McCoy v. Pescor, 12894.
| Decision Date | 03 November 1944 |
| Docket Number | No. 12894.,12894. |
| Citation | 145 F.2d 260 |
| Court | U.S. Court of Appeals — Eighth Circuit |
| Parties | McCOY v. PESCOR, Warden. |
Flay E. Randle, of Springfield, Mo., for appellant.
Otto Schmid, Asst. U. S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., of Kansas City, Mo., on the brief), for appellee.
Before GARDNER, THOMAS, and RIDDICK, Circuit Judges.
This is an appeal from an order of the district court denying a petition for a writ of habeas corpus.
The petitioner is at present detained in the United States Medical Center for Federal Prisoners at Springfield, Missouri, under sentences imposed by the United States District Court for the Western District of Texas, following his trial and conviction on two indictments returned in that court. The first indictment in one count charged the appellant as follows:
"That heretofore, to-wit, on or about the 5th day of October, A.D., 1934, in the County of Bexar, State of Texas, Western District of Texas, San Antonio Division thereof, and within the jurisdiction of this Court, and on land and within the military reservation known as Fort Sam Houston, Texas, a place under the exclusive jurisdiction of the United States, Jack Arthur McCoy, with intent to extort money and pecuniary advantage of Alfred C. Wright, did unlawfully threaten to publish a statement respecting the said Alfred C. Wright, which would come within the meaning of libel, to-wit, to publish of and concerning the said Alfred C. Wright a statement as follows, to-wit, that he, the said Alfred C. Wright, was a `queer'; the said Jack Arthur McCoy then and there well knowing that such appellation was synonymous with and imputed sexual perversion, contrary to the from of the statute in such cases made and provided, and against the peace and dignity of the United States of America."
To this indictment petitioner entered a plea of not guilty. On his trial, at which he was represented by counsel, he was convicted and sentenced to two years imprisonment. The second indictment in seven counts was returned against appellant while he was serving the sentence imposed under the first indictment. The first count of this indictment was dismissed. The petitioner on his plea of guilty to the remaining counts received sentences aggregating eight years, to begin at the expiration of the sentence imposed at his first trial. Counts 2 to 6, inclusive, of the second indictment were in all respects identical with the charge in the first indictment, except as to the dates of the crimes charged and the name of the intended victim of the alleged extortion. The seventh count charged petitioner and others with conspiracy to commit the crimes alleged in counts 2 to 6.
The charge in the first indictment and the charges in counts 2 to 6, inclusive, of the second indictment, are based on a statute of Texas which the United States has adopted (Title 18 U.S.C.A. § 468) as applicable to acts committed in the territorial limits of the State but on lands acquired for the exclusive use of the United States and under its exclusive jurisdiction, in cases in which the acts done are not made penal by any law of Congress, but which, if done within the jurisdiction of the State, would be penal under State law. The adopted section of the Texas Penal Code, Article 1301, is:
"Whoever with intent to extort money or any pecuniary advantage shall threaten to accuse another of a felony before any court, or to publish any other statement respecting him which would come within the meaning of libel, shall be punished in the manner set forth in Article 1299."
By Article 1299 of the Texas Penal Code the punishment for the crime denounced in Article 1301 is an imprisonment of not exceeding two years or a fine of not exceeding $2,000. Article 1276 of the Texas Penal Code declares that:
"A libel may be either written, printed, engraved, etched, or painted, but no verbal defamation comes within the meaning thereof; and whenever a defendant is accused of libel by means of a painting, engraving, or caricature, it must clearly appear therefrom that the person said to be defamed was, in fact, intended to be represented by such painting, engraving, or caricature."
The petitioner contends that the first indictment and counts 2 to 6 of the second indictment are fatally defective in that they do not charge a crime against the United States, and that...
To continue reading
Request your trial
-
United States v. Gerhart
...established rule is certainly to the contrary. See, e.g., McClendon v. United States, 229 F. 523, 525 (8th Cir. 1916); McCoy v. Pescor, 145 F.2d 260, 262 (8th Cir. 1944), cert. denied, 324 U.S. 868, 65 S.Ct. 911, 89 L.Ed. 1423 That each of the counts in the indictments combining 18 U.S.C. §......
-
State ex rel. Henderson v. Russell
...is so fatally defective as to deprive the court of jurisdiction it may be reviewed in habeas corpus proceedings. McCoy v. Pescor, 145 F.2d 260 (8th Cir. 1944), cert. den. 324 U.S. 868, 65 S.Ct. 911, 89 L.Ed. 1423, rehearing denied 325 U.S. 891, 65 S.Ct. 1083, 89 L.Ed. 2004; Knight v. Hudspe......
-
Smayda v. United States
...Publishing Co., 1911, 219 U.S. 1, 31 S.Ct. 212, 55 L.Ed. 65. 4 United States v. Andem, D.C., N.J.1908, 158 F. 996, 1000; McCoy v. Pescor, 8 Cir., 1944, 145 F.2d 260; cf. Johnson v. Yellow Cab Transit Co., 1944, 321 U.S. 383, 388-392, 64 S.Ct. 622, 88 L.Ed. 814; Williams v. United States, 19......
-
Holiday v. State
...is so fatally defective as to deprive the court of jurisdiction it may be reviewed in habeas corpus proceedings. McCoy v. Pescor, 145 F.2d 260 (8th Cir. 1944), cert. den. 324 U.S. 868, 65 S.Ct. 911, 89 L.Ed. 1423, rehearing denied 325 U.S. 891, 65 S.Ct. 1083, 89 L.Ed. 2004; Knight v. Hudspe......