Ormsby v. United States

• Citation: 273 F. 977
• Decision Date: 17 June 1921
• Docket Number: 3513.
• Parties: ORMSBY v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

273 F. 977

ORMSBY v. UNITED STATES.

No. 3513.

United States Court of Appeals, Sixth Circuit.

June 17, 1921

[Copyrighted Material Omitted]

George F. Ormsby, of Cincinnati, Ohio, pro se.

Richard T. Dickerson, Asst. U.S. Atty., of Cincinnati, Ohio.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

KNAPPEN Circuit Judge.

On April 5, 1909, petitioner, George F. Ormsby, was indicted in the Supreme Court of the District of Columbia on a charge of criminal libel. He pleaded not guilty; his trial resulting in a verdict of guilty rendered on May 24, 1910. Motions for new trial and in arrest of judgment were overruled July 15, 1910. Sentence has never been imposed. Pending application to set aside the order overruling motion for new trial and motion in arrest of judgment, the attorney of the United States for the District of Columbia filed in the criminal case his verified petition (supported by affidavits of others), setting forth his opinion that the defendant (petitioner here) was of unsound mind, and asking for a judicial inquiry into his sanity, to the end that should he be found insane, the imposition of sentence might be suspended and he committed to the government hospital for the insane for treatment. The petition was granted, and trial by jury had upon the question of sanity, resulting in a verdict, on June 21, 1911, finding the defendant to be of unsound mind. A copy of the verdict was forwarded to the Secretary of the Interior, and under the order of that officer defendant was (apparently on June 22, 1911) committed to the government hospital for the insane in accordance with the laws of the District of Columbia. He was detained at that hospital until November 1, 1917, when he was permitted by the medical authorities of the hospital to leave that institution. It does not appear, however, that notice that defendant had been restored to sanity was given to the court in which defendant had been tried on the criminal charge as well as upon the issue of sanity; nor was the defendant delivered to that court.

It is asserted by petitioner, and without denial, that upon leaving the hospital he came directly to Ohio and has ever since remained in that state. On August 31, 1920, the Supreme Court of the District of Columbia issued in the criminal cause its bench warrant to the marshal for the District of Columbia, commanding petitioner's production before that court. While in custody, by virtue of the removal proceedings, this proceeding in habeas corpus was instituted in the District Court for the Southern District of Ohio. ^[1] Upon due hearing that court found that petitioner was 'lawfully being restrained of his liberty for the purpose of being removed to the jurisdiction of the Supreme Court of the District of Columbia, in compliance with a bench warrant heretofore issued by said court, for the purpose of requiring the said petitioner, George F. Ormsby, to appear before said court for sentence in case No. 26,501 of the criminal docket of said court. ' The writ of habeas corpus was accordingly discharged. This appeal is from that order denying the writ. Pending appeal, the court below detained petitioner in its custody

It appears that petitioner's indictment and prosecution for libel grew out of a situation which we state only in briefest outline: Petitioner's wife had obtained in a state court of Ohio a decree of divorce from petitioner, with custody of the infant son of the parties. Petitioner claims this decree was obtained by fraud and imposition upon the Ohio court, and was void for lack of jurisdiction. Petitioner was indicted in the Supreme Court of the District of Columbia for alleged abduction of this child, in taking him from Washington, D.C., to Boston, Mass. The alleged libel which is the subject of the indictment here in question consisted in a communication by petitioner to the committee on grievances (said to be a statutory tribunal established by the Supreme Court of the District of Columbia), charging a practicing attorney of that district, who was asserted to be representing petitioner's wife in the marital troubles between those parties, with having procured the indictment of petitioner on the charge of abduction, by making false and fraudulent representations to the United States attorney of the district of Columbia, and by causing and procuring the giving of false and perjured testimony before the grand jury which had the abduction charge under consideration, and with having by improper, dishonest, and corrupt means aided in procuring the arrest of petitioner in Boston, his confinement there, the taking of the child from his custody, and his removal to Washington to answer the indictment for abduction.

The petitioner contends that the warrant for his production before the Supreme Court of the District of Columbia is void for a variety of reasons; those which we deem it important to consider being: (1) That the original indictment for libel was void, as alleging the performance of a statutory and constitutional duty to make a true report of crime to the proper authority, the report thus being a privileged communication, and not a crime; that the libel charge has been discontinued and the jurisdiction of the District of Columbia court lost for a variety of reasons, including: (2) That his trial in the criminal prosecution for libel ended with the overruling of his motions for new trial and in arrest of judgment on July 15, 1910; that no further proceeding was ever had in the libel prosecution, nor were any entries of continuance made in the presence of petitioner, and that jurisdiction over the case thus ended with the close of the term in October, 1910; and that the attempted protracting of the trial on the indictment for libel violates the constitutional guaranty of speedy trial under article 6 of the Amendments to the federal Constitution. (3) That section 927 of the District of Columbia Code, under which the inquisition into petitioner's sanity was had, applies to a criminal case only when the accused wishes to plead insanity, which was not the case here; that section 115a, of the Code furnishes the only applicable authority for such inquiry; and that this last-named section recognizes inquisitions into sanity as civil actions, which are thus not triable in a criminal court, and that the prosecution for libel has thus not been kept alive by valid action. (4) That the action of the United States attorney of December 6, 1910, in instituting the inquiry into petitioner's sanity, amended the criminal prosecution for libel into the claim that the alleged libel was not due to criminal intent, but to insanity, thereby discontinuing the criminal charge, if then still in existence. (5) That in the petition for inquiry into the sanity of the accused it was alleged that the petitioner was insane during his trial, amounting to an allegation that the trial was void, and that the court accepted that allegation, thereby working a discontinuance of the criminal action; that the trial of petitioner's sanity was void for the further reason that the jury for the term had been discharged, and no valid jury was therefore possible; that under the finding of insanity he was in effect sentenced to the hospital and there confined, under the libel charge, for six years, which is longer than the maximum period imposable for libel. (6) That since leaving the hospital for the insane, in November, 1917, petitioner has remained in Ohio, with the full consent of the authorities of the United States, and that meanwhile the District Court for the Southern District of Ohio has, in litigation in said court to which petitioner was a party, adjudged petitioner free from the disability of insanity and as having capacity to sue without guardian in such litigation. (7) That the bench warrant of August 30, 1920, was procured to be issued by certain defendants in the litigation in the District Court for the Southern District of Ohio, in order to obstruct the administration of justice in that district and to protect such parties in a conspiracy to defraud the United States.

Coming to consider the scope of this hearing on habeas corpus: The Supreme Court of the District of Columbia is a court of the United States, and has the same jurisdiction as the federal Circuit and District Courts, as well as certain further jurisdiction. Code D.C. Sec. 61; In re McFarland, 30 App.D.C. 365; Embry v. Palmer, 107 U.S. 3, 10, 2 Sup.Ct. 25, 27 L.Ed. 346. Its records and judicial proceedings are entitled to the same faith and credit as are given to the courts of the several states. Embry v. Palmer, supra.

Under the well-settled general rule prevailing in the courts of the United States, if the Supreme Court of the District of Columbia had and still retains jurisdiction of the subject-matter of the prosecution in question and of the person of the petitioner, the latter is not entitled to be discharged on account of errors and irregularities in the proceedings of the trial court, either on the trial or otherwise. Questions of mere error and irregularities are generally reviewable only by writ of error or certiorari, for which a writ of habeas corpus is not a substitute. The questions before us are practically limited to such as go to the jurisdiction of the Supreme Court of the District. Ex parte Carll, 106 U.S. 521, 1 Sup.Ct. 535, 27 L.Ed. 288; Ex parte Yarbrough, 110 U.S. 651, 653, 654, 4 Sup.Ct. 152, 28 L.Ed. 274; Stevens v. Fuller, 136 U.S. 468, 477, 10 Sup.Ct. 911, 34 L.Ed. 461; Henry v. Henkel, 235 U.S. 219, 229, 35 Sup.Ct. 54, 59 L.Ed. 203; Glasgow v. Moyer, 225 U.S. 420, 428, 429, 32 Sup.Ct. 753, 56 L.Ed. 1147.

1. The Sufficiency of the Indictment.-- The Code of the District of Columbia (sections 815-818) provides the punishment for libel,...