Ex parte Lyman
| Decision Date | 28 January 1913 |
| Docket Number | 1,245. |
| Citation | 202 F. 303 |
| Parties | Ex parte LYMAN. |
| Court | U.S. District Court — Western District of Washington |
L. E Kirkpatrick, of Seattle, Wash., for petitioner.
B. W Coiner, U.S. Atty., of Tacoma, Wash., and C. F. Riddell Asst. U.S. Atty., of Seattle, Wash., for respondent.
This matter is before the court upon the demurrer to the petition for a writ of habeas corpus. The petitioner is imprisoned in the United States penitentiary at McNeil Island, upon conviction by the District Court for the Northern District of California, of conspiracy, under section 37 of the Penal Code.
The indictment, upon which he was convicted, charges that, while the petitioner was held by the United States marshal for the Northern district of California, under a commitment issued by a United States commissioner, charging him with the violation of section 215 of the Criminal Code, and while he was in the custody of a certain guard, appointed by said marshal, he conspired with said guard and another to aid, assist, and permit the petitioner to escape from such custody. Among the overt acts charged, it is alleged that the guard assisted petitioner to get into an automobile, secured for the purpose, and permitted him to leave his custody and escape.
The following authorities are relied upon by the petitioner United States v. Dietrick (Circuit Court for the District of Nebraska) 126 F. 676; United States v. N.Y. Central & H.R.R. Co. (C.C.) 146 F. 303; Ex parte Coy, 127 U.S. 731, 8 Sup.Ct. 1263, 32 L.Ed. 274; Ex parte Nielsen, 131 U.S. 176, 9 Sup.Ct. 672, 33 L.Ed.
118; Ex parte Lange, 18 Wall. (85 U.S.) 163, 21 L.Ed. 872; Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717; Ash v. State, 81 Ala. 76, 1 So. 558; Wharton, Criminal Law, Sec. 1339; Sessions v. State, 37 Tex.Cr.R. 62, 38 S.W. 623; Conant v. State, 51 Tex.Cr.R. 610, 103 S.W. 897.
Respondent relies upon the following authorities: In re Eckart, 166 U.S. 481, 17 Sup.Ct. 638, 41 L.Ed. 1085; U.S. v. Morse, 218 U.S. 493, 505, 506, 31 Sup.Ct. 37, 54 L.Ed. 1123-1128.
Section 37 of the Penal Code provides:
'If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than ten thousand dollars, or imprisoned not more than two years, or both.'
Section 138 of the Penal Code provide:
'Whenever any marshal, deputy marshal, ministerial officer, or other person has in his custody any prisoner by virtue of process issued under the laws of the United States, by any court, judge, or commissioner, and such marshal, deputy marshal, ministerial officer, or other person voluntarily suffers such prisoner to escape, he shall be fined not more than two thousand dollars, or imprisoned not more than two years, or both.'
It is contended by petitioner that there is no federal statute punishing a prisoner for escaping, and that, as the petitioner was the escaping prisoner, he was incapable of conspiring with the officer to permit his escape. The cases cited do not support the contention. Cases of bribery, dueling, adultery, and bigamy are not analogous.
The reasoning that supports certain of those decisions does not apply to the case now before the court. The participants in a crime, that in its execution requires two actors, as dueling before it can be a crime, it may be plausible to consider, so far as conspiracy is concerned, the same as one person in ordinary crime, and that there can be no conspiracy in such case with less than three, and that, if a punishment was provided for the consummated offense, less severe in its nature than that provided for conspiracy, that a legislative...
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United States v. Hoffman
...violate section 138 of the Criminal Code (Comp. St. § 10308), which covers the offense of permitting prisoners to escape. See Ex parte Lyman (D. C.) 202 F. 303. Respondent Forest, who was Westbrook's secretary until April 30, 1925, accompanied Druggan on a large number of the trips to the d......