Cato v. Smith
| Decision Date | 26 May 1939 |
| Docket Number | No. 9046.,9046. |
| Parties | CATO v. SMITH, Warden. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Raine Ewell, of San Francisco, Cal., for appellant.
Earl Warren, Atty. Gen., of California, and William F. Cleary, Deputy Atty. Gen., of California, for appellee.
Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.
This is an appeal from an order of the District Court of the United States for the Northern District of California, Southern Division, denying appellant's petition for a writ of habeas corpus and dismissing the same.
Petitioner was indicted and convicted for a violation of the United States Criminal Code and was sentenced to jail. He was regularly committed to the San Francisco County Jail and was placed in charge of the jailer of said county as a prisoner of the United States. Later, appellant was brought before the Superior Court of the State of California, in and for the City and County of San Francisco, and tried for an offense committed against state laws. Petitioner was regularly convicted and sentence was imposed that he be confined at the State Prison at San Quentin, California, the sentence to begin upon the expiration of the sentence imposed by the Federal Court.
Petitioner alleged that his removal from the jail for trial in the state court was against his will and that the state court had no jurisdiction to try or impose sentence upon him.
Prior to this application for a writ of habeas corpus in the federal court, appellant had presented a similar petition addressed to the Supreme Court of the State of California, which was denied on June 24, 1936; he next filed an application in the United States District Court, which was denied on September 4, 1936. Thereafter, he filed another petition to the Supreme Court of the State of California, which was denied on January 11, 1937. A similar petition was made to the Superior Court of Marin County, California, and denied on May 5, 1937. Another application was made to the District Court of Appeal, First Appellate District of the State of California, which was denied on August 5, 1937. Again an application was made to the Supreme Court of the State of California upon the same facts as set forth herein, which was denied on September 16, 1937.
Appellant argues that because the government of the United States had custody of the petitioner who was serving a sentence for a prior conviction against federal law it had the unquestioned right to decline to surrender him to trial by state authorities it follows that unless the Attorney General of the United States specifically directs such surrender to the state authorities that the state court would be without jurisdiction to proceed with his trial. In support of such contention appellant relies on some disconnected statements, skillfully woven into an argument, taken from the case of Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607, 22 A.L.R. 879. It is true that when conflict arises between the sovereign governments as to which is entitled to priority of jurisdiction it has been uniformly held that the sovereign first securing the custody of the prisoner has the right to retain jurisdiction of his person; but this may be waived. Here it appears that the person in charge of appellant by authority of the United States delivered him to the state court for trial and in these circumstances the language of Mr. Chief Justice Taft from the above cited case of Ponzi v. Fessenden, 258 U.S. at pages 260, 264, 265, 266, 42 S.Ct. at page 310, 66 L.Ed. 607, 22 A.L.R. 879, is most apropos:
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