Person v. Morrow
| Decision Date | 04 January 1940 |
| Docket Number | No. 1917.,1917. |
| Citation | 108 F.2d 838 |
| Parties | PERSON v. MORROW, Sheriff. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Hal C. Davis, of Topeka, Kan., for appellant.
Morton B. Cole, Asst. Atty. Gen. , for appellee.
Before PHILLIPS and BRATTON, Circuit Judges.
In 1934, a grand jury in Mason County, West Virginia, returned four indictments against F. V. Person, hereinafter called petitioner. In 1938, while petitioner was serving a sentence in the federal penitentiary at Leavenworth, Kansas, the Governor of West Virginia made the conventional request upon the Governor of Kansas for the arrest of petitioner as a fugitive from justice and for his delivery to the authorities of West Virginia for return to that state to answer such charges. Copies of the indictments were attached to the request. The Governor of Kansas honored the request and issued a warrant of extradition. Thereafter, at the conclusion of the sentence being served in the federal penitentiary, the sheriff of Leavenworth County, Kansas, hereinafter called respondent, took petitioner into custody and detains him under such process. Petitioner instituted a proceeding in habeas corpus in the district court of the state. The petition was denied. An appeal to the supreme court was perfected but later dismissed. Petitioner then filed this proceeding in habeas corpus to secure his discharge. The writ was sought on the ground that the indictments were void and stated no offense under the laws of West Virginia; that petitioner was therefore not a fugitive from justice; and that he was being detained in violation of his rights under section 2 of Article 4 of the Constitution of the United States U.S. C.A., and of section 5278, Revised Statutes, 18 U.S.C.A. § 662. By return, respondent pleaded the indictments, the request for extradition, and the warrant of extradition. The court heard evidence; made findings of fact and conclusions of law in which it was found and concluded that three of such indictments were void but that the fourth was valid; and entered an order denying the writ. Petitioner appealed.
It is contended that the indictment which the court held valid and which is now in question is void for the reason that if any offense is charged it is charged in the disjunctive. The pertinent part of section 3260, chapter 32, Code of West Virginia Annotated 1932, provides that any person who, having devised or intending to devise a scheme or artifice to defraud a person or persons by or through the sale of any securities as defined in a certain statute, shall for the purpose of executing or attempting to execute such scheme or artifice commit any overt act within the state, shall be guilty of a felony. The statute further provides that an indictment under its provisions shall be sufficient in the form there set forth. The material part of the form is in this language:
"The grand jurors of the State of West Virginia * * * upon their oaths, present that ____ as ____ (issuer, dealer, salesman, agent, or officers as the case may be), having devised or intending to devise a scheme or artifice to defraud, by or through the sale of certain securities, to-wit (set out the security or securities here as defined in section two (§ 3244) of this article), and who for the purpose of executing or intending to execute such scheme or artifice to defraud, on the ____ day of ____, 19__, and in the county of ____, did unlawfully and feloniously induce ____ to subscribe and pay for ____ shares of the capital stock * * *."
Following the language of the statute and of the form set forth, the indictment in question charges that petitioner "having devised or intending to devise a scheme or artifice to defraud, by or through the sale of certain securities * * *" induced a named person to purchase such securities for a stated price, and that they were utterly worthless and of no value. Petitioner relies upon State v. Charlton, 11 W.Va. 332, 27 Am.Rep. 603; State v. Miller, 68 W.Va. 38, 69 S.E. 365; and State v. Dawson, 117 W.Va. 125, 184 S.E. 253. It was held in those cases that an indictment is faulty which charges in the disjunctive two or more offenses or two or more modes of committing an offense. But in all of those cases...
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