McCarthy v. Zerbst

Decision Date12 September 1936
Docket NumberNo. 1407.,1407.
Citation85 F.2d 640
PartiesMcCARTHY v. ZERBST, Warden.
CourtU.S. Court of Appeals — Tenth Circuit

J. J. Cardigan, of Superior, Wis., for appellant.

Summerfield S. Alexander, U. S. Atty., and Homer Davis, Asst. U. S. Atty., both of Topeka, Kan., for appellee.

Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges.

PHILLIPS, Circuit Judge.

This is an appeal from an order denying an application for a writ of habeas corpus.

An indictment, containing four counts, was returned against petitioner and another in the District Court of the United States for the Northern District of Illinois.

A motion to dismiss the first count was sustained by the court prior to the trial.

The second count charged that petitioner and another, on January 6, 1934, endeavored, by oral communication and force, to influence, obstruct and impede the due administration of justice in certain causes pending in the District Court of the United States for the Northern District of Illinois, by taking one French, a witness in said causes, in an automobile to a stated place, and there striking, beating, assaulting and shooting said French.

The third count charged that petitioner and another, from June 26, 1933, to January 6, 1934, conspired to deter by force, intimidation and threats, one French from testifying freely, fully and truthfully as a witness in said causes.

The fourth count charged that petitioner and another, from June 26, 1933, to January 6, 1934, conspired to injure the witness French in his person on account of his having appeared and given evidence before a grand jury impaneled and sworn in the District Court of the United States for the Northern District of Illinois, concerning a matter then pending in said court.

Count two charges an offense under 18 U.S.C.A. § 241, which in part reads:

"Whoever corruptly, or by threats or force, or by any threatening letter or communication, shall endeavor to influence, intimidate, or impede any witness, in any court of the United States * * * or who corruptly or by threats or force, or by any threatening letter or communication, shall influence, obstruct, or impede, or endeavor to influence, obstruct, or impede, the due administration of justice therein, shall be fined not more than $1,000, or imprisoned not more than one year, or both."

Counts three and four charge offenses under 18 U.S.C.A. § 242, which in part reads:

"If two or more persons conspire to deter by force, intimidation, or threat, any party or witness in any court of the United States, * * * from attending such court or examination, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, * * * each of such persons shall be fined not more than $5,000 or imprisoned not more than six years, or both."

Trial by jury was waived and McCarthy was tried by the court on counts two, three and four. He was found guilty on counts two and four and not guilty on count three. The court sentenced him to serve one year in jail and to pay a fine of $1,000 on count two, and to serve six years in the penitentiary and to pay a fine of $5,000 on count four, the sentences to run consecutively.

Petitioner contends that the court was without jurisdiction to impose a judgment and a sentence on count four because the offense charged therein is the same as the offense charged in count three on which he was found not guilty; that count four and counts one, two and three charged the same offense; and that he has been put in jeopardy and is being punished more than once for the same offense.

Petitioner was never in jeopardy on count one. It was dismissed before trial. The general rule is that a person is not in jeopardy until he has been arraigned on a valid indictment or information, has pleaded, and a jury has been impaneled and sworn;1 and where a case is tried to a court without a jury, jeopardy begins after accused has been indicted and arraigned, has pleaded and the court has begun to hear evidence.2

It is clear from a reading of the indictment that count two charges an offense under section 241, supra, and that counts three and four charge separate and distinct offenses defined in section 242, supra. This court in Curtis v. U. S., 67 F. (2d) 943, at page 947 said:

"The test of the identity of offenses is whether the same evidence is required to sustain them (Moorehead v. United States (C.C.A.) 270 F. 210, supra); or whether, if what is set out in the charge to which the plea is interposed, had been proven in support of the charge, acquittal of which is asserted as a bar, it would have sustained a conviction on the latter charge."

See, also, Morgan v. Devine, 237 U.S....

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46 cases
  • Mullreed v. Kropp
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 4 Mayo 1970
    ...which hold that in non-jury trials jeopardy does not attach until the court begins the hearing of evidence. See, e. g. McCarthy v. Zerbst, 85 F.2d 640 (10th Cir.), cert. denied, 299 U.S. 610, 57 S.Ct. 313, 81 L.Ed. 450. In view of our disposition of this case we do not find it necessary to ......
  • Serfass v. United States 8212 1424
    • United States
    • U.S. Supreme Court
    • 3 Marzo 1975
    ...458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). In a nonjury trial, jeopardy attaches when the court begins to hear evidence. McCarthy v. Zerbst, 85 F.2d 640, 642 (CA10 1936). See Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 836, 93 L.Ed. 974 (1949). The Court has consistently adhered to the......
  • United States v. Jenkins, 79
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 11 Diciembre 1973
    ...188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); McCarthy v. Zerbst, 85 F.2d 640, 642 (10 Cir.), cert. denied, 299 U.S. 610, 57 S.Ct. 313, 81 L.Ed. 450 (1936). The conclusion that jeopardy attaches when the trial commenc......
  • U.S. v. Moore, 78-1594
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 2 Enero 1980
    ...543, 553 (1971).36 Serfass v. United States, supra note 27, 420 U.S. at 388, 95 S.Ct. at 1062, 43 L.Ed.2d at 274; McCarthy v. Zerbst, 85 F.2d 640, 642 (10th Cir.), Cert. denied, 299 U.S. 610, 57 S.Ct. 313, 81 L.Ed. 450 (1936).37 See text Supra at note 20; Tr. 48.38 See text Supra at note 21......
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2 books & journal articles
  • INDEX OF CASES
    • United States
    • Briefing and Arguing Federal Appeals Chapter XIV
    • Invalid date
    ...Co. v. (337 U. S. 783) 109 McBratney; United States v. (104 U. S. 621) 99 McCarl; Miguel v. (291 U. S. 442) 178 McCarthy v. Zerbst (85 F.2d 640 [C.A. 10]) 184 McCaughn v. Hershey Chocolate Co. (283 U.S. 488) 170 McClellan v. Carland (217 U. S. 268) 252 McCollum v. Board of Education (333 U.......
  • Use of essentially historical materials.
    • United States
    • Briefing and Arguing Federal Appeals Chapter III
    • Invalid date
    ...action upon the case."[212] United States v. Perez, 9 Wheat. 579.[213] Clawans v. Rives, 104 F. 2d 240 (App. D. C.) ; McCarthy v. Zerbst, 85 F. 2d 640 (C.A. 10) . See, however, for a broader view, Pratt v. United States, 102 F. 2d 275 (App. D. C.).[214] Cornero v. United States, 48 F. 2d 69......

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