United States v. Warden of Clinton Prison

• Citation: 29 F. Supp. 486
• Parties: UNITED STATES ex rel. MURPHY v. WARDEN OF CLINTON PRISON.
• Decision Date: 14 September 1939
• Court: U.S. District Court — Northern District of New York

29 F. Supp. 486

UNITED STATES ex rel. MURPHY v. WARDEN OF CLINTON PRISON.

District Court, N. D. New York.

September 14, 1939.

Joseph G. M. Browne, of Brooklyn, N. Y., for relator.

John J. Bennett, Jr., Atty. Gen., of New York (Patrick H. Clune and Bernard L. Alderman, Asst. Attys. Gen., of counsel), for respondent.

COOPER, District Judge.

This is a writ of Habeas Corpus claimed to involve the constitutionality of Section 1897, Subdivision 1-a of the Penal Law of the State of New York, Consol.Laws, c. 40.

The relator was convicted in the Court of General Sessions, County of New York upon an indictment found by the Grand Jury for the County of New York, charging the relator and others with felonously possessing a machine gun in violation of the said section of the penal law.

The relator was sentenced to imprisonment in a State prison for a term not less than seven nor more than 14 years.

The relator appealed such judgment of conviction to the Appellate Division of the State of New York, First Department People v. Murphy, 294 N.Y.S. 498, and the said judgment was affirmed by the Appellate Division without opinion. Thereafter the relator appealed to the Court of Appeals of the State of New York from the decision of the Appellate Division and the Court of Appeals affirmed the judgment of the Appellate Division, also without opinion, one Judge dissenting.

Thereafter a petition for leave to appeal to the Supreme Court of the United States was presented to Mr. Justice Stone of that Court.

The petition was denied on March 29, 1938, without prejudice to an application to any other Judge. The denial was stated to have been made on these grounds:

"In this case I do not find that the record shows that the action of the trial court in denying the motions made at the close of the State's case and at the close of the whole case, necessarily involved any ruling on the constitutional question. For all that appears, the denial of the motions may have been on the ground that there was sufficient evidence to go to the jury without the aid of the statutory presumption.

"There seems to be no specific objection to the Court's charge to the jury that it should consider the presumption, and no request on constitutional grounds to charge otherwise. I deny the application without prejudice to appellants application to any other Judge."

Petition for rehearing of the application for leave to appeal to the U. S. Supreme Court was made to Mr. Justice Stone in August in which petition references were made to the record of the trial to show that the Constitutional questions to which Judge Stone referred in his denial of leave to appeal in March 1938 were actually raised on the trial.

When intention to make petition for rehearing was brought to the attention of Mr. Justice Stone he wrote Mr. Browne, Attorney for the relator herein, under date of August 19, 1938, as follows:

"I will, of course, consider your application for a rehearing, if you decide to make it.

"In that case, I assume you will undertake to point out the places in the record where the Federal Question was made and to satisfy me that I have authority to act, now that the term has expired."

The petition for rehearing was denied as of June 16, 1938, without comment.

In view of the fact that Rule 33 of the U. S. Supreme Court, 28 U.S.C.A. following section 354, requires the application for a rehearing to be filed within 25 days after Judgment is entered, and counsel for the relator here substantially admitted that a Justice of the Supreme Court had no power to hear a petition for rehearing more than 25 days after the denial of the original petition on March 29th, 1938, and after the term had expired, it is reasonable to conclude that the petition for rehearing was denied because Justice Stone believed he was without authority to grant a rehearing of the petition for leave to appeal.

Thereafter and on March 1939, the relator applied to this Court for a writ of Habeas Corpus and the same was granted. Certain adjournments were had. By agreement the relator remained in custody pending decision.

The ground of the alleged unconstitutionality of the State Statute is that it is repugnant to the Constitution of the United States in that it violates the due process of law clause of the 14th amendment, U.S.C.A.

The petition on which the writ was issued set forth the grounds of illegal detention of the relator as follows:

"4. That the aforementioned indictment alleges:

"The said defendants, in the County of New York aforesaid, on the 16th day of March, 1936, felonously did have in their possession a certain machine gun, against the form of the statute in such case made and provided and against the peace of the People of the State of New York and their dignity."

"5. That Statute, Section 1897, Subdivision 1(a) of the penal law of the State of New York, under and pursuant to which your petitioner was indicted, tried, convicted and sentenced, and is now detained, confined and imprisoned, so far as here applicable, reads as follows:

"A machine gun is a weapon of any description, irrespective of size, by whatsoever name known, loaded or unloaded, from which a number of shots or bullets may be rapidly or automatically discharged from a magazine with one continuous pull of the trigger and includes a sub-machine gun. A person who possesses or uses such machine-gun is guilty of a felony. The presence of such machine-gun in any room, dwelling, structure or vehicle shall be presumptive evidence of its illegal possession by all the persons occupying the place where such machine-gun is found."

6. That as your petitioner is informed, the said indictment is based upon the following: That on the 16th day of March, 1936, at about 11:40 P. M. the police raided the premises No. 322 West 90th Street, Manhattan, New York City, the same consisting of a four story rooming house, being a ground floor and three stories above, of which one Madeline Tully was the lessee of the entire building, renting rooms to various tenants; that in a closet on the top floor, which opened into a common hallway, the police found a locked safe which was opened about sixteen hours later and that four machine guns were found therein; that said indictment is based upon the possession of one of these machine guns. That the indictment and conviction of your petitioner is predicated solely on his being in the building at the time. That the facts with respect to the petitioner's presence there are these: That your petitioner did not live at said premises; that on the 16th day of March, 1936, your petitioner was visiting a Mr. and Mrs. Frank Daley, who were tenants occupying a two room apartment in said building on the second floor; that your petitioner, at the time, was seated at a table, with four other persons, eating, one of them being said Mr. Daley. Your petitioner is informed and believes that the said indictment, prosecution, conviction and sentence are grounded on the theory and claim that your petitioner's mere presence in the building, by virtue of said statute, made him a "constructive occupant" thereof and amenable to said statute, and that the mere finding of such machine-gun in said building made your petitioner presumptively guilty of the illegal possession thereof.

The return states: —

4. That the judgment of the sentencing Court has not expired; that the judgment is a legal and proper one, that it is still in full force and effect.

5. That the relator's conviction was upheld unanimously by the Appellate Division and the Court of Appeals of the State of New York, each time without opinion; that he thereafter made an application for leave to appeal to the Supreme Court of the United States, which was denied.

6. That the determination of such Appellate tribunals is res-adjudicata as to this honorable Court; that the Honorable Court has no jurisdiction to entertain the within application; that no Federal question was presented in, and expressly or necessarily decided by the State Courts.

7. The Writ of Habeas Corpus should be dismissed and the relator remanded to the Warden of Clinton Prison.

Upon the return day, counsel for the respondent conceded that this Court had jurisdiction to determine the constitutionality of the State Statute, if the constitutionality was raised upon the trial and upon appeal, provided the sole evidence against the relator consisted of the presumption arising from the Statute.

In the brief subsequently filed, "however, counsel for the respondent contend that this Court of a single Judge has no jurisdiction to entertain this application and that a three Judge Statutory Court is necessary to decide the unconstitutionality of the Statute.

The question of the jurisdiction of this Court must be first disposed of.

So far as the necessity for a three Judge Court is concerned, that contention seems to be without merit.

A three Judge Court under 28 U. S.C.A. § 380 is only necessary when in a civil suit an injunction is sought restraining enforcement of a state statute on the ground of unconstitutionality. The section has no relation to Habeas Corpus proceedings. Stratton v. St. Louis R. Company, 282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 135. Moore v. Dempsey, 261 U.S. 86, 91, 43 S.Ct. 265, 67 L.Ed. 543.

Where the sole question is constitutionality, a single District Court Judge seems to have jurisdiction. Jones v. Commonwealth of Kentucky, 6 Cir., 97 F.2d 335; Frank v. Mangum, Sheriff, 237 U.S. 309, 326, 35 S.Ct. 582, 59 L.Ed. 969; Ex Parte Caesar, D.C., 27 F.Supp. 690.

The Jurisdiction of this Court, however, depends upon the question of whether or not there was sufficient evidence presented upon the trial to warrant conviction of the relator without invoking the presumption of Section 1897, Subdivision 1-a New York Penal Law of the State of New York. If there was such evidence, then the conviction did not depend upon the presumption of Section 1897, subdivision 1-a, and this...