Wagner v. Hunter
| Decision Date | 04 June 1947 |
| Docket Number | No. 3447.,3447. |
| Citation | 161 F.2d 601 |
| Parties | WAGNER v. HUNTER. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John H. Tippit, of Denver, Colo., for appellant.
Eugene W. Davis, Asst. U. S. Atty., of Topeka, Kan. (Randolph Carpenter, U. S. Atty., of Topeka, Kan., on the brief), for appellee.
Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.
This is an appeal from an order discharging a writ of habeas corpus and remanding petitioner to the custody of respondent, Walter A. Hunter.
Petitioner was indicted in the United States District Court for the Northern District of Alabama, Southern Division, in Criminal Case No. 11,353. The indictment was filed September 9, 1943. On October 4, 1943, petitioner waived his right to appear for arraignment in the Southern Division of the court at Birmingham, and asked leave to plead to the indictment at Jasper in the Jasper Division of the court. Leave being granted, he entered a plea of not guilty. Thereafter he was tried and found guilty by a jury for the Northern District of Alabama, Southern Division, at Birmingham, Alabama. He was represented at the trial by counsel of his own choosing. Following his conviction, he appeared before the trial court with his own attorney, and received the sentence which he is now serving. A notice of appeal was docketed in the United States Circuit Court of Appeals for the Fifth Circuit, but the appeal was not perfected and was subsequently dismissed.
In the habeas corpus action instituted in the court below, petitioner set up numerous grounds in support of his contention that the judgment and sentence imposed on him are void. In general, he asserted that the indictment was obtained by fraud and that his conviction was obtained by the government knowingly using perjured testimony; that he was denied the right of counsel at the time of his arraignment at Jasper; and that when the case was transferred to the Jasper Division for arraignment, the Southern Division lost jurisdiction of the case and was without jurisdiction thereafter to hear and try the case.
Petitioner was accorded a lengthy, full and complete hearing in the court below. In his appeal to this court, he sets up twenty-nine assignments of error. They largely consist of a restatement, in a confused way, of the points above outlined.
There is a complete lack of any showing that the indictment was procured by fraud and this part of the appeal needs no further consideration.
Concerning his asserted denial of his right to be represented by counsel at the time of his arraignment at Jasper, it is sufficient to say that the recitals of the court affirmatively show that his right to counsel was explained to him, that he was specifically asked if he desired counsel, and replied that he did not want counsel. Without exception we have held that the absence of fraud, the records of a court import absolute verity and may not be impeached by extrinsic evidence.1
There is a complete lack in record of any showing which would remotely tend to support the assertion that perjured testimony was knowingly used by the prosecuting attorneys in the trial of the case. Taking petitioner's own testimony at par, the most that can be said for it is that it shows that some of the witnesses gave false testimony. But even if this be true, it does not void the judgment. The vice which will vitiate the judgment of a court is the knowing, wilful and intentional use of perjured testimony in a trial to secure a conviction.2
The final contention which merits consideration is the asserted lack of jurisdiction of the Southern...
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