Douglas v. King, 11638.

• Decision Date: 08 April 1940
• Docket Number: No. 11638.,11638.
• Citation: 110 F.2d 911,127 ALR 1200
• Parties: DOUGLAS v. KING, Warden.
• Court: U.S. Court of Appeals — Eighth Circuit

127 ALR 1200, 110 F.2d 911 (1940)

DOUGLAS v. KING, Warden.

No. 11638.

Circuit Court of Appeals, Eighth Circuit.

April 8, 1940.

Walter Douglas, pro se.

Maurice M. Milligan, U. S. Atty., and Otto Schmid, Asst. U. S. Atty., both of Kansas City, Mo., for appellee.

Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from a judgment denying petition for writ of habeas corpus. Appellant was convicted in the United States District Court for the District of New Hampshire on December 22, 1931, on an indictment charging him with possession and sale of narcotics. On that date he was sentenced to serve a term of eight years and six months in the Federal Prison at Leavenworth, Kansas. While there confined, a Board of Examiners acting under authority of Section 876, Title 18 U.S.C.A., on November 6, 1933, found him to be insane or of unsound mind, and on December 3, 1933, by direction of the Attorney General, he was transferred from the Federal Prison at Leavenworth, Kansas, to the Medical Center for Federal Prisoners at Springfield, Missouri, to be there safely kept "until * * * the prisoner shall be restored to sanity or health or until the maximum sentence, without deduction for good time or commutation of sentence, shall have been served."

Upon hearing, at which appellant appeared personally and apparently by counsel, appellee filed answer and return and moved for a dismissal of the petition. The judgment entered, and from which this appeal was taken, recites that, "The court having considered the pleadings and the records of the Medical Center for Federal Prisoners, and being fully advised in the premises, the court finds that the petitioner was regularly and legally sentenced and committed to prison, and that while he was serving his sentence in a Federal penal institution, he was found to be of unsound mind, and was transferred by direction of the Attorney General of the United States, to the Medical Center for Federal Prisoners at Springfield, Missouri, to be kept therein until the petitioner shall be restored to sanity or until the maximum sentence, without deduction for good time or commutation of sentence shall have been served, and the court further finds said petitioner to be insane and of unsound mind at this time, and the petitioner's maximum sentence has not been served."

In appellant's petition for the writ, it was alleged that he was being illegally detained beyond the maximum time to be served according to the Act of June 21, 1902 (Sec. 710, Title 18 U.S.C.A.). It was there urged, and the contention is renewed here, that the Act of May 13, 1930 (Sec. 876, Title 18 U.S.C.A.), which provides for a Board of Examiners for the examination of mentally defective prisoners, is unconstitutional, and that under the provisions of Section 710, supra, which provides that a federal prisoner who is confined in execution of a judgment or sentence for a definite term other than for life, whose record or conduct shows that he has faithfully observed all the rules and has not been subjected to punishment, shall be entitled to a deduction from the term of his sentence. If the provisions of that section are applicable, appellant's term has expired, but if the deductions there provided for are not allowable, his term will not expire until June 21, 1940.

Section 876, supra, which was passed prior to appellant's conviction and sentence, authorizes the creation of a Board of Examiners for each federal penal institution, and provides that if such board, upon examination of an inmate, shall find him to be mentally defective, the Attorney General may direct the warden having custody of the prisoner to cause him to be removed to a United States hospital for defective delinquents, there to be kept "until, in the judgment of the superintendent of said...