Casebeer v. Hudspeth

• Decision Date: 02 August 1941
• Docket Number: No. 2098.,2098.
• Citation: 121 F.2d 914
• Parties: CASEBEER v. HUDSPETH, Warden.
• Court: U.S. Court of Appeals — Tenth Circuit

121 F.2d 914 (1941)

CASEBEER v. HUDSPETH, Warden.

No. 2098.

Circuit Court of Appeals, Tenth Circuit.

August 2, 1941.

Rodger Spahr, of Denver, Colo., for appellant.

Summerfield S. Alexander, U. S. Atty., and Homer Davis, Asst. U. S. Atty., both of Topeka, Kan., for appellee.

Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

Edward Casebeer was convicted of the crime of robbing a national bank with firearms, and the judgment was affirmed. 87 F. 2d 668. He subsequently instituted this proceeding in habeas corpus to secure his release from further detention in the federal penitentiary at Leavenworth, Kansas. The trial court denied the petition for the writ, and that action was affirmed. 114 F.2d 789. The Supreme Court, without opinion, reversed the judgment and remanded the cause to this court "with directions to reconsider the petitioner's appeal in the light of a transcript of the testimony taken at the hearing on the petition for habeas corpus." 61 S.Ct. 804, 85 L.Ed. ___.

The record lodged in this court on which the cause was submitted and determined contained the testimony of the former wife of petitioner, certain depositions and certain ex parte affidavits, but not a complete transcript of the testimony taken at the hearing on the petition for the writ. Since the remand, a complete transcript was prepared and filed and is now before us. In addition, petitioner requested a transcript of the hearings on the supplemental motion for new trial in the criminal case. That transcript was also prepared and filed. As directed by the Supreme Court, we reconsider the appeal in the light of the transcript of the testimony adduced at the hearing on the petition for the writ.

The petition and the reply, considered together, alleged that the indictment was returned in the criminal case as the result of a conspiracy on the part of an officer of the State of Kansas and certain inmates of the penitentiary of that state to falsely testify that petitioner took part in the robbery of the bank, and that the inmates gave false testimony against petitioner in consideration of rewards offered and made to them by the state officer; that the evidence on which petitioner was convicted came from unscrupulous persons for personal and ulterior reasons; that a substantial portion of it was given by prisoners, their wives, and their relatives, under promise of release from the state penitentiary; that an understanding existed with certain witnesses to the effect that if petitioner was found guilty they would be released from the penitentiary, and that they were released; and that the conviction of petitioner was obtained through the use of false and perjured evidence given in furtherance of the fraud, conspiracy and illegal acts of the state officer and inmates of the state penitentiary. The conviction of an accused person in a United States court with resulting imprisonment brought about through a conspiracy to which the prosecuting officers are parties to use and the deliberate use of perjured testimony pursuant to such a conspiracy violates due process. Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L. Ed. 791, 98 A.L.R. 406. It was not alleged in the petition for the writ that the prosecuting officers were parties to such a conspiracy. It was charged that the state officer and the inmates of the state penitentiary entered into a conspiracy of that kind, that perjured testimony was introduced in furtherance of it, and that petitioner was convicted upon the testimony. But, while the record contains many insinuations and much argument relating to the matter, the evidence adduced fell far short of showing that a conspiracy was formed or that perjured testimony was introduced against petitioner as the result of it. In résumé, the evidence failed completely to bring the case within the rule announced in Mooney v. Holohan, supra.

It was further alleged that the evidence in the criminal case did not establish the presence of petitioner at the scene of the crime, that there was no evidence proving his guilt, and that evidence given in his behalf was not accorded credence. It is the general rule that the sufficiency of the evidence to warrant a conviction in a criminal case can be reviewed only on appeal, and that it cannot be tested in habeas corpus to effect the discharge of the accused from confinement after conviction but in such a proceeding the sufficiency of the evidence in the criminal case must be conclusively presumed. Norton v. Zerbst, 10 Cir., 83 F.2d 677, certiorari denied 299 U.S. 541, 57 S.Ct. 24, 81 L.Ed. 398; Moore v. Aderhold, 10 Cir., 108 F. 2d 729; Reger v. Hudspeth, 10 Cir., 103 F.2d 825, certiorari denied 308 U.S. 549, 60 S.Ct. 79, 84 L.Ed. 462; Carpenter v. Hudspeth, 10 Cir., 112 F.2d 126, certiorari denied 311 U.S. 682, 61 S.Ct. 62, 85 L.Ed. ___; Creech v. Hudspeth, 10 Cir., 112 F. 2d 603; and cases there cited. But laying that rule aside, and, as directed by the order of remand, looking to the transcript of the testimony taken at the hearing on the petition for the writ, there was no showing that the evidence in the criminal case was inadequate in any material respect.

It was additionally alleged that the court violated the rights of petitioner under the Sixth Amendment to the Constitution of the United States by the denial of compulsory process for the witnesses whose testimony he desired at the hearing on the supplemental motion for new trial predicated upon newly discovered evidence. Petitioner submitted to the court an informal request for the issuance of process to compel the witnesses to attend at the expense of the government. The issuance and service of process was not denied. The court merely declined to compel the attendance of the witnesses at government expense. The right to compulsory process under the Sixth Amendment and under section 1034 of the Revised Statutes, 18 U.S.C.A. § 563, includes the issuance and service of such process...