Capone v. Aderhold
| Decision Date | 25 January 1933 |
| Docket Number | No. 426.,426. |
| Citation | 2 F. Supp. 280 |
| Parties | CAPONE v. ADERHOLD, Warden. |
| Court | U.S. District Court — Northern District of Georgia |
William E. Leahy and William J. Hughes, Jr., both of Washington, D. C., for petitioner.
Hal Lindsay, Asst. U. S. Atty., of Atlanta, Ga., G. A. Youngquist, Asst. Atty. Gen., and Dwight H. Green, U. S. Atty., of Chicago, Ill., for respondent.
This is a proceeding on application for writ of habeas corpus, wherein petitioner claims that he is unlawfully detained and restrained of his liberty by the respondent on the ground that the sentence under which he is held is void because beyond the jurisdiction of the trial court to impose.
Respondent filed a motion to dismiss the petition for insufficiency appearing on its face. The hearing was on this motion, and the facts as alleged in the petition are taken as true.
Petitioner was convicted, in the District Court of the United States for the Eastern Division of the Northern District of Illinois, on three counts (1, 5, and 9) of an indictment of twenty-two counts, returned on June 5, 1931, which charged in substance, as summarized in the petition, that:
On each of said counts, 1, 5 and 9, petitioner was sentenced to imprisonment in the penitentiary for a period of five years, and to pay a fine of $10,000 and costs of prosecution.
The sentence on count 5 was made to run concurrently with the sentence imposed on count 1, and the sentence on count 9 was to follow the termination of imprisonment under the concurrent sentences imposed on counts 1 and 5.
Pursuant to the above sentences, petitioner was committed to the United States penitentiary at Atlanta, Ga., from which he seeks release by this proceeding.
Petitioner contends that the sentences are void and the imprisonment thereunder unlawful because the indictment upon which they are based shows on its face that the offenses charged in counts 1, 5, and 9 were barred by the statute of limitations, and that, at the trial, no fact was proved in evidence or claimed to exist which would prevent the running of the statute.
The pertinent part of the statute of limitations in question is as follows (18 USCA § 585):
Petitioner, at the trial and after all the evidence was in, invoked the benefit of the statute by motion to direct a verdict in his favor, and now contends that such motion was equivalent to a plea in bar.
The grounds of the motion to direct a verdict were, according to the allegations of the petition, that the statute above quoted "provided that no person should be prosecuted, tried or punished for the offenses charged in counts 1, 5 and 9, unless the indictment was found within three years next after the commission of the charge; that the indictment showed on its face that it was returned June 5th, 1931, which was more than three years after the alleged commission of the offenses charged in counts 1, 5 and 9, and that the said statute was an absolute bar to your petitioner's being prosecuted, tried, or punished for the commission of said alleged offenses."
It will be observed that this motion was in the nature of a demurrer to the indictment rather than a plea, and that it included no allegation of fact which would exclude the applicability of the provisions that "the time during which the person committing the offense is absent from the district wherein the same is committed shall not be taken as any part of the time limited by law for the commencement of such proceedings." As far as the allegations of the motion are concerned, petitioner may have been absent from the district from the time of the commission of the offense until the finding of the indictment. If so, of course the statute had not run, since this provision is as integral a part of the statute as the three-year period named.
It is well settled that a plea of the statute of limitations cannot be made by demurrer (U. S. v. Cook, 17 Wall. 168, 21 L. Ed. 538; Greene v. United States C. C. A. 5th 154 F. 401, 411, certiorari denied 207 U. S. 596, 28 S. Ct. 261, 52 L. Ed. 357, and many other cases), but that same is an affirmative defense that must be pleaded or be deemed to be waived (Johnson v. United States, 13 Fed. Cas. 867, No. 7418). Of course, the form of the plea, or what it may be called, is immaterial. If it substantially raises the issues necessary to make it effective, it is sufficient regardless of its form or appellation. United States v. Goldman, 277 U. S. 229, 48 S. Ct. 486, 72 L. Ed. 862.
It is true that in the twelfth paragraph of the petition it is alleged that "the United States interposed no traverse, offered and proved no fact by way of traverse which might prevent the tolling of said statute; that no fact was proved in evidence and the prosecution did not claim the existence or proof of any such fact which had prevented the tolling of said statute; that neither the Court nor the jury had submitted to it any such fact for decision; on the contrary, the prosecution contended solely that the three year statute pleaded by petitioner did not, as a matter of law, apply to the offenses with which petitioner was charged in counts 1, 5 and 9," but it is not averred that these allegations were a part of the motion to direct a verdict or were brought to the attention of the court or that the court was called upon to do anything more than to construe the statute and to determine, as a matter of law, whether the three or six year limitation was applicable. The ruling was in favor of the contention of the government, so it was not called upon to produce further evidence, and petitioner failed to do so, relying upon the question of law he had raised and excepting, as was the proper procedure, to ruling of the Court.
In my opinion, no traverse of the motion to direct a verdict was called for, since it raised no issue of fact, as would have been the case if it had alleged that petitioner had not been absent from the district or had not been absent a sufficient length of time to prevent the bar of the statute. The fact alleged in the motion was merely that the indictment showed on its face that the offense charged had been committed more than three years before the finding of the indictment. This was not denied. There was no need of a traverse. If the motion had put in issue, the question of fact as to whether or not petitioner had been within the district a sufficient length of time for the statute to establish a bar, then traverse by the prosecution might have been necessary, but this was not done, and the court, according to the allegations of the petition, overruled...
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United States v. Capone, 6372.
...petition for appeal. Defendant also contends that the decision in the habeas corpus case instituted by him in another circuit (Capone v. Aderhold, 2 F.Supp. 280, D.C.Ga., 1933) is not precedent in the instant case, being a District Court opinion, and furthermore it concerned only counts 1, ......
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Capone v. Aderhold
...Judge. This is an appeal from an order dismissing a petition for the writ of habeas corpus. The opinion of the district judge appears in 2 F. Supp. 280. Appellant was convicted in the Northern District of Illinois upon an indictment, drawn under 26 USCA § 1266, and filed June 5, 1931, which......
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United States v. Anthracite Brewing Co., 6658.
...same is committed shall not be taken as any part of the time limited by law for the commencement of such proceedings." In Capone v. Aderhold (D. C.) 2 F. Supp. 280, 282, Underwood, District Judge, speaking of a like motion as the one in question, said: "It will be observed that this motion ......
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Capone v. Aderhold, 7266.
...second petition for the writ of habeas corpus. The first petition was dismissed and the writ discharged by the District Court. Capone v. Aderhold, 2 F. Supp. 280. On appeal the judgment in that case was affirmed by this court. Id., 65 F.(2d) The essential averments are the same now as they ......