United States v. Martin, 2950

• Decision Date: 18 January 1930
• Docket Number: 2951.,No. 2950,2950
• Citation: 36 F.2d 944
• Parties: UNITED STATES ex rel. DERENCZ v. MARTIN, Warden. DERENCZ v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

36 F.2d 944 (1930)

UNITED STATES ex rel. DERENCZ v. MARTIN, Warden.

DERENCZ v. UNITED STATES.

Nos. 2950, 2951.

Circuit Court of Appeals, Fourth Circuit.

January 18, 1930.

R. Palmer Ingram, of Baltimore, Md. (Helen Elizabeth Brown, of Baltimore, Md., on the brief), for appellant.

Stanley E. Hartman, Asst. U. S. Atty., of Baltimore, Md. (A. W. W. Woodcock, U. S. Atty., of Baltimore, Md., on the brief), for appellees.

Before PARKER and NORTHCOTT, Circuit Judges, and McCLINTIC, District Judge.

PER CURIAM.

Appellant in these cases, who will be referred to here as defendant, on the 6th day of November, 1929, pleaded guilty in the District Court of the United States for the District of Maryland to an indictment charging him with possession of intoxicating liquor in violation of section 3, title 2, of the National Prohibition Act (27 USCA § 12), and also charging two prior convictions for possession in violation of section 3 of title 2 of the National Prohibition Act (27 USCA § 12). Defendant was sentenced to pay a fine of $500 and costs and to imprisonment in jail for nine months, and immediately began serving such sentences. On November 16, 1929, defendant paid the fine of $500 and the costs, and following the payment sought release from the service of the sentence of imprisonment by a petition for a writ of habeas corpus. This petition was denied by the District Court of the United States for the District of Maryland on November 21, 1929, from which action of the court appeal was taken (No. 2950). Subsequently the defendant took an appeal from the judgment of the court in the criminal case (No. 2951). In this court the cases were consolidated and heard together.

At the time of the sentence in the case in No. 2951 no objection was made, and the question as to the correctness of the sentence was raised for the first time in this court in that case. It is not necessary to quote authorities to the effect that questions raised for the first time in this court cannot be considered. It is further admitted in the argument that the appeal was taken in case No. 2951 for its effect on the question of bail pending hearing on the appeal. No serious contention was made in the argument that the judgment in this case should be reversed.

In considering case No. 2950, and the action of the court below in denying the petition for writ of habeas corpus, it seems to us clear that the only question raised is whether the defendant is illegally restrained of his liberty by reason of lack of jurisdiction in the court imposing sentence. In Glasgow v. Moyer, 225 U. S. 420, 32 S. Ct. 753, 755, 56 L. Ed. 1147, Mr. Justice McKenna, speaking for the court, said:

"Harlan v. McGourin, 218 U. S. 442, 31 S. Ct. 44, 54 L. Ed. 1101, 21 Ann. Cas. 849, was an appeal from a judgment discharging a writ of habeas corpus petitioned for after conviction, and it was held that the writ could not be used for the purpose of proceedings in error, but was confined to a determination whether the restraint of liberty was without authority of law. In other words, as it was said, `Upon habeas corpus the court examines only the power and authority of the court to act, not the correctness of its conclusions.' Re Gregory, 219 U. S. 210, 31 S. Ct. 143, 55 L. Ed. 184, was a writ of habeas corpus brought after conviction, and we said that we were not concerned with the question whether the information upon which the petitioner was prosecuted and convicted was sufficient or whether the case set forth in an agreed statement of facts constituted a crime — that is to say, whether the court properly applied the law — if it be found that the court had jurisdiction to try the issues and to render judgment. * * *

"The principle is not the less applicable because the law which was the foundation of the indictment and trial is asserted to be unconstitutional or uncertain in the description of the offense. Those questions, like others, the court is invested with jurisdiction to try if raised, and its decision can be reviewed, like its decisions upon other questions, by writ of error. The principle of the cases is the simple one that if a court has jurisdiction of the case, the writ of habeas corpus cannot be employed to retry the issues, whether of law, constitutional or other, or of fact.

"* * * The ground of the decision was that there was an orderly procedure prescribed by law for him to pursue, in other words, to set up his defenses of fact and law, whether they attacked the indictment for insufficiency or the validity of the law under which it was found; and, if the decision was against him, test its...