Gillenwaters v. Biddle

• Decision Date: 22 March 1927
• Docket Number: No. 7532.,7532.
• Citation: 18 F.2d 206
• Parties: GILLENWATERS v. BIDDLE, Warden.
• Court: U.S. Court of Appeals — Eighth Circuit

18 F.2d 206 (1927)

GILLENWATERS v. BIDDLE, Warden.

No. 7532.

Circuit Court of Appeals, Eighth Circuit.

March 22, 1927.

Frank M. Gillenwaters, in pro. per.

Alton H. Skinner, Asst. U. S. Atty., of Topeka, Kan. (Al. F. Williams, U. S. Atty., of Topeka, Kan., on the brief), for appellee.

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

VAN VALKENBURGH, Circuit Judge.

At the March term, 1922, in the Eastern district of Illinois, an indictment containing four counts was returned against the petitioner. The first count charges an offense under the Mann Act (Comp. St. §§ 8812-8819) for the transportation of one Lillian Thomason from Paducah, in the state of Kentucky, into the Eastern district of Illinois. The second count alleges the felonious transportation of one Marie Thomason, a girl under the age of 18 years, the third count, that of Murriel Thomason, a girl under the age of 18 years, and the fourth count, that of Gladys Pipkins, a girl under the age of 18 years. In all other respects the counts are identical. The date of the offense charged is July 30, 1921. Petitioner was convicted upon all four counts. The sentence was that "he be imprisoned in the United States penitentiary, at Leavenworth, Kan., for a period of five years on each of the first, second, third, and fourth counts of the said indictment, the said imprisonment sentences to be served consecutively from the date of the delivery of the said defendant to the warden or keeper of the said penitentiary, and that he pay a fine to the United States in the sum of $1,000 on each of the said counts of the said indictment, together with all costs of this prosecution."

Appellant filed his petition for writ of habeas corpus in the District Court for the District of Kansas. On motion the writ was denied, and the petition dismissed, from which action of the court this appeal is taken. Substantially but two questions are presented. The first is that the sentence of the court was insufficient in form for the imposition of consecutive sentences. The second is that the offenses charged in the four counts of the indictment constitute really but one transaction, and therefore that only a single sentence, within the limits of the statute, could be imposed. The first point is ruled against appellant under the authority of United States v. Daugherty, 267 U. S. 590, 45 S. Ct. 508, 69 L. Ed. 802.

As to the second point: The case was heard and ruled upon the face of the petition filed. The indictment was made a part of that petition. The charges in the four counts are faultless and each describes an offense against the United States; that offense as stated was neither colorless nor an impossible one under the law. The construction of the indictment and its sufficiency were matters the determination of which rested primarily with the trial court. The jurisdiction being conceded, its judgment in any view is not wholly void. Goto v. Lane, 265 U. S. 393, 44 S. Ct. 525, 68 L. Ed. 1070.

In Cardigan v. Biddle, 10 F.(2d) 444-447, we held that, "where one seeks discharge from confinement after conviction for an offense upon a petition for habeas corpus, the sole questions presented are whether petitioner was convicted by a court having jurisdiction of his person and the offense, and whether the sentence pronounced was one within the power of the court."

The Supreme Court, in Knewel v. Egan, 268 U. S. 442-446, 45 S. Ct. 522, 524 (69 L. Ed. 1036), confirms this rule. It says: "It is fundamental that a court upon which is conferred jurisdiction to try an offense has jurisdiction to determine whether or not that offense is charged or proved. Otherwise, every judgment of conviction would be subject to collateral attack and review...