Caldwell v. Hunter, 3455.

• Decision Date: 24 July 1947
• Docket Number: No. 3455.,3455.
• Parties: CALDWELL v. HUNTER.
• Court: U.S. Court of Appeals — Tenth Circuit

163 F.2d 181 (1947)

CALDWELL v. HUNTER.

No. 3455.

Circuit Court of Appeals, Tenth Circuit.

July 24, 1947.

Stewart A. Shafer, of Denver, Colo., for appellant.

Randolph Carpenter, U. S. Atty., and Eugene W. Davis, Asst. U. S. Atty., both of Topeka, Kan., for appellee.

Before BRATTON, HUXMAN and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

This is a proceeding in habeas corpus instituted by Charles Caldwell, hereinafter referred to as petitioner, against Walter A. Hunter, warden of the United States penitentiary at Leavenworth, Kansas. Petitioner was indicted in two counts in the United States Court for Iowa. The first count charged that he unlawfully, wilfully, and knowingly, and with intent to defraud, transported and caused to be transported in interstate commerce from South Bend, Indiana, to Des Moines, Iowa, a certain falsely made, forged, and altered check; and the second count charged that he unlawfully, wilfully, and knowingly, and with intent to defraud, transported and caused to be transported in interstate commerce from Fort Smith, Arkansas, to Des Moines, Iowa, a different falsely made, forged and altered check. Each check was described as to date, amount, name of maker, name of payee, and name of bank on which drawn. Petitioner pleaded guilty to the indictment and was sentenced on each count to a term of five years in the penitentiary, with provision that the sentences should run concurrently. After serving part of the sentences in the penitentiary at Leavenworth, petitioner filed this action to effectuate his discharge from further incarceration. The warden responded; after a full hearing at which petitioner testified, the petition for the writ was denied; and petitioner appealed.

It is contended that the writ should have been granted because the indictment in the criminal case failed to charge any offense under the laws of the United States. The argument is that the making and passing of a forged check in one state, drawn on a bank in another state, by means of which the person making and passing the check intends to obtain and does obtain money or something else of value may constitute an offense under state law but is not a penal offense under section 3 of the National Stolen Property Act, as amended, 53 Stat. 1178, 18 U.S.C.A. § 415. The contention is not well-founded as it is settled law that the making, passing, and transportation in interstate commerce of a false and forged check, as charged in each count of the indictment, constitutes a penal offense punishable under section 3, supra. United States v. Sheridan, 329 U.S. 379, 67 S.Ct. 332; Hawley v. Hunter, 10 Cir., 161 F.2d 825.

A second ground in the petition for the writ is that the checks described in the indictment in the criminal case were not transported in interstate commerce. The gist of the offense laid in each count in the indictment is the transportation in interstate commerce of the forged check, and if the case had been tried on its merits proof of such transportation would have been an essential prerequisite to conviction. Pines v. United States, 8 Cir., 123 F.2d 825. But petitioner...