McDonald v. Harding, 6681.

• Decision Date: 21 March 1932
• Docket Number: No. 6681.,6681.
• Citation: 57 F.2d 119
• Parties: McDONALD v. HARDING, District Judge.
• Court: U.S. Court of Appeals — Ninth Circuit

57 F.2d 119 (1932)

McDONALD v. HARDING, District Judge.

No. 6681.

Circuit Court of Appeals, Ninth Circuit.

March 21, 1932.

George B. Grigsby and Harry G. McCain, both of Ketchikan, Alaska, and Robert W. Jennings, of San Francisco, Cal., for petitioner.

Howard D. Stabler, U. S. Atty., of Juneau, Alaska, for appellee.

Before WILBUR and SAWTELLE, Circuit Judges.

SAWTELLE, Circuit Judge.

This is a hearing on the return of the judge of the United States District Court for the Territory of Alaska, First Division, to an order to show cause why mandamus should not issue commanding him to settle a bill of exceptions in the above-entitled cause. An order to show cause on the petition was issued by this court.

The record before this court consists of the petition, the return to the order to show cause, the answer to the return, and three affidavits attached to the respondent's points and authorities. All the pleadings are verified.

There is a sharp conflict as to certain material facts, but, with one or two exceptions, we are adopting the petitioner's version, so far as it goes.

On May 2, 1931, the petitioner, having been theretofore convicted of murder in the first degree in the District Court sitting at Ketchikan, Alaska, was sentenced by the respondent to imprisonment for life.

On the day sentence was pronounced, the following proceedings were had, according to the minutes of the court: "Whereupon court adjourned sine die, subject to signing a decree in No. 1370 K. A. and subject also to the signing and settling a Bill of Exceptions in connection with an appeal in the case of the United States vs. Burton G. McDonald, No. 1154 K. B., for which purpose only the term shall be considered as continued."

The petitioner avers that the time within which an appeal could be taken in this case expired on July 31, 1931. He also states that, at the time of his sentence, he was wholly without funds; that at said time his counsel asked the court for a stay of execution for thirty days, which request was refused by the court; that thereafter the petitioner was removed to the penitentiary at McNeill's Island, Wash., and shortly afterward to Leavenworth, Kan., where he is now confined.

On July 15, 1931, the respondent granted the petitioner two days' additional time in which to prepare a bill of exceptions. On July 17, the respondent granted a further extension to July 25, 1931.

On July 25, in an informal conversation out of court, there being no session of the court on that day, the respondent informed the petitioner's counsel that he would take up the matter of a further extension of time within which to file a bill of exceptions on Monday, July 27, 1931.

Regarding this above "informal conversation," the respondent makes the following statement in his return to the order to show cause: "Thereafter, about 6 o'clock p. m., on Saturday, July 25, 1931, said attorney called me on the telephone at my home and stated that the time for filing the Bill of Exceptions in the McDonald case expired on that day, but that if it was satisfactory to the court and the court was willing to issue a nunc pro tunc order on Monday, July 27th, * * * he would take the matter up on said July 27th; whereupon I informed said attorney that I would not state whether or not I would allow further extension of time, and that I did not have an opinion as to the validity of a nunc pro tunc order, but that if counsel was satisfied with the validity of a nunc pro tunc order, I would take up the matter on Monday, July 27th, and if further extension of time was then authorized, would issue a nunc pro tunc order as of that date; whereupon counsel said he was satisfied of the validity of a nunc pro tunc order and would take up the matter on Monday, July 27th. I specifically state and certify that on July 25th I did not grant any extension of the time; and nothing was said or done on that day, or on any previous day, toward extending the time beyond July 25th than as aforesaid."

On July 27, the following orders were entered:

"Now at this time on motion of George B. Grigsby, the court extended the time to file a Bill of Exceptions to and including July 31, 1931.

"On motion of George B. Grigsby, attorney for the defendant, in the above entitled action, it is hereby ordered that the time within which defendant herein may serve and file a Bill of Exceptions herein is hereby extended to and including the 31st day of July, 1931. It is further ordered that this order go into effect nunc pro tunc as of the 25th day of July, 1931."

In this connection, the respondent asserts:

"On July 27th, said attorney requested an extension of time which would have been beyond the time allowed for appeal; but I specifically informed him, in open court, I would not grant any extension beyond the time allowed for appeal, and limited the time as shown in the last orders quoted. No extensions of time referring to the Bill of Exceptions, other than those hereinbefore mentioned, were requested or granted in said cause.

"As petitioner states * * * the time within which appeal could be taken in said cause expired on July 31, 1931. On July 31, 1931, petition for appeal was presented to the court and an order allowing appeal was granted. Assignment of errors was filed on said date."

On July 31, an admittedly "inaccurate" bill of exceptions was lodged with the clerk of the District Court. The petitioner asserts that, on that day, his counsel informed the respondent that a bill of exceptions had been "filed" with the clerk. The respondent categorically denies this, "to the best of his recollection."

The petitioner avers that after July 31, 1931, no further proceedings were had in the case until about September 10, 1931. The interval was spent by petitioner's counsel in efforts to obtain funds wherewith to pay for a transcript of the testimony.

According to the respondent, several weeks after July 31, in open court, the following occurred: "I inquired of petitioner's attorney as to the whereabouts of the Bill of Exceptions upon which the assignment of errors was based, at which time said attorney stated that a Bill of Exceptions had been left with the Clerk of the Court on July 31st, but that it was not the Bill of Exceptions upon which counsel expected to rely; that it was filed merely for the purpose of preserving his rights; that he was not certain that a Bill of Exceptions would be presented to the court for settlement; that it would all depend upon whether a transcript of the record was subsequently obtained."

The petitioner denies the foregoing statement of the respondent in its entirety, "and alleges that at all times his said counsel gave the court to understand that he expected the Bill of Exceptions to be amended and hoped to secure a complete transcript of the testimony."

"And petitioner finally emphatically alleges that his counsel at no time stated to the court or intimated to the court that whether or not he would present the bill for settlement depended upon whether a transcript of the record was obtained.

"Petitioner alleges, however, that prior to the 31st of July, and prior to the filing of a proposed Bill of Exceptions, his counsel was in doubt as to whether or not an appeal would be taken in said cause, and did state to the respondent at different times that whether or not an appeal would be taken might depend upon whether or not he was able to secure a transcript of the testimony."

On September 10, 1931, the court reporter furnished petitioner's counsel with a complete transcript of the testimony, consisting of about 800 typewritten pages. On the same day, petitioner's counsel, in open court, in the presence of the United States attorney, requested the court to set a time for settling the bill of exceptions. The court announced that he would not then fix a time for the settlement of the bill, whereupon petitioner's counsel stated that it was necessary for him to leave Juneau, Alaska, where the court was then sitting, and to go to Ketchikan, to be absent about ten days. He requested the court for a further order extending the time to docket the case in the Circuit Court of Appeals, the court having previously granted orders for extension of time for such docketing. Thereupon the court made an order extending the time to docket until November 15, 1931.

On September 28, counsel for the petitioner, having returned to Juneau from Ketchikan, in open court, in the presence of the United States attorney, requested the court to fix a time for the settlement of the bill of exceptions.

The petitioner avers that the "court set Saturday, October 3, 1931, as the time for presenting said Bill for settlement."

The respondent asserts: "On or about September 10, 1931, said attorney informed me for the first time that he was ready to take up the matter of settling a Bill of Exceptions. At this time, the business of the court prevented me from considering said matter prior to the time said attorney proposed making a trip to Ketchikan; and said attorney stated that the matter could be taken up as well upon his return to Juneau. No bill of any kind was presented to me at this time."

On October 3, 1931, the matter of settling the bill was called up in open court, in the presence of petitioner's counsel and the United States attorney. The latter objected to the settlement of any bill of exceptions on the ground that the court was without jurisdiction to settle the bill or any bill of exceptions in the case. The court took the matter under advisement, "and thereafter," according to the petitioner, "on the ______ day of November, 1931, in open court rendered his decision in said matter, and then and there refused to sign or settle said Bill of Exceptions, or any Bill of Exceptions, in said cause, stating as the grounds for said refusal that the court was without jurisdiction to settle said Bill."

Here again there is sharp conflict disclosed in the sworn pleadings. The respondent...