Lucas v. United States, 5533.
| Decision Date | 17 March 1947 |
| Docket Number | No. 5533.,5533. |
| Citation | 158 F.2d 865 |
| Parties | LUCAS v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Cecil S. Lucas, pro se, for appellant.
Joe V. Gibson, U. S. Atty., of Kingwood, W. Va. (Wayne T. Brooks, Asst. U. S. Atty., of Clarksburg, W. Va., on the brief), for appellee.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
Writ of Certiorari Denied March 17, 1947. See 67 S.Ct. 977.
This is an appeal from an order refusing to vacate a judgment sentencing one Cecil S. Lucas to five years imprisonment, on a plea of guilty to an indictment charging him with aiding and abetting federal prisoners to escape, in violation of Title 18, U.S.C.A. §§ 550 and 753h. Lucas was given this sentence on July 23, 1943. It was to begin upon the expiration of another five year sentence imposed at the same time for violation of the Motor Vehicle Theft Act, 18 U.S.C.A. § 408. He was incarcerated in Alcatraz prison; and in December, 1945, more than two years later, he moved in the court below to vacate the judgment and sentence on the ground that they were void. It is well settled that such a motion is proper procedure in an appropriate case, even though service of the sentence may not have begun. Holiday v. Johnson, 313 U.S. 342, 349, 61 S.Ct. 1015, 85 L.Ed. 1392; Costner v. United States, 4 Cir., 139 F.2d 429. It raises no question, however, except whether the judgment and sentence are void on the face of the record, and cannot be used to review the proceedings of the trial as upon appeal or writ of error. Ong v. United States, 4 Cir., 131 F.2d 175.
Lucas complains that the indictment under which he was sentenced does not charge that the prisoners whose escape he assisted were held in custody charged with felony or misdemeanor or upon conviction of an offense. It appears from the indictment, however, that the prisoners were charged to have been in the custody of the United States Marshal by virtue of "various and sundry processes issued under the laws of the United States" by a judge and court of the United States; that they were charged with escaping "feloniously"; and that Lucas was charged with "feloniously" aiding them to escape. We cannot say that the judgment and sentence entered upon a plea of guilty to such a charge is absolutely void, so that it may be set aside upon motion.
It will be noted that the offense defined by the statute* is for one to escape who is "in custody by virtue of any process issued under the laws of the United States," etc., and that the indictment follows the exact wording of this portion of the statute. The subsequent portion distinguishes between escape by one who is in custody under charge of felony or under conviction for any offense whatsoever, and escape by one who is merely charged with misdemeanor, making the former a felony and the latter a misdemeanor. It certainly cannot be said that the indictment does not charge any...
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