# Petition for Writ of Certiorari — Escoe v. Zerbst > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0234%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1935 - **Citation:** 295 U.S. 490 ## Text Office Buprene l 1 FILE COPY vegies QWARLAS clini 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 * ‘ — — 16 ‘ * 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. — 5 Four. Was habeas corpus available as a remedy to test the validity of the orders revoking petitioner’s probation and * 4 . , a 0 18 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) * --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0234%3A2. Public record. Not legal advice.