Forthoffer v. Swope

• Decision Date: 21 April 1939
• Docket Number: No. 9017.,9017.
• Citation: 103 F.2d 707
• Parties: FORTHOFFER v. SWOPE, Warden.
• Court: U.S. Court of Appeals — Ninth Circuit

103 F.2d 707 (1939)

FORTHOFFER v. SWOPE, Warden.

No. 9017.

Circuit Court of Appeals, Ninth Circuit.

April 21, 1939.

Peter J. Forthoffer, in pro. per.

J. Charles Dennis, U. S. Atty., of Seattle, Wash., and Oliver Malm, Asst. U. S. Atty., of Tacoma, Wash., for appellee.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

GARRECHT, Circuit Judge.

Peter J. Forthoffer, an inmate of the United States Penitentiary at McNeil Island, Washington, petitioned the court below for a writ of habeas corpus, and, from a denial of his petition, brings this appeal. Forthoffer had pleaded guilty on February 17, 1936, before the District Court of the United States for the Southern District of California, Central Division, to an indictment charging him with a felonious assault with a dangerous weapon upon a clerk of a branch United States Postoffice (18 U.S.C.A. § 320), and was sentenced to a term of imprisonment of 25 years in a Federal Penitentiary. He contended in his petition for writ of habeas corpus that the statute of limitations had run against the crime, in that the alleged date of its commission was on or about September 3, 1932, while the indictment was not returned until December 11, 1935; and, further, that at the time of entering his plea of guilty, he was legally incompetent by reason of temporary insanity.

He contends that he was not a fugitive from justice; that he maintained his usual place of abode; that he did not conceal himself; and that, therefore, the statute of limitations was not tolled, but ran its course and was a bar to prosecution for the crime at the time of the return of the indictment.

The statutory period of limitation of prosecution for such crime is 3 years (18 U.S.C.A. § 582), but that statute does not extend to persons fleeing from justice (18 U.S.C.A. § 583).

"It is a settled rule of criminal law in the courts of the United States that the statute of limitations does not run in favor of fugitives from justice. * * *

"A fugitive from justice is a person who having committed a crime in violation of the laws of the United States flees from the jurisdiction of the court where the crime was committed, * * * or departs from his usual place of abode and conceals himself within the district." United States v. Farrell, 8 Cir., 87 F.2d 957, 960. See, also, Greene v. United States, 5 Cir., 154 F. 401, 411.

Forthoffer pleaded guilty to the crime charged in the indictment and as a result of that plea received the sentence from which he now endeavors to escape. "Such a plea means guilty as charged in the indictment" (Longsdorf, Cyc.Fed.Proc., vol. 5, § 2182, p. 608); is an admission of record of the truth of whatever is sufficiently charged in the indictment (14 Am.Jur., § 272, pp. 952, 953); waives all defenses other than that the indictment charged no offense under the laws of the United States (Rice v. United States, 5 Cir., 30 F.2d 681; Kachnic v. United States, 9 Cir., 53 F.2d 312, 315, 79 A.L.R. 1366); and relieves the prosecution of the duty to prove the facts. United States v. Luvisch et al., D.C., Mich., 17 F.2d 200, 202.

In this connection it is pertinent to observe that the indictment under which the judgment was rendered charged: "And the grand jurors aforesaid, upon their oath aforesaid, do further present that the defendant thereafter, and on or about said 3rd day of September, 1932, departed from his usual place of abode, and has, since that time, concealed himself to avoid detection and punishment for said offense hereinabove alleged; * * *."

The plea of guilty admitted the allegations contained in this paragraph and relieved the prosecution of the duty of proving the facts. Morever, such an allegation was wholly unnecessary. Ferebee v. United States, 4 Cir., 295 F. 850. It may even be said that defendant's plea prevented the prosecution from proving such facts by removing the necessity therefor. The appellant is not now to be allowed to dispute the truth of that which he heretofore admitted, because we must assume the prosecution could have proven the facts and was ready to do so until relieved of that duty by the plea of the defendant which admitted that allegation, along with all the other well pleaded facts in the indictment.

A plea of the statute of limitations is a plea in bar; it may be raised by a special plea but, on the other hand, it is also in issue under a plea of not guilty. Longsdorf, vol. 5, § 2157, p. 597. The defense is available on appeal, but cannot be considered on appeal where not urged in the trial court. Pruett v. United States, 9 Cir., 3 F.2d 353, 354. The plea of the statute of limitation was not brought to the attention of the District Court which sentenced Forthoffer and appealable matters may not be considered on petition for writ of habeas corpus.

The writ of habeas corpus may not be made to perform the function of an appeal. Van Gorder v. Johnston, 9 Cir., 87 F.2d 654, 655. The defendant, even though pleading guilty, was not prevented thereby from taking advantage by appeal of any defects apparent of record. 14 Am. Jur., Crim.Law, § 272, p. 953. "It is the settled rule that habeas corpus calls in question only the jurisdiction of the court whose judgment is challenged, and that the sufficiency of an indictment cannot be reviewed in habeas corpus proceedings, or such proceedings used to take the place of an appeal." Pellegrino v. Aderhold, D.C., 54 F.2d 939, 940. See, also, Van Gorder v. Johnston, supra; Knewel v. Egan, 268 U. S. 442, 446, 45 S.Ct. 522, 69 L.Ed. 1036; Craig v. United States, 9 Cir., 89 F.2d 980.

There remains only the question raised by the allegation that appellant was temporarily insane at the time of the trial. The appellant's argument is not supported by authorities, nor does it appear seriously to be relied upon. However, in conformity with our conception of judicial duty we have examined and studied the question.

"It is fundamental that an insane person can neither plead to an arraignment, be subjected to a trial, or, after trial, receive judgment, or, after judgment, undergo punishment." Youtsey v. United States, 6 Cir., 97 F. 937, 940. Smoot, Law of Insanity, § 452, pp. 376, 377, reads as follows: "Where a person becomes insane after the commission of the crime, * *. While such subsequent insanity acts as a stay of punishment, and usually of trial as well, it does not excuse the crime or exempt from guilt. Cf. In re Buchanan, 129 Cal. 330, 61 P. 1120, 50 L.R.A. 378 At common law a person could not be tried while he was insane, because his helpless condition rendered him incapable of making a proper defense; and this is the rule in the American States, * * *. The general practice is that, where the defendant is found to be insane, the trial is stopped pending the prisoner's recovery, and, until he does recover, the prisoner may be remanded to an asylum or other proper form of restraint." See, also, 16 C.J. § 73, p. 99, and 16 C.J. § 828, p. 457.

It thus appears that if the appellant was insane at the time he was tried, he could not have legally waived counsel or pleaded guilty to the indictment for the reason that he was incapable of making a proper defense.

It is said in 14 Am.Jur., Crim.Law, § 46, p. 803: "Various remedies are available to one who has been convicted of a crime while insane. In some jurisdictions, an application for a writ of error coram nobis is proper; in others, the courts have recognized the...