Hudspeth v. Tornello, No. 2423.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBRATTON, HUXMAN, and MURRAH, Circuit
Citation128 F.2d 172
PartiesHUDSPETH, Warden, United States Penitentiary, Leavenworth, Kansas, v. TORNELLO.
Docket NumberNo. 2423.
Decision Date22 May 1942

128 F.2d 172 (1942)

HUDSPETH, Warden, United States Penitentiary, Leavenworth, Kansas,
v.
TORNELLO.

No. 2423.

Circuit Court of Appeals, Tenth Circuit.

May 5, 1942.

Rehearing Denied May 22, 1942.


Summerfield S. Alexander, U. S. Atty., of Topeka, Kan. (Homer Davis, Asst. U. S. Atty., of Topeka, Kan., on the brief), for appellant.

E. R. Sloan, of Holton, Kan., for appellee.

Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

The grand jury of the United States Court for the Middle District of Tennessee returned an indictment against William Humbert Tornello, hereinafter referred to as petitioner, in which it was charged that he entered the building occupied and used by the Third National Bank of Nashville, Tennessee, with the intent to commit therein a certain felony, namely, uttering and cashing a forged check in the amount of $119, defrauding and depriving the bank of its funds in that amount, and appropriating the same to his own use and benefit. Petitioner was found guilty and sentenced to a term of three years in the penitentiary, to run concurrently with a term then being served under sentence by the United States Court for Colorado, and to pay a fine of $750. Commitment issued and petitioner was placed in the United States penitentiary at Leavenworth, Kansas, for service of such sentence.

While so confined, petitioner filed in the United States Court for Kansas his petition for the writ of habeas corpus in which he challenged the validity of the judgment and sentence of the court in Tennessee on the ground that the indictment failed to charge any offense under the laws of the United States. The court in Kansas ordered petitioner discharged and the warden appealed.

The decisive question of law presented was determined in the recent case of Hudspeth v. Melville, 10 Cir., 127 F.2d 373. It would not serve any useful purpose to repeat in substance that which we said there. It is sufficient to say that we adhere to the views there expressed.

On the authority of Hudspeth v. Melville, supra, the order is reversed and the cause remanded with directions to enter and order discharging the writ and directing the issuance of appropriate process for the return of petitioner to the custody of the warden.

HUXMAN, Circuit Judge (dissenting).

I cannot agree with the conclusion reached in this case by the majority. Inasmuch as the decision in this case is predicated on the majority decision in Hudspeth v. Melville, in...

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3 practice notes
  • Jerome v. United States, No. 325
    • United States
    • United States Supreme Court
    • February 1, 1943
    ...meaning of 'felony' in § 2(a). Compare with the decision below Hudspeth v. Melville, 10 Cir., 127 F.2d 373; Hudspeth v. Tornello, 10 Cir., 128 F.2d 172. Prior to 1934 banks organized or operating under federal law were protected against embezzlement and like offenses by R.S. 5209, 40 Stat. ......
  • United States v. Jerome, No. 340
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 12, 1942
    ...court below has held, in accordance with the majority view in the Tenth Circuit, Hudspeth v. Melville, 127 F.2d 373; Hudspeth v. Tornello, 128 F.2d 172, that the word "felony" in the federal statute quoted includes a state offense such as that here in question. Although some conte......
  • United States v. Weil, No. 13518.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • August 14, 1942
    ...v. Melville 10 Cir., 127 F.2d 373, and the opinion of the same court rendered May 5, 1942 in the case of Hudspeth v. Tornello 10 Cir., 128 F.2d 172." The prayer of the motion was for the rescission, vacation and setting aside of the order of February 9, The defendant Weil, being in pri......
3 cases
  • Jerome v. United States, No. 325
    • United States
    • United States Supreme Court
    • February 1, 1943
    ...meaning of 'felony' in § 2(a). Compare with the decision below Hudspeth v. Melville, 10 Cir., 127 F.2d 373; Hudspeth v. Tornello, 10 Cir., 128 F.2d 172. Prior to 1934 banks organized or operating under federal law were protected against embezzlement and like offenses by R.S. 5209, 40 Stat. ......
  • United States v. Jerome, No. 340
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 12, 1942
    ...court below has held, in accordance with the majority view in the Tenth Circuit, Hudspeth v. Melville, 127 F.2d 373; Hudspeth v. Tornello, 128 F.2d 172, that the word "felony" in the federal statute quoted includes a state offense such as that here in question. Although some conte......
  • United States v. Weil, No. 13518.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • August 14, 1942
    ...v. Melville 10 Cir., 127 F.2d 373, and the opinion of the same court rendered May 5, 1942 in the case of Hudspeth v. Tornello 10 Cir., 128 F.2d 172." The prayer of the motion was for the rescission, vacation and setting aside of the order of February 9, The defendant Weil, being in pri......

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