Frankel v. Woodrough

• Citation: 7 F.2d 796
• Decision Date: 11 August 1925
• Docket Number: No. 282.,282.
• Parties: FRANKEL v. WOODROUGH, District Judge.
• Court: U.S. Court of Appeals — Eighth Circuit

7 F.2d 796 (1925)

FRANKEL v. WOODROUGH, District Judge.

No. 282.

Circuit Court of Appeals, Eighth Circuit.

August 11, 1925.

Albert E. Frankel, of Leavenworth, Kan., in pro. per.

James C. Kinsler, U. S. Atty., of Omaha, Neb., for Judge Woodrough.

Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.

STONE, Circuit Judge.

This is an application for leave to file, in forma pauperis, a petition for a writ of mandamus against the Hon. Joseph W. Woodrough, Judge of the United States Court for the District of Nebraska.

The petitioner sets forth the pendency of an indictment (No. 2884) against him in that district; that he has filed a motion to quash the indictment and a motion for a "speedy and immediate trial"; that he has been in custody more than three terms of court; and that such judge refuses to consider such motions. To the petition are attached copies of the above motions.

This character of action (an original writ) is somewhat unusual in Courts of Appeals and it is proper that this court examine its jurisdiction to entertain it. The purpose of the petition is to compel the determination of a criminal action against petitioner which, he avers, the trial court will not hear although it is its duty to do so. The jurisdiction of the Courts of Appeals is purely appellate and they have no original jurisdiction except such as is necessary to aid, protect or enforce their appellate jurisdiction. Whitney v. Dick, 202 U. S. 132, 26 S. Ct. 584, 50 L. Ed. 963; United States v. Mayer, 235 U. S. 55, 35 S. Ct. 16, 59 L. Ed. 129. Where a trial court refuses without proper cause to try an action pending therein, appellate jurisdiction is affected and prevented because such jurisdiction cannot become operative and effective until a final order, judgment or decree is entered. Therefore, in such instances, the jurisdiction to issue original writs in aid of the appellate jurisdiction exists. McClellan v. Carland, 217 U. S. 268, 279, 30 S. Ct. 501, 54 L. Ed. 762; Schendel v. McGee, 300 F. 273, 277 (8th C. C. A.); Greyerbiehl v. Hughes Elec. Co., 294 F. 802, 805 (8th C. C. A.); Barber Asphalt Co. v. Morris, 132 F. 945, 953 (8th C. C. A.) 66 C. C. A. 55, 67 L. R. A. 761; Jefferson Standard Life Ins. Co. v. Keeton, 292 F. 53, 56 (4th C. C. A.). The motion to quash, attached to this petition, sufficiently shows that appellate jurisdiction from conviction in this criminal action would be to this court; therefore, the general jurisdiction exists in this court to entertain a mandamus petition having for its purpose to compel a trial court to proceed to the determination of a pending action where it is under a legal duty to so proceed.

However, it is elementary that mandamus cannot be used to control the lawful discretion of a trial court either in what its decision shall be or (where such discretion exists) in whether it shall move to a decision. United States v. Lamont, 155 U. S. 303, 308, 15 S. Ct. 97, 39 L. Ed. 160. Moreover, as stated in the Lamont Case at page 308 (15 S. Ct. 98):

"The duty to be enforced by mandamus must not only be merely ministerial, but it must be a duty which exists at the time when the application for the mandamus is made. Thus in the case of Ex parte Rowland, 104 U. S. 604, 612 26 L. Ed. 861, this court, speaking through Mr. Chief Justice Waite, said: `It is settled that more cannot be required of a public officer by mandamus than the law has made it his duty to do. The object of the writ is to enforce the performance of an existing duty, not to create a new one.'

"Moreover, the obligation must be both peremptory, and plainly defined. The law must not only authorize the act, Commonwealth v. Boutwell, 13 Wall. 526 20 L. Ed. 631, but it must require the act to be done. `A mandamus will not lie against the Secretary of the Treasury unless the laws require him to do what he is asked in the petition to be made to do,' Reeside v. Walker, 11 How. 272 13 L. Ed. 693; see also Secretary v. McGarrahan, 9 Wall. 298 19 L. Ed. 579; and the duty must be `clear and indisputable.' Knox County v. Aspinwall, 24 How. 376 16 L. Ed. 735."

Whether the duty of the trial court is of the character above quoted may be determined upon the return to a rule to show cause why the writ should not issue or, from the face of the tendered pleadings, on an application for leave to file the petition for the writ. Ex parte Harding, 219 U. S. 363, 31 S. Ct. 324, 55 L. Ed. 252, 37 L. R. A. (N. S.) 392. Therefore, it is our duty to examine the pleadings tendered here to ascertain whether they leave in doubt the duty of this court to deny leave to file. Ex parte Harding, 219 U. S. 363, 369, 21 S. Ct. 324, 55 L. Ed. 252, 37 L. R. A. (N. S.) 392.

In the motion for speedy and immediate trial, attached to this petition, is the statement, "that after the arraignment and plea of not guilty to the above indictment, defendant was tried and convicted in this court for case No. 2027. That because of the pending of this indictment No. 2884 defendant is now deprived of his right to apply for a parole, as provided by the Act of Congress approved June 25, 1910, as amended." Thus it appears clearly that the petitioner is now confined in the penitentiary under conviction for another crime against the United States. He insists that he has a present legal right to be taken therefrom and tried under the indictment pending before Judge Woodrough.

The Constitution (Amendment, article 6) secures "the right to a speedy and public trial" in all criminal prosecutions under federal law. As said in Beavers v. Haubert, 198 U. S. 77 at page 87, 25 S. Ct. 573, 49 L. Ed. 950. "The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice."

Speed in trying accused persons is not of itself a primal and separate consideration. Justice, both to the accused and to the public, is the prime consideration. Such speed is merely an important element or attribute of justice. If either party is forced to trial without a fair opportunity for preparation, justice is sacrificed to speed. But when both parties have had fair opportunity for preparation, then either has a legal right to demand a trial as soon as the orderly conduct of the business of the court will permit.

The clear inference from the petition presented here is that the court refuses to proceed to trial because this petitioner is in the penitentiary. It is true that one complaining of delay must affirmatively demand his right of trial (Phillips v. United States, 201 F. 259, 262, 120 C. C. A. 149, this court; Worthington v. United States, 1 F.2d 154, 7th C. C. A.), but that has been and is being done by this petitioner. Therefore, the bald question presented is whether an accused can be denied trial while and because he is serving sentence on another conviction.

We think the rule in the federal courts is settled that imprisonment has no such effect. Ponzi v. Fessenden, 258 U. S. 254, 261, 264, 42 S. Ct. 309, 66 L. Ed. 607, 22 A. L. R. 879; Lamar v. United States, 260 U. S. 711, 43 S. Ct. 251, 67 L. Ed. 476 (memorandum opinion affirming Ex parte Lamar C. C. A. 274 F. 160, 170, 24 A. L. R. 864); also see Collins v. Loisel, 262 U. S. 426, 431, 43 S. Ct. 618, 67 L. Ed. 1062, and Ex parte Sichofsky, 273 F. 694 (affirmed C. C. A., 277 F. 762 sub nom. Sichofsky v. United States).

The Constitutions of most of the states have provisions similar to the Sixth Amendment and many of the states have statutory definitions of the time or number of court terms within which criminal accusations must be tried. Such statutes provide usually for the discharge of accused unless the trial is within the limits so defined. The United States has no such statutory provisions and we think an accused would not be entitled to a discharge even though he were denied a speedy trial within the meaning of the Constitution. His right and only remedy would be to apply to the proper appellate court for a writ of mandamus to compel trial.

The question before us has been before several of the state courts. The great weight of authority is that imprisonment under sentence does not suspend the right to speedy trial but that either the state or the convict can insist thereon. 16 C. J. 442, notes 35 and 36, and cases there cited; People v. Hong Ah Duck, 61 Cal. 387; People v. Majors, 65 Cal. 138, 147, 3 P. 597, 52 Am. Rep. 295; State v. Wilson, 38 Conn. 126; Kennedy v. Howard, 74 Ind. 87; Huffaker v. Commonwealth, 124 Ky. 115, 98 S. W. 331, 14 Ann. Cas. 487; Rigor v. State, 101 Md. 465, 471, 61 A. 631, 4 Ann. Cas. 719; Singleton v. State, 71 Miss. 782, 16 So. 295, 42 Am. St. Rep. 488; State v. Connell, 49 Mo. 282; Ex parte Ryan, 10 Nev. 261; Ex parte Tramner, 35 Nev. 56, 126 P. 337, 41 L. R. A. (N. S.) 1095; Thomas v. People, 67 N. Y. 218; Arrowsmith v. State, 131 Tenn. 480, 175 S. W. 545, L. R. A. 1915E, 363; Coleman v. State, 35 Tex. Cr. R. 404, 33 S. W. 1083; Gaines v. State (Tex. Cr. R.) 53 S. W. 623; Brown v. State, 50 Tex. Cr. R. 114, 95 S. W. 1039; People v. Flynn, 7 Utah, 378, 26 P. 1114; Ruffin v. Commonwealth, 21 Grat. (62 Va.) 790; Clifford v. Dryden, 31 Wash. 545, 72 P. 96; Dudley v. State, 55 W. Va. 472, 47 S. E. 285; State v. Keefe, 17 Wyo. 227, 98 P. 122, 22 L. R. A. (N. S.) 896, 17 Ann. Cas. 161. Also extended notes in 22 L. R. A. (N. S.) 896; 41 L. R. A. (N. S.) 1095; L. R. A. 1915E, 363.

From the standpoint of the accused, the logic of this view is well expressed in State v. Keefe, 17 Wyo. 227, 98 P. 122, 22 L. R. A. (N. S.) 896, 17 Ann. Cas. 161, as follows: "The right of a speedy trial is granted by the Constitution to every accused. A convict is not excepted. He is not only amenable to the law, but is under its protection as well. No reason is perceived for depriving him of the right granted generally to accused persons, and thus in effect inflict upon him an additional...