Ex parte Craig

• Decision Date: 29 April 1921
• Citation: 274 F. 177
• Parties: Ex parte CRAIG.
• Court: U.S. Court of Appeals — Second Circuit

274 F. 177

Ex parte CRAIG.

United States Court of Appeals, Second Circuit.

April 29, 1921

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John P. O'Brien, Corp. Counsel, of New York City (Edmund L. Mooney, Charles T. B. Rowe, Alfred B. Cruikshank, Russell Lord Tarbox, and Frank I. Tierney, all of New York City, of counsel), for petitioner.

Francis G. Caffey, U.S. Atty., of New York City (Ben A. Matthews and David V. Cahill, both of New York City, of counsel), for respondent.

Before MANTON, Circuit Judge.

MANTON Circuit Judge (after stating the facts as above).

The power of a circuit judge to issue a writ of habeas corpus is questioned by a motion to dismiss. I have held heretofore that a circuit judge has such power. In re David Lamar (C.C.A.) 274 F. 160. Nothing has been submitted in this proceeding which causes me to change the views there expressed. Further, at the time of the issuance of this writ, the circuit judge writing was by assignment empowered to consider matters of original jurisdiction. The application to dismiss the writ for want of authority to issue the same is denied.

A writ of habeas corpus cannot be made to perform the office of a writ of error. Nor can it be invoked to review an erroneous judgment of a court of competent jurisdiction. It challenges the jurisdiction of the court. In re Debs, 158 U.S. 564, 15 Sup.Ct. 900, 39 L.Ed. 1092; Ex parte Yarbrough, 110 U.S. 651, 4 Sup.Ct. 152, 28 L.Ed. 274; Ex parte Watkins, 28 U.S. (3 Pet.) 193, 7 L.Ed. 650.

In a contempt proceeding it may be available to relieve a prisoner from the restraint imposed if the judgment is void on the ground that the court was without the power to make it. But the usual objection to the remedy sought by the medium of habeas corpus is that there is a regular judgment of conviction which cannot be questioned collaterally. There are exceptions to this rule which have been recognized. Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872; Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717.

If the court which renders a judgment has not jurisdiction to render it, either because the proceedings or the law under which they are taken are unconstitutional, or for any other reason, the judgment is void and may be questioned collaterally. The defendant, who is imprisoned under and by virtue of such a judgment, may be discharged from custody on habeas corpus. In re Hans Nielsen, 131 U.S. 176, 183, 9 Sup.Ct. 672, 674 (33 L.Ed. 118). There the court said:

'In the present case, it is true, the ground for the habeas corpus was, not the invalidity of an act of Congress under which the defendant was indicted, but a second prosecution and trial for the same offense, contrary to an express provision of the Constitution. In other words, a constitutional immunity of the defendant was violated by the second trial and judgment. It is difficult to see why a conviction and punishment under an unconstitutional law is more violative of a person's constitutional rights than an unconstitutional conviction and punishment under a valid law. In the first case, it is true, the court has no authority to take cognizance of the case; but, in the other, it has no authority to render judgment against the defendant.'

In Ex parte Lange, supra, the court had authority to hear and determine the case. But the Supreme Court held it had no authority to give the judgment it did. As was said in the Nielsen Case, supra:

'He was protected by a constitutional provision, securing to him a fundamental right. It was not a case of mere error in law, but a case of denying to a person a constitutional right.'

So where there is a denial or invasion of a constitutional right, the prisoner may be discharged on a habeas corpus. Therefore the determining inquiries are: (a) Had the district judge jurisdiction of the person and subject-matter? (b) Was the sentence imposed within its power?

Judicial Code, Sec. 268, 36 Stat. 1163 (Comp. St. Sec. 1245), provides:

'The said courts (United States courts) shall have power * * * to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: Provided, that such power to punish for contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice. * * * '

In Henry v. Henkel, 235 U.S. 219, 35 Sup.Ct. 54, 59 L.Ed. 203, it is pointed out that there were five exceptions to the rule that there can be no review on a habeas corpus of a sentence which can be reviewed on appeal or by a writ of error. One of the five exceptions is where the judgment or order entered under which he is held is a nullity because in excess of the power of the court.

An example of this exception was recently before the Supreme Court in Ex parte Hudgings, 249 U.S. 378, 39 Sup.Ct. 337, 63 L.Ed. 656, 11 A.L.R. 333. There, on a rule to show cause, a petition of habeas corpus seeking the discharge of the petitioner from custody under a commitment for contempt was filed. The grounds for discharge were that the court had exceeded its jurisdiction by punishing as a contempt an act which it had no power to so punish, and that even if the act punished was susceptible of being treated as a contempt, the action of the court was arbitrary, beyond the limits of any discretion possessed, and violative of due process of law under the Fifth Amendment. The court said:

'The duty to consider the case arises from the permission to file, and therefore prima facie implies that it is of such a character as to be an exception to the rule of procedure, that other available sources of judicial power may not be passed by for the purpose of obtaining relief by resort to the original jurisdiction of this court. Ex parte Royal, 117 U.S. 254; Riggins v. United States, 199 U.S. 547; Glasgow v. Moyer, 225 U.S. 420, 428; Johnson v. Hoy, 227 U.S. 245; Jones v. Perkins, 245 U.S. 390; In re Mirzen, 119 U.S. 584; In re Huntington, 137 U.S. 63. Whether, however, definitely the case is of such exceptional character, must depend upon an analysis of the merits, which we now proceed to make upon the petition, the return, argument for the petitioner, suggestions by the United States, a statement by the judge, and a transcript of the stenographer's notes showing what transpired in the court below, made a part of the argument of the petitioner, and in substance conceded by all parties to be the record.'

In the case at bar there is submitted the petition, alleging, among other things, that the judgment under which the petitioner is held is a nullity, because in excess of the power of the court, and because of the arbitrary action of the court beyond the limits of any discretion possessed. The proceedings are sought to be justified by the return which is filed and the testimony taken on the hearing before Judge Mayer is made a part thereof. It is argued on behalf of the petitioner (a) that there is no contempt either in substance or in the language of the letter of October 6; and (b) that at the time the letter was written the subject-matter of the criticism was not pending sub judice.

In the Hudgings Case, supra, a witness testified who was declared by the district judge to be committing perjury. The judge considered him in contempt of court because of his continuous refusal to recognize writings shown to him, the signature of which he said he could not identify because he had no recollection of having seen the signatory sign. The district judge, because of the peculiar circumstances of the case, thought the contrary, and held that the witness was testifying falsely, and that his refusal was obstructing the course of justice in the presence of the court. The Supreme Court discharged the prisoner and said:

'Existing within the limits of and sanctioned by the Constitution, the power to punish for contempt committed in the presence of the court is not controlled by the limitations of the Constitution as to modes of accusation and methods of trial generally safeguarding the rights of the citizen. This, however, expresses no purpose to exempt judicial authority from constitutional limitations, since its great and only purpose is to secure judicial authority from obstruction in the performance of its duties to the end that means appropriate for the preservation and enforcement of the Constitution may be secured. Toledo Newspaper Co. v. United States, 247 U.S. 402; Marshall v. Gordon, 243 U.S. 521. An obstruction to the performance of judicial duty resulting from an act done in the presence of the court is, then, the characteristic upon which the power to punish for contempt must rest. This being true, it follows that the presence of that element must clearly be shown in every case where the power to punish for contempt is exerted-- a principle which, applied to the subject in hand, exacts that in order to punish perjury in the presence of the court as a contempt there must be added to the essential elements of perjury under the general law the further element of obstruction to the court in the performance of its duty. * * * But the mistake is, we think, evident, since it either overlooks or misconceives the essential characteristic of the obstructive tendency underlying the contempt power, or mistakenly attributes a necessarily inherent obstructive effect to false swearing. * * * Testing the power to make the commitment which is under consideration in this case by the principles thus stated, we are of opinion that the commitment was void for excess of power-- a conclusion irresistibly following from the fact that the punishment was imposed for the supposed perjury alone, without reference to any circumstance or condition

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