Grant v. Guernsey, 610.

• Decision Date: 23 February 1933
• Docket Number: No. 610.,610.
• Citation: 63 F.2d 163
• Parties: GRANT et al. v. GUERNSEY.
• Court: U.S. Court of Appeals — Tenth Circuit

63 F.2d 163 (1933)

GRANT et al. v. GUERNSEY.

No. 610.

Circuit Court of Appeals, Tenth Circuit.

January 23, 1933.

Rehearing Denied February 23, 1933.

Dallas W. Knapp, of Coffeyville, Kan., and W. C. Ralston, of Topeka, Kan. (Warren B. Grant, of Independence, Kan., Roland Boynton, of Topeka, Kan., Richard L. Becker, of Independence, Kan., and Chas. D. Welch, of Coffeyville, Kan., on the brief), for appellants.

Kirke C. Veeder, of Independence, Kan., and W. D. Jochems, of Wichita, Kan. (John Bertenshaw, of Independence, Kan., on the brief), for appellee.

Before LEWIS, COTTERAL, and PHILLIPS, Circuit Judges.

LEWIS, Circuit Judge.

The appellee was discharged from custody on his petition for writ of habeas corpus.

The facts disclosed by appellee's petition, the return thereto on an order to show cause by Grant and Lewis, respectively county attorney and sheriff of Montgomery county, Kan., and the hearing had thereon are: In September, 1930, Guernsey was indicted in the United States District Court for Kansas for violations of the National Banking Act, and pleaded guilty. He was sentenced to confinement in the penitentiary for a term of three and a half years, but on account of his age (74 years), poor health, "hard of hearing" and the further fact that he and his wife had turned over all of their property to the benefit of the bank's creditors, the District Judge put him on probation during the term of sentence, requiring the named probation officer to report on his conduct every sixty days. U. S. Code, title 18, §§ 724 and 725 (18 USCA §§ 724, 725).

Thereafter appellant Grant instituted before a justice of the peace in Montgomery county a criminal proceeding charging Guernsey with embezzlement committed prior to his sentence in the federal court, in violation of the state law, and caused him to be taken before the justice for hearing on the charge. Guernsey through his counsel at once protested that he was then under the jurisdiction of the federal court, subject to its orders and that the proceedings before the justice were an interference with that jurisdiction and could not rightly be maintained.

The county attorney opposed, the justice ruled with him, evidence was taken and the justice held Guernsey to appear at the next term of the state District Court, to remain there, answer the charge of embezzlement, not depart without leave and abide by the judgment of that court. Guernsey gave a bail bond with those conditions, was released to his sureties, and then filed petition for the writ.

It is argued here, as it was before the justice of the peace, that the state could acquire and did acquire complete jurisdiction over the person of Guernsey, to hold him, to incarcerate him, if necessary, for the purposes of the trial. Counsel seem to doubt that the state could have immediately executed a sentence of imprisonment. But why not, if jurisdiction is taken by right? In Ponzi v. Fessenden, 258 U. S. 254, 42 S. Ct. 309, 310, 66 L. Ed. 607, 22 A. L. R. 879, the custody was in an executive officer, and it was held that he could temporarily release his control of a federal prisoner while a state court tried him on a state charge.

There can be no doubt Guernsey was under the jurisdiction of the federal court, subject to its orders under the probation statute at any time; and when the justice of the peace issued his warrant for the arrest of Guernsey and then held him for trial on the state charge and that he abide the judgment of the state court, there was a direct interference with federal jurisdiction, and a violation of the rule of comity between federal and state courts.

In Taylor v. Taintor, 16 Wall. 366, 370, 21 L. Ed. 287, it is said: "Where a State court and a court of the United States may each take jurisdiction, the tribunal which first gets it holds it to the exclusion of the other, until its duty is fully performed and the jurisdiction invoked is exhausted: and this rule applies alike in both civil and criminal cases. It is indeed a principle of universal jurisprudence...