Collins v. Frisbie, 11269.

• Citation: 189 F.2d 464
• Decision Date: 28 May 1951
• Docket Number: No. 11269.,11269.
• Parties: COLLINS v. FRISBIE.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

189 F.2d 464 (1951)

COLLINS v. FRISBIE.

No. 11269.

United States Court of Appeals Sixth Circuit.

May 28, 1951.

Shirley Collins, in pro. per.

Stephen J. Roth, Edmund E. Shepherd, Lansing, Mich., on brief, for appellee.

Before SIMONS, MARTIN and MILLER, Circuit Judges.

MARTIN, Circuit Judge.

This is an appeal from denial by the United States District Court of a petition for writ of habeas corpus, wherein the petitioner avers that he was illegally arrested and maltreated in Chicago, Illinois, by two Michigan police officers, and forcibly kidnaped by them and returned to Michigan, where he is now illegally imprisoned.

The petitioner charges that he has been denied due process of law, right of counsel, and a hearing in court. He shows that no requisition was made upon the Governor of Illinois for his apprehension therein as a fugitive from justice and for his delivery to the authorities of the state of Michigan. In his statement of facts in support of his petition, he alleges that, prior to his arrest on February 19, 1942, in Chicago, Illinois, he had resided in that city for ten months. He states that he was arrested at a bus station in Chicago, handcuffed, and taken by force to the Twelfth Street Police Station, where the Michigan police ordered him to be held in custody; that when he refused to answer any questions until he could consult a lawyer, he was attacked and beaten with blackjacks by the Illinois and Michigan police officers; that the Michigan officers ordered the Illinois authorities not to let him see a lawyer or anyone else, saying that it would do him no good for they were taking him back to Flint, Michigan.

According to his averments, he was questioned again on the next day by the officers of both states and, when asked if he was ready to go back to Michigan without causing any additional trouble and if he was ready to talk, he replied that he would not decide until he could consult a lawyer; whereupon he was again attacked with blackjacks by both the Michigan and the Illinois officers and beaten into unconsciousness. He declares that, on the following day, he was delivered to the Michigan police officers by the Chicago Police Department, and was carried to Flint, Michigan. He avers that he has been confined in prison since February 21, 1942.

So far as the record discloses, the petitioner has been given no hearing for determination of the truth or falsity of the allegations of his petition for writ of habeas corpus. In an order denying the petition, the district judge asserted that the fact that petitioner had been brought from another jurisdiction "by alleged illegal means, such as kidnaping, or unlawful force, did not deprive the sentencing court of jurisdiction." The court cited Robinson v. United States, 6 Cir., 144 F.2d 392, affirmed 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944, to the proposition that the presence of the defendant in the court which imposed sentence gave it complete jurisdiction over his person, regardless of how such presence was procured.

On its facts, the Robinson case bears no analogy to the case at bar. The statement of this court relied upon by the district court related to an assignment of error that the order of a California district court directing Robinson to be returned to the Kentucky district court was in contravention of the provisions of the Removal Statutes, Title 18, section 591, now § 3041 United States Code. Any defects in the removal proceedings were regarded as immaterial upon the principle stated. But Robinson had not been kidnaped or forcibly brought into Kentucky. The California district court had directed that he be returned to the Kentucky district court for trial.

The present case is governed by our later decision in Brown v. Frisbie, 6 Cir., 1949, 178 F.2d 271, in which two of the judges now sitting participated. The opinion writer in the instant case concurred in the opinion in the Robinson case. In Brown v. Frisbie, the petition for writ of habeas corpus alleged that petitioner had been forcibly kidnaped in Georgia and brought to Michigan by a police officer of that state, with the connivance and brutal assistance of four deputy sheriffs in Georgia. As we pointed out, the appellant, Brown, averred that the officers attempted to persuade him to sign a waiver, which he declined to do; whereupon, he was attacked by four deputy sheriffs and the Michigan police officer. He alleged further that he was threatened with a rope and pistols, was intimidated and beaten; yet he refused to sign the waiver. He said that he was handcuffed, shackled and told that "a n___er had no constitutional rights in Georgia"; was dragged to a scout car from the sheriff's office by four deputy sheriffs and the Michigan officer, hustled to the railroad station and aboard a train for Michigan, the officer of which state was instructed to keep him handcuffed, in shackles, and in his seat until the state line had been crossed, with the assurance of the deputy sheriffs that they would "stall the lawyer" who was preparing to resist the petitioner's extradition. Our mandate was that the case be remanded to the district court for further procedure, including the determination of the factual issues, appropriate findings to be filed by the district judge.

There is no material difference in crucial facts or in principle between Brown v. Frisbie and the instant case. The same district court pursued the same course in each case. It is argued that our decision in the former case is not in conformity with the opinions of the Supreme Court in Mahon v. Justice, 127 U.S. 700, 8 S.Ct. 1204, 32 L.Ed. 283, and Ker v. People of State of Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421. At first blush, it would seem that we are out of line with those authorities which are, of course, binding upon us; but careful analysis and thoughtful consideration will, in our judgment, demonstrate that we are not.

In Mahon v. Justice, decided in 1887, the petitioner for habeas corpus, who was charged with murder in Kentucky, was violently seized and forcibly abducted to that state from West Virginia while requisition for his return was pending before the Governor of West Virginia. The Supreme Court held that no mode is provided by which a person wrongfully abducted from one state to another by persons acting without warrant or authority of law can be restored to the state from which he was taken, if held upon any process of law for an offense against the state to which he has been carried. The court stated that the only question which was presented for its determination was whether in the circumstances the petitioner was entitled under the Constitution and laws of the United States to release from detention under the indictment, by reason of his forcible and unlawful abduction. The answer was given in the concluding paragraph of the opinion, 127 U.S. 715, 8 S.Ct. 1212: "So in this case we say that, whatever effect may be given by the state court to the illegal mode in which the defendant was brought from another state, no right, secured under the constitution or laws of the United States, was violated by his arrest in Kentucky, and imprisonment there, upon the indictments found against him for murder in that state." It was asserted that whether Congress might not provide for the compulsory restoration of a person to the state from which he has been wrongfully abducted and whether such provision would not greatly tend to the public peace along the borders of the several states were not matters for consideration of the court at that time. It should be observed that there was no federal statute against kidnaping in existence at the time Mahon v. Justice was decided.

The court said that the earlier case of Ker v. Illinois, supra, had direct bearing. There, the prisoner had been kidnaped in Peru by a person lawfully delegated to receive him from the Peruvian authorities. Without presenting any demand upon them, the delegate forcibly placed the prisoner on board a United States vessel, transferred him to another, and brought him to California against his will. Before the prisoner's arrival in that state in forcible custody, the Governor of Illinois had made a requisition upon the Governor of California for the delivery of the prisoner as a fugitive from Illinois justice. He was lawfully extradited from California to Illinois, where he was tried and convicted and his sentence affirmed by the highest court of the latter state. On writ of error, the Supreme Court of the United States affirmed the judgment of the state court. It was said that how far the forcible transfer of the defendant, so as to bring him within the jurisdiction of the state where his offense was committed, may be set up against the right to try him is the province of the state court to decide, presenting no federal question reviewable by the Supreme Court of the United States. In the instant case, we think a federal question is presented.

It is true that the Supreme Court has adhered to the doctrine of Mahon v. Justice, supra, and Ker v. Illinois, supra. See Burton v. New York Central & Hudson River Railroad Company, 245 U.S. 315, 38 S.Ct. 108, 62 L.Ed. 314; Pettibone v. Nichols, 203 U.S. 192, 217, 27 S.Ct. 111, 51 L.Ed. 148 (with a lone voice, that of Mr. Justice McKenna, crying in the wilderness); Adams v. New York, 192 U.S. 585, 596, 24 S.Ct. 372, 48 L.Ed. 575; In re Johnson, Petitioner, 167 U.S. 120, 126, 17 S.Ct. 735, 42 L.Ed. 103; Lascelles v. State of Georgia, 148 U.S. 537, 543, 545; Cook v. Hart, 146 U.S. 183, 190-192, 13 S.Ct. 40, 36 L.Ed. 934. It should be borne in mind, however, that all these cases were decided before the enactment of a national anti-kidnaping law.

In 1932, the Congress took cognizance of the increasing danger to the domestic tranquility and security of our people by condemning as a criminal act the transportation in interstate commerce of any person unlawfully seized, confined, inveigled, decoyed,...