United States v. Warden of Philadelphia County Prison

• Citation: 87 F. Supp. 339
• Decision Date: 09 November 1949
• Docket Number: No. 1334.,1334.
• Parties: UNITED STATES ex rel. SMITH v. WARDEN OF PHILADELPHIA COUNTY PRISON et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

87 F. Supp. 339

UNITED STATES ex rel. SMITH v. WARDEN OF PHILADELPHIA COUNTY PRISON et al.

No. 1334.

United States District Court E. D. Pennsylvania.

November 9, 1949.

Thomas D. McBride, Philadelphia, Pa., Herbert S. Levin, Philadelphia, Pa., Harry M. Berkowitz, Philadelphia, Pa., for petitioner.

T. McKeen Chidsey, Attorney General of Pennsylvania, Randolph C. Ryder, Deputy Attorney General of Pennsylvania, Ralph B. Umsted, Deputy Attorney General of Pennsylvania, James W. Tracey, Jr., Assistant District Attorney, of Philadelphia, Pa., Colbert C. McClain, Assistant District Attorney, of Philadelphia, Pa., for respondent.

Before KIRKPATRICK, Chief Judge, and WELSH, BARD, GANEY and McGRANERY, District Judges.

KIRKPATRICK, Chief Judge.

This writ must be discharged for the reason that we have no jurisdiction.

The United States Code, 28 U. S.C.A. § 2241, gives power to the judges of the District Courts to grant writs of habeas corpus only "within their respective jurisdictions" and the decision of the Supreme Court of the United States in Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898, puts it beyond all question that unless the person confined is within the territorial jurisdiction of the District Court at the time the suit is instituted the court has no power to issue the writ.

The statute provides that application for a writ of habeas corpus must be by a written petition sworn to by the person confined or some one acting in his behalf, 28 U.S.C.A. § 2242. Until this is done no suit has been instituted.

In the present case the record shows without dispute that Smith arrived at the Western Penitentiary not earlier than 12:58 p.m. on Saturday, September 24. (All hours mentioned herein are Daylight Saving Time). Since it is 104 miles from the western limit of this judicial district to the Penitentiary, to which he was being transported by automobile, he must have been outside the district at 12:45 at which time the writ was actually issued.

Prior to that time the following had transpired:

At about 9:15 o'clock on the evening of Friday, September 23, counsel for the relator called Judge Welsh at his home by telephone and, after a conversation of 10 or 15 minutes in which counsel outlined his case, the Judge said "I will issue that writ to stay that execution if you make out a prima facie case tomorrow in conformity with what you say".

At 7:38 a.m. on Saturday the 24th the relator left the Eastern Penitentiary, in custody, bound for Rockview where he was to be executed immediately after midnight Sunday. There is no evidence that his removal at that hour was for the purpose of defeating the jurisdiction of this court or that those in charge of him had any knowledge that any steps were being taken by anyone to obtain a writ. The statement of the District Attorney of Philadelphia County, who, with the Attorney General of Pennsylvania, represents the respondent in these proceedings, to the effect that he had no notice before 10:00 a.m. on Saturday that any application would be made, is not challenged and may be accepted as true.

Judge Welsh sat at about 12:00 o'clock on Saturday. At that time the relator must have been already outside the jurisdiction of this court, since he was travelling by automobile and could not have covered the 104 miles of road from the limits of the Eastern District to the Western Penitentiary in 58 minutes. Present were the relator's counsel and the First Assistant District Attorney of Philadelphia County, also the United States Attorney, who had been notified of the proceedings but who took no part in them. No written and verified petition was presented and no witness called. After statements by counsel and a discussion, followed by a slight delay in preparation of the papers, Judge Welsh issued the writ at 12:45.

It seems plain that up to noon on Saturday, and in fact up to the actual issuance of the writ, nothing had occurred which could by any possibility constitute the institution of a suit for habeas corpus. The only contact which the relator's attorney had had with the Court was a telephone conversation with one of the judges, in which he outlined his case. Thus, the matter is not procedural or technical but goes to the jurisdiction of the court and its right to act at all in this case.

Although the Attorney General did not waive the jurisdiction either expressly or impliedly by his presence in court, I question whether it would have made any difference if he had. The Supreme Court decided in Ahrens v. Clark, supra, that the restriction is one which Congress has placed on the power of the District Court to act and may not be waived by the parties. Nor can jurisdiction be conferred retroactively by the fact that the relator has been brought into this District by the state authorities who deemed it more seemly to comply with the writ than to defy it. This was decided by the Circuit Court of Appeals for this circuit in United States ex rel. Belardi v. Day, 3 Cir., 50 F.2d 816.

The writ is discharged and the relator is remanded to custody.

BARD, GANEY and McGRANERY, JJ., concur.

BARD, District Judge.

I concur in the opinion of the Chief Judge that the writ should be dismissed because the relator was not confined within the territorial jurisdiction of this Court at the time the suit was instituted.

It appears that all parties at the original hearing understood that the relator was no longer in this district since the order issued to produce the relator was directed only to the Warden of the Western State Penitentiary, a resident of the Middle District, who had custody of the relator.

Jurisdiction is basic and fundamental — not inconsequential as suggested by the dissenting opinion.

However, I am not unmindful of the fact that this great freedom writ, in the words of Mr. Justice Douglas, is "* * * one of the basic safeguards of personal liberty. * * * There is no room for niggardly restrictions when questions relating to its availability are raised. The statutes governing its use must be generously construed if the great office of the writ is not to be impaired." See concurring opinion Koki Hirota v. General of the Army MacArthur, 338 U.S. 197, 201, 69 S.Ct. 1238, 1239.

The relator was previously a resident of Philadelphia. The crime occurred in Philadelphia. His trial and principal place of confinement were in Philadelphia. Moreover, the respondent, in response to the writ, did bring the relator to the hearing in this district.

Because of these particular circumstances and in view of some observations adduced in the dissenting opinion, I deem it advisable to set forth other fundamental reasons that make mandatory the dismissal of the writ, even if proper jurisdiction existed.

The relator contends that he was denied the protection of the Fifth, Sixth and Fourteenth Amendments of the Constitution of the United States, in that he now is in danger of being deprived of his life in violation of due process of law.

The petition alleges that the relator is of unsound mind, that he was of unsound mind at the time of the commission of the crime, that he was of unsound mind at the time of the plea of guilty, and that he was of unsound mind at the time of the trial of his cause.

The petitioner, Herbert S. Levin, Esquire, one of two counsel for the relator, was originally retained by the relator's family. Upon arraignment, on February 25, 1948, and in the presence of counsel assigned by the court for that purpose only, the relator pleaded not guilty. Questioning the relator's mental capacity, relator's counsel requested the court of Oyer and Terminer on March 19, 1948 to appoint a commission under the Mental Health Act of 1923, as amended¹, to investigate into and report on the relator's sanity. On April 2, 1948 Judge Gerald F. Flood denied this petition on the grounds that the proper person had not, in accordance with the statute, made the request. No exception or appeal was taken from this denial, nor is it contended now that there was error in the court's ruling.

The relator could have had a trial on the sole question of sanity under the Act of 1860², but no request was ever made.

The relator had the advice and counsel of two experienced, competent and skillful lawyers. In their presence and on their advice, the relator on September 21, 1948 changed his plea to "guilty generally", and was adjudged guilty of murder in the first degree.

It is true that the relator had been confined to a mental ward for nervous disorders while in the Army, and that he was committed by a New York criminal court order to the Brooklyn State Hospital on June 19, 1945 as insane. However, he was discharged from this institution as recovered on October 11, 1945, several years before the crime in question was committed. There existed therefore a presumption of sanity and the Commonwealth was not required to prove affirmatively the accused's mental capacity to commit the act. The law in Pennsylvania on this subject has been clearly delineated by two renowned jurists — the late Chief Justice Moschzisker of the Supreme Court and the late President Judge Keller of the Superior Court. Commonwealth v. Cilione, 293 Pa. 208, 142 A. 216; Commonwealth ex rel. Mulligan v. Smith, 156 Pa.Super. 469, 40 A. 2d 701.

It is also true that he was an alcoholic and on December 27, 1945 was admitted, of his own volition, to the Philadelphia General Hospital in an acutely hallucinatory state following excessive indulgence in alcohol the day prior to his admission. The hospital record, upon his discharge on January 4, 1946, listed the diagnosis of his case as Acute Alcoholic Hallucinosis.

This excursion into the realms of delirium tremens in no way rebutted the presumption of his sanity.

Under Pennsylvania law, a person who pleads and is adjudged guilty of murder in the first degree is subject to life imprisonment or the death sentence in the discretion of the trial court.³ Upon counsel's request, the...