Hart v. Squier, 11436.

• Citation: 159 F.2d 639
• Decision Date: 28 April 1947
• Docket Number: No. 11436.,11436.
• Parties: HART v. SQUIER.
• Court: U.S. Court of Appeals — Ninth Circuit

159 F.2d 639 (1947)

HART v. SQUIER.

No. 11436.

Circuit Court of Appeals, Ninth Circuit.

February 3, 1947.

Writ of Certiorari Denied April 28, 1947.

Gordon Leonard Hart, in pro. per.

J. Charles Dennis, U. S. Atty., Guy A. B. Dovell and Harry Sager, Asst. U. S. Attys., all of Tacoma, Wash., for appellee.

Before GARRECHT, STEPHENS and BONE, Circuit Judges.

Writ of Certiorari Denied April 28, 1947. See 67 S.Ct. 1203.

BONE, Circuit Judge.

Appellant was a narcotic addict who procured certain narcotic drugs through a deception. When apprehended and brought to trial he pleaded guilty, under the advice of appointed counsel, to the following indictment:

"Count I

"That Gordon Leonard Hart, alias Melvin G. Baker, alias J. R. Kelly, alias John Prutil, alias A. Russell, whose true and full name is to the grand jurors unknown, on or about the 31st day of August, 1945, at Seattle, in the Northern Division of the Western District of Washington, and within the jurisdiction of this Court, then and there being, did then and there knowingly, wilfully, unlawfully and feloniously, and for the purpose of defrauding the United States, utter and publish as true upon one W. A. Look, a pharmacist, a certain false writing, being a prescription for narcotic drugs issued by Wm. C. Riddell, M. D., a registered physician, and purportedly issued to Melvin G. Baker, 902, 6th Avenue, Seattle, Washington, which was the false and fictitious name and address given by the said defendant, thereby to procure a certain derivative of opium, to wit, One-half (½) grain of Dilaudid, the said Gordon Leonard Hart, alias Melvin G. Baker, alias J. R. Kelly, alias John Prutil, alias A. Russell, then and there well knowing the same to be false and fictitious as aforesaid; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America."

After serving a portion of his sentence, appellant petitioned the District Court for a writ of habeas corpus and the hearing upon his petition developed that the sole issue presented was whether or not the indictment charged a crime against the United States. If it did not the sentencing court was without jurisdiction, its judgment and sentence are void, and the appellant is entitled to his liberty.

Appellant presented a certified copy of an unreported decision of the District Court for the District of Oregon sustaining a demurrer to a similiar indictment on the ground that it did not charge a crime against the United States. Although recognizing the weight of such authority, the District Court below denied the petition, recommending to appellant that he appeal to this court. Such appeal was taken in forma pauperis, the case submitted upon briefs, and the issue is now before us.

Did the above-quoted indictment charge a crime against the United States?

Section 72 of Title 18 of the United States Code Annotated is referred to in the indictment and the pertinent part is as follows: "Whoever shall falsely make, alter, forge or, counterfeit * * * or shall utter or publish as true * * * any such false, forged * * * other writing, for the purpose of defrauding the United States, knowing the same to be false, forged, * * * shall be fined * * * or imprisoned * * *." 18 U. S.C.A. § 72 Emphasis supplied.

Only a single new inquiry is required to determine the question before us. In Johnson v. Warden,¹ we held that a prescription for obtaining narcotic drugs was a "writing"...