Demarois v. Hudspeth, 1769.
| Decision Date | 10 October 1938 |
| Docket Number | No. 1769.,1769. |
| Citation | 99 F.2d 274 |
| Parties | DEMAROIS v. HUDSPETH, Warden United States Penitentiary, Leavenworth, Kan. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Alfred Demarois, in pro. per.
Summerfield S. Alexander, U. S. Atty., and Homer Davis, Asst. U. S. Atty., both of Topeka, Kan., for appellee.
Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.
Appellant, hereinafter called petitioner, perfected this appeal from an order denying his petition for a writ of habeas corpus to free him from the custody of the warden of the United States Penitentiary at Leavenworth, Kansas.
On June 2, 1928, petitioner entered a plea of guilty in the United States Court for Minnesota to an indictment charging him with the violation of the National Motor Vehicle Theft Act, 18 U.S.C.A. § 408, and was sentenced to serve a term of five years in the penitentiary at Leavenworth; and on the same day the court entered an order suspending the sentence and placing petitioner on probation for five years on condition that during such time (1) he report to the probation officer designated by the court at least once every thirty days, and (2) he not commit any crime against the laws of the United States or of any state or territory thereof. He failed to make the reports, and on the ensuing September 25th a state court in Wisconsin committed him to prison for a term of one to ten years for the violation of a statute of the state. On December 1st thereafter, while he was confined in the state prison, the United States Court for Minnesota entered an order, in his absence and without a hearing, revoking the probation previously granted; and on the same day a commitment issued to the Marshal. Petitioner was released from the state prison on January 8, 1935; the Marshal immediately took him into custody on the commitment; and on January 9th, he was placed in the penitentiary at Leavenworth. On October 23rd, he filed in the United States Court for Kansas his petition for a writ of habeas corpus, on the ground that the order of the court in Minnesota revoking the probation was void for the reason that it was entered in his absence and without notice or hearing. On November 4th, while the petition was pending in the court in Kansas, a warrant issued out of the court in Minnesota, directing that petitioner be arrested and brought before that court on December 11th for a hearing on the matter of the revocation of the probation theretofore granted. On November 22nd, the court in Kansas granted the writ of habeas corpus, but directed that petitioner be delivered to the Marshal for the District of Minnesota to be taken to Minnesota for proper disposition according to law. On November 25th, petitioner filed in the United States Court for Minnesota a petition for habeas corpus to obtain his release from the custody of the Marshal. On December 10th, the petition was denied and petitioner was remanded to the custody of the Marshal. On the following day, that is on December 11th, petitioner was brought before the court in Minnesota and, after a hearing, an order was entered revoking the probation granted on June 2, 1928, and directing that commitment issue as of December 11th. In connection with the proceeding for revocation, petitioner requested in open court that he be allowed to remain in the county jail at Saint Paul, Minnesota, in order to be in position to render advice and assistance to his counsel in connection with the preparation of the record and his brief on appeal from the judgment of the court rendered in the habeas corpus proceeding on the previous day. The request was granted; the court ordered the Marshal to keep petitioner in such jail during the pendency of the appeal in the habeas corpus case; and in obedience to that order the Marshal immediately delivered him into the custody of the keeper of such jail. Soon thereafter and while petitioner was thus confined in the jail, he appealed to the United States Circuit Court of Appeals...
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