Blair v. White
| Decision Date | 16 February 1928 |
| Docket Number | No. 7924.,7924. |
| Citation | 24 F.2d 323 |
| Parties | BLAIR v. WHITE, Warden. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John W. Blair, in pro. per.
L. E. Wyman, Asst. U. S. Atty., of Hutchinson, Kan. (Al. F. Williams, U. S. Atty., and Alton H. Skinner, Asst. U. S. Atty., both of Topeka, Kan., on the brief), for appellee.
Before KENYON, Circuit Judge, and JOHN B. SANBORN, District Judge.
The appellant, Blair, was indicted October 19, 1921, in the Central Division of the Western District of Missouri, for two offenses, under two separate counts: First, with having on March 1, 1921, at Cole county, Missouri, assaulted a deputy United States mail messenger, in charge of United States mail, with intent to rob him of the mail; and, second, with having, at the same time and place, assaulted and robbed the same messenger of United States mail matter, by putting his life in jeopardy by the use of a dangerous weapon.
Blair entered a plea of not guilty. On February 1, 1922, his case came on for trial. The court appointed counsel to defend him. A jury was sworn. Testimony on behalf of the government was introduced. "Upon the offer by the United States attorney of a record of previous conviction of the defendant, John W. Blair, alias Frank Hayden, alias James Weston (said offer being made before the defendant had been called as a witness), the defendant, by his attorney," moved the court that the jury be discharged. The court "ordered that said jury be discharged from further consideration of this cause." Thereafter, on February 15, 1922, a trial was had upon the indictment. Blair was represented by counsel. The jury returned a verdict of guilty upon both counts of the indictment, and on February 16, 1922, Blair was sentenced to the United States penitentiary at Leavenworth, Kan., for the period of 10 years under the first count, and 25 years under the second count, the sentences to run concurrently. Commitment was duly issued, and he has now been in the penitentiary for nearly 6 years, pursuant to the judgment of the court. On December 27, 1926, Blair applied for permission to sue for a writ of habeas corpus in forma pauperis. Permission was granted. Counsel was appointed for him by the court. A petition for habeas corpus was filed. The warden of the penitentiary appeared and moved to dismiss. On May 17, 1927, after a hearing, the court denied the writ, and granted the motion to dismiss the petition, from which order Blair has taken this appeal.
Blair's contention is that he is unlawfully deprived of his liberty because: (1) The indictment was insufficient; (2) the court was without jurisdiction, for the reasons (a) that the judgment and sentence pronounced were beyond the power of the court, and (b) that he had been once in jeopardy before he was tried and sentenced.
The indictment was not demurred to, nor was its validity questioned before, during, or after the trial, until the application for habeas corpus in December, 1926. It has been held times without number that the writ of habeas corpus cannot be used as a writ of error, and that jurisdiction under habeas corpus proceedings is limited to an examination of the record for the purpose of determining whether the person is restrained of his liberty without authority of law. Some of the more recent decisions of the Supreme Court are Whitney v. Dick, 202 U. S. 132, 136, 26 S. Ct. 584, 50 L. Ed. 963; Toy Toy v. Hopkins, 212 U. S. 542, 548, 29 S. Ct. 416, 53 L. Ed. 644; Harlan v. McGourin, 218 U. S. 442, 445, 31 S. Ct. 44, 54 L. Ed. 1101, 21 Ann. Cas. 849; Matter of Gregory, 219 U. S. 210, 31 S. Ct. 143, 55 L. Ed. 184; Glasgow v. Moyer, 225 U. S. 420, 428, 32 S. Ct. 753, 56 L. Ed. 1147; Goto v. Lane, 265 U. S. 393, 44 S. Ct. 525, 68 L. Ed. 1070; Knewel v. Egan, 268 U. S. 442, 45 S. Ct. 522, 69 L. Ed. 1036. The sufficiency of the indictment cannot be reviewed in habeas corpus proceedings. Matter of Gregory, supra, 213 (31 S. Ct. 143); Glasgow v. Moyer, supra, 429 (35 S. Ct. 753); Goto v. Lane, supra, 402 (44 S. Ct. 525); Knewel v. Egan, supra, 446 (45 S. Ct. 522).
The crime charged in the second count of the indictment is that defined in section 197 of the Criminal Code (35 Stat. 1126 18 USCA § 320), and the only punishment provided is 25 years' imprisonment, so that the sentence imposed under that count was the only one the court had power to impose. It is unnecessary to consider the sentence under the first count, which runs concurrently with the greater sentence.
With reference to the claim that the appellant had been once in jeopardy before he was tried and convicted, and that...
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