Gibson v. United States
| Citation | 53 F.2d 721 |
| Decision Date | 29 December 1931 |
| Docket Number | No. 9186.,9186. |
| Parties | GIBSON v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Charles T. Gibson, of Chariton, Iowa, pro se.
Ray C. Fountain, Asst. U. S. Atty., of Des Moines, Iowa (Ross R. Mowry, U. S. Atty., of Newton, Iowa, and Frank F. Wilson, Asst. U. S. Atty., of Mt. Ayr, Iowa, on the brief), for the United States.
Before KENYON and GARDNER, Circuit Judges, and REEVES, District Judge.
Defendant was convicted under an indictment containing four counts. The first three counts charged violation of section 338, title 18, of the United States Code (18 USCA § 338), while the fourth count charged a violation of section 88, title 18, of the United States Code (18 USCA § 88). The case was first tried at the October, 1930, term, held at Creston, Iowa, at which time the jury disagreed, and the cause was then passed to the January, 1931, term. The January, 1931, term began on January 13th. On January 12th appellant filed a motion for the production of one Joe Drazich as a witness in his behalf, alleging that Drazich was then confined in the United States Penitentiary at McNeils Island, in the state of Washington. The application, which seems not to have been verified, alleged that Drazich, if produced as a witness on behalf of the defendant, would testify that "defendant had nothing whatever to do with the commission of the crime charged herein; that this defendant did not write, compose, dictate, mail, forward, or direct any letter, order, or other paper or document involved or charged to the act of the defendant herein; that any and all acts alleged to have been done in the furtherance of the fraud or crime charged herein were done, if at all, without the knowledge of the defendant herein, and without his advice, consent, or assistance." It is also alleged that the relation existing between the defendant and said Drazich was that of attorney and client; that all transactions between them were legitimate in character, and that so far as defendant was concerned or interested "were directed to the welfare, reform and establishment of the said Joe Drazich as an honest and honorable citizen of the United States." The application was presented on January 13th, the day on which the case was assigned for trial, and was then overruled.
The overruling of this motion is the only error assigned; defendant contending that he was deprived of his constitutional right of compulsory process for obtaining witnesses in his favor. Most liberally construed, this was an application by an indigent defendant for a writ of habeas corpus ad testificandum. The witness was serving a sentence in the United States Penitentiary in the state of Washington, and hence his attendance could not be secured by means of an ordinary subpoena. If his attendance could be secured, it was by means of a writ of habeas corpus ad testificandum directed to the warden of the federal penitentiary where the witness was confined, requiring him to have the body of the witness in court at the time of the trial, in order that he might give his testimony. The power to issue such a writ is inherent in the court. Ex parte Bollman, 4 Cranch 75, 2 L. Ed. 554; Ex parte Marmaduke, 91 Mo. 228, 4 S. W. 91, 60 Am. Rep. 250; In re Thaw (C. C. A.) 166 F. 71, Ann. Cas. 1915D, 1025; People v. Willard, 92 Cal. 482, 28 P. 585; Hayden v. Commonwealth, 140 Ky. 634, 131 S. W. 521; United States v. Schultz (D. C.) 37 F. (2d) 619.
Section 654, title 28, USCA provides that: ...
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