Petition for Writ of Certiorari — Escoe v. Zerbst

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1934

No. 773

JACK ESCOER,

Petitioner,

vs.

_ FRED d. ZERBST, Wes ov tae Uneven States Pent-

TENTIAnY aT Leavenwortn, Kansas.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS,

TENTH CIRCUIT, AND BRIEF IN SUPPORT

THEREOF.

* Jack Escor,

Petitioner, Pro se.

INDEX.

— Nunsect INDEX,

. Page

tit ton for writ of certiorarl and brief in aupport................. 1

SED GE ED cocccbessccdecvcecseecceceeseseeeseeeossce 2

VV 1 1

Nummary of argumenn ee ees eee ee ee eee TTT Te 4

eee ns . eee 4

Prayer for W ritt sees 6600006 66 ° 20

IS voi cob inadensibccstscddanessuccedevesss 20

Tam or Canna Crrep.

Alverez v. State, OO Fla, 24, 90 Wo. 482... cece ccc cece cece eeereees 10

Cantwell v. Missourt, 190 . 8, 602, 26 Sup. Ct. 749 15

Craig v. Hecht, 200 IJ. 8. 714, 43 Sup, Ct. 00, 263 U. 8. 288, 44 Sup.

CR. ... eee eee eee 96% 6 6 60 900% 6000000 10

(ireat Northern Ry. Co, v. United States, 155 Fed, 045, 84 C. C. A. 9%,

ee Se Sy Gey ee Gs GE, Bc ese ee tee ee tee eee 60000 15

Hollandaworth v. United States, 34 F. (2d). ů 3333. . 14

Joyce, People ex rel., v. Strassheim, 242 Il. 369, 90 N. E. 118. 11

Lucero, Ex parte, 168 Pane, 719dg9d9 . 90606060006 8

Mikeli, Ex parte, 253 Fed, 617 1466 19

N. V. v. Kriegel, 207 N. Y. Sup. 646......... bees goose oss 12

(YConner, State ex rel., v. Wolfer, * Minn. 135, 54 N. W. 1065, 19

LI it)

Mmith v. St. Louis Ry. Co., 181 U. 8. 248, 21 Sep. G.. 15

State v. Horne, 62 Fla. 128, 42 Bo, BBB. 88888888 er eceeeees - 2a

State v. Phillips, 185 N. C. 614, 116 8. KR. BOB... 2... eee eee 50 4400 —

State v. Zolantakia, 250 Pac. 100%%õꝝ i 6

Stumpf, People ex rel., v. Craig, 140 N. . Sup. 8627. 11

United States v. Allen, 179 Fed. 13. 103 C. C. A. 1. 15

United States v. Harden, 10 Fed. 0 ½˙TT ũiI 66sec ccecccceeeeeens 19

Young, Ex parte, 200 U. 8. 123, 28 Sup. Ct. 4. 15

Yow v. United States, 208 U. g. 8, 28 Sup. Ct. 2. 19

» Zeigler v. Railroad Co., 58 Ala. 509...... 4 6

Ornen AvuTHoritiss Crrep.

Act of July 20, 1892 (28 Stat. 262), as amended June 27, 1922 (24

0. . . . .o o eee 96 %%% „eee. 5006000 es

United States Constitution, Fifth Amendment................ coves 4,6, 16

United States Criminal Code, Title 18, Sec..725, as amended.... 4, 12, 13, 16

United States Code, Title 25, Sec. 411. 5e eee 19

Petition of Right, 2 Car. 1 (1627)............ essen 906 a

r ¶ R „ese eee sse

re eee . e ese

I. Bl. Comm. 13. „eee 17

IV. Bl. Comm. 287 U]P]!ThPꝑh 55555555 55W6556uũuũuw.

eee eee eee esseeseseseese bse 006

JJ .

—6178-C

2

not un attempt to eseape condign punishment through legal

twehuieality, but ix rather a bow fide effort to tot whether

or net he may be imprisoned in a summary proceeding

without having boew afforded an opportunity to prove hin

inmecenes of the charge upon which said imprisonment ix

vatonsibly based.

Statement of Faots.

Ou or about January 28, In, petitioner was arrested

in Marshall, Texas, by State officers, for allegedly having

violated the National Motor Vehicle Theft Act. Tle wax ar

raigned before the United States Commissioner at Tyler,

Texas, on or about February 2. 1992, and pleaded not

guilty, Rail was set at $2,000, and in default thereof he

was remanded fo Jail.

About owe week later he was e to bail of $1,000

on February 15, 1902,

On Ovtober 4. 1952, petitioner was indicted at Tyler,

Texas, for conspiracy to violate the National Motor

Vehicle Theft Act, to which he pleaded guilty the succeed

ing day. Sentence of eighteen months’ contlnement in the

United States penitentiary ‘at Leaveaworth, Kansas, was

passed immediately and petitioner placed in the custody of

the United States Marshal at Tyler to await transportation

to said penitentiary. |

Later the same day petitioner was called back before the

court and sentence withdrawn. Thereafter, to wit, October

10, 1932 he was called back before the court again and

sentenced to four years and six months confinement in

the United States penitentiary at Leavenworth, Kansas,

and the execution thereof suspended for five years on con-

dition of probation to Oscar 8. Gresham, Probation Officer,

Tyler, Texas.

Petitioner complied with every condition of his probation

and remained at liberty until July 28, 1933, when he was

*

1

arrested’ by State „rn and placed in the ee jail at

Marshall, Texan, where he wan hell inceommuniende for

about eight dayne in apite of repented efforta to lene the

reason of hin arrest and to employ eounmel for the anime

purpon, Tle Wan then taken to the county jail at Paris,

Texans, Hin attempts to lern the ronson for his arrest and

transportation again proved unavailing, He aneeeoded, .

however, in contacting an attorney who sought by telegraph

and telephone te learn from Onear Greeham or Judge Han

dolph Bryant why petitioner wan being held,

Hefore the attorney's efforts bore fruit, petitioner's pro-

bation wax revoked on Aust 5, Inte. On Angunt 11, 1085,

he wan tnken direct to the penitentiary at Leavenworth,

Kansans, frow the jail at Varian, Texas, without having beew

brought before the court and having heard wherein he wie

alleged to have violated bin probation or having had an

opportunity te repel wuwh allegation, whieh he eould have

lone, as petitioner ded wel violate his probation,

Petitioner fled a petition for a writ of haheas corpus in

the United States Met riet Court for the District of Kunene,

First Division, on December 1, 19. Tearing was had on

said petition Jannwiry 26, 1004, and anid petition was dis

missed, to whieh ruling of the court your petitioner duly

excepted, and which exception was allowed. Appenl was

taken to the Cirenit Court uf Appeals for the Tenth Judi-

cial Cirenit, whieh sustained the Distriet Court and on

February 12, 105, overruled appellant's (your, petitioner's)

motion for a rehearing.

Statement of Question.

This petition secks the determination by this Honorable

Court of the answer to the following question:

Can a probation be revoked without bringing the proba-

tioner before the court and affording him an opportunity to

be heard?

y |

Summary of Argument,

Revocation of probation without giving the probathoner

an opportunity to show that he has not vielated bie proba

tion ix not due process of law,

Th,

See, 725, Title I, United Staten Code, requires that the

probationer be brought before the court prior to revoeation

of his probation. ”

Ninco petitioner was noithor brought before the court wor

given an opportunity to be heard in bis behalf, he is now

illegally restrained of his liberty,

IV.

Habeas corpus is a proper remedy to teat the validity of

his detention in the premines, for the court wax without

active jurisdiction to issue the order of revoention or

mittimus.

v.

Petitioner should be discharged from further confinement,

Brief and Argument.

“ One.

Article V of amendment to the Constitution of the United

States sets out that no person shall ‘*be deprived of life,

liberty or property without due process of law."

It is submitted that an order of a Federal court, issued

ex parte, with the person upon whom said order ix to

f

operate held Ineommunicads miles away ina jail, without

hin knowlege or comment, and baal apen a fale eee

tion whieh he could sepel Hf present, ie net “due process of

lnw'' un Chet eee ie med bn the ef Ahe law,

Tho onrliont referenee to the eight whieh the Rettet

Intended to weetre whieh in found ln the books be that «tate

mant of Cher eile Tee by Menem |

"Que ntatint aliquid, parte tnandila altera, acquam

livet statuend, haud .

Ilo who prefers a charge agaltiat another, however just it

nny be, Will himself be net, une the aceused be heard

in hin wn defense, Takte characterizes the rule as

follown: & rule to whieh all municipal lawe that are

founded wpow the principles of justlos have atrletly eon

formed.’ TV II. Com, 24 Phe elsewhere (LV I. Com,

207) winters 292% * eee HE be Jet fee conned eee

porn to give: , to the ptubtle nyaloat misbehavior

that in apprehended, yet Ho wank be hard, upon such

suspicion, Without the proof of any actual crime, to eee

them Dy n forfeiture of their recagnimanee,”

Mir aware Coke states that the words “‘aliqua modo

dextnnatur’, in d, 20 of Magna Carta, extend not only to

killing or maiming, but alee to every oppression under color

Of legal authority, 2 Tust. 44,

phie Potition of Right, 2 Car. | (1627), declares that no

frocman hall be lprikoned or detained without nue.

shown, to whieh he may make answer according to law,

Blackstone says: “To berenve a man of life, or by vie-

lonce to conflwente hix extate, without accusation or trial,

would be so gross and notorious an act of despotiam as munt

at once convey the alarm of tyranny throughout the whole

Kingdom. Rut confinement of the person, by secretly hur-

“vying him to jail, where his sufferings are unknown or

forgotton, is a lens public, a leas striking, and therefore a

0

‘more dangerous engine of arbitrary guvorument.“ l.

Cum lan. _

All of the foregoing atatomonte. show that the phrase

“per legem terrace” of Magna Carta, feom whieh our os

pression “dae proce of law’ ie derived, was understood

ta require that in My proceeding a party adversely inter

„ud wae entitled to an opportunity ta be heard in hisewn

behalf to have hie day in court) when the amendment in

Which the expression occurs was „dehnte.

The rule ie well stated in Zeigler v. Railroad Co. be

Ala. um;

* Due process implies the right of the person a Hutu

thereby to be present before the tribunal whieh pre-

nounees judgment upon the question of life, liberty or

property, in its most comprehensive sense; to be heard,

by testimony or otherwise, and to have the right of

contreverting, by rankt, every material facet whieh

bears on the question of right in the matter involved, .

If any question of fact or linbility be conclusively pre

sumed against him this ix nat de process of law.

In the instant case it Was conclusively presumed that pe

titiener had vielated his probation. Letitioner could have

rebutted this presumption and failure te allow him oppor-

tunity to de se constituted a violation of the Fifth Amend.

ment. ws A

The general rule in nearly every jurbaliction wherein this

question has been raised seems to be that a convicted do-

fondant reloaged under a suspetided sentence ix entitled to

notice and & hearing on the issue of whether he has broken

the conditions of the suspension of sentence, before the

suspension may be. revoked. In State v. Zolantakis, 259

Pac. 144, the Supreme Court of Utah held that a convict

having been granted a suspension of sentence during good

behavior, without any limitations, is entitled to hearing,

in accordance with well recognized and established rules

7

of judicial procedure, on the question whether he haa eam

plied with the conditions imponed, before revocation of hin”

une eee, 8

'

The court saya in part:

he purpose of the law permitting the suspension

of wentence ix clearly reformatory, Uf thowe whe are to

he reformed connet implicitly rely upon promines or

orderd contained inthe suepension of sentences, Then we

may Well expeet the law te fail in ita cpurpone, Phe

reformation can corthitly heat be aecompliahed by fair,

cousinteget and etenightforward treatment of the per

von ert to he rare. i would therefore seem,

beth from authority and principle, that when ao sen

tonee in wuapended caring good behavior, without any

reservations, Che ese wheane sentence in thie atts

pomled has a vested right to rely thereon «oe long a

neh condition in complied with The right to per

wenn! liberty ia one of dhe most aered ond valuable

rivht« of a citizen, and «hall not be regarded lightly.

The right to personal liberty may be ax valinhle to

one convicted of crime as to one not «xo inflicted, and so

long ax one complies With the conditions upon whieh

nell right ix assured by judicial declaration, he may

not be deprived of the same, Such right may not be

alternatively granted and denied without just cause,”’

he majority of this Court are of the opinion that

a person who hax a sentence suxpended during good

~ behavior, without any limitation, ix entitled to a hear. -

ime upon the question of whether or not he has com.

plied with the conditions ituposed; that such hearing

must be according to some well reeognized and estab-

lixhed rules of judicial procedure; that defendant is

entitled to have filed either an affidavit, motion or other

written pleading setting forth the facts relied upon

for a revoention of the suspension of sentence ; that the

defendant should be given an opportunity to answer or

plead to the charge made; that a hearing should be had

upon the issues joined; and that the defendant as well

as the State be given the right of cross-examination.

8

If we are correct in our conclusion that, the defendant

has a vested right to his personal liberty during good

behavior when so ordered without reservation In the

original sentonce, any proceeding failing in these ox-

vontials is orror.’

_ Again, in Ev parte Lucero, 168 Pace, 713, the Supreme

Court of New Mexico hekl that a prisoner was entitled to

notice and a hearing on the issue of whether he had bio-

lated the terms of a suspended sentence, before it was

declared revoked. The court said:

‘ * *

„It appears that the proceedings leading to the ads

— panco of the conunitment against the petitioner were

entirely ex parte, So far it appears from the record

he was not present in person, or by counsel, and had

no hearing as to whether he had breached the condi-

tion. pon principle it would seem that due

process of law would require an gpportunity to be

heard and notice, before the defendant can be com-,

mitted under suspended sentence. Phe suspension of

the execution of the sentence gives to the defendant a

#aluable right. It given to him the right of personal lib-

erty, which is ono of the highest rights of citizenship.°

This right cannot bo taken from him without notice and

opportunity to be heard, without invading his constitu-

tional rights.“

. '

In State v. Phillips, 185 N. (. 514, 115 8. EK. 898, it was

held at a convict, having been given a te sentence

on the condition that he abstain from drink, was entitled to

n notice and hearing to inquire into an alleged violation of

the condition, before being sentenced td imprisonment at

hard labor.» The court, in support of its decision in this case

said:

„If the defendant was sentenced upon his plea of

guilty, and the judgment was suspended, or its immedi-

ate executio fithheld, on a condition, and the State

alleged a w ation of that condition, and asked for

* : >

‘the enforcoment of the sentence because of. the viola

tine of the condition upon which it wax based, the

judge should have required the defendant to appear

before him, by notice or by capias, if necinuyy, and.

inquired into the allegation of the State, and, if found

to be true by him, he should have enforced the judg.

mont, or taken such other curse ax hia finding muy

have Justified. But he clearly had ne power, or Juri.

diction, to loave this important and exsoftial judicial

prerequisite to bo ancorlained or faynd hy a clork of

the court, or a sheriff, and 2 order the im

prixonment of the defendant with hard labor upon the

roads of any limignatod county." 3

It is true that where the statute provides that the parole

power to be exereixed by the court is entirely discretionary,

or where the statute makes an express reservation of the

power to revoke, no judicial proceeding would be necessary

to terminate a suspension of sentence, but in the ease at bar

there is no su@h provision in the statute, and the came ν,ji

he therefore within the class of cases whic hare connide red

in the absence of statute.

The case of State, ex-rel, O'C omner v. Wolfer, 53 Mini.

135, 54 N. W. 1066, 19 J. R. A. 783, was a case in which u

_ eonviet who had been sentenced to life imprisonment was

pardoned on the express condition that he take up his rexi-

„ dence outside of the State during the balance of his life.

Later, on being found within the State, he was arrested and j

remanded to serve out his sentence. The court, in sup-

poFt of the view that a hearing was necessary, said:

“The main question, and the one which presents

itself at the threshold of this case, is whether a per-

son who has been discharged-on a conditional pardon

‘can be recommitted to the State prison without any

- hearing or adjudication, upon the mere order of the

Governor, who has assumed to determine ex parte

that the condition of the pardon has not been per-

formed. It seems to us that such a sentence is war-

Oe

10

ranted feither by law nor by en just renn ral for the

personal liberty of the witten, It la of course, well

sottlod that if aw person be pardoned upon condition,

vither precedent Or subeoquent, Whieh he negleeta to

erform, the pardon is wold, ate he may be renuanded

fo suſſor his ritma xentenee; bul upon the question —

whether he has negleeted to perform the condition, and

ia therefore Hable to be thus romanded, he in entitled

tow hearivg and adjudiontion, * ' but the pardon

in this ease contained po neh eomlition, and our Ant

ute in ontively silent us to the mode of proeedure, The

rr, therefore, zn auch cases, is pevernod by the

rules of the minen law," a

lu theeree v. State, d Fin. 24, an So, 48, un eonviet had

boon pardoned from a life sentence on vondition that he

“thereafter load a saber, peaceful and law abiding life,

failing in whieh the sheriff of any county ia to arrest him

and return him to the State's prison to complete the son.

tenes so imposed.’ The board of pardons revoked his

parole and issued an order for his rearrost and lmpgidon-

mont, Ona petition for a writ of habeas corpus, the pris.

oner complained that his conditional pardon had been ro-

vokod ‘without due notice and hearing. ‘The court, in hold-

ing that the convict .was entitled o n hearing before his

pardon was declared revoked, said: |

“The established practice of the common law and

in the American States, in the absence of statutory reg-

wation, and in the absence from they pardon itself of

express stipulations for that purpose, is for some court

of general criminal jurisdiction, upon having its atton-

tion called, by affidavit or otherwise, to tho fact that a

pardoned convict has violated, or failed to comply avith,

the condition or conditions ‘of his pardon, to issue a

rule reciting the original judgment of conviction, and

the alleged violation of, or noncompliance with, the con-

dition or conditions thereof, and requiring the sheriff

to arrest the convict and bring him before the court to

e

show canes, if any he ean, why the original sentenes

lpomed pon him should not be executed, A copy of

teh rule about @ wer ved tipon the conviet at the time

Of Hie rrest.“!“ ¢

Similarly, in the eae of State v. Morne, 52 ln, 125, 42

No, Au, It wan held that a prisoner was entitled toa henge

lng before having his constitutional pardon revoked, The

court in that one ne:

2

“When n econviet las been eee upan a eondi-

ann pardon, bie ronrreat and recommitment to libs

ordinal eentence cannot be had npon the mere@order of

the Governor nlone, unlews such a course ia provided

by atatute, ar by the express provisions of the pardon,

ho petitioner (in the abacnee of alatute or of exrprean

provisions inthe pardon to the contrary) in entitled to

n hearing before the court Inv hing juriseiction of the

owrit ander whieh he in held, in order that he may how

that he hase performed the condition of the pardon, or

that he has a legal excuse for not having done sa, or

that he is notVhe same person who was convicted,”

Agnin, in People ea rel, Joyee v. Nr mn, 242 III. 360,

0% N. . 118, on petition for writ of dmbeas-corpus on tho

ground that no hearing had been ndl o ascertain whether

the petitioner had violpted bis parole, it Was held that the

petitioner was entitled to n heariag. The court said:

Under the constitutional provision that he shall not

bo deprived of liberty without due process’ of Jaw, he

ix ontitled to a hearing before some authority as to

whether he has violated the conditions of his parole

and forfeited his rights under it.“

In People wn rel, Stumps v. Craig, 140 N. Y. Sup. 652,

which arose on a petition for a writ of habeas corpus, it

appeared that a patoled prisoner was summarily rear-

rested and imprisoned on u ‘wrrant issued by a police officer,

who was informed under oath that the probationer had“

viofated his parole. The probationer was arrested without

notice and without any opportunity to be heard. The court,

in holding that the revocation of parole without a hearing

: and subsequent commitment to jatl was illegal, and culling

for a reloase, anid: 0

The defendant was there pgsotent inf ig ungen

and domancling his right to be heard. No hearing wan

seeorded him, Aue he wae summarily convieted of a

violation of his parole without information ax to wher,

where, or how it had been violated; nor does if appear

that the poltee taint rate had knowledge of it, To

wend &.person to prison beeausd he las violated sone

. eondition which de insists he has vel, antl without

specifying what it is, and without giving him an ep

portunity ta be apprised of the condition and ite vie,

‘lation, Which ix claimed to have odvurred, and to be

heard in his own behalf, v jolates eee principles eo

of criminal jurisprudence,’

And in X. V. v. Arie gel, A N. v. mae (46, it Win mficl,

by way of dictum, that a revocation of probation without

a hearing, resulting in a comniitment, is legal, and in

habeas corpus proceedings would warrant a discharge.

The foregoing statements show conclusively. that it ix

the conaensus of opinion in the State courts that the right

of every person to be heard when his life, liberty or prop-

erty are involved is one which must be xerupulously gun vate

and that any proceeding in which he is denied this right.

is not dae process of law. 1

; Two.

At the time the petitioner: wis sentenced, to wit, on Oc-

tober 10, 1932, the law applicable was as follows (18 1“. 8.

C. A., See. 725) :

**Powers of Probation Officers; Arrest of Proba-

tioner.—When directed by the court, ‘the probation

officer shall report to the court, with a statement of

the conduct of the probationer while on probation.

The court may thereupon dischargo the probationer

*

| U

‘

*

‘from further supervision and may are | the pro.

iu Anna bin’ or may extend the probation, nn

„all moo Mevlana,“

„At any tine within the probation period the prob

tion oMeor nay arrent the probationer without a war

rant, or the eourt un lane a warrant for hin arrent,

Theréupon such probationer shall forthwith be taken

before ‘the court, At any time after the probation

period, hut within the maximuw period for whieh tha

defendant might originally Jinve been sentoneead, the

court mn insieon warrant addy eaune the defendant to

he arronked and brought before the court, Thereupon

the court nay revoke the probation or the susponsion

of sentence, and may inpone airy rentence whiel might

originally live been eee (Mar. 4, 125, 6. 521,

Seo, 2, 4% Sint, 1200.) .

On Jayne 16, tun, the wevomed enen of e Neefion

725 wan ninended to rene ane follown: «

At uny time within, the probation period the proba-

tion oMleer may arrest the probationer wherever

found, without a warrant, or the court whieh. haw

granted the probation may insu a warrant for hin ar. ~

reat, widel warrant may be executed by either tho

probation ofieer or the United States Marshal of either

* the district in which the probationer wan put on probn-

tion or of any district other than that in which the

probationer shall be found and, if the’ probationer

shall be xo arrested in a district other than that in

which he his been put on probation, any of said officers

may return pr obationer lo the diatrich out of whuh

such warrant shall have been issued.” (Aw amended

June 16, 1933, c. 97, 48 Stat. 256.) (Italies ours.)

It is submitted that the above statute, as amended, ré-

quires that the probationer be hrought before the court

before revocation of his probation.

The purpose of the statute seems to be merely to enlarge

the powers of the Marshal so that the probationer may be

apprehended wherever found on warrant from the court

4

14

of the distriet in which probation was granted, Aside from

this it continues the law as it was prior to the enactment of

the statute by implication, ‘To contend that the amend.

mont was intended to entirely snperseds the origitil stat

ute is to contend that, the legislature enacted a foolish

amendment. If thé last clause of the amendment. is to

be given effect it must be read in conuneetion with the two

clauses of the statute requiring that prébationer be breught

before the court. Properly construed, it mtanton thut any“

officer nnz!“ return probationer, but.sxome one of them

must return him to the distriet.whonce issued the warrant

do that he may make answer rn to the right granted

him by the statute before amentinent. It cannot reason: |

be contended that the Congress pasted a measure over one-

third of which is surplusage. Yet such is the result if the

wmendment be interpreted as repealing completely the stat-

ute and not incorporating it by implication. “The last clause

of tho amendment was. obviously written with an eye to

keeping the measure within the constitutional rule of due

process of law.’’ Otherwise interpratvd, it becomes a petty

logislatiyp interméddling into the minor administrative acts

of the Marshal. —

The Cireuit Court of Appeals (W. Va.) construing Sce.

725, in the case of Mollandsworth v. United States, „pe

cifically held that a court cannot revoke probation and sen-

tence a probationer unless it appears, after notice and op-

portunity for hearing, that probationer failed to comply

with the conditions of his probation. (34 F. (2d) 423.)

Petitioner believes that the Congress did not intend to

dispense with this requirement when the amendment was

enacted in 1933; but rather that it was expressly recognized

and continued by force of the closing words of the amend-

ment. He believes that the requirement of a hearing are

to be fairly and logically inferred by its terms and thus is

| /

within tho statute as amended, (Great Northern Ry, Co.

v. United States, 155 Fed, 045, 8 . C. A. 03, aff. 208

U. S. 452, 28 Sup. Ct, 313; United States . Allen, 179 ed,

13, 108 (,, (, A. 1.) i

ln construing a statute, the presumption ia that the legia-

lature intended to change the law ax it theretoford existed

only insofar ax necessary to effectuate the purposes of the

not in question, 3 Bl, Conn. 40. In the amendment under

question the sole purpose of the Congroas was to authorize

arrest by any Marshal and return by him of the probationer

to the district whence the warrant lasued,

Thére-ix alxo a presumption that the Congress did not

intend to enset a méasure which ie unconstitutional, e

' @parte Young, 200 U.S, 123, 28 Sup. Ct. 441; Cantwell vy.

Missopri, WOU, S. G02, 26 Sup, Ct. 749; Smith v. St. Lowia

Ry. (h AL . S. 248, 21 Sup. Ct. 603, It cannot be con-

tente that the omission of the words “brought before the

court’? from the panencdinent was intended to dispense with

the necoxxity of such a procedure, since this would be to

- hold that the Congress intended to violate the inhibitions of

the Fifth Amendment to the Constitution, which is unten-

able, ö

It ix to be presumed that tho Corigress never intends to do

an injustice, Co, Litt, 183. It cannot be contended that

- the Congress intended to, eliminate a hearing which is

demanded by the most clementary principles of fairness

and justice if not by organic law. It ix the duty of the court

io give effect to every word of a law, if possible, Yet the

last clause of the amendment becomes meaningless and de-

void of sense if it be held that Congress intended to dia-

pense with a hearing when it enacted the amendment. The

lungunge used must be so construed that all words are

given meaning. When the language used is elliptical, the

words which are obviously necessary to complete the sense

will be supplied. It is manifest that the words for the

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purpose of a hearing’’ are to be added to the lant sentence

of the amondment if t e fo exprom the intent of (he logla

lature, — a

It le always porminible to look to the context to diaeover

the logiglative intent. The statute and amendment under

consideration are part of, Tithe I, United Mtatim Code,

dealing with probation, The anondment requires that the

probationer be brought back to the det riet where probation

was granted when arrested on warrant by an oMeer out

„Mo the diafriet, Why shoulil he be roturnedt Obviously

for but one purpose; that the question of hie violation may

be investigated in gis presence by fw court whieh aranted

his probation.

There ia a „ r that the Congrom did not intend -

to repeal See, 725, by Nun alan it entirely, To so hold

would result in th startling situation of a court having

power to arrest a probationer, but net revoke hin. proba

tion, for the peer to reveke probation ix found In See,

725, but not in the amendment. The questionable logic

which would exclude the necessity of a hearing since the -

amendment would likuowiae s«imullaneously withdraw from

the court the power to revoke probation once granted, an

absurd consequence and patently untenable,

The Congress cannot be presumed to have interded an

innovation on the common law, and: its enactrionts cannot

“he extended, in directions contrary to the common law, kur-

ther than required by the express terms employed. Nothing

contained in the 7 can be thought to show the eon-

_ gressional intent to change the common [aw requirement of

a hearing in all cases where a man’s liberty is in joopardy. —

Soc. 725, Title 18, United States Code, as amended, ro-

quires that the probationer be brought before the court.

Failure to do so in the instant case renders the orders en-

- tered utterly void and without effect. in law.

17.

ros,

Petitionor belleyes that-he in now legally tiprisoned

in violation of the Constitutlonal roquirement of due proc

one and in violation of the statute,

Petitioner was committed to theepenitontlary nfter grant.

ing of a motion of the probation oMeor to rewoke hin proba-

lol, He was net givonan epportielty to pray for hin brig-

inal wontonew of olghtoon monthe; which he hax now mora

than serviel, tle was not given an opportunity to inquire

into the venkoun for the Ming of the motion, which doos not

xpoolflenlly reely them. Why was the motion Med? After

. nearly two yours of diligent effort by himself, his mother

and hin frlonds, petitioner hae yet totacover jnat wherein

“he le alleged to hinge violated the conditions of hisprobn-

leon, Tk he to lremain in perpetial lygnernnce of which of

hin neta vere deemed to be mullelontly offensive to soctety to

merit low of hin Hberty for yoarst Can it be seriouwkly eon-

tene that the Aer kenn people intend that a mere nad-

winiatrative ofleor of the court wax to be clothed with un-

quewtionod authority t bintitute procedings invedving Town -

of libegty without cause shown or opportunity for iinpogeh-

ment? To reply alimatively to ther nenten is t shock

fhe o⁰α of justice which in one of Hut moxt cherished :

choritageon, . . 7

Upon being admitted to the penitentiary, petitioner for-

warded a motion to the District Court from which he wis

committed praying thal he be given an opportunity to be

line if hie defense and that the’ be’ apprixéd specifically

of how hp had violated his probation. «This motion was ro-

' turned to petitioner by letter signed. by the Honorable

Randolph Brygnt which flatly refused to allow the motion

to he filed. No comment was included.

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5 Four.

Was habeas corpus available as a remedy to test the

validity of the orders revoking petitioner’s probation and

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a

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committing hint to the penitentiary? In the court below

appellee contended that a valid juriadiction of both person

und uhqeet minttor existed and the sentence was within

that autherived and hence that the orders were open to-

attack only by appeal therefrom and not by habeas corpus,

‘Petitioner denied that a proper jurisdiction of the person

had attached in the promises and that as a result the

orders were coram non judice and open to attack by habeas

corpus, | 5

Thosrogolution of thin difference involven the deterfiinns -

tion of what. specifically amounts to a valid jurisdiction

of the perso, Petitioner maintains thatgustody and urin

detion of the person are not xynonymous; that something

more than mere apprehension ix necessary. Suppose, for

example, that John Doe ix, served with the warrant, Ins

jurisdiction of the person of Johi Doe attached? Obvi—

ously not: Suppose further an order is now entered revok:

ing Doe's probation and committing him. Doo is promptly

hurried off to the penitentiary. How is Doe to challenge

this ordert The appellee below contends hin remedy i

by appeal. We then have the extraordinary anomaly of

Doe admitting that he is Doe so that he can appeal, and

—tenying that he is Doe in the appellate court! Or the

equally amusing case of Doe denying that he is a party

to the suit and seeking to carry it forward by appeal!

/ Petitioner believes ‘thet as a usual rule the person has

nat. attached sufficiently to render an order valid until the

party has appeared in open court avd admitted that he is

the party contemplated. He believes further that if the

person should appear in court and deny lis identity and

therefore the court's jurisdiction that no jurisdiction would

attach until he was judicially found to be the correct

person, ’

Petitioner grants that potentin! jurisdiction of his per-

sol was present, but maintains that before active jurisdic-

10

tion could be wot, it wax necessary that he be brought into

court, Where Ke should thereupon be given an opportunity °

tobe heard. If Ihe sought to exoherpte: himself, jurisdic-

tion would attach ipso facto, Likewise if he submitted,

but if he thereupya challenged the jurisdiction of the court,

u could not attach until the reasons for hin challenge had

hoon investigated, .

Jt ie manifest, therefore, that ‘eave is 4 Jurindictional

question involved and that’ habean corpus in u proper

remedy. Petitioner doesnot seek a review of the exercise

of a dineretion; he denies that the power to exercise the

' dixeretion ‘with reference to hin existed at-all, He does

not maintain that the court, abused a discretionary power

und that this abuse*should be remedied; he rather main-

thins that an order has been executed on him, which was

imsued in a proceeding to which he was not a party and

which was cordm non judice, void and of no effect.

The Distriet Court to whieh your petitioner directed his

original position for writ of habeas corpus is invested with

statutory, authority to grant the writ. See. 451, Title 25,

U. S. C. 5

The courts have ‘repeatedly held habeas corpus to be

proper remedy to inquire inta the legality of imprison-

mont where jurisdiction is wanting or a constitutional

right has been invaded. F. S. v. Harden, 10 Fed. 802;

Ex parte Mikell; 253 Fed. 817; Yow v. F. S., 208 U. 8. 8,

28 Sup. Ct. 201; Craig v. Hecht, 260 U. 8. 714, 43 Sup. Ct.

90, and decree affirmed 263 U. S. 255, 44 Sup. Ct. 103.

Five.

In the above premises petitioner believes he sheuld be

~ discharged from further confinement. He has now been

incarcerated beyond. the length of his original sentence

upon a commitment without legal foundation.

EL

Wurnzronr, your petitioner reapectfully prays that a

writ of certiorari be issued under the seal of this Honor-

able Court directed to the United States Cireuit Court of

Appeals sitting at Denver, Colorado, commanding the aald

court to certify and send to this Court, on a day to Be

designated, a full and complete transcript of the record

and all proceedings of tho Cireuit Court and District Court

had in thie care, to the end that anid proceedings may bo

reviewed by this Court, and that upon a full examination

of the record the judgment of the anid Clrouit Court be

reversed, and for such other relief ax to this Court shall

seem proper.

. Jack Kacor,

Petitioner, Pro ae.

In the-United States Supreme Court of America, October

Term, A. D. 1934,

Sratr or Kanaan,

County of Leavenworth, ss:

Before me on this day personally appeared Jack Facoe,

petitioner in the foregoing petition addressed to the Su-

preme Court of the United States of America, who, being

by me first duly sworn, depoxes and enys that the facts

stated in the foregoing petition are true to the best of his

knowledge and belief.

Jack Kacor,

Affiant.

_ Sworn to and subscribed before me, a notary public, thix

Sth day of March, A. D. 1935. °

[amas | E. II. Kox not,

Notary Public.

My commission expires April 29, A. D. 1938.

(6178-C)

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