United States v. Ragen

Decision Date10 August 1949
Docket NumberNo. 48 C 1564.,48 C 1564.
PartiesUNITED STATES ex rel. MONTGOMERY v. RAGEN.
CourtU.S. District Court — Northern District of Illinois

Luis Kutner, Chicago, Illinois, for relator James Montgomery.

Ivan A. Elliott, Attorney General of the State of Illinois, and Raymond Thiesse, Assistant Attorney General, for respondent.

IGOE, District Judge.

This is a habeas corpus action brought by James Montgomery, relator herein, against Joseph E. Ragan, Warden of the Illinois State Penitentiary, Joliet, Illinois, respondent, to test the legality of his custody arising out of a judgment for conviction for the crime of rape by virtue of a true bill returned in The Circuit Court of Lake County, State of Illinois, filed January 2, 1924.

On October 26, 1948, the relator petitioned this court for writ of habeas corpus and in his prayer, amongst other things, requested the assignment of attorney Luis Kutner of Chicago, Illinois, as his counsel. Said counsel was appointed pursuant to order of court as amicus curiae.

Shortly after the filing of this petition and after notice to respondent, the respondent filed a motion to dismiss the petition and to deny the issuance of the writ of habeas corpus. Though the respondent attempted to descend to particulars in his motion to dismiss, it is in effect a general motion to dismiss and therefore by the very nature of the motion the respondent admitted the allegations well pleaded to be true. House v. Mayo, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739; Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 LEd. 398; White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348. The petition was clearly sufficient on its face and after hearing and argument thereon the court entered an order on February 25, 1949, denying respondent's motion to dismiss and issued a writ of habeas corpus directed to the respondent. The respondent filed a return to the writ of habeas corpus, joining issue, and the matter was set for hearing which was had on June 27, 1949.

The petition having been filed in this court October 26, 1948, the court proceeded to hear and determine the matter in conformity with the new Federal Judicial Code, Title 28 U.S.C.A. "Judiciary and Judicial Procedure" approved June 25, 1948, effective September 1, 1948. The pertinent sections in the new code are an amplification under the prior Title 28 U.S.C.A. § 461 which provides: "The court, or justice, or judge shall proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require."

The new code relating to habeas corpus is designed to minimize the rigid formality and is the liberal reflection of the Federal Judiciary in permitting those persons who contend they are illegally detained, to have their day in court.

The within matter was heard and determined pursuant to the new code, Chapter 153 titled Habeas Corpus, Sections 2241, Power to Grant Writ: 2242, Application: 2243, Issuance of Writ: Return: Hearing: Decision: 2246 relating to Evidence: Depositions: Affidavits: 2247 relating to Documentary Evidence: 2248 relating to Return or Answer: Conclusiveness: 2249 relating to Certified Copies of Indictment: Plea and Judgment: Duty of Respondent.

The petitioner was permitted to sue in forma pauperis.

In essence Montgomery's verified petition alleges his indictment, sentence and conviction, and that he has exhausted all available State remedies and writ of error is not available because the statutory period of limitations of twenty years has expired. People v. Chapman, 392 Ill. 168, 64 N.E.2d 529. Coram Nobis is not available inasmuch as the statutory period of limitations of five years has also expired. Hall v. People, 402 Ill. 478, 84 N.E.2d 418. Habeas corpus was filed in the Trial Court, namely, The Circuit Court of Lake County, State of Illinois, and was denied August 21, 1948, without opinion; certiorari was sought in the Supreme Court of the United States to review the denial of the habeas corpus proceedings and that was denied October 11, 1948, without opinion. 335 U.S. 836, 69 S.Ct. 28.

Montgomery further alleges that having exhausted all available State remedies he is remediless and a Federal Court should entertain this petition. Ex parte Davis, 318 U.S. 412, 63 S.Ct. 679, 87 L.Ed. 868; Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572; United States ex rel. Rooney v. Ragen, 7 Cir., 158 F.2d 346; United States ex rel. Mills v. Ragen, D.C., 77 F. Supp. 15; Washington v. Smyth, 4 Cir., 167 F.2d 658.

Though not alleged in the petition the record discloses that he also filed application for executive clemency praying for a pardon on or about October 1, 1947, which was subsequently denied.

The petition relies essentially upon matters de hors the record; namely, a hospital record and report of findings by Dr. John E. Walter, showing that Miss Snow was not raped, which record is in exact conformance with the hospital chart in the files of the Victory Memorial Hospital of Waukegan, Illinois. As various exhibits, he attaches a copy of the hospital record, an affidavit from Dr. John E. Walter in support of the hospital chart findings, and other documentary exhibits presenting a "totality of facts", Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595.

He contends briefly as follows —

1. The crime of rape was not committed against the person of Miss Mamie Snow on November 15, 1923, as charged in Cause No. 13722;

2. That he was unjustly and unlawfully indicted, convicted and sentenced for an alleged crime, which never occurred;

3. That the prosecuting authorities suppressed the evidence of Dr. Walter's physical examination of Miss Mamie Snow, which certainly would have proved that the crime of rape was never committed upon the person of Miss Mamie Snow, on November 15, 1923;

4. That petitioner did not know of the existence of the Hospital Chart and of Dr. Walter's examination and findings at the time of trial;

5. That petitioner was unaware and ignorant of the fact that Dr. Walter could or should have been called upon to testify at the trial as to the examination and findings he made upon the person of Miss Mamie Snow on November 15, 1923;

6. That petitioner's trial took place in the heyday of the Ku Klux Klan, and that he verily believes many Klansmen attended the trial of said cause, and that his attorney was either afraid or totally incompetent to properly represent him at the trial;

7. That his trial was a mere sham and pretense, and only a means of depriving him of his liberty without due process of law;

8. That he is not guilty of the alleged crime of rape upon the person of Miss Mamie Snow;

9. That he has not been guilty of negligence or delay in bringing these facts before the Court, having only of recent date been informed as to the existence of the Hospital Chart and Dr. Walter's Affidavit, which proof substantiates his claim of innocence of the alleged crime of rape, and a denial of due process of law;

10. That his conviction should not be suffered to stand — else he would be doomed to imprisonment for the duration of his natural life for an alleged crime which was never committed — having already served over twenty-four (24) years, though being totally innocent, and would be left without any legal remedy, either in the State or the Federal Courts 11. That the entire affair was a "frame-up" and a hoax, concocted solely for the purpose of depriving petitioner of his rightful freedom and liberty.

Jurisdiction.

After a review of the allegations in support of the exhaustion of available State remedies and after hearing and arguments thereon, this court finds that a Federal question of substance is properly before the court and that the petitioner has properly invoked the protective cloak of the due process clause of the Fourteenth Amendment of the United States Constitution. St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 54, 56 S.Ct. 720, 80 L.Ed. 1033; Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406; White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348; Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572; Washington v. Smyth, 4 Cir., 167 F.2d 658.

Evidence Adduced at the Hearing.

Dr. J. E. Walter who was the attending physician at the Victory Memorial Hospital at the time of the alleged offense testified that on November 15, 1923, he was called to the Hospital to examine Miss Mamie Snow, a white person. Miss Snow claimed that she had earlier been attacked and raped. Dr. Walter gave Miss Snow a thorough examination and discovered contusions about the head but otherwise no signs pointing to rape. Under questioning by Mr. Kutner, attorney for the relator, he testified:

"Q. At the time you first saw her on that date, did you observe her clothing. A. Yes Sir.

"Q. Was it disarrayed in any way? A. No, it was not.

"Q. You just observed some contusions, would you say? A. On the neck and face.

"Q. Did you examine her for evidence of rape? A. I did, yes.

"Q. Did you find any? A. I found no evidence at all of any rape.

"Q. You made a report of that?1 A. Yes.

"Q. And your report, to your knowledge, was communicated to the police, is that right? A. Yes."

Dr. Walter also testified that from his examination of Miss Snow, he determined that she had been and remained a virgin. He further stated that he and his wife had known Miss Snow for a year or two prior to November 15, 1923, as she had been a door to door peddler of notions, needles, and thread, and had called at his home from time to time. During these visits, Miss Snow would engage Dr. and Mrs. Walter in conversations of a highly irrelevant nature and the Doctor had noticed peculiarities about her speech and manner leading him to believe that she was mentally irresponsible; nevertheless, she appeared harmless and the Doctor and his wife often made purchases from her.

He further testified upon...

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