Garrison v. Johnston, 9064.

• Decision Date: 29 May 1939
• Docket Number: No. 9064.,9064.
• Citation: 104 F.2d 128
• Parties: GARRISON v. JOHNSTON, Warden.
• Court: U.S. Court of Appeals — Ninth Circuit

104 F.2d 128 (1939)

GARRISON v. JOHNSTON, Warden.

No. 9064.

Circuit Court of Appeals, Ninth Circuit.

May 29, 1939.

Orville Chester Garrison, in pro. per.

Frank J. Hennessy, U. S. Atty., and R. B. McMillan and A. J. Zirpoli, Asst. U. S. Attys., all of San Francisco, Cal., for appellee.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

HANEY, Circuit Judge.

Appellant was denied release from custody on a petition for a writ of habeas corpus and has appealed.

Appellant was arrested on July 17, 1937, on a complaint and warrant issued by a United States Commissioner, charging robbery of the University State Bank at Kansas City, Missouri. The preliminary examination was set for July 31, 1937, at which time the appellant and his co-defendants were represented by counsel, but because of the absence of a witness, at the request of the government, the preliminary hearing was continued to August 16, 1937. On August 16, 1937, and August 23, 1937, the preliminary examinations were again continued at the request of the government on the representation that the Assistant United States Attorney handling the matter was absent from the city.

Thereafter, and on September 10, 1937, appellant was indicted, together with divers others, in an indictment in two counts, charging, in the first count, the felonious taking of money from a bank which was a member of the Federal Deposit Insurance Corporation by means of force and violence and by putting in fear with a deadly weapon, and, in the second count, the taking of said money from said bank by placing the lives of persons in charge thereof in jeopardy. On November 8, 1937, the appellant was arraigned, and, not having counsel at that time, the District Court appointed counsel to represent him. The following day the appellant saw and spoke to his counsel so appointed, and on November 10, 1937, the cause came on for trial before a jury. Appellant's motion, through his counsel, for a continuance of the trial was denied. The jury, on the same day, returned a verdict of guilty and on November 13, 1937, the Court sentenced the appellant to imprisonment in a penitentiary for and during the period of twenty years on the first count of the indictment, and for and during a period of twenty-five years on the second count of the indictment, said sentences of imprisonment to run consecutively.

Appellant began service of the sentence at the United States Penitentiary at Leavenworth, Kansas on November 16, 1937, but pursuant to a transfer order of the Attorney General dated January 5, 1938, he was transferred to the United States Penitentiary at Alcatraz Island.

The petition for the writ of habeas corpus, filed September 28, 1938, alleged that appellant's detention was unlawful because: (1) No preliminary hearing was held; (2) he was denied the right of compulsory process for obtaining witnesses in his favor; (3) he was refused sufficient time to advise with counsel and to prepare his defense; and (4) counsel refused to proceed with the appeal without compensation which appellant did not have, thereby depriving appellant of the assistance of counsel. There were other grounds alleged which are so clearly without merit, that they need not be considered.

An order to appellee to show cause why the writ should not issue was made. Appellee's return thereto contained a partial transcript of the proceedings upon the trial which resulted in appellant's sentence. From such transcript it appears that appellant's attorney desired a continuance in order to investigate an alibi. He said that appellant claimed to be at or in a "wreck" near Harrisonville upon the day of the robbery; that one Hall operated a business near that point, and could supply the names of the other witnesses at the "wreck"; and that he desired an opportunity to investigate the defense. Appellant's attorney obtained the information concerning the alibi on the day preceding the trial and based his request for a continuance thereon. The prosecuting attorney then supplied the information that a statement signed by Hall, for the Federal Bureau of Investigation, denied appellant was present at the "wreck".

Thereupon the court stated: "If you will give us the names of the witnesses, the witnesses will be brought here" and stated that he could have the marshal bring in Hall immediately, and then any other witnesses. It further appeared that appellant had been represented by counsel at each of the times set for the preliminary hearing, and that appellant had not made known to the court that he was not represented by counsel until November 8, 1937, when the court immediately appointed counsel. Appellant declined to follow the court's suggestion. The court denied the motion for a continuance. At the close of the case appellant's attorney and the prosecuting attorney stipulated: "that although counsel for the Government offered to subpoena and bring in, at Government expense, any witnesses desired by any of the defendants in the above entitled cause and requested counsel for the defendants to furnish them a list of such witnesses, that no such list of witnesses was furnished and that counsel stated in open court that he had no such list".

Attached to the return also was an affidavit of the prosecuting attorney in which he said that appellant at no time advised him of his desire for a preliminary examination, and that he at no time knew when appellant's original counsel ceased to represent him.

There was also attached to the return an affidavit of appellant's attorney, who stated that he at no time asked for any personl fee or "make that a condition to prosecuting the appeal"; that he had prepared the appeal papers but "was unable to get the...