Brown v. White

• Decision Date: 21 January 1928
• Docket Number: No. 7823.,7823.
• Citation: 24 F.2d 392
• Parties: BROWN v. WHITE, Warden.
• Court: U.S. Court of Appeals — Eighth Circuit

24 F.2d 392 (1928)

BROWN v. WHITE, Warden.

No. 7823.

Circuit Court of Appeals, Eighth Circuit.

January 21, 1928.

Spencer Brown, in pro. per.

Al. F. Williams, U. S. Atty., and Alton H. Skinner, Asst. U. S. Atty., both of Topeka, Kan., for appellee.

Before KENYON and BOOTH, Circuit Judges, and MUNGER, District Judge.

KENYON, Circuit Judge.

Appellant, in the District Court of the United States, Northern District of Illinois, was indicted, tried, and convicted on each of four counts of an indictment; the first three charging a violation of section 148, Criminal Code (18 USCA § 262), by altering an obligation or security of the United States with intent to defraud, and the fourth charging a violation of section 151 of the Criminal Code (18 USCA § 265), in that he had in his possession a fraudulently altered obligation or security of the United States with intent to pass and sell the same. A demurrer was filed to the indictment raising certain questions as to the sufficiency thereof, which demurrer was overruled by the court. Appellant was sentenced on each count to eight years in the penitentiary at Leavenworth, and to pay a fine of $1,000, the sentences to run concurrently.

One of the assignments of error in the Circuit Court of Appeals is the following:

"Said District Court erred in entering judgment against him, in pronouncing sentence upon this defendant and plaintiff in error, in this: That the matters and things alleged in the indictment in said cause in the respective counts thereof do not constitute an offense against the United States of America, and that there is no evidence to sustain said sentence, and for that reason, said District Court was without jurisdiction or authority to enter said judgment and to pronounce said sentence in said cause."

The judgment of the trial court was affirmed by said Circuit Court of Appeals. Appellant was received at the United States penitentiary at Leavenworth, Kan., on the 21st day of May, 1926, and soon thereafter filed a petition for writ of habeas corpus, alleging that the indictment did not charge an offense known to the laws of the United States; that it charged in the various counts the alteration and possession of war savings stamps of the series of 1918 by removing the registration and post office numbers from the face of the war savings stamps; that there is no such security or obligation of the United States known to its laws as a war savings stamp of the series of 1918, and therefore the facts of the indictment are colorless, and the sentence and judgment are void, and he is unlawfully in custody.

The trial court denied the petition. We are asked to review its finding.

The courts are met with repeated attempts to substitute habeas corpus for writ of error, notwithstanding the multiplicity of cases holding that it cannot be done. The law as to applicability of the writ of habeas corpus would seem to be well settled. In Franklin v. Biddle, Warden, etc., 5 F.(2d) 19, 21, this court said: "A writ of habeas corpus cannot be made to perform the office of a writ of error. It is available only to relieve a prisoner from the restraint imposed by a judgment or order that is absolutely void, on the ground that the court was without jurisdiction to render it." Tullidge v. Biddle, Warden (C. C. A.) 4 F.(2d) 897; Cardigan v. Biddle, Warden (C. C. A.) 10 F.(2d) 444; Gillenwaters v. Biddle, Warden (C. C. A.) 18 F.(2d) 206; Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717; In re Swan, 150 U. S. 637, 14 S. Ct. 225, 37 L. Ed. 1207. It is a well-established rule that a prisoner under sentence of another court will not be discharged on habeas corpus by a court having authority to entertain the writ, unless the court passing sentence was so far without jurisdiction that its proceedings are void — in other words, that the sentence exceeds the jurisdiction of said court.

If the offense charged in an indictment is colorless or an impossible one under the law there is no jurisdiction in a court to render judgment thereon. There is nothing upon which to base a judgment, and if a prisoner is held in custody under sentence and judgment on such indictment, void on its face, he may be discharged from such custody upon writ of habeas corpus by another court having authority to entertain the writ. Mackey, et al. v. Miller (C. C. A.) 126 F. 161; Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717; In re Nielson, 131 U. S. 176, 9 S. Ct. 672, 33 L. Ed. 118; Andrews v. Swartz, 156 U. S. 272, 15 S. Ct. 389, 39 L. Ed. 422; Kaizo v. Henry, etc., 211 U. S. 146, 29 S. Ct. 41, 53 L. Ed. 125.

There is great difference, however, in the law as to habeas corpus where the indictment fails to state any crime whatever under the laws of the United States, and where the indictment is merely incorrect or defective in its statement of the offense. The construction to be put on the indictment and its sufficiency in stating a real offense is primarily for the trial court. Sander v. Johnston, Warden (C. C. A.) 11 F.(2d) 509. In Goto et al. v. Lane, etc., 265 U. S. 393, 402, 44 S. Ct. 525, 527 (68 L. Ed. 1070), the court said: "The Circuit Court in which the petitioners were tried and convicted undoubtedly had jurisdiction of the subject-matter and of their persons, and the sentence imposed was not in excess of its power. The offense charged was neither colorless nor an impossible one under the law. The construction to be put on the indictment, its sufficiency, and the effect to be given to the stipulation were all matters the determination of which rested primarily with that court. If it erred in determining them, its judgment was not for that reason void, * * * but subject to correction in regular course on writ of error."

As to review of the sufficiency of an indictment on habeas corpus proceedings, the Supreme Court says in Knewel v. Egan, 268 U. S. 442, 446, 45 S. Ct. 522, 524 (69 L. Ed. 1036): "It is fundamental that a court upon which is conferred jurisdiction to try an offense has jurisdiction to determine whether or not that offense is charged or proved. Otherwise every judgment of conviction would be subject to collateral attack and review on habeas corpus on the ground that no offense was charged or proved. It has been uniformly held by this court that the sufficiency of an indictment cannot be reviewed in habeas corpus proceedings." If the objection to the indictment is merely to a lack of certainty or other defect in the statement of facts to constitute the offense, it is not sufficient to sustain habeas corpus. Ex parte Bigelow, 113 U. S. 328, 5 S. Ct. 542, 28 L. Ed. 1005; In re Schneider, 148 U. S. 162, 13 S. Ct. 572, 37 L. Ed. 406; In re Eckart, 166 U. S. 481, 17 S. Ct. 638, 41 L. Ed. 1085.

With these legal propositions in mind we pass to a consideration of the indictment, discussing only the first count thereof, as the identical questions inhere in each count. That count charged that appellant "with intent to defraud, unlawfully and feloniously did falsely alter a certain obligation and security of the said United States, to wit, a war savings stamp of the series of 1918, bearing post office number 34017 and registration number 47, by then and there erasing and obliterating said postoffice and registry numbers from the face of said obligation." Said count is illustrated by a copy of the certificate marked "United States War Savings Certificate Stamp."

Section 6829l, Comp. Stat. 1919 Supp. vol. 2 (Act Sept. 24, 1917, c. 56, § 6, as amended by Act Sept. 24, 1918, c. 176, § 2 31 USCA § 757), provides for the issuance of war savings certificates by the Secretary of the Treasury under such regulations and terms and conditions as he may prescribe and provides for payment of the same. The section is as follows:

"In addition to the bonds authorized by section one of this act and the certificates of indebtedness authorized by section five of this act,...