Clawans v. Rives

• Decision Date: 20 March 1939
• Docket Number: No. 7181.,7181.
• Citation: 104 F.2d 240
• Parties: CLAWANS v. RIVES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

104 F.2d 240 (1939)

CLAWANS v. RIVES.

No. 7181.

United States Court of Appeals for the District of Columbia.

Decided March 20, 1939.

Levi H. David, of Washington, D. C., and F. D. Masucci, of Newark, N. J., for appellant.

Elwood H. Seal, Corp. Counsel, and Vernon E. West and James W. Lauderdale, Asst. Corp. Counsels, for appellee.

Before GRONER, Chief Justice, and STEPHENS and EDGERTON, Associate Justices.

STEPHENS, Associate Justice.

This is an appeal from an order of the District Court of the United States for the District of Columbia discharging a writ of habeas corpus and dismissing the petition on which the writ was issued. To the petition filed below by the appellant, a return and answer was filed by the appellee and issue was joined thereon. The trial court refused to hear evidence, and discharged the writ and dismissed the petition, apparently upon the theory that, assuming the truth of the facts stated in the petition and in certain exhibits attached thereto, no legal basis for the issuance of the writ existed. We must therefore on this appeal treat the allegations of fact as true, and determine the case as if there had been a motion to dismiss for lack of statement of a cause of action.

The pertinent facts set forth in the petition and exhibits are as follows: On June 8, 1935, the appellant was charged by Information No. 1,087,520, filed in the Police Court of the District of Columbia, with the offense of disorderly conduct. This information will be referred to for convenience as Information No. 1 and the case under it as Case No. 1. On December 10, 1935, the appellant filed a motion to quash this information. On December 21, 1935, Case No. 1 was called for trial and a witness for the District of Columbia was called and examined by the Assistant Corporation Counsel and gave testimony tending to support the allegations in the information, and other evidence was placed before the court. On December 30, 1935, the Assistant Corporation Counsel moved to dismiss the case, and over the objection of the appellant a nolle prosequi was entered. On the same day, a second information, No. 1,100,748, was filed. This information was in identical terms with Information No. 1, and charged the appellant with the same disorderly conduct. This information will be referred to for convenience as Information No. 2 and the case under it as Case No. 2. On January 7, 1936, a motion to quash Information No. 2 was filed. This motion was denied on January 25, 1936. On the same day Case No. 2 came on to be tried. When the case was called, the appellant refused to plead upon the ground that by the calling of a witness in and the subsequent dismissal of Case No. 1, she had been subjected to jeopardy, and that she could not, under the Fifth Amendment to the Constitution, be put twice in jeopardy for the same offense. The Police Judge, over the objection of the appellant, then directed the entry of a plea of not guilty. On June 2, 1936, Case No. 2 was tried and the appellant was found guilty; and after the overruling of a motion for a new trial, the appellant was sentenced to pay a fine of five dollars or serve five days in jail. She elected the jail sentence and was released on bail pending application for a writ of error. The proceedings under both informations were before the court alone, without a jury.

A writ of error was applied for by the appellant and denied; a petition for reconsideration of the application for the writ was also denied.¹ A petition for certiorari was then filed in the United States Supreme Court, but was denied.² Application for a reconsideration of the petition for the writ of certiorari was denied.³

Attacking the validity of her conviction in Case No. 2, the appellant relies upon the Fifth Amendment to the United States Constitution providing that no person shall be subject for the same offense to be twice put in jeopardy of life or limb.⁴ Under the facts stated the appellant was put in jeopardy in Case No. 1. Jeopardy attaches in a case without a jury when the accused has been subjected to a charge and the court has begun to hear evidence. People v. Goldfarb, 1912, 152 App.Div. 870, 138 N.Y.S. 62, affirmed, 1914, 213 N.Y. 664, 107 N.E. 1083; Commonwealth v. Hart, 1889, 149 Mass. 7, 20 N.E. 310; Rosser v. Commonwealth, 1933, 159 Va. 1028, 167 S.E. 257. See McCarthy v. Zerbst, 10 Cir., 1936, 85 F.2d 640; People v. Garcia, 1931, 120 Cal.App.Supp. 767, 7 P.2d 401.⁵ The rule as usually stated requires also arraignment and a plea, but this has been upon the theory that a conviction is void unless issue has been joined by arraignment and plea. United States v. Riley, 1864, Fed. Cas.No. 16,164; Sears v. State, 1925, 89 Fla. 490, 104 So. 857; State v. Horine, 1904, 70 Kan. 256, 78 P. 411. But it has been held in Garland v. Washington, 1914, 232 U.S. 642, 34 S.Ct. 456, 58 L.Ed. 772, that in criminal trials before United States courts the requirement of arraignment and plea is merely formal, and that a conviction in the absence thereof does not deprive the defendant of any substantial rights. As the offenses charged in the cases were identical and as the appellant was tried in the second case (and convicted), she was thus twice put in jeopardy. This made the conviction void. In re Snow, 1887, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658; Ex parte Hans Nielsen, Petitioner, 1889, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118.

But the appellee contends that it is not permissible to attack the judgment in the second case by showing facts outside the record — that the facts showing former jeopardy must appear on the face of the record in the case in which the sentence was imposed. And the appellee says that nothing in the record in Case No. 2 shows that Case No. 1 went to trial. But it is not the law that facts outside the record cannot be shown. In re Mayfield, 1891, 141 U.S. 107, 11 S.Ct. 939, 35 L.Ed. 635; Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. However it is the law that facts inconsistent with the record cannot be shown. Riddle v. Dyche, 1923, 262 U.S. 333, 43 S.Ct. 555, 67 L. Ed. 1009; and see Ex parte Cuddy, Petitioner, 1889, 131 U.S. 280, 286, 9 S.Ct. 703, 33 L.Ed. 154. And the appellee contends that the facts asserted by the appellant are inconsistent with the record in this: (1) It appears from the record in Case No. 1 that the appellant filed a motion to quash the information, and the record in that case does not show that this had been yet ruled upon when the nolle prosequi was entered. Therefore, says the appellee, to show that Case No. 1 went to trial is to show something inconsistent with the record, this for the reason that the case would not have been tried until the motion was disposed of. While in the usual course a motion to quash an information will be ruled upon before a case is called for trial, this is not requisite. The motion to quash may have been held in abeyance while the trial proceeded. Further, this asserted inconsistency is not an inconsistency with the record in the case in which the sentence was imposed. (2) The record in Case No. 2 shows that the appellant would not enter a plea because she "insisted she appeared specially," and the appellee asserts that it would be inconsistent with this for the appellant to show that she refused to plead on the ground of former jeopardy. We think there is no inconsistency here. On the contrary, the record seems to us to indicate that the appellant, instead of pleading to the merits, was attempting to insist upon some other type of objection. An oral plea of former jeopardy is permissible. In re Snow, supra; and Ex parte Hans Nielsen, Petitioner, supra.

The appellee further contends that the action of a trial court in overruling a plea of former jeopardy is not reviewable on habeas corpus and relies for this upon Ex parte Bigelow, 1885, 113 U.S. 328, 5 S.Ct. 542, 28 L.Ed. 1005. That case, looked at alone, supports the appellee's position. The case arose on an original petition for habeas corpus. The petitioner had been charged with embezzlement in fourteen separate indictments. A trial was commenced upon all of these indictments consolidated, but during the trial the judge discharged the jury, rescinded the order of consolidation, and then tried the petitioner before the same jury on one of the indictments, and the petitioner was found guilty. The case was in the District of Columbia before 1893 and appeal was therefore to the General Term, which affirmed the conviction. The statute allowed no appeal to the Supreme Court of the United States. On the petition for the writ of habeas corpus, that Court held that the alleged error in subjecting the defendant to a second trial was one which could not be attacked on habeas corpus. The appellee refers to a number of cases as citing Ex parte Bigelow with approval: Whitten v. Tomlinson, 1895, 160 U.S. 231, 16 S.Ct. 297, 40 L.Ed. 406; In re Frederick, Petitioner, 1893, 149 U.S. 70, 13 S.Ct. 793, 37 L.Ed. 653; Felts v. Murphy, 1906, 201 U.S. 123, 26 S.Ct. 366, 50 L.Ed. 689; In re Belt, Petitioner, 1895, 159 U.S. 95, 15 S.Ct. 987, 40 L.Ed. 88; Capone v. Aderhold, 5 Cir., 1933, 65 F.2d 130; Ferguson v. Peake, 1927, 57 App.D.C. 124, 18 F.2d 166; In re Eckart, 1897, 166 U.S. 481, 17 S.Ct. 638, 41 L.Ed. 1085; Kastel v. United States, 2 Cir., 1929, 30 F.2d 687; Van Meter v. Snook, 5 Cir., 1926, 15 F.2d 377; and Hovey v. Sheffner, 1908, 16 Wyo. 254, 93 P. 305, 15 Ann.Cas. 318, 125 Am.St.Rep. 1037, 15 L.R.A.,N.S., 227.

Whitten v. Tomlinson, and In re Frederick, Petitioner, are cases wherein collateral attack by habeas corpus was forbidden upon the ground that remedies available in direct attack had not yet been exhausted. Felts v. Murphy; In re Belt, Petitioner; Capone v. Aderhold and Ferguson v. Peake are all cases where habeas corpus was held not to be a proper remedy for the reason that the error alleged was not one which affected the jurisdiction to impose the sentence attacked...