 126 F.2d 194; Knight v. Hudspeth, 10 Cir., 112 F.2d 137. The offense charged is one proscribed by the statute, the court had jurisdiction of such offense and the person of the appellants, the sentence imposed was authorized by the statute, and appellants cannot therefore complain here.

Appellants contend that the interstate transportation of the security was never proven by the Government, and therefore the trial court should have sustained the motion for a directed verdict. But, questions concerning the sufficiency or admissibility of the evidence to sustain the allegations in the indictment are not open to collateral attack in habeas corpus proceedings. McMicking v. Schields, 238 U.S. 99, 35 S.Ct. 665, 59 L.Ed. 1220; Baker v. Hudspeth, 10 Cir., 129 F.2d 779; Moore v. Aderhold, 10 Cir., 108...