Doss v. Lindsley

Decision Date08 January 1944
Docket NumberCiv. No. 368-D.
Citation53 F. Supp. 427
PartiesDOSS v. LINDSLEY, Sheriff of Platt County, III.
CourtU.S. District Court — Eastern District of Illinois


A. M. Fitzgerald, of Springfield, Ill., for plaintiff.

O. D. Mann, Sp. State's Atty., of Danville, Ill., for defendant.

LINDLEY, District Judge.

Petitioner seeks a writ of habeas corpus to prevent his arrest by the Sheriff of Piatt County, Illinois, in pursuance of a mandate of the Supreme Court of Illinois, affirming judgment sentencing him for contempt of court, wherein he was committed to jail for three months and fined $2,000. The history of the offense and final disposition of the appeal by the Supreme Court appear in People v. Doss, 382 Ill. 307, 46 N. E.2d 984 decided January 21, 1943. A petition for rehearing was stricken on March 11, 1943, apparently because the court believed that it did not comply with the rules. Within three months from March 11, 1943, but longer than that after January 21, 1943, petitioner sought a review of the decision by the Supreme Court of the United States. Apparently upon the ground that striking the petition for rehearing was not such an order as would afford petitioner the right to apply for certiorari within three months therefrom, the Supreme Court of the United States denied the application, 64 S.Ct. 38, and still later a petition for rehearing. 64 S.Ct. 194. Subsequently the mandate from the Supreme Court of Illinois issued and, before petitioner could be arrested in pursuance of the affirmed judgment, he filed this application. The respondent has answered, denying that petitioner is deprived of his liberty and asserting that nothing in the petition justifies issuance of the writ.

We are confronted with the questions, first, whether, under the facts mentioned, petitioner is under such restraint of liberty as to give this court jurisdiction to entertain the petition; second, whether the circumstances are so extraordinary as to except the case from the rule abiding in federal courts that a petitioner in state custody shall first exhaust his remedy in the state courts; and, third, if this court has authority to entertain the proceeding, whether, on the merits, any defect appears on the face of the record nullifying the legality of the judgment. The last question involves the subordinate inquiries of whether the denial of jury trial or the alleged excessive sentence amount to deprivation of due process of law; whether the facts, as disclosed by the information and answer in the contempt proceedings, on their face, support a judgment for contempt of court and finally whether the sentence is void for lack of due process of law because the trial court made no findings of fact. Interwoven with these questions is the issue of whether the communications said to have been sent to grand jurors were such as petitioner had a right to issue in pursuance of his constitutional right of free speech.

The right to be discharged from illegal imprisonment by writ of habeas corpus ad subjiciendum was in use before Magna Charta. It exists as a part of our common law and our Constitution provides that no person shall be deprived of his liberty without due process of law. The proceeding in its essence is an application to the court to command one holding another in restraint or custody, to produce the body of that person in order to determine whether he is illegally restrained of his liberty. The sole function of the remedy is to relieve from unlawful imprisonment. See 29 Corpus Juris, Sections 1 to 6. "The purpose of the proceeding defined by the statute was to inquire into the legality of the detention, and the only judicial relief authorized was the discharge of the prisoner or his admission to bail, and that only if his detention were found to be unlawful." McNally v. Hill, Warden, 293 U.S. 131, 136, 55 S.Ct. 24, 79 L.Ed. 238.

Thus the Supreme Court has said: "Its purpose is to enable the court to inquire, first, if the petitioner is restrained of his liberty. If he is not, the court can do nothing but discharge the writ. * * * There is no very satisfactory definition to be found in the adjudged case of the character of the restraint or imprisonment suffered by a party applying for the writ of habeas corpus, which is necessary to sustain the writ. * * * Obviously, the extent and character of the restraint which justifies the writ, must vary according to the nature of the control which is asserted over the party in whose behalf the writ is prayed. * * * it should be made clear that some unusual restraint upon his liberty of personal movement exists to justify the issue of the writ; otherwise every order of the superior officer directing the movements of his subordinate, which necessarily to some extent curtails his freedom of will, may be held to be a restraint of his liberty, and the party so ordered may seek relief from obedience by means of a writ of habeas corpus. * * * Something more than moral restraint is necessary to make a case for habeas corpus. There must be actual confinement or the present means of enforcing it. The class of cases in which a sheriff or other officer, with a writ in his hands for the arrest of a person whom he is required to take into custody, to whom the person to be arrested submits without force being applied, comes under this definition. The officer has the authority to arrest, and the power to enforce it." Wales v. Whitney, 114 U.S. 564, 5 S.Ct. 1050, 1053, 29 L.Ed. 277.

While the Acts of Congress are not decisive, perhaps, as to what is a restraint of liberty, they evidently contemplate existence of some actual restraint. Revised Statutes, 28 U.S.C.A. Chap. 14, Section 454, says the application must set forth "in whose custody he (the petitioner) is detained, and by virtue of what claim or authority, if known"; section 455, that "the writ shall be directed to the person in whose custody the party is detained"; section 457, that this person shall certify to the court the true cause of the detention; and by section 458 he is required to "bring the body of the party before the judge who granted the writ." If one is at large, with no one controlling or detaining him, his body cannot be produced by the person to whom the writ is directed, unless by consent of the alleged prisoner, or by his capture and forcible traduction into the presence of the court. Wales v. Whitney, 114 U.S. 564, 5 S.Ct. 1050, 29 L.Ed. 277; McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238.

In McNally v. Hill, Warden, 293 U.S. 131, at page 138, 55 S.Ct. 24, at page 27, 79 L.Ed. 238, the court said: "Without restraint of liberty, the writ will not issue. Wales v. Whitney, 114 U.S. 564, 5 S.Ct. 1050, 29 L.Ed. 277; Stallings v. Splain, 253 U.S. 339, 343, 40 S.Ct. 537, 64 L.Ed. 940. Equally, without restraint which is unlawful, the writ may not be used. A sentence which the prisoner has not begun to serve can not be the cause of restraint which the statute makes the subject of inquiry." (Italics supplied.)

From the language of the Supreme Court, it appears that where, as here, petitioner has not been arrested, his application is premature, for he is, as yet, deprived of no freedom of action. I think further that the question is not whether one who is on bond may apply for a writ, but rather whether one convicted but not arrested may so proceed. This I think he may not do. However, lest upon review, it should be thought that I should entertain the petition, I shall consider certain of the further questions presented.

I am asked to discharge petitioner from the duty to comply with the mandate of the Supreme Court of Illinois, on the ground that he has been deprived of his constitutional rights. The federal courts "will not ordinarily interfere by habeas corpus with the regular course of procedure under state authority, and in the absence of some emergency demanding prompt action, a party held in custody by a state will be left to stand his trial in the state court, and will be left to a review of the final judgment of the highest courts of the state by writ of error to the United States Supreme Court." 29 C.J. Sec. 8; Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969. "It is an exceedingly delicate jurisdiction given to the Federal courts by which a person under an indictment in a state court, and subject to its laws, may, by the decision of a single judge of the Federal court, upon a writ of habeas corpus, be taken out of the custody of the officers of the state, and finally discharged therefrom * * *." United States ex rel Drury v. Lewis, 200 U.S. 1, 7, 26 S.Ct. 229, 231, 50 L.Ed. 343. "The jurisdiction is more delicate, the reason against its exercise stronger, when a single judge is invoked to reverse the decision of the highest court of a state in which the constitutional rights of a prisoner could have been claimed and maybe were rightly decided, or, if not rightly decided, could be reviewed and redressed by a writ of error from this court." Markuson v. Boucher, 175 U.S. 184, 187, 20 S.Ct. 76, 77, 44 L.Ed. 124.

The state of Illinois has always recognized the remedy of habeas corpus. Remembering the duty of the federal court not to interfere with state proceedings unless the circumstances are so extraordinary as to create an emergency without adequate remedy, it follows that no federal court should take jurisdiction until existing remedies in the state court have been exhausted. The petition here does not aver that petitioner has filed any petition for writ of habeas corpus in any court of Illinois. He should first proceed there and if upon final review the Supreme Court of Illinois should not grant him relief, he has the right to apply to the Supreme Court of the United States for review. It is not meet that the District Court of the United States should interfere with the due process of law of Illinois. As the Supreme Court said in Mooney v. Holohan, 294 U. S. 103, at page 115, 55 S.Ct. 340, at page...

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4 cases
  • United States v. Heicklen
    • United States
    • U.S. District Court — Southern District of New York
    • April 19, 2012
    ... ... See, e.g., Doss v. Lindsley, 53 F.Supp. 427, 43233 (E.D.Ill.1944) (applying the test articulated in Bridges to a prosecution under Illinois's jury tampering ... ...
  • United States v. Lindsley, 8627.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • May 21, 1945
    ...148 F.2d 22 (1945) ... UNITED STATES ex rel. DOSS ... LINDSLEY, Sheriff ... Circuit Court of Appeals, Seventh Circuit ... February 7, 1945 ... Rehearing Denied March 14, 1945 ... Writ of Certiorari Denied May 21, 1945.        Richard E. Westbrooks, of Chicago, Ill., and William A. Doss, of Monticello, Ill., for appellant ... ...
  • United States v. Lindsley
    • United States
    • U.S. District Court — Eastern District of Illinois
    • May 13, 1944
    ...60 F. Supp. 720 ... UNITED STATES ex rel. DOSS ... LINDSLEY, Sheriff ... No. 404-D ... District Court, E. D. Illinois ... May 13, 1944.        Parties appeared pro se ...         LINDLEY, District Judge ...         Petitioner, convicted of criminal libel in Piatt County Circuit Court, the judgment having been ... ...
  • In re Davies, 65.
    • United States
    • U.S. District Court — Western District of Pennsylvania
    • January 12, 1944

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