In re Johnson

• Decision Date: 08 June 1891
• Citation: 46 F. 477
• Parties: In re JOHNSON.
• Court: U.S. District Court — District of Massachusetts

46 F. 477

In re JOHNSON.

United States Circuit Court, D. Massachusetts.

June 8, 1891

Benjamin F. Butler, for petitioner.

Frank D. Allen, U.S. Dist. Atty.

NELSON J.

This case was a writ of habeas corpus directed to the warden of the reformatory prison for women at Sherborn, to bring before the court the body of Clarietta Johnson, alleged to be illegally restrained of her liberty in that prison. At the hearing in this court a record of the district court of the United States for this district was produced, from which it appeared that the prisoner was convicted in that court upon an indictment charging her with the crime of perjury committed in violation of the laws of the United States, and was, upon her conviction, sentenced by the court to pay a fine of $10, and to be imprisoned for the term of six months in the reformatory prison for women at Sherborn, and to stand committed until said sentence be performed; and that, in pursuance of the sentence, a warrant of commitment issued in the usual form, upon which she was taken to the prison by the marshal, and delivered into the custody of the warden. The prisoner now asserts that her present imprisonment under this sentence is illegal. The prisoner was tried and sentenced in the district court by Judge CARPENTER holding the court by assignment of the circuit judge, and in accordance with the practice and usage of this court, a proceeding of this nature, in which the validity of a sentence pronounced by Judge CARPENTER is called in question, would ordinarily be heard by him, either alone or with another judge sitting at his request. It is, therefore, proper to state that it is only after conferring with Judge CARPENTER, and upon his expressing a preference that this case should be heard by me that I have consented to hear the case at all. It should be also added that there appears to be nothing in the case to call for a revision of any matter that was specially called to the attention of Judge CARPENTER in the district court.

The first objection taken by the prisoner is that her alleged offense was not set forth in the indictment with such a degree of certainty as to give the court any jurisdiction to try her, and that it was the same as if she had been tried and sentenced without any presentment by the grand jury. The record discloses that she was tried upon an indictment in which was set forth with more or less clearness of language the crime with which she was charged. It also appears by the record that this objection was taken to the indictment in the district court by motion in arrest of judgment, and was overruled. Upon this point it is only necessary to remark that as the district court had jurisdiction to try the prisoner for perjury committed against the laws of the United States, its rulings upon the sufficiency of the indictment are not subject to revision in this court by a writ of habeas corpus. If the prisoner were aggrieved by any ruling of the district court upon her motion in arrest of judgment, her remedy is by a writ of error, and not by a writ of habeas corpus.

The prisoner was committed to the prison on the 21st of April last. On the 7th of May, she sued out of the superior court for Middlesex county a writ of personal replevin, directed to the sheriff of the county, commanding him to replevy the prisoner, who, it was alleged, was taken and detained by the duress of the warden of the prison, so that she might appear before the superior court to be holden at Cambridge on the first Monday of June, then and there to demand justice against the warden for her duress and imprisonment, and to prosecute her replevin as the law directs: provided, the prisoner first gave a bond to the warden in such sum as the sheriff should deem reasonable, with sureties to be approved by him, for her appearance at court and to prosecute her replevin, and gave the writ to the sheriff for service. Armed with this document, the sheriff on the 14th of May proceeded to the prison, and having received from the prisoner a bond in the sum of $1,000 as directed by the writ, took her out of the custody of the warden and set her at liberty. The doings of the sheriff having been brought to the notice of the district judge of the district, by his order a warrant for the rearrest of the prisoner was issued, under which the prisoner was again taken into custody by the marshal and brought before the court, and she was thereupon by the order of the court returned to the prison as an escaped or rescued convict, to serve out the rest of her sentence, and she has since remained in the custody of the warden of the prison. Copies of the writ of replevin, the sheriff's return thereon, and the bail-bond are given below.

COPIES OF REPLEVIN WRIT, RETURN THEREON, AND BAIL-BOND.

REPLEVIN WRIT.

Commonwealth of Massachusetts, Middlesex, ss.: (L.S.)

To the Sheriffs of our Several Counties, or Their Deputies Greeting: We command you that justly, and without delay, you cause to be replevied Clarietta Johnson, who, as it is said, is taken and detained at Sherborn, within our said county, by the duress of Ellen C. Johnson, that said Clarietta Johnson may appear at our superior court next to be holden at Cambridge, on the first Monday of June next, within our county aforesaid, then and there in our said court to demand right and justice against said Ellen C. Johnson for the duress and imprisonment aforesaid, and to prosecute her replevin as the law directs: provided, that said Clarietta Johnson shall before her deliverance give bond to said Ellen C. Johnson in such sum as you shall judge reasonable, with at least two sureties, having sufficient within your county, and with condition to appear at our said court, to prosecute her replevin against said Ellen C. Johnson, and to have her body there ready to be delivered, if thereto ordered by said court, and pay all such damages and costs as shall be then and there awarded against her. Then, and not otherwise, are you to deliver her. And if said Clarietta is by you delivered at any day before the sitting of our court, you are to summon said Ellen C. Johnson, by serving her with an attested copy of this writ, that she may appear at our said court to answer to said Clarietta Johnson.

Witness ALBERT MASON, Esquire, at Cambridge, the seventh day of May, in the year of our Lord one thousand eight hundred and ninety-one.

THEO. C. HURD, Clerk.

RETURN.

Middlesex, ss.: MAY 14th, 1891.

By virtue of this writ, I this day took from the within-named Clarietta Johnson a bond to the within-named Ellen C....