Price v. Johnston, No. 10671.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtGARRECHT, STEPHENS, and HEALY, Circuit
Citation144 F.2d 260
Docket NumberNo. 10671.
Decision Date09 September 1944
PartiesPRICE v. JOHNSTON, Warden.

144 F.2d 260 (1944)

PRICE
v.
JOHNSTON, Warden.

No. 10671.

Circuit Court of Appeals, Ninth Circuit.

August 3, 1944.

Rehearing Denied September 9, 1944.


Homer C. Price, in pro. per., for appellant.

Frank J. Hennessy, U. S. Atty., and A. J. Zirpoli, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.

Before GARRECHT, STEPHENS, and HEALY, Circuit Judges.

GARRECHT, Circuit Judge.

This is an appeal from an order of the United States District Court for the Northern District of California denying appellant's petition for a writ of habeas corpus.

On February 15, 1938, an indictment in four counts was returned by the Grand Jury of the trial court The District Court of the United States for the Eastern District of Michigan, Southern Division, charging appellant with the violation of Section 588b (a) and (b) of Title 12 U.S. C.A.

The appellant was arraigned before the trial court on February 18, 1938, at which time he was represented by counsel; he waived the reading of the indictment and pleaded "not guilty" to the charges alleged in the indictment.

Appellant was represented by counsel throughout the trial which commenced on April 19, 1938 and concluded on April 29, 1938 when the jury returned a verdict of "guilty" on all counts of the indictment. Appellant was also represented by counsel when the trial court rendered judgment on May 14, 1938, and pronounced sentence thereon.

Subsequently, appellant filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of California, Southern Division, invoking the Fourth and Fifth Amendments to the Constitution of the United States upon the ground that his residence was subjected to an allegedly illegal search and seizure and the materials obtained used in evidence against him, and upon the further ground that the trial judge was allegedly disqualified from hearing the prosecution. The district court denied the petition and on May 14, 1941, the appellant brought the matter to this court which heard the appeal and affirmed the lower court. A lengthy opinion discussing all the points presented was filed on February 11, 1942 and is reported at 125 F.2d 806, certiorari denied 316 U.S. 677, 62 S.Ct. 1106, 86 L.Ed. 1750.

Of all the issues raised by the appellant in this appeal, the only question properly before this court and not previously

144 F.2d 261
decided was appellant's contention that he was denied the aid of counsel at the trial, by reason of the fact that the Court ordered him to the witness stand in the absence of his counsel from the courtroom and allowed the United States attorney to question him over his objection. This statement is not supported by the evidence, as is apparent from the following excerpt from the record which shows that appellant resumed the witness stand after a court recess and the following occurred

"The Court. All right, go ahead.

"Mr. Babcock. By the way, what is the name of this individual you went to see, north of St. Johns, on January 7th?

"The Witness. Your Honor, I can't answer questions without being represented by counsel.

"The Court. What is the answer? Read it.

"(The answer was read by the reporter as above recorded.)

"The Court. Well, your counsel has voluntarily departed and he has been gone ten minutes. I have waited ten minutes before he came, and he isn't here yet. All right, you, Bailiff, you go out and bring the attorney in here.

"The Bailiff. If I can find him, your Honor.

"The Court. Look for him.

"(Mr. Payne and Mr. Solowich, defendant's attorneys, then returned to the court room)

"The Court. Never mind the apology. We have been waiting nearly fifteen minutes for you. Ask your...

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11 practice notes
  • Price v. Johnston, No. 111
    • United States
    • United States Supreme Court
    • May 24, 1948
    ...appeal, the opinion of the Circuit Court of Appeals being devoted to the matters decided by the District Court. Price v. Johnston, 9 Cir., 144 F.2d 260. This Court then denied a petition for certiorari, a petition which presented no issues differing from those raised in the lower courts. Pr......
  • Jones v. United States, No. 17688
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 16, 1964
    ...11 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). 12 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L. Ed. 158 (1932). 13 Price v. Johnston, 144 F.2d 260, 262 (9 Cir.), cert. denied, 323 U.S. 789, 65 S.Ct. 312, 89 L.Ed. 629 (1944), rehearing denied, 323 U.S. 819, 65 S.Ct. 558, 89 L.Ed. 650 (1945......
  • Jackson v. United States, No. 17746.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 13, 1964
    ...74, 177 F.2d 22, cert. denied, 338 U.S. 880, 70 S.Ct. 150, 94 L.Ed. 540 (1949); and such is the general rule, Price v. Johnston, 144 F.2d 260 (9 Cir.), cert. denied, 323 U.S. 789, 65 S.Ct. 312, 89 L. Ed. 629 (1944), rehearing denied, 323 U.S. 819, 65 S.Ct. 558, 89 L.Ed. 650 3 115 U.S.App.D.......
  • Price v. Johnston, No. 11334.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 23, 1947
    ...316 U.S. 677, 62 S.Ct. 1106, 86 L.Ed. 1750 and a like result was reached on appeal in the second proceeding, Price v. Johnston, 9 Cir., 144 F.2d 260. No appeal was taken from the denial of the third The instant petition, as originally filed, raised questions concerning the validity of the s......
  • Request a trial to view additional results
11 cases
  • Price v. Johnston, No. 111
    • United States
    • United States Supreme Court
    • May 24, 1948
    ...appeal, the opinion of the Circuit Court of Appeals being devoted to the matters decided by the District Court. Price v. Johnston, 9 Cir., 144 F.2d 260. This Court then denied a petition for certiorari, a petition which presented no issues differing from those raised in the lower courts. Pr......
  • Jones v. United States, No. 17688
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 16, 1964
    ...11 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). 12 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L. Ed. 158 (1932). 13 Price v. Johnston, 144 F.2d 260, 262 (9 Cir.), cert. denied, 323 U.S. 789, 65 S.Ct. 312, 89 L.Ed. 629 (1944), rehearing denied, 323 U.S. 819, 65 S.Ct. 558, 89 L.Ed. 650 (1945......
  • Jackson v. United States, No. 17746.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 13, 1964
    ...74, 177 F.2d 22, cert. denied, 338 U.S. 880, 70 S.Ct. 150, 94 L.Ed. 540 (1949); and such is the general rule, Price v. Johnston, 144 F.2d 260 (9 Cir.), cert. denied, 323 U.S. 789, 65 S.Ct. 312, 89 L. Ed. 629 (1944), rehearing denied, 323 U.S. 819, 65 S.Ct. 558, 89 L.Ed. 650 3 115 U.S.App.D.......
  • Price v. Johnston, No. 11334.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 23, 1947
    ...316 U.S. 677, 62 S.Ct. 1106, 86 L.Ed. 1750 and a like result was reached on appeal in the second proceeding, Price v. Johnston, 9 Cir., 144 F.2d 260. No appeal was taken from the denial of the third The instant petition, as originally filed, raised questions concerning the validity of the s......
  • Request a trial to view additional results

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