Smith v. United States

Decision Date27 November 1956
Docket NumberNo. 16068.,16068.
Citation238 F.2d 925
PartiesJohnny Ray SMITH, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

William B. Moore, Jr., Montgomery, Ala., for appellant.

Hartwell Davis, Robert E. Varner, Asst. U.S. Attys., Montgomery, Ala., for appellee.

Before HUTCHESON, Chief Judge, and RIVES and BROWN, Circuit Judges.

HUTCHESON, Chief Judge.

This is the appellant's second appearance in this court in support of his efforts to obtain Sec. 22551 relief from a sentence of thirty years imposed on him on November 21, 1949, on his plea of guilty to an information2 charging him with violation of the Kidnapping Act, Sec. 1201(a), Title 18 U.S.C.

When he was first here in propria persona, the appeal was from an order denying his motion without a hearing on the ground that the files and records conclusively showed that he was entitled to no relief. This court,3 quoting freely from the motion and pointing out that it set up matter de hors the record, the truth of which could be determined only by a hearing and an opportunity to prove the facts alleged, reversed the order and remanded the cause "for hearing under Sec. 2255".

This time the appeal is from an order entered by Judge Johnson, successor to Judge Kennamer, deceased, after a full hearing had been afforded to the movant with ample opportunity to present his claims and support them by evidence and argument, and movant is represented by court appointed counsel, Wm. B. Moore,4 of Montgomery, Alabama, a trial advocate of ability and standing, who brought to the conduct of the cause a high order of skill and ability and conducted it as an advocate should with diligence, earnestness, and devotion.

In addition, the district judge, affording the movant and his counsel and the government and its counsel full time and all reasonable and proper opportunity to obtain and present all pertinent evidence, conducted the hearings and heard the arguments with a judicial patience and detachment, as commendable as it is rare in cases of this kind, and, the hearing concluded, formed and stated his findings of fact and conclusions of law on the issues as he saw them with an eye single to the truth and justice of the case.

This court therefore approaches the consideration and disposition of this appeal in the confidence that all of the evidence having a bearing on the issues was developed below, that the record therefore presents not a partial and distorted, but a complete and true picture of what occurred in the critical period before and at the time of the taking of the waivers, the entry of the movant's plea and the imposition of his sentence, and that because of the thoroughness and conscientiousness with which the case has been developed and presented below and here, a concise and simple statement of the undisputed facts5 and of the controlling principles will suffice for its decision.

Influenced no doubt by the vigor with which movant presses his claims of physical and mental unfitness and his charges that Lill had made false statements to the judge as to what movant had told him as to his criminal record and activities, and perhaps to some extent misled by the importance attached, in the opinion of this court on the former appeal, to the charge that Lill had made false statements, the district judge, in determining the over all question presented by the motion, whether movant was entitled to relief, did not consider the condition of the defendant, Lill's unauthorized and impermissible conference with the district judge, the haste with which the movant was rushed to trial and sentenced, and the other pertinent circumstances as separate factors entering into and bearing on the determination of the question. Instead, concluding that there were three separate and distinct questions for decision, he saw and stated them as follows.

The first was whether movant's physical and mental condition at the time of the making of his waivers and the entry of his plea was itself such that he was because thereof in no shape, without the assistance of counsel, to undergo the strains and rigors of a court appearance, nor could he intelligently make or fully appreciate the gravity of the decisions as to waivers and plea he was called upon to make in connection with the grave and serious charge he was called upon to answer to. On this issue, the district judge found against movant's contention.

The second, as the district judge understood it, was whether the Agent, John Lill, in his interview and conference with Judge Kennamer in his chambers outside of the hearing of the movant and prior to the time the plea of guilty was entered, made false statements as to what Smith had told him of his prior criminal record and activities. Finding specifically that everything Lill had told Judge Kennamer on this occasion was true and correct, he decided this issue against movant.

The third issue, which had been raised by amendment, with leave of the court, was whether the information charged an offense punishable by death and therefore, under rule 7(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., providing that offenses punishable by death could be prosecuted only by indictment, the district attorney had no right to file the information, the defendant no right to waive the indictment and consent to the information, and the court was therefore without jurisdiction to hear and adjudge. On this issue the district judge, on the authority of United States v. Parker, 3 Cir., 103 F.2d 857 and United States v. Parrino, 2 Cir., 180 F.2d 613, held: that, since under the undisputed facts Spearman, the victim of the kidnapping, was released unharmed, the offense with which movant was charged was not, it could not be, an offense punishable by death; that the district attorney had the right to proceed by information instead of indictment; the defendant had the right to consent thereto; and the district judge had jurisdiction in the cause.

It is our opinion that upon these issues thus separately posed, which the district judge erroneously believed to be all the issues presented for decision, the evidence furnished ample support for his findings of fact and law.

While upon the first issue, as the judge framed it, there was evidence showing that Smith had certainly suffered some injuries and had undergone great physical hardships in the course of his flight and before his arrest, and he was laboring under great strain, mental and physical, when in the manner shown in the undisputed evidence he was put upon his trial, the evidence certainly supports the finding of the district judge that at the time of his sentencing his condition was neither mentally nor physically such that, merely because thereof, it was a denial of due process to put him on trial.

Upon the second issue, which the district judge stated as whether Lill made false statements to Judge Kennamer about Smith's statements to him as to his previous convictions and offenses, we agree with the district judge that there was ample basis in the evidence for his finding that Smith did not prove his charges and that neither intentionally nor unintentionally did Lill make false statements of fact to Judge Kennamer in the course of his conference with him in chambers.

Upon the third issue, we think it crystal clear, not only upon the teachings of the cases cited by the district judge, to which may be added Brown v. Johnston, 9 Cir., 126 F.2d 727, and United States v. Parrino, 2 Cir., 203 F. 2d 284, which, though dealing with indictments instead of informations, decided the precise question involved here, whether under facts similar to those here the offense charged was a capital offense, but also, the cases aside, upon a consideration of the controlling principles, that his decision on this issue was right. Indeed, we think that a different decision would have marked a return to views6 once prevailing but long since outworn and abandoned, that in a criminal case every "i" must be dotted, every "t" crossed. The provision of the Fifth Amendment regarding prosecution by indictment preserves merely a right which a defendant may waive, Barkman v. Sanford, 5 Cir., 162 F.2d 592, and Congress, by the definiteness and clear provision of Rule 7(a) has specifically conferred upon the district attorney without leave or consent of the court, provided only the defendant consents in open court to waive indictment and proceed by information, the absolute and unqualified right, the equally absolute and unqualified duty, to decide whether to so prosecute any case in which the death penalty was not sought or could not be imposed.

Under the authority so conferred, when the district attorney elected to proceed by information with the defendants' consent thereto, the filing of the information conferred jurisdiction upon the court to hear and determine the offense charged in it and to impose upon the defendant any punishment except death. The fact in this case that, under the undisputed evidence, Spearman was released unharmed, making it impossible to impose the death penalty, made it entirely proper, under the authorities above cited, to proceed by information consented to by the defendants. Indeed, we think that if Spearman had not been released unharmed and the United States District Attorney could have proceeded against him by indictment and if he had been convicted, and the jury so recommended, the death penalty could have been imposed upon him, it was still within the competence of the district attorney, if he elected to do so, not to proceed by indictment but with the defendant's consent by information, and when he elected to so proceed, the filing of the information would have conferred full and complete jurisdiction on the court to proceed with the prosecution as for a non-capital offense.

When it comes to the controlling question, however, which the motion presents, whether under the undisputed facts...

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