Price v. Johnston, No. 9820.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtGARRECHT, HANEY, and STEPHENS, Circuit
Citation125 F.2d 806
Decision Date11 February 1942
Docket NumberNo. 9820.
PartiesPRICE v. JOHNSTON, Warden.

125 F.2d 806 (1942)

PRICE
v.
JOHNSTON, Warden.

No. 9820.

Circuit Court of Appeals, Ninth Circuit.

February 11, 1942.


125 F.2d 807

Homer C. Price, in pro. per.

Frank J. Hennessy, U. S. Atty., and R. B. McMillan, and A. J. Zirpoli, Asst. U. S. Attys., all of San Francisco, Cal., for appellee.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

GARRECHT, Circuit Judge.

Homer C. Price filed a petition for writ of habeas corpus in the court below. As a basis for release on such writ he advanced two grounds:

(1) The residence of defendant-petitioner was subjected to an allegedly illegal search and his personal effects and papers were seized in violation of the Fourth Amendment to the Constitution of the United States, and the materials obtained as a result of such allegedly illegal search and seizure were used in evidence against him over his objection and in violation of the Fifth Amendment to the Constitution of the United States; and

(2) The trial judge was allegedly disqualified from hearing the prosecution by reason of prejudice and financial interest in the outcome thereof and that he was divested of jurisdiction by reason of an affidavit of prejudice filed by defendant against him under 28 U.S.C.A. § 25.

The court below issued an order to show cause, to which return was made, with attached exhibits. The petitioner then filed a "Motion to overrule Respondent's return and issue writ." An attorney was appointed to represent the petitioner in the court below. An order denying the application for writ of habeas corpus and dismissing the petition was entered January 14, 1941. The petitioner then made application for permission to proceed in forma pauperis,

125 F.2d 808
and thereafter filed in the same court a "Motion for Findings of Fact and Conclusions of Law." This motion the Court denied. The petitioner then filed an affidavit and request for permission to prosecute a petition for rehearing in said court in forma pauperis. The petition for rehearing was filed and denied by the court. Then followed an application for "bill of review" and motion for extension of time to file an appeal, both of which were denied by the District Court. Thereafter, petitioner appealed to this court from the order denying his application for writ of habeas corpus, and permission was granted him to proceed in forma pauperis

By statute, 28 U.S.C.A. § 461, and decision (Walker v. Johnston, 312 U.S. 275, 284, 61 S.Ct. 574, 85 L.Ed. 830) "the court below was required to grant the petitioner a hearing, if the petition, return and traverse raised substantial issues of fact." O'Keith v. Johnston, 9 Cir., 122 F.2d 554, 555. No hearing was had in this case, the court entering its order on the pleadings filed. The question before us is whether the court below erred in not granting a hearing. To state it differently, Did it appear "from the petition itself that the party" was "not entitled" to a writ, or did the application and traverse raise substantial issues of fact so as to require the court below to grant petitioner a hearing?

Bowen v. Johnston, 306 U.S. 19, 23, 59 S.Ct. 442, 444, 83 L.Ed. 455, states the scope and the purpose of the writ of habeas corpus in the following language: "Where the District Court has jurisdiction of the person and the subject matter in a criminal prosecution, the writ of habeas corpus cannot be used as a writ of error. The judgment of conviction is not subject to collateral attack. Cases cited. The scope of review on habeas corpus is limited to the examination of the jurisdiction of the court whose judgment of conviction is challenged. Cases cited. But if it be found that the court had no jurisdiction to try the petitioner, or that in its proceedings his constitutional rights have been denied, the remedy of habeas corpus is available. Cases cited." The petitioner-appellant concedes that the trial court had jurisdiction of his person and of the subject matter; he contends that jurisdiction was lost during the progress of the trial by reason of denial of certain constitutional rights to which he was entitled.

We turn to the first question. As a part of his brief in support of his petition for the writ, the petitioner asserts that he had no knowledge of the taking of his papers until they were produced in court. He was represented by counsel during the trial and objection was made to the introduction of these papers in evidence, which was overruled by the trial judge and the papers were introduced. The Fourth and Fiof the United States, which are often spoken of by laymen as a unit, were in reality designed to counter two separate evils. The Fourth Amendment secures the people against unreasonable searches and seizures; the clause of the Fifth Amendment in which we are interested provides that no person "shall be compelled in any Criminal Case to be a witness against himself, * * *." As a result of efforts, both legal and illegal, to enforce the Eighteenth Amendment, the Fourth and Fifth Amendments were invoked by saint and sinner alike and the law reports of the period are replete with decisions defining the rights of the people under these latter Amendments. In these criminal prosecutions the Fourth Amendment is called into play through the medium of a motion to suppress the evidence illegally obtained and a motion for a return of the illegally seized matter, seasonably made. Cogen v. United States, 278 U.S. 221, 223, 49 S.Ct. 118, 73 L.Ed. 275; O'Brien, Man.Fed.App.Proc., 3d ed., p. 84. The motions properly are made prior to the trial; but, where the defendant is unaware of the seizure, as Price here asserts he was, the motions should be made at the earliest possible moment. Cf. Gouled v. United States, 255 U.S. 298, 305, 41 S.Ct. 261, 65 L.Ed. 647. The pleadings here do not disclose at either of these motions were made. The Fifth Amendment is invoked by an objection to the effect that the defendant objects to the use of illegally obtained evidence on the grond that he cannot be compelled to be a witness against himself. See Gouled v. United States, supra, 255 U.S. 298, 306, 41 S.Ct. 261, 65 L. Ed. 647. The pleadings here do not disclose that any objection was made on that ground. "It has long been settled," said the Supreme Court in Marron v. United States, 275 U.S. 192, 194, 48 S.Ct. 74, 75, 72 L.Ed. 231, "that the Fifth Amendment protects every person against incrimination by the use of evidence obtained through search or seizure made in violation

125 F.2d 809
of his rights under the Fourth Amendment."

While it does not appear from the record, for the purpose of this discussion we assume (without deciding it to be a fact) that the admissibility of the allegedly illegally procured evidence was properly called to the attention of the trial judge and that the provisions of the Fourth and Fifth Amendments were invoked by the defendant. We may assume, also, for the purpose of more sharply defining the problems, and solely for that purpose, that the trial court erred in admitting the materials into evidence, and that the question was saved. It was then incumbent upon defendant after conviction to appeal — to bring his questions before an appellate court in a direct attack on the judgment under which sentence was pronounced. No appeal from the judgment was perfected and the judgment was carried into execution. At this point it is advisable to again stress that appellant was represented by an attorney throughout the trial, and as the petitioner did not allege the time of his discharge of the attorney, if he was discharged prior to the expiration of time for appeal from the judgment, it must be presumed that he was aware of the necessity of perfecting an appeal if he desired to contest the judgment of conviction.

If the trial court erred in receiving the materials into evidence, that error was one that could, and should, have been corrected on appeal — a direct attack should have been made. It is the rule that ordinary errors occurring during the course of a trial, such as admission or exclusion of evidence, will not be otherwise examined than on appeal. Failure to appeal, in all ordinary cases, precludes any setting aside of a judgment of a court possessing jurisdiction of the person and of the subject matter in a cause. These legal principles are not controverted by...

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58 practice notes
  • Commonwealth of Pa. v. Local U. 542, Int. U. of Op. Eng., Civ. A. No. 71-2698.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • December 4, 1974
    ...personally. Parker Precision Products Co. v. Metropolitan Life Insurance Co., 407 F.2d 1070, 1077-78 (3d Cir. 1969); Price v. Johnston, 125 F.2d 806, 811 (9th Cir.), cert. denied, 316 U.S. 677, 62 S.Ct. 1106, 86 L.Ed. 1750 (1942). "A judge must have neighbors, friends and acquaintances, bus......
  • Duplan Corporation v. Deering Milliken, Inc., Civ. A. No. 71-306
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • June 12, 1975
    ...Barrel Co., 230 U.S. 35, 43-44, 33 S.Ct. 1007, 57 L.Ed. 1379 (1913); Tucker v. Kerner, 186 F.2d 79, 84 (7th Cir. 1950); Price v. Johnston, 125 F.2d 806, 811 (9th Cir. 1942), cert. denied, 316 U.S. 677, 62 S.Ct. 1106, 86 L.Ed. 1750; Refior v. Lansing Drop Forge Co., 124 F.2d 440, 444-45 (6th......
  • Association of Nat. Advertisers, Inc. v. F.T.C., No. 79-1117
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 16, 1980
    ...a referee is not disqualified from conducting a trial because he earlier came to a judgment that was reversed. See also Price v. Johnston, 125 F.2d 806, 811 (9th Cir.), cert. denied, 316 U.S. 677, 62 S.Ct. 1106, 86 L.Ed. 1750 (1942), rejecting disqualification under 28 U.S.C. § 25, when the......
  • Price v. Johnston, No. 111
    • United States
    • United States Supreme Court
    • May 24, 1948
    ...no reference to this point; its opinion was devoted exclusively to the matters raised in the original petition. Price v. Johnston, 9 Cir., 125 F.2d 806. Included in the numerous claims in his attempt to secure a writ of certiorari in this Court was the reiteration that Donner's change in te......
  • Request a trial to view additional results
58 cases
  • Commonwealth of Pa. v. Local U. 542, Int. U. of Op. Eng., Civ. A. No. 71-2698.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • December 4, 1974
    ...personally. Parker Precision Products Co. v. Metropolitan Life Insurance Co., 407 F.2d 1070, 1077-78 (3d Cir. 1969); Price v. Johnston, 125 F.2d 806, 811 (9th Cir.), cert. denied, 316 U.S. 677, 62 S.Ct. 1106, 86 L.Ed. 1750 (1942). "A judge must have neighbors, friends and acquaintances, bus......
  • Duplan Corporation v. Deering Milliken, Inc., Civ. A. No. 71-306
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • June 12, 1975
    ...Barrel Co., 230 U.S. 35, 43-44, 33 S.Ct. 1007, 57 L.Ed. 1379 (1913); Tucker v. Kerner, 186 F.2d 79, 84 (7th Cir. 1950); Price v. Johnston, 125 F.2d 806, 811 (9th Cir. 1942), cert. denied, 316 U.S. 677, 62 S.Ct. 1106, 86 L.Ed. 1750; Refior v. Lansing Drop Forge Co., 124 F.2d 440, 444-45 (6th......
  • Association of Nat. Advertisers, Inc. v. F.T.C., No. 79-1117
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 16, 1980
    ...a referee is not disqualified from conducting a trial because he earlier came to a judgment that was reversed. See also Price v. Johnston, 125 F.2d 806, 811 (9th Cir.), cert. denied, 316 U.S. 677, 62 S.Ct. 1106, 86 L.Ed. 1750 (1942), rejecting disqualification under 28 U.S.C. § 25, when the......
  • Price v. Johnston, No. 111
    • United States
    • United States Supreme Court
    • May 24, 1948
    ...no reference to this point; its opinion was devoted exclusively to the matters raised in the original petition. Price v. Johnston, 9 Cir., 125 F.2d 806. Included in the numerous claims in his attempt to secure a writ of certiorari in this Court was the reiteration that Donner's change in te......
  • Request a trial to view additional results

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