Brown v. United States

• Decision Date: 12 February 1919
• Docket Number: 3232.
• Citation: 257 F. 46
• Parties: BROWN v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Fifth Circuit

257 F. 46

BROWN v. UNITED STATES. ^[1]

No. 3232.

United States Court of Appeals, Fifth Circuit.

February 12, 1919

James R. Dougherty, of Beeville, Tex. (G. R. Scott and Boone &amp Pope, all of Corpus Christi, Tex., and Dougherty & Dougherty H. S. Bonham, and James F. Odem, all of Beeville, Tex., on the brief), for plaintiff in error.

John E Green, Jr., U.S. Atty., of Houston, Tex. (John R. Beasley, of Beeville, Tex., on the brief), for the United States.

Before WALKER and BATTS, Circuit Judges, and GRUBB, District Judge.

GRUBB District Judge.

The plaintiff in error was tried and convicted of the murder of one James P. Hermes and sentenced to a term of 15 years in the Atlanta penitentiary for the crime of murder in the second degree. From the judgment of conviction the defendant sued out this writ of error.

The plaintiff in error has assigned 54 errors on the record. Instead of taking up the assignments seriatim, it will serve the ends of brevity and clearness to group them according to the various questions they present.

The first group insisted on in argument relates to the preliminary questions as to whether the defendant was properly tried in Nueces county, Tex., instead of in Bee county, the county in which the offense was committed, and as to whether the court below, at the time of the trial, still retained jurisdiction of the cause.

Section 40 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat 1100 (Comp. St. Sec. 1022)) provides that--

'The trial of offenses punishable with death shall be had in the county where the offense was committed, where that can be done without great inconvenience.'

Under this section the defendant applied to the District Judge for a trial in Bee county, and the court granted the application, and ordered the case set down for trial at Beeville, the county seat of Bee county, at a special term. The special term was not held. Before the case was again set for trial, the District Judge died. The case thereafter came up for hearing at Corpus Christi before Hon. W. B. Sheppard, who had been designated to sit in the Southern district of Texas. The court, on motion of the district attorney, dismissed the pending indictment, under which the order for a trial at Beeville had been made, and the grand jury then returned a new indictment, identical in substance with the old one. The defendant objected to the dismissal of the first indictment. The propriety of the dismissal, however, is not open to question. 12 Cyc. 374. Nor could any injury have resulted to the defendant from being tried under the new indictment, unless for the reason that the court had lost jurisdiction of the offense, as contended by defendant, before the grand jury returned the second indictment, by reason of the order of the District Court changing the place of trial from Corpus Christi to Beeville.

The transfer of a cause from one court to another, properly effected, would undoubtedly divest the original court of further jurisdiction, as was the case in Smith v. Commonwealth (Ky.) 25 S.W. 107, relied upon by the plaintiff in error. In the instant case, there was no transfer from the original court to another. The prosecution was instituted in the District Court of the United States for the Southern District of Texas, Corpus Christi Division, and remained in that court until conviction and sentence. Section 40 does not contemplate a transfer of the cause to another court, but only a trial by the same court in the county where the offense was committed. The District Court in which the first indictment was returned did not part with jurisdiction over it by ordering a trial at Beeville, and, even if the subsequent trial had been had under the first indictment, the District Court sitting at Corpus Christi would have had jurisdiction to there try it. The dismissal of the first indictment and the return of the second was authorized, but, in any event, the defendant suffered no prejudice from being tried under the second indictment, instead of the first.

After the return of the second indictment, the defendant reinterposed his request for a trial in Bee county, which, after a hearing, was denied. Section 40 of the Judicial Code does not confer upon a defendant an absolute right to a trial in the county where the offense was committed, but only a qualified right in cases where such a trial could be had 'without great inconvenience.' The District Court is vested with discretion in making this determination. The trial judge, after a hearing, determined that a trial could not be had at Beeville without great inconvenience, for reasons recited in the order, and which do not show any abuse of discretion, if, indeed, they are not sufficient. Nothing less than an abuse of discretion would justify an interference by this court on appeal.

The second question, insisted upon by the plaintiff in error, relates to the sufficiency of the indictment on which the defendant was tried, and under which he was convicted. It is questioned for failing to sufficiently describe the locality where the alleged murder was committed to give a federal court jurisdiction. Jurisdiction in the federal court was claimed by the government under the following part of the third subdivision of section 272, chapter 11 of the Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1142 (Comp. St. Sec. 10445)):

'Or any place purchased or otherwise acquired by the United States by consent of the Legislature of the state in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.'

The indictment alleged that the United States acquired in Beeville, Bee county, Tex., a parcel of land for the public purpose of the United States, described by metes and bounds; that, prior to the date of the commission of the offense, constitutional and exclusive jurisdiction over the site of said parcel of land was ceded to the United States by the state of Texas in the manner provided by law; and that, from the date of the cession until the time of the finding of the indictment, the said parcel of land was under the exclusive jurisdiction of the United States, and was so on May 7, 1917, when the offense was there committed.

The indictment is criticized because it fails to allege the character of public use for which the parcel of land was acquired and used by the government. It may be conceded that the third subdivision of section 272 of the Penal Code confers no right on the United States to accept a cession of jurisdiction from a state for other than the purposes set out in section 272. For the purposes of this case, the use must have been for a 'needful building.' Exclusive jurisdiction of a tract used for a purpose other than one of the named statutory purposes would be unauthorized. The site was, in fact, acquired for a post office, but the indictment avers only that it was acquired for public purposes. It is contended that this is a fatal defect, because the locality of the offense was jurisdictional, and the indictment must show jurisdiction on its face. The indictment does identify the tract on which the crime is alleged to have been committed by describing it by metes and bounds, and also by alleging the date of the cession of jurisdiction by the state of Texas to the United States. The defendant was fully informed as to the locus of the alleged offense and the claim of exclusive federal jurisdiction arising from it, and it is difficult to see how he could have been prejudiced by the imperfect averment, if there was one, and why it should not, therefore, within the terms of section 1025, R.S. (Comp. St. Sec. 1691), be deemed sufficient.

Again, the place being sufficiently described, if the court judicially notices its character, then neither averment nor proof of it would be essential. In the case of Jones v. United States, 137 U.S. 202, on page 212, 11 Sup.Ct. 80, on page 83 (34 L.Ed. 691), the Supreme Court said:

'Who is the sovereign, de jure or de facto, of a territory is not a judicial, but a political, question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens, and subjects of that government. This principle has always been upheld by this court, and has been affirmed under a great variety of circumstances.'

And again, on page 214 of 137 U.S., on page 84 of 11 Sup.Ct. (34 L.Ed. 691), the court said:

'All courts of justice are bound to take judicial notice of the territorial extent of the jurisdiction exercised by the government whose laws they administer, or of its recognition or denial of the sovereignty of a foreign power, as appearing from the public acts of the Legislature and executive, although those acts are not formally put in evidence, nor in accord with the pleadings.'

In that case it was held that an executive proclamation that the of Navassa, on which a murder was charged to have been committed, appertained to the United States by determination of the President, was basis for the court's taking judicial notice that it was a place under the sole and exclusive jurisdiction of the United States. In this case exclusive federal jurisdiction depended upon a written application by the United States to the Governor of Texas for a cession of jurisdiction, the cession by the Governor of such jurisdiction and its acceptance by the United States. In line with the case cited, we hold that the federal courts take judicial knowledge of the documents mentioned and of the character of the place described in the indictment, as to jurisdiction resulting from them. In the case of Holt v. United States, 218 U.S. 245, 31 Sup.Ct. 2, 54 L.Ed. 1021, 20 Ann.Cas. 1138, the Supreme Court said of an...