Howell v. United States

• Decision Date: 24 January 1949
• Docket Number: No. 5824.,5824.
• Citation: 172 F.2d 213
• Parties: HOWELL v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

172 F.2d 213 (1949)

HOWELL v. UNITED STATES.

No. 5824.

United States Court of Appeals Fourth Circuit.

January 24, 1949.

J. Raymond Gordon, of Charleston, W. Va., for appellant.

A. Garnett Thompson, Asst. U. S. Atty., of Charleston, W. Va. (Leslie E. Given, U. S. Atty., of Charleston, W. Va., on the brief), for appellee.

Before PARKER, Chief Judge, DOBIE, Circuit Judge, and HENDERSON, District Judge.

PARKER, Chief Judge.

In December 1940, the appellant Howell was tried and convicted in the court below of the crime of bank robbery and was sentenced to a term of twenty years imprisonment to commence at the end of another sentence he was then serving in the federal penitentiary at Leavenworth, Kansas. He was represented by counsel of his own choosing at this trial; but on June 24, 1948, the sentence imposed upon him was held void by the United States District Judge for the District of Kansas in a habeas corpus proceeding, on the ground that counsel were not present when sentence was pronounced. An order was entered that he be delivered to the marshal of the court below to the end that further proceedings might be had in his case; and the judge below resentenced him to a term of twenty years in prison, subject to credit for the time already served upon the original sentence. From that judgment he has appealed to this court.

Three questions are presented by the appeal: (1) whether all the proceedings of the original trial were rendered void by reason of the invalidity of the sentence so that the court below was without power to enter the sentence appealed from; (2) whether the original trial was a nullity because of a denial of due process; and (3) whether the judge below erred in denying appellant's motion for a new trial on the ground of newly discovered evidence. We think that all these questions should be answered in the negative.

On the first question, it is clear that appellant was represented by counsel of his own choosing and employment throughout the trial before the jury and also at the hearing of a motion made to set aside the verdict and grant a new trial. The judge in the habeas corpus proceeding so found; and he found also that there was no denial of due process in the trial. He held the sentence void solely on the ground that counsel for defendant were not present when sentence was pronounced. Assuming without deciding that this was correct as a matter of fact and furnished sufficient ground for holding the sentence void, it is perfectly clear that it could not have affected the proceedings prior to sentence, and that, a verdict of guilty having been rendered against appellant and his motion to set aside the verdict and grant a new trial having been denied, there was no reason why the court should not proceed to judgment and pronounce sentence. Absence of counsel might invalidate the proceedings had in their absence, but certainly not proceedings had and made a matter of record while they were present and participating. A void sentence does not invalidate a prior adjudication of guilt properly had; but, on the contrary, such adjudication furnishes a basis for the imposition of a valid sentence when the invalidity of the sentence imposed is called to the attention of the court. 15 Am.Jur. 132; De Benque v. United States, 66 App. D.C. 36, 85 F.2d 202, 106 A.L.R. 839; Ruben v. Welch, 4 Cir., 159 F.2d 493, 494. In the case last cited we held void an indeterminate sentence imposed in the District of Columbia and directed that the prisoner be returned to the sentencing court in order that a valid sentence might be imposed upon him, saying:

"The law in effect at the time of the commission of the crime for which the appellant was sentenced provided for the imposition of a definite sentence. The sentence imposed is accordingly void; but this does not mean that appellant is entitled to be released on habeas corpus. He should be held and remanded to the custody of the United States Marshal for the District of Columbia to be returned to the court by which he was tried in order that proper sentence may be imposed upon him. De Benque v. United States, 66 App.D.C. 36, 85 F.2d 202, 106 A.L.R. 839."

There is nothing in the record before us to warrant a holding that appellant was denied due process in the trial which resulted in his conviction. The matter was fully considered by Judge Mellott in the habeas corpus proceeding and nothing in the record there and nothing called to our attention here tends to show that appellant was denied upon his trial the rights guaranteed him by the Constitution. He complains that he was not given process for the production of documents and that a woman prisoner in Alderson was not produced under a writ of habeas corpus ad testificandum which he had issued. No complaint on this score was made at the trial, however, and it is shown conclusively that the woman prisoner was not produced only because appellant's counsel so directed. Furthermore, all of appellant's complaints relate to matters which, if based upon fact, should have been called to the attention of the court at the trial and made the subject of timely appeal from its judgment, not raised by habeas corpus or by a motion questioning collaterally the validity of the proceedings leading to conviction. It is elementary that neither habeas corpus nor motion in the nature of application for writ of error coram nobis can be availed of in lieu of writ of error or appeal, to correct errors...