Spencer v. Cox, 12657.

• Decision Date: 27 January 1944
• Docket Number: No. 12657.,12657.
• Citation: 140 F.2d 73
• Parties: SPENCER v. COX, Warden.
• Court: U.S. Court of Appeals — Eighth Circuit

140 F.2d 73 (1944)

SPENCER v. COX, Warden.

No. 12657.

Circuit Court of Appeals, Eighth Circuit.

January 27, 1944.

Arthur W. Allen, of Washington, Ind., for appellant.

Earl A. Grimes, Asst. U. S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., of Kansas City, Mo., on the brief), for appellee.

Before THOMAS and JOHNSEN, Circuit Judges, and MOORE, District Judge.

MOORE, District Judge.

This is an appeal from a judgment of the District Court of the Western District of Missouri, denying appellant's application for discharge on a writ of habeas corpus. Appellant had been convicted of counterfeiting in the District of Minnesota and has alleged as grounds for his application for habeas corpus that the indictment is fatally defective in that it fails to charge a crime in such definite terms as will constitute a bar to a second trial and conviction for the same crime. The petitioner was permitted to sue in forma pauperis and was represented here and in the Court below by counsel appointed by the Court. In addition to the argument by counsel, petitioner has insisted on presenting his own views of the case in a personally-prepared brief.

Petitioner's counsel urges as the sole ground for the relief sought that the indictment is fatally defective because it fails to set out the alleged counterfeited Federal Reserve Notes in haec verba, or in fact to describe them in any manner except by reference to attached exhibits consisting of photostatic copies of the counterfeited notes, which are, by reference, made part of the indictment. It is argued that the exhibits might become detached and that the indictment would then state no particulars which could serve to bar another prosecution for the same crime. No authority is cited in support of the proposition.

The petitioner, in a habeas corpus proceeding attacking the sufficiency of an indictment, as the basis for his petition must prove that the record affirmatively shows the Court's lack of jurisdiction, not merely that the record fails to affirmatively show the Court's jurisdiction. Archer, Warden, v. Heath, 9 Cir., 30 F.2d 932; Cuddy, Petitioner, 131 U.S. 280, 9 S.Ct. 703, 33 L.Ed. 154; United States v. Pridgeon, 153 U.S. 48, 14 S.Ct. 746, 38 L.Ed. 631; Knewel v. Egan, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036. It is important to observe the difference between the correct rule and its converse. Conceding the validity of petitioner's argument, the defect here would be merely a lack of facts sufficient to support jurisdiction, rather than a positive showing of lack of jurisdiction. The defect, if any, could have been corrected by a motion for a bill of particulars or could have been attacked on appeal or writ of error rather than in this collateral proceeding. The writ of habeas corpus is not a substitute for appeal or writ of error. Huntley v. Schilder, 10 Cir., 125 F.2d 250; Moore v. Aderhold, 10 Cir., 108 F.2d 729; Garrison v. Hudspeth, 10 Cir., 108 F.2d 733; Brock v. Hudspeth, 10 Cir., 111 F.2d 447; Knight v. Hudspeth, 10 Cir., 112 F.2d 137; Rosenhoover v. Hudspeth, 10 Cir., 112 F.2d 667; Ex parte Parks, 93 U.S. 18, 23 L.Ed. 787; Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; Matter of Gregory, 219 U.S. 210, 31 S.Ct. 143, 55 L.Ed. 184; Glasgow v. Moyer, 228 U.S. 420, 32 S.Ct. 753, 56 L.Ed. 1147; Henry v. Henkel, 235 U.S. 219, 35 S.Ct. 54, 59 L.Ed. 203; Rodman v. Pothier, 264 U.S. 399, 44 S.Ct. 360, 68 L.Ed. 759; Goto et al. v. Lane, 265 U.S. 393, 44 S.Ct. 525, 68 L.Ed. 1070; Knewel v. Egan, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036; Hall v. Johnston, 9 Cir., 86 F.2d 820.

But, the simplest, most direct answer to petitioner, and one which is decisive of the issue, is that the photostats are by reference made part of the pleading and are integrated into the indictment complained of. The pertinent language of Count 3 of that indictment reads: "Otis Spencer, Ira A. Gorham and J. Ordean Capretz, then and there being hereafter referred to as defendants, unlawfully, wilfully, feloniously, and with intent to defraud, pass, utter and publish as true, to one Helen Crandall, a Clerk of the Crandall Grocery, a certain falsely made and counterfeited obligation of the United States, a photostatic copy of which, marked Exhibit B, is attached and hereby made a part hereof, as though the same was fully set out herein." (Emphasis supplied)

We take it that there is no question but that the photostatic reproduction is a proper medium for introducing the counterfeited notes into the pleadings. Had reference been made to the attached exhibits but absent a clause incorporating the exhibits into the pleadings, the situation might be worthy of further consideration. We are of the opinion that each count of the indictment under consideration properly charges a crime in such terms as to give the court jurisdiction to try the same, Myers v. United States, 8 Cir., 15 F.2d 977; Brown v. United States, 8 Cir., 143 F. 60, 74 C.C.A. 214; Horn v. United States, 8 Cir., 182 F. 721-727, 105 C.C.A. 163; Rinker v. United States, 8 Cir., ...