Franklin v. Biddle

• Citation: 5 F.2d 19
• Decision Date: 08 April 1925
• Docket Number: No. 6765.,6765.
• Parties: FRANKLIN v. BIDDLE, Warden of the United States Penitentiary at Leavenworth, Kan.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

5 F.2d 19 (1925)

FRANKLIN v. BIDDLE, Warden of the United States Penitentiary at Leavenworth, Kan.

No. 6765.

Circuit Court of Appeals, Eighth Circuit.

April 8, 1925.

Frans E. Lindquist, of Kansas City, Mo., and John B. Boddie, of Chicago, Ill., for appellant.

Al. F. Williams, U. S. Atty., and Alton H. Skinner, Asst. U. S. Atty., both of Topeka, Kan., for appellee.

Before SANBORN and STONE, Circuit Judges, and SYMES, District Judge.

SANBORN, Circuit Judge.

This is an appeal from an order of dismissal by the court below of a petition of Harry Franklin for a writ of habeas corpus on the ground that his petition did not set forth facts sufficient to invoke the jurisdiction of that court to grant the writ and discharge the petitioner. The facts set forth in the petition that it is necessary to consider are these: Franklin was indicted, tried, convicted, sentenced, and committed to the penitentiary at Leavenworth by the United States District Court of the Northern District of California, where he was held by the Warden under an indictment which charged that, in violation of section 8 of the Harrison Anti-Narcotic Act (section 6287n, Comp. St.), he was, about May 7, 1923, in the city of San Francisco unlawfully in possession of 32 grains of morphine and 10 grains of cocaine hydrochloride, "said defendant then and there being a person required to register and pay a tax under the provisions of the act aforesaid as amended, and said defendant not then and there having registered under the provisions of the said act, and not then and there having paid the special tax provided for by the aforesaid act on the said morphine" or hydrochloride. After setting forth this indictment, Mr. Franklin alleges "that he has not been, since the 1st day of March, 1915, a person who produces, imports, manufactures, compounds, deals in, dispenses, sells, distributes, or gives away opium or cocoa leaves or any compounds, manufacture, salt, derivative, or preparation thereof;" that his imprisonment deprives him of his liberty in violation of the Sixth Amendment to the Constitution, in that said indictment did not inform him of the nature and cause of the accusation against him; that the indictment charged no crime, and his imprisonment is without due process of law and in violation of the Fifth Amendment to the Constitution.

Counsel for the petitioner contend that the trial, conviction, and imprisonment of Mr. Franklin violated these amendments because the charge in the indictment, "said defendant then and there being a person required to register and pay a tax under the provisions of the act aforesaid as amended, and said defendant not then and there having registered under the provisions of the said act, and not then and there having paid the special tax provided for by the aforesaid act," failed to cause him to be informed "of the nature and cause of the accusation against him," and that his trial and conviction thereunder deprived him of his liberty "without due process of law." In support of this contention counsel have cited cases involving indictments that charged defendants with unlawful possession of opium under the Anti-Narcotic Act, and that on direct attack in the trial courts or on appeal from the decisions on such attacks have been held insufficient where those indictments contained no averment that the defendant or defendants was one of the class required to register and pay the tax, such as appeared in the indictment in the case in hand in the words "said defendant then and there being a person required to register * * * under the provisions of the act." United States v. Jin Fuey Moy (D. C.) 225 F. 1003, 1005, 241 U. S. 394, 399, 400, 402, 36 S. Ct. 658, 60 L. Ed. 1061, Ann. Cas. 1917D, 854; United States v. Carney (D. C.) 228 F. 163, 164, 165; Swartz v. United States (C. C. A.) 280 F. 115, 116; Lewis v. United States (C. C. A.) 295 F. 678, 679; Hampton v. Wong Ging (C. C. A.) 299 F. 289, 290. They have also cited United States v. Woods (D. C.) 224 F. 278, and Johnson v. United States, 294 F. 753, 754, 756, in which the indictments contained such an allegation and demurrers to them were sustained by Judge Bourquin and by the Circuit Court of Appeals of the Ninth Circuit. On the other hand, in Miller v. United States, 288 F. 816, 817, the Circuit Court of Appeals of the Fifth Circuit overruled the demurrer to an indictment that "charged the defendant with unlawfully having in his possession and under his control on July 6, 1922, in the Jackson division of the Southern District of Mississippi, a quantity of morphine, being a derivative of opium, defendant not having registered and being a person required to register," and said "that was sufficient. It fully charges an unlawful possession * * * by one not registered who was a person required to register."

The question in this case, however, is not the sufficiency of the indictment against Mr. Franklin against a direct attack by demurrer or motion in the trial court; it is its sufficiency to invoke the exercise of the jurisdiction of the court in California which tried him to decide, if it had been requested by the defendant in the proper time so to do, whether or not that indictment was sufficient to require him to stand trial thereunder. And the test of jurisdiction is not right decision but the right to enter upon the inquiry and make some decision. Foltz v. St. Louis & S. F. Ry. Co., ...