Van Gorder v. Johnston, 8274.

• Decision Date: 18 January 1937
• Docket Number: No. 8274.,8274.
• Citation: 87 F.2d 654
• Parties: VAN GORDER v. JOHNSTON, Warden.
• Court: U.S. Court of Appeals — Ninth Circuit

87 F.2d 654 (1937)

VAN GORDER v. JOHNSTON, Warden.

No. 8274.

Circuit Court of Appeals, Ninth Circuit.

January 18, 1937.

Hayes Van Gorder, in pro. per.

H. H. McPike, U. S. Atty., and Robert L. McWilliams and A. J. Zirpoli, Asst. U. S. Attys., all of San Francisco, Cal., for appellee.

Before GARRECHT and HANEY, Circuit Judges, and NETERER, District Judge.

GARRECHT, Circuit Judge.

This is an appeal from an order of the court below denying petition of appellant for a writ of habeas corpus. The appellant is at the present time detained at the Federal Penitentiary on Alcatraz Island in San Francisco Bay. He brought his petition for writ before the District Court alleging that he had served out a sentence imposed by the District Court of the United States for the District of Kansas which was to commence after the expiration of a sentence imposed by the District Court of the United States for the Eastern District of Illinois, upon the contention that the indictment under which he was sentenced in Illinois was fatally defective and that any sentence thereunder being invalid that therefore the Kansas sentence began to run immediately upon imposition, without an interval of waiting for the sentence imposed in the Illinois case to expire. It is to be noted that not long ago the same parties were before this court upon appeal from an order of the same District Court denying a similar petition, based upon the ground that the sentence of the Illinois United States District Court was indefinite. We there held the sentence sufficiently definite. See 82 F.(2d) 729.

There is but one assignment of error, and that is that the court erred in denying the petition for writ of habeas corpus because the sentence in the Illinois case was based on an indictment which charged no offense.

The "Appellant contends that the Illinois indictment drawn under * * * 18 U.S.C. § 347 (18 U.S.C.A. § 347) charges no offense, there being no averment of a Material Alteration of Postal Money Orders, or a Material Alteration with the intent of purpose to receive a sum of money from the United States, or with the intent of purpose to defraud the United States," etc.

The indictment charged (count I — all of the counts appearing in the Transcript of Record are in the same language, save that each charges a different act, so that count I will suffice for all): "that Hayes Van Gorder * * * on * * * March 10, 1924 * * * in the Eastern District of Illinois * * * did then and there unlawfully knowingly, falsely and feloniously alter a certain United States Postal Money Order, which * * * had lately theretofore been issued by Albert A. Schroeder, Postmaster at St. John, Illinois in the amount of $6.00, and which was * * * then and there altered by the said Hayes Van Gorder * * * so that the said altered United States Postal Money Order purported to be in the sum of $66.00. * * *" Thereafter a copy of the said money order was set out in the body of the indictment.

The statute (18 U.S.C. § 347 18 U.S. C.A. § 347), so far as material, reads as follows: "Whoever, with intent to defraud, * * * shall falsely alter, or cause or procure to be falsely altered in any material respect, or knowingly aid or assist in falsely so altering any such money order or postal note; * * * shall be fined not more than $5,000, or imprisoned not more than five years, or both."

The Circuit Court of Appeals for the Eighth Circuit in Brown v. White, 24 F. (2d) 392, beginning at page 394, on appeal from an order denying a petition for writ of habeas corpus, wherein was brought in question the validity of an indictment, set down the following rules:

"The courts are met with repeated attempts to substitute habeas corpus for writ of error, notwithstanding the multiplicity of cases holding that it cannot be done. The law as to applicability of the writ of habeas corpus would seem to be well settled. In Franklin v. Biddle, Warden, etc., 5 F.(2d) 19, 21, this court said: `A writ of habeas corpus cannot be made to perform the office of a writ of error. It is available only to relieve a prisoner from the restraint imposed by a judgment or order that is absolutely void on the ground that the court was without jurisdiction to render it.' * * * It is a well-established rule...