Tinkoff v. Zerbst, 1379.

Decision Date02 January 1936
Docket NumberNo. 1379.,1379.
Citation80 F.2d 464
PartiesTINKOFF v. ZERBST.
CourtU.S. Court of Appeals — Tenth Circuit

James A. McClure, of Topeka, Kan., and Paysoff Tinkoff, of Chicago, Ill., pro se., for appellant.

D. C. Hill, Asst. U. S. Dist. Atty., of Topeka, Kan., for appellee.

Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges.

LEWIS, Circuit Judge.

This is an appeal by Tinkoff whose petition for writ of habeas corpus was denied by the court below. He was tried and found guilty by the District Court for the Northern District of Illinois on two counts of an indictment. It is here stipulated that Tinkoff is an attorney at law and resident of the state of Illinois; that on June 14, 1932, he was jointly indicted with one Newman for wilfully attempting to defeat and evade Federal income taxes for 1928 of W. J. Newman Company, a corporation, and W. J. Newman individually; that he was convicted on two counts, and on July 30, 1934, he was sentenced to imprisonment for a term of eighteen months in the Federal penitentiary at Leavenworth, Kansas; that thereafter and in due time, on October 27, 1934, he perfected an appeal to the Circuit Court of Appeals for the Seventh Circuit; that prior to his trial and until December 6, 1934, he was at large on bail bond; on December 5, 1934, he was ordered to give an appearance bond by noon of December 6, 1934; that while in default of giving said bond within the time limited the Marshal took him into custody, transported him to Leavenworth against his will, and delivered him into the custody of respondent warden for the purpose of executing said sentence, where he has since been held; that thereafter and on April 25, 1935, the United States Circuit Court of Appeals for the Seventh Circuit dismissed Tinkoff's appeal 77 F.(2d) 1016 for want of prosecution on motion of the United States and mandate issued on May 16, 1935, to the District Court wherein he was convicted.

Tinkoff's commitment to the penitentiary on December 6, 1934, was in violation of his rights. Having appealed from the judgment of conviction and sentence he was entitled to go at large on a bail bond reasonable in amount if he could give satisfactory surety for his appearance, until final judgment against him, and if he could not furnish such bond it was his right to be only deprived of his liberty by the United States Marshal until such final judgment, usually by detention in jail. He could not without his consent be put in a penitentiary in execution of his sentence during that time. Rossi v. United States (C.C.A.) 11 F.(2d) 264; Bennett v. United States (C. C.A.) 36 F.(2d) 475; Ex parte Harlan (C. C.) 180 F. 119; Hudson v. Parker, 156 U. S. 277, 15 S.Ct. 450, 39 L.Ed. 424; Rose ex rel. Carter v. Roberts (C.C.A.) 99 F. 952. The principle under consideration is embodied in rule 5 of the Rules of Practice and Procedure in Criminal Cases adopted by the Supreme Court (28 U.S.C.A. following section 723c), but which became effective after the verdicts and judgment in this case.

It further appears in the record brought here that Tinkoff was engaged in the preparation of a bill of exceptions taken to the trial proceedings in the case in which he was convicted at the time the United States Marshal took him in custody and transported him to Leavenworth, Kansas, and that after his incarceration on account of the strict regulations of the penitentiary in which he was held he could not within the time limited procure the services of counsel to complete and file in the trial court his said bill of exceptions, nor was he permitted to have the necessary time and facilities in the institution to complete them himself, although he made every effort to do so. Because of the facts so stated the record that went up on appeal contained nothing that occurred throughout the trial. A memorandum opinion of the Court of Appeals 77 F.(2d) 1016 shows that the United States moved to dismiss for want of prosecution. It is further stated in that opinion that because of Tinkoff's insistence that he be permitted to prepare the papers necessary to the prosecution of his appeal the execution of the sentence was stayed until the 7th day of December, 1934; that no bill of exceptions had in that time been settled and none had been signed; that the term at which the sentence was pronounced had expired; and that time to file the bill of exceptions was not extended beyond the term at which judgment was pronounced. Thereupon the motion to dismiss was sustained.

The obstruction of Tinkoff's efforts to complete his bill of exceptions himself immediately after he was wrongfully confined in the penitentiary and the obstruction during that time of sufficient opportunity to obtain outside counsel for the purpose of having him prepare and file the bill of exceptions is relied on here as ground for relief also. The case of Briggs v. White (C.C.A.) 32 F.(2d) 108, supports that contention.

The Assistant District Attorney for Kansas appearing for appellee brought here a complete transcript, as he represented, of the trial proceedings and tendered it for our examination; but it is well settled that a petition for the writ can not be resorted to for the correction of errors. A writ of error, now called an appeal, is the procedure for that purpose. Moreover, inquiry is confined to the question of...

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12 cases
  • Canfora v. Davenport
    • United States
    • U.S. District Court — District of New Jersey
    • November 17, 1972
    ...389 U.S. 929, 88 S.Ct. 290, 19 L.Ed.2d 280 (1967). See also Baker v. Sard, 137, 139, 420 F.2d 1342 (D.C.Cir. 1969); Tinkoff v. Zerbst, 80 F.2d 464 (10th Cir. 1936); Principe v. Ault, 62 F.Supp. 279 (N.D.Ohio 1945). It is noted, however, that the Bail Reform Act of 1966, 18 U.S.C. §§ 3146-31......
  • Brown v. Looney
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • November 14, 1957
    ...20 A.L.R.2d 965, certiorari denied 340 U.S. 897, 71 S.Ct. 234, 95 L.Ed. 650; Boykin v. Huff, 73 App. D.C. 378, 121 F.2d 865; Tinkoff v. Zerbst, 10 Cir., 80 F.2d 464. 1 The trial court found that the petitioner failed to file an election not to enter upon the service of his sentence pending ......
  • People v. Serrato
    • United States
    • California Court of Appeals Court of Appeals
    • November 10, 1965
    ...with the presentation of the record on appeal some three years after the judgment of conviction was entered. Likewise, in Tinkoff v. Zerbst, 10 Cir., 80 F.2d 464, although the court refused to order the petitioner's discharge from custody because of the wrongful execution of his sentence du......
  • Cook v. State, 28766
    • United States
    • Indiana Supreme Court
    • March 28, 1951
    ...55. The obstruction of Cook's efforts to perfect his appeal furnish good cause for granting him a delayed appeal. Cf. Tinkoff v. Zerbst, 10 Cir., 1936, 80 F.2d 464. The Supreme Court of the United States has decided that under the facts in this case Cook's efforts to perfect his appeal were......
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