Bostic v. Rives, 7421.

• Citation: 71 App. DC 2,107 F.2d 649
• Decision Date: 07 August 1939
• Docket Number: No. 7421.,7421.
• Parties: BOSTIC v. RIVES, Superintendent of Washington Asylum and Jail.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

71 App. DC 2, 107 F.2d 649 (1939)

BOSTIC
v.
RIVES, Superintendent of Washington Asylum and Jail.

No. 7421.

United States Court of Appeals for the District of Columbia.

Decided August 7, 1939.

Rehearing Denied November 14, 1939.

107 F.2d 650

Martin S. Vilas, of Washington, D. C., for appellant.

David A. Pine, U. S. Atty., and John W. Fihelly, Asst. U. S. Atty., for appellee.

Before GRONER, Chief Justice, and STEPHENS and RUTLEDGE, Associate Justices.

STEPHENS, Associate Justice.

This is an appeal from an order of the District Court of the United States for the District of Columbia dismissing a petition for a writ of habeas corpus and discharging the writ which had been issued thereunder. The appellant, petitioner below, was convicted on March 19, 1937, in the District Court of murder in the first degree and sentenced to death. We affirmed the conviction. Bostic v. United States, 1937, 68 App.D.C. 167, 94 F.2d 636, certiorari denied, 1938, 303 U.S. 635, 58 S.Ct. 523, 82 L.Ed. 1095. The petition alleged that the appellant's detention was unlawful because the indictment failed to aver the place of death of the deceased and because the lawyer appointed by the court to defend the appellant was, by reason of youth and inexperience, incompetent. It was asserted that at the time of the trial the appellant's attorney had been a member of the bar approximately two years and was but twenty-three years of age. In its return and answer the appellee denied that the lawyer appointed to defend the appellant was incompetent and averred to the contrary that during his membership at the bar, preceding the trial of appellant's case, he had tried a substantial number of criminal cases, including homicide cases, and that he was at the time of the trial a member of the bar in good standing sufficiently experienced and qualified to conduct the defense. The order dismissing the petition and discharging the writ was made upon the pleadings without the introduction of evidence by either party.

The indictment charged that the appellant on October 9, 1936, in the District of Columbia, shot the deceased causing a wound of which he died, but it omitted to aver that the death took place in the District. The terms of the indictment, so far as are here pertinent, are set forth in the margin.¹

A judgment of conviction cannot be attacked in a habeas corpus proceeding except upon jurisdictional grounds. Errors not involving jurisdictional questions must be attacked through an appeal. In Knewel v. Egan, 1925, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036, the appellant had been convicted in a state court of the presentation of a false insurance claim in violation of a state statute. He sought in a habeas corpus proceeding in the United States District Court to attack the judgment upon the ground that the information did not disclose an offense, and that it alleged no venue, and he asserted that in consequence the trial court was without jurisdiction. The District Court ordered the prisoner discharged. The Supreme Court reversed, holding:

"It is the settled rule of this Court that habeas corpus calls in question only the jurisdiction of the court whose judgment is challenged. Andrews v. Swartz, 156 U.S. 272 15 S.Ct. 389, 39 L.Ed. 422; Bergemann v. Backer, 157 U.S. 655 15 S.Ct. 727, 39 L.Ed. 845; In re Lennon,

107 F.2d 651

166 U.S. 548 17 S.Ct. 658, 41 L.Ed. 1110; Felts v. Murphy, 201 U.S. 123 26 S.Ct. 366, 50 L.Ed. 689; Valentina v. Mercer, 201 U.S. 131 26 S.Ct. 368, 50 L.Ed. 693; Frank v. Mangum, 237 U.S. 309 35 S.Ct. 582, 59 L.Ed. 969

". . . It has been uniformly held by this Court that the sufficiency of an indictment cannot be reviewed in habeas corpus proceedings. Ex parte Watkins, 3 Pet. 193 7 L.Ed. 650; Ex parte Yarbrough, 110 U.S. 651 4 S.Ct. 152, 28 L.Ed. 274; Ex parte Parks, supra 93 U.S. 18, 23 L.Ed. 787; In re Coy, supra 127 U.S. 731, 8 S.Ct. 1263, 32 L.Ed. 274; Bergemann v. Backer, supra; Howard v. Fleming, 191 U.S. 126 24 S.Ct. 49, 48 L.Ed. 121; Dimmick v. Tompkins, 194 U.S. 540 24 S.Ct. 780, 48 L.Ed. 1110; In re Eckart, 166 U.S. 481 17 S.Ct. 638, 41 L. Ed. 1085; Goto v. Lane, 265 U.S. 393 44 S.Ct. 525, 68 L.Ed. 1070.

"Appellee stands in no better situation with respect to the failure to allege venue in the information. A mere failure to allege venue and thus to show affirmatively that the crime was committed within the territorial jurisdiction of the court, does not deprive the court of jurisdiction over the cause and the sufficiency of the indictment cannot be called in question upon habeas corpus. Even though an indictment thus drawn might have been found defective upon demurrer or writ of error, it is not so fatal, upon its face, as to be open to collateral attack after trial and conviction. United States v. Pridgeon, 153 U.S. 48, page 59 14 S.Ct. 746, 38 L.Ed. 631; and see State v. Egan, 44 S.D. 273, 277 183 N.W. 652." 268 U.S. at pages 445, 446, 45 S.Ct. 522, 69 L.Ed. 1036

Accord: Campbell v. Aderhold, 5 Cir., 1923, ...