Collins v. Morgan

• Decision Date: 07 May 1917
• Docket Number: 4680.
• Citation: 243 F. 495
• Parties: COLLINS v. MORGAN.
• Court: U.S. Court of Appeals — Eighth Circuit

243 F. 495

COLLINS v. MORGAN.

No. 4680.

United States Court of Appeals, Eighth Circuit.

May 7, 1917

R. E Stewart, of Muskogee, Okl., and T. W. Bell, of Leavenworth Kan. (G. W. P. Brown, of Muskogee, Okl., on the brief), for appellant.

L. S Harvey, Asst. U.S. Atty., of Kansas City, Kan. (Fred Robertson, U.S. atty., of Kansas City, Kan., on the brief) for appellee.

Before SANBORN and HOOK, Circuit Judges, and AMIDON, District Judge.

HOOK, Circuit Judge.

This is an appeal from an order denying Jack Collins a writ of habeas corpus. The petitioner had been convicted and sentenced for introducing and carrying intoxicating liquor into Muskogee county, Okl., and the Eastern judicial district of that state. The indictment described the county and district as being a 'portion of the Indian country of the said United States,' and charged the introduction and carrying of the liquor 'into said Indian country and into the county aforesaid from without such Indian country; * * * the said county and district having been a portion of the territory of the said United States known as Indian Territory. ' The sentence was imprisonment for three years. On writ of error the sentence was affirmed by this court. Collins v. United States, 135 C.C.A. 342, 219 F. 670. A rehearing was denied (135 C.C.A. 344, 219 F. 672); and a writ of certiorari was denied by the Supreme Court (238 U.S. 625, 35 Sup.Ct. 663, 59 L.Ed. 1495). The sufficiency of the indictment and of the evidence to sustain the verdict was not properly challenged before us, and was therefore not considered.

It is now urged that the indictment was under the act of January 30, 1897 (29 Stat. 506, c. 109), and not under section 8 of the act of March 1, 1895 (28 Stat. 693, c. 145), as limited by the Oklahoma Enabling Act of June 16, 1906 (34 Stat. 267, c. 3335), and that the extent of imprisonment imposed upon the petitioner was not authorized by the act of 1897 and was beyond its power or jurisdiction. If the indictment is sustainable under the act of 1895, the term of imprisonment was fully authorized. A stipulation as to testimony at the trial is attached to the petition for the writ of habeas corpus; but, regarding it most favorably to petitioner as reciting all the testimony (which is doubtful), it is clear, as will presently appear, that we cannot consider it. We also pass by the contention of the government that petitioner had not served the lesser term of imprisonment that could have been assessed under the act of 1897.

It is a familiar rule that a writ of habeas corpus cannot be used as a writ of error, but only for the consideration of fundamental and jurisdictional questions. Collins v. Johnston, 237 U.S. 502, 35 Sup.Ct. 649, 59 L.Ed. 1071. It may be employed to correct an excess of punishment, after that which might have been lawfully imposed has been satisfied. This is upon the theory that a court is without power to impose a greater punishment than the law prescribes. But in habeas corpus a court has 'nothing to do with questions arising on the evidence presented to sustain the charge. ' Ex parte Carll, 106 U.S. 521, 523, 1 Sup.Ct. 535, 27 L.Ed. 288. It cannot review a decision upon the legal sufficiency of a defense of former jeopardy. Ex parte Bigelow, 113 U.S. 328, 5 Sup.Ct. 542, 28 L.Ed. 1005. Mere error of law in the exercise of jurisdiction, even though serious, is no ground for the writ. McMicking v. Schields, 238 U.S. 99, 35 Sup.Ct. 665, 59 L.Ed. 1220. Even questions of jurisdiction will not always be decided. Henry v. Henkel, 235 U.S. 219, 228, 35 Sup.Ct. 54, 59 L.Ed. 203. 'The principle of the cases is the simple one that, if a court has jurisdiction of the case, the writ of habeas corpus cannot be employed to retry the issues, whether of law, constitutional or other, or of fact. ' Glasgow v. Moyer, 225 U.S. 420, 429, 32 Sup.Ct. 753, 756, 56 L.Ed. 1147. If the trial court had jurisdiction to try the issues and to render the judgment, the sufficiency of the information or of the acts set forth in an agreed statement to constitute a crime cannot be considered on habeas corpus. Matter of Gregory, 219 U.S. 210, 213, 31 Sup.Ct. 143, 55 L.Ed. 184.

Whether an act charged in an indictment is or is not a crime by the law which the court administers is a question within its jurisdiction. Ex parte Parks, 93 U.S. 18, 23 L.Ed. 787. In Ex parte Webb, 225 U.S. 663, 32 Sup.Ct. 769, 56 L.Ed. 1248, the indictment charged an introduction of liquor into the Indian country and was clearly under the act of 1897. It contained no averment indicating a charge under the act of 1895. For the purposes of the applications to the Supreme Court for an original writ of habeas corpus and for certiorari to review a denial of such a writ by the District Court certain facts were admitted. They disclosed that the liquor had not been introduced into the Indian country, but had been shipped from Missouri into what was formerly Indian Territory. The Supreme Court sustained the jurisdiction of the trial court under the act of 1895 and denied the applications. It said:

'Whether the offense is sufficiently alleged in the indictment is another question, which, on familiar grounds, is not a proper subject-matter for inquiry on habeas corpus.'

Joplin Mercantile Co. v. United States, 236 U.S. 531, 35 Sup.Ct. 291, 59 L.Ed. 705, is relied on. It arose on certiorari to review a judgment of conviction, not on habeas corpus, and is not in point.

In the case at bar the District Court had jurisdiction of the subject-matter and of the person of the petitioner, and at the most the narrow contention is that he was charged only with violating the act of 1897 and was punished excessively under the act of 1895. That contention will not stand, if the indictment also charged a violation of the latter statute, even though informally and indefinitely. The prohibition of the act of 1895 against carrying liquor into the Indian Territory before the passage of the Oklahoma Enabling Act of 1906 was in general terms. In other words, it was without limitation as regards the exterior source of the liquor. A carrying into the Indian Territory from anywhere without, whether from some state then organized and existing or from the territory of Oklahoma, would have been an offense. But after the Enabling Act and the creation of the state of Oklahoma the scope of the act of 1895 was restricted, and it had to be shown that the carrying of the liquor into what was formerly Indian Territory was from without the new state; that is to say, was in interstate commerce.

Now, let us look at the indictment, bearing in mind the very narrow scope of our power in habeas corpus. The indictment of petitioner clearly conformed to the general terms of the original act of 1895. It charged an introduction and carrying of liquor into Muskogee county and the Eastern district of Oklahoma, which were averred to be Indian country and a part of what was formerly Indian Territory, 'from without such Indian country.' 'Without' is anywhere outside. True, the term included the part of the state that was formerly Oklahoma territory; but it also embraced the states and countries beyond. It was broad enough to signify any state other than Oklahoma as the initial point of the carrying into what was once Indian Territory.

There was enough in the indictment to call for the court's construction in relation to the act of 1895, and construction is in the ordinary exercise of jurisdiction. It is quite probable that the indictment was framed to charge a violation of both acts, 1895 and 1897. The terms 'carry,' 'Indian Territory,' 'introduce,' and 'Indian country' were used. The first two are found in the act of 1895, and the last two are peculiar to the act of 1897. But, even so, a double charge in a single count of an indictment is no ground for discharge on habeas corpus. It is not amiss to say that the record before us on the writ of error indicates that the sentence of petitioner under the act of 1895 was not imposed inadvertently.

The order is affirmed.

SANBORN Circuit Judge (dissenting).

When the indictment in this case was drawn, and when Jack Collins was tried, the only offense for which the trial court had jurisdiction to sentence him to imprisonment for three years was the introduction of intoxicating liquors from outside the state of Oklahoma into that part of the state which had been the Indian Territory. There was a large part of that state which had never been any part of the Indian Territory. The introduction of intoxicating liquors from that part of the state-- that is to say, their introduction from within the state of Oklahoma into that part of that state which had been the Indian Territory, or into the Indian country-- was an offense for the commission of which the court had no jurisdiction to impose a sentence of imprisonment for three years. Section 8, Act March 1, 1895, 28 Stat. 693; Joplin Mercantile Co. v. United States, 236 U.S. 531, 546, 547, 548, 35 Sup.Ct. 291, 59 L.Ed. 705. There was another act of Congress in force under which the trial court had jurisdiction to impose upon the petitioner, Collins, a sentence of imprisonment for two years, for the offense of introducing liquor into the 'Indian country' from anywhere outside the Indian country, and the indictment against Collins charged him with the introduction of the liquors into the Indian country. Section 2139, Revised Stat. as amended by Act July 23, 1892, 27 Stat. 260, c. 234, as amended by Act Jan. 30, 1897, 29 Stat. 506, c. 109.

The term 'Indian country' was not and is not synonymous with Indian territory, nor with that part of Oklahoma which was formerly in Indian Territory. Indian country is all the country declared to be such by Act June 30, 1834, c. 161, to which the...