Morgan v. Ward

• Decision Date: 17 May 1915
• Docket Number: 4282.
• Parties: MORGAN, Warden of U.S. Penitentiary, v. WARD et al.
• Court: U.S. Court of Appeals — Eighth Circuit

224 F. 698

MORGAN, Warden of U.S. Penitentiary, v. WARD et al.

No. 4282.

United States Court of Appeals, Eighth Circuit.

May 17, 1915

Isaac D. Taylor, Asst. U.S. Atty., of Guthrie, Okl., and L. S Harvey, Asst. U.S. Atty., of Kansas City, Kan. (Fred Robertson, U.S. Atty., of Topeka, Kan., on the brief), for appellant.

I. J Ringolsky, of Kansas City, Mo. (Harry L. Jacobs, of Kansas City, Mo., on the brief), for appellees.

Before ADAMS and CARLAND, Circuit Judges, and AMIDON, District Judge.

ADAMS Circuit Judge.

This was an appeal from an order of the District Court in a habeas corpus proceeding discharging the appellees, Dan A. Ward and W. A. greenwood, from imprisonment in the United States penitentiary at Leavenworth, Kan., of which the appellant Morgan, was warden.

The appellees had been indicted in the District Court of the United States for the Western District of Oklahoma for the offense created by the act of January 30, 1897 (29 Stat 506), had pleaded guilty to one of the counts of the indictment, and sentenced to pay a certain fine and be imprisoned in the penitentiary at Leavenworth for the period of two years, and were afterwards committed to the prison in execution of the sentence. was entered charged that the appellees--

'did unlawfully and feloniously introduce intoxicating liquor, to wit, whisky and beer, into and upon the south half of the southeast quarter of section one (1), township twenty-three (23) north, range eleven (11) east, of the Indian meridian, in said Osage county, said land being then and there an Indian allotment, to wit, the allotment of Ethel Evant, an Osage Indian, the title to the said allotment being then and there inalienable by the said allottee without the consent of the United States.'

After being incarcerated, the appellees filed in the court below their petition for a writ of habeas corpus, alleging that they were unlawfully restrained of their liberty by the appellant, the warden, for the reasons: First. Because the indictment was bad: (a) In that it did not charge that they introduced liquor into the Indian country, but only into a certain described Indian allotment; (b) in that it did not aver that the liquor was introduced into the allotment knowingly, and for several other reasons specified in the petition. And second. Because they were sentenced to imprisonment for a period of two years' time without any warrant of law authorizing the same, and therefore beyond the power of the court. Whether or not the indictment was bad for any of the reasons alleged in the petition for the writ cannot now be considered. The writ of habeas corpus cannot serve the purpose of a writ of error; if the indictment was bad, the appellees had an opportunity to challenge it, first in the trial court and afterwards, if necessary, by writ of error from this court, and, whether they availed themselves of either of these opportunities or not, they cannot now, according to familiar principles of practice, make use of the writ of habeas corpus for the purpose.

Was the judgment authorized by law? This raises the serious question in the case.

It is contended by the appellees that the act of 1897 provided for a minimum punishment of 60 days, but fixed no maximum limit at all, that as a result the minimum is also the maximum term of lawful imprisonment, and that because the District Court of Oklahoma imprisoned appellees for the period of two years, its judgment was in excess of its power, the sentence void, and did not warrant the detention of the appellees by the warden. The learned judge of the trial court adopted this view, and discharged the prisoners, holding that the judgment of the District Court of Oklahoma, in so far as it sentenced the appellees to imprisonment for any period in excess of 60 days, was void. An able argument was made by counsel for appellees in support of this ruling, and if it were true that Congress fixed no maximum penalty of imprisonment, but left the law with a minimum term of imprisonment fixed at 60 days, a serious question as to the power of the Oklahoma court to impose the sentence of imprisonment for the period of two years would be presented.

The warden contends that the act of 1897 must be read in connection with and be supplemented by the act of July 23, 1892, and as so read and supplemented makes adequate provision for a maximum imprisonment of two years for the offense with which the appellees were charged.

The act of July 23, 1892 (27 Stat. 260), prohibited the introduction of intoxicating liquors of any kind into the Indian country, and fixed the penalty for its violation at imprisonment for not more than two years and a fine of not more than $300. Afterwards Congress passed the act of 1897 (29 Stat. 506). This act also prohibited the introduction of intoxicating liquors of any kind into the Indian country, and specifically provided that the term 'Indian country' should include any Indian allotment while the title to the same should be held in trust by the government, or while the same should remain inalienable by the allottee without the consent of the United States, and provided as a penalty for its violation a certain fine and imprisonment for not less than 60 days, specifying no maximum limit of imprisonment. The second section of this act provides as follows: 'That so much of the act of July 23, 1892, as is inconsistent with the provisions of this act is hereby repealed. ' Both the act of 1892 and of 1897 contain similar provisions against the selling of intoxicants of any kind to Indians, but it is thought these provisions throw no light upon the question under present consideration, namely, whether the act of 1897, in view of the provisions of the act of 1892, empowered the District Court of Oklahoma to impose a penalty of imprisonment for a period of two years for introducing intoxicating liquor into an Indian allotment.

That the act of 1897 is an amendment of the act of 1892, although not so entitled, is now well settled and must be so treated (United States v. Wright, 229 U.S. 226, 230, 231, 33 Sup.Ct. 630, 57 L.Ed. 1160; Joplin Mercantile Co. et al v. United States, 236 U.S. 531, 35 Sup.Ct. 291, 59 L.Ed. . . ., just decided; Ammerman v. United States. 132 C.C.A. 470, 216 F. 326, 327), and that Congress did not intend to repeal the act of 1892 by the enactment of 1897 is clear. The latter act itself by necessary implication so declares. It provides that so much of the act of 1892 as is inconsistent with the provisions of this act is hereby repealed. This clearly means that the parts of the act of 1892 which are consistent with the act of 1897 still remain the law. The question, therefore, is this: Whether that part of the act of 1892 which provides a maximum punishment of two years is inconsistent with the provision of the act of 1897 which fixes the term of imprisonment for its violation at imprisonment for not less than 60 days with no maximum limit whatever specified. There is manifestly no actual or physical inconsistency between the two. Both can certainly stand in perfect harmony. The...