United States v. Henning
| Decision Date | 15 November 1926 |
| Docket Number | No. 4979.,4979. |
| Citation | 15 F.2d 760 |
| Parties | UNITED STATES ex rel. WHITAKER v. HENNING, District Judge. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Samuel W. McNabb, U. S. Atty., and James E. Neville, Asst. U. S. Atty., both of Los Angeles, Cal., for respondent.
Before GILBERT and RUDKIN, Circuit Judges, and NETERER, District Judge.
This is a petition for a writ of mandamus against one of the judges of the District Court of the United States for the Southern District of California. The facts, as disclosed by the petition and the return to the show cause order heretofore issued by this court, are as follows:
In the latter part of the year 1921, two indictments were returned against the petitioner in the District Court of the United States for the Southern District of California, Southern Division — the first charging a violation of the Motor Vehicle Act; the second, a violation of the White Slave Traffic Act. On the trial of the first indictment the petitioner was convicted and is now confined in the United States penitentiary at Ft. Leavenworth, Kan., in execution of the judgment and sentence of the court. No proceedings were had under the second indictment, and the petitioner had no knowledge thereof until May of this year. On July 28 he filed a motion to dismiss the second indictment or to set the cause for trial. On August 2 an order was entered denying the motion to dismiss and setting the cause for trial on September 21. On August 25 the petitioner filed several motions, including a motion for an order in the nature of a writ of habeas corpus ad prosequendum, to remove the petitioner from the penitentiary at Ft. Leavenworth, Kan., to the Southern division of the Southern district of California for arraignment and trial. On September 8, 1926, a further motion was filed, praying for substantially the same relief as the last mentioned motion. On September 20 the hearing of all pending motions was continued until the following day. On September 21 a further continuance was granted for the period of one week. On October 4 an order was entered, setting the case for trial on October 12, and on the same day a demurrer to the indictment and the several motions interposed by the petitioner were denied and overruled. On October 12 the cause was stricken from the trial calendar.
The prayer of the petition is that an order issue out of this court, directing the respondent judge to show cause why a writ of mandamus should not issue, commanding him to order an immediate and speedy trial of the indictment, and to hold the trial thereof without further continuance, unless by stipulation of the parties; that an order be entered for the removal of the petitioner from the penitentiary at Ft. Leavenworth, Kan., to the place of trial; and for other appropriate relief. Upon the filing of the petition, an order to show cause was issued, as already stated, and the respondent judge has made return thereto. The return sets forth the different proceedings had in the cause, and avers that the respondent was ready and willing to try the petitioner on the several days set for trial, had the petitioner been present in court; but the respondent was unable to do so, because the petitioner was prevented from being present by reason of his confinement in another jurisdiction under lawful process. Further answering the show cause order, the respondent alleges that no request has been made by the government for the removal of the petitioner from the penitentiary at Leavenworth, Kan., to the Southern district of California, for trial, and that respondent has made no order for such removal, for the reason that there is no authority in law for such removal on application of a defendant, citing Frankel v. Woodrough (C. C. A.) 10 F.(2d) 360.
Two questions are presented for decision by the petition and the return thereto: First, under the guarantee contained in the Sixth Amendment to the...
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...in jail on another charge or conviction. United States ex rel. Coleman v. Cox, 5 Cir., 1931, 47 F.2d 988; United States ex rel. Whitaker v. Henning, 9 Cir., 1926, 15 F.2d 760; Frankel v. Woodrough, 8 Cir., 1925, 7 F.2d 796. The Government suggests that the trial was delayed partly because o......
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