Strand v. Schmittroth

Decision Date03 December 1957
Docket NumberNo. 14733.,14733.
Citation251 F.2d 590
PartiesBert STRAND, Sheriff of San Diego County, State of California, Appellant, v. William SCHMITTROTH, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit



James Don Keller, Dist. Atty., San Diego County, Claude B. Brown, Deputy, San Diego, Cal., for appellant.

Edmund G. Brown, Atty. Gen., State of California, Clarence A. Linn, Arlo E. Smith, Deputy Attys. Gen., State of California, for appellant.

Oscar F. Irwin, San Diego, Cal., for appellee.

Laughlin E. Waters, U. S. Atty., Louis Lee Abbott, James T. Barnes, Los Angeles, Cal., for U. S. A., amici curiæ.


Writ of Certiorari Dismissed December 3, 1957. See 78 S.Ct. 258.

JAMES ALGER FEE, Circuit Judge.

This case portrays the effort of a felon in virtue of his conviction of serious crimes against the United States to seek sanctuary, because of that conviction and sentence, from prosecution by the State of California for offenses charged to have been committed by him against members of that community. The United States District Court freed Schmittroth, upon his own petition, from the physical custody of the state officer who was holding him for trial, and released him to continue his depredations under federal protection among people of the very state which had been enjoined from prosecuting him. This appeal from the order of release is brought by the Sheriff in the interest of law enforcement by California.

This cause was heard first by a panel of this Court and presently by the Court en banc at the request of two judges of the original panel. As a result, we hereby withdraw and cancel the original expression in this case1 and substitute this opinion therefor.

The facts are simple. Schmittroth was charged by the first complaint filed in the state court on September 15, 1953, with uttering checks bearing a false name. The offense is alleged to have occurred on August 27, 1953. In January, 1955, before the United States District Court, Schmittroth pleaded guilty to a federal criminal charge of transporting a false security in interstate commerce, apparently committed after the acts charged in the complaint in the state court. A sentence of ten years imprisonment was imposed. Thereupon, execution of the sentence was suspended and he was placed on probation by the federal court for five years and released from physical custody. The probation order is entitled "United States District Court for the Southern District of California." It provides for supervision of Schmittroth by the probation officer of that District, and contains the clause: "The Probation officer will arrange to transfer supervision to the Northern District of California at your convenience." During the period of probation, the United States District Court for the Southern District of California "may issue a warrant and revoke probation." The order further provides: "You are subject to arrest by the probation officer without a warrant."

After Schmittroth had been released from physical custody by the federal court upon the probation order above outlined, he was arrested by the Sheriff2 on the previous state complaint above mentioned. Thus the body of Schmittroth was taken into manual possession by authority of the State of California and remained so during the following events. While so held, Schmittroth caused to be filed in the same federal court which had released him previously a petition for a writ of habeas corpus. An order to show cause was issued to the Sheriff, who filed return. Upon hearing, an order was issued by the United States District Court, commanding the Sheriff to release the prisoner. Schmittroth was released. After other proceedings, a final order was entered and this appeal was filed.

Two technical matters must be disposed of here. First, the timeliness of the appeal should be determined. Second, the claim that the issue is moot must be settled.

The appeal was timely. Although Schmittroth was actually released on February 17, 1955, as a result of the direction of the court, final judgment based upon findings of fact and conclusions of law was not entered of record until March 11, 1955. Such a final entry was contemplated and directed by the court upon the date of release. The notice of appeal filed March 16, 1955, covered both order and the judgment and was timely.3 Besides, appeal could be taken from the later judgment, at the date of the notice, if the entry were void.

It is suggested that this appeal cannot be reconsidered, since this Court has been advised that Schmittroth has been arrested, tried an convicted for an offense subsequent to any here involved by the State of California and is now in custody under a valid state commitment at Folsom Prison. But the federal trial judge, before whom this habeas corpus proceeding was presented, took the position that Schmittroth was immune from state prosecution or imprisonment so long as he remained on probation from the federal court. If this position were correct, habeas corpus would now lie to free Schmittroth from Folsom. Likewise, the prosecution of the charge from which the United States District Court freed him in this proceeding would be enjoined as long as Schmittroth remained a federal probationer. The cause is not moot.

The merits of the cause will now be considered. This general subject has been treated in a number of decisions with disregard of the fundamental principles. Utter confusion in the authorities has resulted. To attain clarity, an analysis of the basic doctrines will be made and conclusions drawn therefrom, in order to give scope to an authoritative pronouncement.

In the proceeding brought by Schmittroth, the United States District Court went upon the theory that the state court could not prosecute or incarcerate him without obtaining the consent of the federal court which had freed him on probation and of the United States. The United States District Court concluded (1) that petitioner had a right therein to a petition for a writ of habeas corpus, there to question the legality of his confinement by the state, (2) that petitioner was incarcerated by the state "without any jurisdiction over the body of petitioner in violation of petitioner's constitutional rights," and (3) that petitioner was "in the exclusive jurisdiction of the United States, subject to the orders of the United States Probation Department for the duration of petitioner's probation."

The emphasis of this recital is placed upon the lack of authority and jurisdiction of the state court. This point will therefore be first considered. However, it must never be forgotten that the jurisdiction of the United States District Court is the decisive factor in this case. If that tribunal had no power to entertain the petition, it would be of no consequence whether the state courts were proceeding without authority.

In reviewing the position of one of two sovereigns in a contest over the right to try or incarcerate an alleged offender against each, three factors may have great weight, severally or cumulatively, in various situations. These are (a) consent of one sovereign, (b) the doctrine of comity between courts of separate sovereigns, and (c) actual physical possession of the body of the supposed offender by officers of one sovereign.

Consent may play such a role in a contest over the right to prosecute and punish an alleged offender that a meticulous analysis of this element is required.

The consent of the accused is of no consequence. His acquiescence, approval or resistance cannot affect the choice of the forum.4 His consent while in physical custody of another sovereign cannot confer jurisdiction upon any tribunal. Refusal upon his part to participate in the proceedings against him in any court is of no avail.5 It is assumed that he is unwilling to be prosecuted anywhere. Physical presence of defendant at all criminal proceedings is an almost universal requirement in American courts.6 Such presence is obtained and generally assured by arrest and confinement, which is absolute, or by release on bail, which does not guarantee the physical presence, but which may be revoked in order to secure physical presence.

The accused is the unwilling actor.7 All the proceedings are without his consent and over his protest. Where two sovereigns each claim the right to proceed against him, the respective officers dispose of the matter without consulting him. He has no right or privilege to be consulted or heard.8 In practice, he is not consulted, since it is properly assumed that the sovereigns only are concerned with disposition of the criminal charges.

It is well established that a sovereign, which has the paramount right to proceed with trial and sentence and which at the same time has custody of a defendant, may yield up the body to another sovereign and consent to trial of the defendant upon a subsequent charge by the latter and, of course, upon a prior charge. Likewise, where the defendant in a proceeding in a tribunal is a parolee, probationer or on bail from another jurisdiction and court, the sovereign in whose court the right to proceed is lodged by possession of the body or otherwise may nevertheless yield to the officers of another sovereign.

Actual consent of one sovereign, whether express or implied, to proceedings in another forum wipes out all distinctions and is conclusive of all questions. If consent can be found, there need be no search for other and perhaps better grounds. Abstruse reasoning into bases of jurisdiction and similarly difficult propositions is avoided. Many opinions reach the correct result upon this ground and thereby slur the actual basis of the decision.9

The consent of the sovereign which has no paramount right to proceed and which does not...

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