Zerbst v. McPike, 8634.
| Citation | 97 F.2d 253 |
| Decision Date | 16 June 1938 |
| Docket Number | No. 8634.,8634. |
| Parties | ZERBST, Warden, v. McPIKE. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Lawrence S. Camp, U. S. Atty., and Harvey H. Tisinger, H. T. Nichols, and J. Ellis Mundy, Asst. U. S. Attys., all of Atlanta, Ga., for appellant.
Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.
Will McPike by habeas corpus challenged the legality of his imprisonment in the federal penitentiary at Atlanta, on the ground that the sentence of three years imposed on him Nov. 7, 1933, in the District Court for the Western District of Louisiana had expired. He obtained a judgment of discharge and the warden of the penitentiary appeals.
The undisputed evidence is that McPike was arrested by the State of Louisiana and was in the parish jail awaiting trial. On Nov. 6, 1933, he was indicted in the federal court for fraudulently impersonating a United States officer. On Nov. 7th the State officers brought McPike into the federal court and suffered him to be tried. He pleaded guilty and was sentenced to serve in the penitentiary for three years, no time being fixed for the commencement of the sentence. He was then taken by the State officers back to jail. On Nov. 13th he was tried and convicted for a State offense and sentenced to the State penitentiary for three to five years. The commitment which the clerk of the federal court issued on Nov. 7th was not executed but was returned Nov. 24th with an entry that McPike was confined as a prisoner in the Louisiana penitentiary as a State prisoner. After serving the State sentence he was taken on an alias commitment to the federal penitentiary Aug. 2, 1936. The deputy marshal testifies that McPike was maintained in the jail as a State prisoner before and after his trial in federal court, and was never maintained there as a federal prisoner and the District Attorney who handled the case testifies that the State never yielded jurisdiction over him to the federal government, except to try him.
Under the inviolable rules of comity, which are reciprocal, the State having first arrested and imprisoned McPike could not without its consent be deprived of his custody until through with him. Ableman v. Booth, 21 How. 506, 16 L.Ed. 169; Covell v. Heyman, 111 U.S. 176, 4 S.Ct. 355, 28 L.Ed. 390. But the State could "lend" the prisoner to the federal government in order to afford him a speedy trial and to convenience the witnesses who might be necessary to be assembled for or against...
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...the same rules apply where a state court first takes jurisdiction and the federal court proceeding commences thereafter. Zerbst v. McPike, 5 Cir., 1938, 97 F.2d 253; Rosenthal v. Hunter, 10 Cir., 1947, 164 F.2d 949. However, state authority is apparently subject to whatever judicial process......
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Strand v. Schmittroth
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Liberatore, In re
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