Byrd v. Pescor, 13547.

• Decision Date: 04 November 1947
• Docket Number: No. 13547.,13547.
• Citation: 163 F.2d 775
• Parties: BYRD v. PESCOR.
• Court: U.S. Court of Appeals — Eighth Circuit

163 F.2d 775 (1947)

BYRD v. PESCOR.

No. 13547.

Circuit Court of Appeals, Eighth Circuit.

October 7, 1947.

Rehearing Denied November 4, 1947.

Albert Thomson, of Kansas City, Mo., for appellant.

Sam M. Wear, U. S. Atty., and Earl A. Grimes, Ass't. U. S. Atty., both of Kansas City, Mo., for appellee.

Before SANBORN, THOMAS, and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal in forma pauperis from an order dismissing the petition of Slayton C. Byrd for a writ of habeas corpus.

The petitioner (appellant) was, by an indictment on May 9, 1945, in the United States District Court for the Eastern District of Oklahoma, charged with having committed a felonious assault at the United States Veterans Facility, near Muskogee, Oklahoma, on March 16, 1945. On May 11, 1945, the petitioner, through his then counsel, entered a plea of not guilty, upon the ground of insanity. On June 21, 1945, the court found petitioner to be insane, and ordered him committed to the custody of the Attorney General for confinement in St. Elizabeth's Hospital, Washington, D. C., for the period of his mental incompetency, and further ordered that the indictment be continued until "said defendant petitioner is restored to competency or the further order of this court." Petitioner was in St. Elizabeth's Hospital from July 14, 1945, to October 2, 1945. He apparently left the hospital without permission on the latter date, went to his mother's home in Georgia, and was thereafter removed to Muskogee, Oklahoma, for trial upon the indictment of May 9, 1945. He was tried and convicted by a jury on February 18, 1946. On February 20, 1946, he moved for a new trial, stating as one of the grounds in his motion "that prior to the trial defendant had been adjudged by the State Court of Georgia as insane and as a lunatic; and * * * that the trial court had on June 21, 1945, found defendant to be insane as of that date; and * * * that no evidence was introduced to show a difference in the mental condition of defendant on March 16, 1945, the date of the offense set forth in the indictment * * * and the 21st day of June 1945." On March 1, 1946, the court denied petitioner's motion for a new trial and sentenced him to the custody of the Attorney General for imprisonment for the period of five years. Petitioner was first taken to the United States Penitentiary at Leavenworth, and later transferred to the United States Medical Center for Federal Prisoners at Springfield, Missouri.

In his petition for a writ of habeas corpus, the petitioner asserted that the United States District Court for the Eastern District of Oklahoma was without jurisdiction to enter judgment against him, because he was insane at the time of the commission of the offense with which he was charged, at the time of his trial and conviction, and at the time he was sentenced. The respondent (appellee) denied petitioner's allegations of insanity.

The hearing upon the petition and response was before the Honorable Albert L. Reeves, one of the judges of the United States District Court for the Western District of Missouri, on October 10, 1946. The petitioner was present in person and was represented by counsel. During the opening statement of petitioner's counsel, the following colloquy took place between him and the judge:

"The Court: Was there a jury and conviction and all that, does the record show?

"Mr. Davidson: Yes, sir, there was a trial by jury.

"The Court: A plea of insanity and all?

"Mr. Davidson: Well, sir, I am not clear on that at all. I wrote for the docket entries from that place and they don't show that there was another plea of insanity made, but we could not get a transcript of the case there because of the cost. This man didn't have the money. I wrote the Clerk and asked him for the instructions the Court gave. They were oral instructions and he referred me to the court stenographer who took them down, the court reporter, and we did not have the funds to get them. So I can't tell the Court what did or did not occur at that trial as far as the plea of insanity, the question of whether insanity was gone into. I don't say that it wasn't gone into and I don't say that it was because I haven't sufficient information and I haven't been able to secure it."

The petitioner introduced evidence to show that he was adjudged to be of unsound mind by the McDuffie Court of Ordinary, of McDuffie County, Georgia, on August 28, 1935, and was committed to the Milledgeville State Hospital; that he was first admitted to that institution on September 16, 1935, was furloughed November 16, 1935, readmitted March 11, 1942, furloughed April 8, 1942, admitted again January 12, 1943, "eloped" May 30, 1944, and discharged upon the records of the hospital "at the expiration of the furlough period, May 30, 1945"; that upon the two first admissions of petitioner to the hospital, the hospital staff thought him to be "without psychosis, but later he was diagnosed psychosis with psychopathic personality"; that on his second admission, March 11, 1942, he was found to have active tuberculosis, and this disease was present on his last admission (January 12, 1943); that at that time some of the staff thought he was "a case of paranoid dementia praecox, but the majority seemed to think more of psychosis with psychopathic personality"; that the Habersham Court of Ordinary, of Habersham County, Georgia, on January 12, 1943, adjudged petitioner insane and an unfit person to be at large, and committed him to the Milledgeville State Hospital; that the Veterans' Administration on November 16, 1945, notified petitioner's mother that he had been determined to be incompetent; and that on June 21, 1945, the United States District Court had found petitioner to be insane and had committed him to St. Elizabeth's Hospital.

There was also introduced on behalf of petitioner a letter from Dr. F. M. Adams, Medical Superintendent of Eastern Oklahoma Hospital, dated July 11, 1946, reading as follows:

"Vinita, Oklahoma 11 July 1946 Mr. Slayton C. Byrd Box No. PMB 5604 — H Springfield, Missouri

My Dear Mr. Byrd:

This will acknowledge receipt of your letter of recent date. In reply will say that I do not have the record of my testimony that I gave in Federal Court, at the time of your trial.

I testified that I felt that you were suffering from a paranoid condition, and I trust this information will be of some help to you.

With kindest personal regards and best wishes, I am

Yours very truly (Signed) F. M. Adams, M. D. Medical Superintendent."

The petitioner testified at the hearing that he had an advanced case of tuberculosis involving both lungs; that he would not live very long; that he does not remember that he had any hearing in Oklahoma or that he was tried in the Federal Court at Muskogee, Oklahoma, or that he was ever in Oklahoma or in the St. Elizabeth's Hospital in Washington, D. C., or that he received the letter from Dr. F. M. Adams which his counsel had introduced in evidence.

The respondent produced evidence of the proceedings had in the United States District Court for the Eastern District of Oklahoma, to which reference has been made. All of these proceedings were before the same judge, namely, the Honorable Eugene Rice, of Muskogee, Oklahoma. The respondent showed that on February 1, 1946, prior to the trial of petitioner, Judge Rice had entered an order directing that certain witnesses — two of them doctors — be subpoenaed on behalf of the petitioner, at the expense of the Government, and that the order contained the following recital: "It further appearing to the court that said defendant has heretofore been declared insane and that his defense will be that of insanity at the time the offense stated in the indictment was alleged to have been committed, * * *." The respondent also introduced an affidavit of Dr. E. D. Griffin, reading as follows: "I, the undersigned, member of the medical staff of Saint Elizabeths Hospital, do solemnly swear that I was acquainted with Slayton C. Byrd who was a patient under treatment in St. Elizabeths Hospital from July 14, 1945 to October 2, 1945 and that, in my opinion, said Slayton C. Byrd was suffering from Psychopathic Personality but to my personal knowledge and observation failed to show evidence of a psychosis, and hence he was a person of sound mind during the period when I had personal knowledge of his case (July 14, 1945 to August 21, 1945)."

Judge Reeves concluded (1) that the verdict of the jury in the trial of petitioner before Judge Rice settled the issue of petitioner's alleged insanity at the time of the commission of the offense charged in the indictment, and (2) that "the question of a prisoner's insanity at the time of conviction and sentence should have been raised by direct appeal and could not be raised by collateral attack as in habeas corpus."

The conclusion that petitioner's conviction amounted to an adjudication that he was sane on March 16, 1945, the day the assault charged in the indictment was committed, is, we think, unassailable. Obviously the petitioner was not entitled to have retried in a habeas corpus proceeding the question of his alleged insanity at the time of the commission of the offense. Were it not for the fact that on June 21, 1945, Judge Rice had determined that the petitioner was insane, the verdict of the jury finding that he was sane at the time the assault was committed would, no doubt, have created the presumption that he continued to be sane thereafter. In view of the adjudication of insanity entered by Judge Rice on June 21, 1945, the petitioner, at the time of his trial, conviction and sentence was presumptively insane. Ashley v. Pescor, 8 Cir., 147 F.2d 318, 321.

There was nothing in the evidence adduced at the hearing before Judge Reeves to show that Judge Rice had affirmatively determined that the petitioner was sane at the time he was tried or at the time he was sentenced. That Judge Rice was...