Dean v. United States

• Decision Date: 05 June 1929
• Docket Number: No. 8186.,8186.
• Citation: 33 F.2d 68
• Parties: DEAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

33 F.2d 68 (1929)

DEAN v. UNITED STATES.^*

No. 8186.

Circuit Court of Appeals, Eighth Circuit.

June 5, 1929.

Charles C. Madison, of Kansas City, Mo., for appellant.

John M. Goldesberry, U. S. Atty., of Tulsa, Okl.

Before STONE, Circuit Judge, and FARIS and SANBORN, District Judges.

SANBORN, District Judge.

This is an appeal from an order denying an application for a writ of habeas corpus. The appellant was indicted by a grand jury called for the special March, 1927, term of the United States District Court for the Northern District of Oklahoma, was sentenced on the 25th day of February, 1928, and committed on the 3d day of March, 1928, to the Washington county jail at Bartlesville, Okl. His claim is that no order or notice for the holding of this special term, at which the indictment was returned, was made or given as required by law, and that the indictment and all proceedings had by virtue of it are absolutely void.

Section 11 of the Judicial Code (section 15, title 28, USCA) provides that "a special term of any District Court may be held at the same place where any regular term is held, or at such other place in the district as the nature of the business may require, and at such time and upon such notice as may be ordered by the District Judge."

The showing which the appellant made in connection with his application for the writ consisted of a certified copy of the journal of the court for the 7th day of March, 1927, which showed the adjournment of the regular January term sine die, and the convening of the special March, 1927, term. The journal recites that on the 7th day of March, 1927, the court "sitting in special March session, at Tulsa, Oklahoma, met pursuant to adjournment," and also recites: "Public proclamation having been duly made the following proceedings were had and entered, to wit:" Then follow the proceedings of the first day of the term. There was attached to the application a certificate of the clerk that there was no other order directing or convening the special March, 1927, term, outside of the order made by the court on the 7th day of March, 1927, which order was made direct from the bench by the court. The brief of the appellee indicates that the clerk was probably mistaken in making this certificate, and that an order for the special term had been made on February 24, 1927, which order provided that notice should be given by spreading the order upon the court records. However, this order was not made part of the application and is not a part of the record before us.

It is very doubtful whether the showing made by the appellant in connection with his application for the writ overcame the usual presumption of regularity of court proceedings. See Lewis v. United States, 279 U. S. 63, 49 S. Ct. 257, 73 L. Ed. ___. But, arguendo, it may be assumed that the application and the exhibits attached affirmatively show that the irregularities complained of in calling the term occurred.

The trial court was given no opportunity to pass upon the regularity of the proceedings pursuant to which the special term was held. There was no challenge to the grand jury; no writ of prohibition was sought to prevent the court or the grand jury from functioning at the special term; there was no motion to quash the indictment, no proceedings in abatement, no motion in arrest of judgment; and, from all that appears, the appellant walked into court, entered a plea of guilty to an indictment which upon its face was valid and regular, went to jail, and then for the first time concluded that he was unlawfully in custody, because of the alleged informality in the calling of the special term.

There are two reasons why the application for the writ was properly denied. The appellant could not take advantage of the irregularities in the calling of the term and the impaneling of the grand jury by habeas corpus. It has been repeatedly held that habeas corpus is not a substitute for appeal. One of the last cases in this circuit calling attention to that fact is Barlos v. White, 27 F.(2d) 313, 314. There it is said:

"No demurrer or motion was filed to the indictment, and its sufficiency was in no way questioned. The charges were not colorless or impossible, and every question here presented as to any of the counts of the indictment could have been presented and determined in the trial court. That court had jurisdiction of defendant and of the alleged offense. The sentence was not beyond its power. The petitioner is not restrained of his liberty in violation of the law. This is merely another of the numerous cases in which the effort is made to substitute habeas corpus...