Pierce v. Hudspeth, 2417.
| Decision Date | 06 March 1942 |
| Docket Number | No. 2417.,2417. |
| Citation | 126 F.2d 337 |
| Parties | PIERCE v. HUDSPETH, Warden. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Mark H. Adams, of Wichita, Kan., for appellant.
Summerfield S. Alexander, U. S. Atty., and Homer Davis, Asst. U. S. Atty., both of Topeka, Kan., for appellee.
Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.
This is an appeal from an order denying a writ of habeas corpus.
An indictment containing two counts charging violations of 18 U.S.C.A. § 320 was returned against James A. Pierce, hereinafter called petitioner, in the District Court of the United States for the Eastern District of Oklahoma. Petitioner was tried on the indictment on February 28, 1939. The jury returned a verdict of guilty on the second count and not guilty on the first count. On March 4, 1939, petitioner was sentenced to a term of imprisonment of 25 years in an institution of the penitentiary type to be designated by the Attorney General, and was committed to the custody of Hudspeth, Warden.
In his application for the writ, petitioner alleged that he employed J. N. Fortner, Esq., an attorney, to represent him at the trial on the indictment; that petitioner requested Fortner to challenge one of the jurors on the ground that he was unfriendly to petitioner; that Fortner refused; that petitioner conferred with two of his friends and concluded to obtain the services of other counsel, but failed to make the arrangement for other counsel; that at the time of the trial, petitioner was unaware that Fortner had theretofore been released from an asylum for the insane; that petitioner requested Fortner to recall a government witness, stating that such witness would give testimony showing petitioner's innocence; that Fortner failed to recall the witness; and that shortly after the trial, Fortner was returned to an asylum for the insane.
In the response, Hudspeth alleged that petitioner was capably and competently represented at the trial by two attorneys, W. E. Utterback and Fortner, and that Fortner was not insane at the time of the trial.
The docket entries of the trial show that both Fortner and Utterback entered their appearance as counsel for petitioner.
At the hearing on the application for the writ, petitioner appeared in person and by counsel. Petitioner testified that he employed Fortner to represent him at the trial on the indictment; that Fortner was committed to an insane asylum at Vinita, Oklahoma, one year after the trial; that he had no...
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