Mizell v. Vickrey, 24.

• Decision Date: 23 November 1929
• Docket Number: No. 24.,24.
• Parties: MIZELL v. VICKREY, U. S. Marshal.
• Court: U.S. Court of Appeals — Tenth Circuit

36 F.2d 327 (1929)

MIZELL v. VICKREY, U. S. Marshal.

No. 24.

Circuit Court of Appeals, Tenth Circuit.

November 23, 1929.

S. J. Montgomery and H. B. Martin, both of Tulsa, Okl. (Charles F. Martin, of Tulsa, Okl., on the brief), for appellant.

W. B. Blair, Asst. U. S. Atty., of Tulsa, Okl. (John M. Goldesberry, U. S. Atty., and Harry Seaton, Asst. U. S. Atty., both of Tulsa, Okl., on the brief), for appellee.

Before LEWIS, PHILLIPS, and McDERMOTT, Circuit Judges.

LEWIS, Circuit Judge.

This is an appeal from an order denying release from custody. The marshal held appellant for removal to Savannah, Georgia, where an indictment was pending against him. From his petition for the writ of habeas corpus, exhibits therewith, the marshal's return and admissions it appears that on May 30, 1928, an indictment charging appellant in several counts with different offenses defined by the National Banking Act was found and returned by a grand jury to the United States District Court for the Southern District of Georgia, then sitting in the Savannah Division. The opening and jurisdictional part of the indictment reads in this way:

"In the District Court of the United States of America for the Southern District of Georgia.

"Of the May Term, in the year 1928.

"Southern District of Georgia, Savannah Division, ss.

"The grand jurors for the United States of America empaneled and sworn at the May Term 1928 of the Savannah Division of the District Court of the United States for the Southern District of Georgia, and inquiring for said division and for the said district as it existed both prior to and subsequent to May 28, 1926, at which time the boundaries of said Southern District of Georgia were changed by an Act of Congress entitled `An Act to amend Section 77 of the Judicial Code to create a Middle District in the State of Georgia, and for other purposes,' approved May 28, 1926, upon their oath present," etc.

All of the offenses are charged to have been committed in the City of Valdosta, which is in Lowndes county, Georgia, and that county was in the Southern district of Georgia, Southwestern division, when the offenses are charged to have been committed. Valdosta was then the place at which court was held in the Southwestern division of said Southern district. Savannah was then also in the Southern district, Eastern division. At the time the offenses are charged to have been committed and until May 28, 1926, there were two districts in Georgia, the Northern and Southern. The Northern district had four divisions and the Southern five. By the Act approved May 28, 1926 (28 USCA § 150), Congress created the Middle district of Georgia, composed of territory taken from the then Northern and Southern districts. That act put Lowndes county and other counties in that section into the Valdosta division of the new Middle district. Prior to the creation of the Middle district court was held in the Eastern division of the Southern district at Savannah, which is in Chatham county, that county and other counties in that section then composing said Eastern division; but by the Act of May 28 some of the counties in that division were detached and put into the Middle district, and the name of that division was changed from the Eastern division to Savannah division of the Southern district, Chatham and other counties in that section constituting said Savannah division, and terms of court are provided at Savannah in the Savannah division. The act divided the Northern district into three divisions, it theretofore contained four divisions; it divided the Middle district into six divisions and the Southern district into four divisions, it theretofore contained five divisions. On account of the changes in the territory of the Southern district and the divisions thereof after the crimes were committed, appellant challenges the jurisdiction of the court sitting at Savannah in the Savannah division of the Southern district to legally indict him. The proposition is put in the brief of his counsel thus:

"Did the District Court of the Savannah Division of the Southern District of Georgia have the legal right or the jurisdictional power to find, present and return the indictment herein. * * *"

The contention finds its basis, of course, in the Sixth Amendment to the Constitution:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law."

This and section 59 of the Judicial Code (28 USCA § 121) and the construction given to them are determinative of the inquiry whether the contention is sound. This section has been considered and construed heretofore as applied to the right guaranteed by the Sixth Amendment, and it has been held consistently that said section preserves that guaranty. It reads thus:

"Whenever any new district or division has been or shall be established, or any county or territory has been or shall be transferred from one district or division to another district or division, prosecutions for crimes and offenses committed within such district, division, county, or territory prior to such transfer, shall be commenced and proceeded with the same as if such new district or division had not been created, or such county or territory had not been transferred, unless the court, upon the application of the defendant, shall order the cause to be removed to the new district or division for trial."

The question seems hardly open for further discussion since the opinion of the Supreme Court in Lewis v. United States, 279 U. S. 63, 49 S. Ct. 257, 73 L. Ed. 615. We can see no difference in the controlling facts in that case and those in this. There, by act of Congress, that part of the territory (Tulsa county) in which the crime was committed, and other counties, were taken from the district of which they were then a part and put into a new district, and after that defendants were indicted in the old district. The objection was held to be without merit. So here, while the territory over which the jurisdiction of the...