United States v. Ragen
| Decision Date | 07 March 1949 |
| Docket Number | No. 9675.,9675. |
| Citation | 171 F.2d 630 |
| Parties | UNITED STATES ex rel. JOHNSON v. RAGEN, Warden. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Robert Johnson, No. 11502, Illinois State Penitentiary, of Joliet, Ill., in pro. per.
George F. Barrett, Atty. Gen., and William C. Wines, Asst. Atty. Gen. , for appellee.
Before MAJOR, Chief Judge, MINTON, Circuit Judge, and SWYGERT, District Judge.
Writ of Certiorari Denied March 7, 1949. See 69 S.Ct. 649.
This is an appeal from an order dismissing appellant's petition for a writ of habeas corpus. Appellant (petitioner), on January 8, 1937, was indicted by the grand jury of the Criminal Court of Cook County, charged with the crime of burglary and larceny. The indictment, also, under the Illinois Habitual Criminal Act, Ill.Rev. Stats. 1947, ch. 38, par. 602 et seq., charged petitioner with having been previously convicted of the crime of grand larceny. As the result of a trial, petitioner was, on February 9, 1937, convicted by the Criminal Court of Cook County and sentenced to a term of life imprisonment. He would now, so he alleges, be eligible for parole under a sentence which the court could have imposed under the main charge, and it is only because he was found guilty on an indictment which charged him with a former conviction that he is now being detained.
Petitioner was represented at his trial by the Public Defender and no complaint is here made but that he had proper representation. Petitioner, about seven years after his conviction, procured a copy of the indictment on which he was convicted and discovered for the first time, so he alleges, that the allegations concerning a former conviction did not properly describe the crime for which petitioner admits he had previously been convicted. It appears that there were two Robert Johnsons, both of whom had formerly been convicted of grand larceny and, as we understand petitioner's contention, the former conviction charged against him related to the grand larceny for which the other Robert Johnson had been convicted.
Petitioner's sole contention is that the indictment which charged him with the former offense was void, that as a result the judgment by which he is now detained was also void and that he has, therefore, been deprived of due process of law, in violation both of the Federal and State constitutions. We need not consider the cases which petitioner cites in support of the proposition that a judgment is void, predicated upon an indictment which does not state an offense, for the reason that they have no application.
Petitioner concedes that a copy of the indictment was handed to him and that he passed it on to his counsel, but that neither of them discovered that the former conviction charged described the offense for which the other Robert Johnson was convicted instead of the former offense for which the petitioner had been convicted. It is difficult to conceive a situation such as is alleged by the petitioner inasmuch as the burden was upon the State to prove the former conviction alleged and to identify the defendant (petitioner) as the one so convicted. Considering the situation, however, as alleged, it is at once apparent that such a mistake was one of procedure, that is, a failure on the part of the State to prove the former conviction alleged and to properly identify the petitioner as the person thus convicted. But such failure of proof had no effect upon the validity of the indictment. Its allegations sufficiently and adequately charged the defendant with a former conviction. The court thus had...
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Snead v. Smyth, 7964.
...considered. United States ex rel. Vajtauer v. Commissioner, 273 U.S. 103, 47 S.Ct. 302, 71 L.Ed. 560." See also United States ex rel. Johnson v. Ragen, 7 Cir., 171 F.2d 630. In Edwards v. United States, 4 Cir., 1920, 266 F. 848, upon which the petitioner relies in the pending case, an indic......
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United States v. Fay, 391
...Appellate Division, they have failed to exhaust their state remedies, and their petitions were properly denied. United States ex rel. Johnson v. Ragen, 7 Cir., 1949, 171 F.2d 630, certiorari denied 336 U.S. 927, 69 S.Ct. 649, 93 L.Ed. 1088; United States ex rel. Hanson v. Ragen, 7 Cir., 194......
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Gay v. Graham
...113, 116. 8 39 C.J.S. Habeas Corpus § 21, p. 471; United States ex rel. Weber v. Ragen, 7 Cir., 176 F.2d 579. 9 United States ex rel. Johnson v. Ragen, 7 Cir., 171 F.2d 630; Brock v. Hudspeth, 10 Cir., 111 F.2d 447. 10 Brock v. Hudspeth, 10 Cir., 111 F.2d 447; See also: Johnson v. Zerbst, 3......
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United States v. Ragen, 9955.
...of such failure did not constitute denial of due process under the Fourteenth Amendment to the Federal Constitution. In Johnson v. Ragen, 7 Cir., 171 F.2d 630, certiorari denied 336 U.S. 927, 70 S.Ct. 50, this court affirmed an order denying a petition for a writ of habeas corpus in a case ......