Flynn v. Templeton

• Decision Date: 08 August 1932
• Citation: 1 F. Supp. 238
• Parties: FLYNN v. TEMPLETON et al.
• Court: U.S. District Court — Western District of New York

1 F. Supp. 238

FLYNN v. TEMPLETON et al.

District Court, W. D. New York.

August 8, 1932.

Hugh J. O'Brien, of Rochester, N. Y., for complainant.

Richard H. Templeton, Dist. Atty., and Justin Morgan, Asst. Dist. Atty., both of Buffalo, N. Y., for defendants.

KNIGHT, District Judge.

This case presents an unusual question. In September, 1925, defendant was convicted for violation of section 2 of the so-called Harrison Narcotic Act (26 USCA § 696). He was thereupon sentenced to serve two years and six months in Atlanta Penitentiary. He was paroled in November, 1928. The Circuit Court of Appeals for the Second Circuit affirmed the judgment of conviction. Flynn v. U. S., 17 F.(2d) 1012. It is conceded now that the indictment in this case was defective, following subsequent decisions by the Circuit Court of Appeals in this circuit. Russell v. U. S., 26 F.(2d) 363; Gargano v. U. S., 26 F.(2d) 1018. The defect arose from the failure to allege a material part of the act. No motion was ever made for a rehearing before the Circuit Court of Appeals, and complainant's time in which to apply for certiorari to review the decision of that court has long since expired. A motion, however, to vacate the judgment was made after the time to make such application had run. In 1929, a bill in equity was filed by complainant to cancel of record complainant's aforesaid conviction. Defendant moved to dismiss such bill upon the ground that the court was without power to grant the relief sought. That motion was granted and the decision in the case is reported in Flynn v. Templeton, U. S. Attorney (D. C.) 36 F.(2d) 499, 501. In concluding his opinion in that case, Judge Hazel stated, "The bill is without equity and must be dismissed." Upon defendant's stipulation, an order was granted vacating the judgment dismissing the bill, and thereafter an order was granted permitting the complainant to file an amended bill of complaint. The amended bill of complaint sets up a further or new ground for the intervention of equity. It is alleged that the action is brought to "redress the deprivation under color of law, of a right secured * * * by the Constitution of the United States, to wit, Amendment No. 5, which provides in substance that no person shall be held to answer for a capital or other infamous crime unless on a presentment or indictment of a Grand Jury." Such right in the instant case is the right to practice medicine under the laws of the various states of the United States.

Defendant moves to dismiss on the ground that the court has no jurisdiction of the subject-matter of the amended bill of complaint and further that said amended bill of complaint is without equity. The question broadly is whether a defendant convicted of a crime insufficiently charged in an indictment, and where no question of the jurisdiction of the court to try the crime sought to be charged is raised, can obtain relief from such conviction through action upon the equity side of this court, or whether the defendant is precluded therefrom by the conviction and by the expiration of his time in which to appeal. A decision finally sustaining this bill of complaint would be far-reaching in its effect. The court in the exercise of its equity powers might be called upon frequently to act in similar cases, limited only by the question of laches.

A clear statement of the power of the court to vacate a judgment of conviction is found in U. S. v. Mayer, 235 U. S. 55, 35 S. Ct. 16, 19, 59 L. Ed. 129. In that case, after conviction and sentence and while an appeal was pending, application was made to set aside the judgment of conviction upon the ground of illegal action during the trial. Citing numerous cases in support of its position, the court says in part: "In the absence of statute providing otherwise, the general principle obtains that a court cannot set aside or alter its final judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun during that term."

In U. S. v. Murray, 275 U. S. 347, 48 S. Ct. 146, 149, 72 L. Ed. 309, the question was whether a District Court had power to grant probation after sentence had been imposed and while the term at which it was imposed was pending. Certain language of the court is pertinent here. In discussing the question as to whether the court could grant probation at any time during the whole sentence or whether it should be limited to a time before execution of sentence begins, the court said: "If the first answer is adopted, it would confer very comprehensive power on the district judges in the exercise in what is very like that of executive clemency in all cases of crime or misdemeanor. It would cover in most cases the period between the imposition of the sentence and the full execution of it. It would cover a period in which not only clemency by the President under the Constitution might be exercised but also the power of parole by a board of parole abating judicial punishment to the extent of two-thirds of it as to all crimes punishable by imprisonment for more than one year. It seems quite unlikely that Congress would have deemed it wise or necessary thus to make applicable to the same crimes at the same time three different methods of mitigation." So here, if the contention of the complainant is correct, under certain circumstances, there would be three different methods of canceling or setting aside the judgment, to wit, by appeal and reversal, by executive pardon, and by an action such as brought here. The only statutory power of review is by appeal. As was said in the Mayer Case: "In cases of prejudicial misconduct in the course of the trial * * * as well as where it is sought to have the court in which the case was tried reconsider its rulings, the remedy is by a motion for a new trial * * * and, in accordance with the established principles which have been repeatedly set forth, * * * cannot be entertained * * * after the expiration of the term at which the judgment was entered."

Bronson v. Schulten, 104 U. S. 410, 26 L. Ed. 797; Phillips v. Negley, 117 U. S. 665, 6 S. Ct. 901, 905, 29 L. Ed. 1013; U. S. v. Ball, 163 U. S. 662, 16 S. Ct. 1192, 41 L. Ed. 300; Kepner v. U. S., 195 U. S. 100, 24 S. Ct. 797, 49 L. Ed. 114, 1 Ann. Cas. 655; Harley et al. v. U. S. (C. C. A.) 269 F. 384, 386; U. S. v. Luvisch (D. C.) 17 F.(2d) 200, 201, and U. S. v. Ali (D. C.) 20 F.(2d) 998, cited by defendants, are in accord with the above-mentioned cases. In Harley v. U. S., supra, a motion for new trial was denied upon the ground that the court had no power to entertain it; the term at which judgment was entered having expired. The court on appeal held this ruling to be correct and said: "In short, the federal authorities broadly hold that, after the term expires at which a case is tried and judgment entered, the trial court cannot set aside or alter its judgment, except as permitted by standing rule or provided for by special order." In U. S. v. Luvisch, supra, an application was made to set aside a judgment rendered at a term previous to that in which the application was made. Say the court: "The sole question involved is whether, assuming the material allegations of said petition to be true * * * this court has power at this time, after the expiration of the term at which the judgment complained of was rendered, to set aside such judgment on a petition filed after the expiration of such term." Say the court: "It is now fully established by decisions of the United States Supreme Court that where, as here, the term at which a final judgment of a federal court has been rendered has expired * * * such court is without jurisdiction or power to grant such an application filed at a subsequent term." Plaintiff concedes that this decision accords with the decision in the case of Phillips v. Negley, supra, in which it was held that final judgments at law cannot, through proceedings taken after the term had ended, be annulled for errors of fact or law by the court which rendered them.

Sibbald v. U. S., 12 Pet. 488, 9 L. Ed. 1167; Cameron v. McRoberts, 3 Wheat. 591, 4 L. Ed. 467; Bank of Kentucky v. Wistar, 3 Pet. 431, 7 L. Ed. 731; The Palmyra, 12 Wheat. 1, 6 L. Ed. 531, cited...