Petition for Writ of Certiorari — Bowen v. Johnston

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SEP 16 1338

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1938

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No. 359

HUGH ALLEN BOWEN,

Petitioner,

vs.

JAMES A. JOHNSTON, Wanpew, Uxrrep States »

PENITENTIARY, ALCATRAZ, CALIFORNIA

—

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE NINTH CIRCUIT AND BRIEF IN SUP-

PORT THEREOF.

~~

. Hvexr Auue~ Bowen,

Pro Se.

INDEX.

Sussect Inpex.

Petition for writ of certiorari.....................

Summary statement of matters involved... ...

Reason for granting the writ..................

Brief in support of the petition....................

Eads Sage i eels goat SARRe Sense rLpea

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1. The trial and conviction of the petitioner,

of an offense wholly outside the juris-

diction of the United States courts, de-

prived him of due process and of the

right of appeal in violation of the Fifth

and Sixth Amendments to the Constitu-

tion of the United States. . : 10

. The court below had jurisdiction to dis-

charge the petitioner on writ of habeas

NII Ho onc soe release excess: 18

Cem. oo aos vse week ana mea 21

TaBLe oF Cases ee

Archer v. Heath, 30-F. (2d) 933 (C. C. A. 9, 1929) _.. 5

Brown v. Mississippi, 297 U.S. 278............ 6, 12,19

Downer v. Dunaway, 53 F. (2d) 586 19

Campbell v. Aderhold, 67 F. (2d) 246 (C. C. A. 5,

ere EEE rere 7

Collins v. Yosemite Park and Curry Company, 58

Sup. Ct., page 1009... 6, 10, 11

Ft. Leavenworth Railroad Co. v. , Lowe, 114 U. S. 525,

541, Sup. Ct. 995, 29 L. Ed. —. .. 6

Goldsby v. U. S. (1895), 160 U. S. 70, 73, 16 Sup. Ct.

216, 218, 40 L. Ed. 343. 13 -

James v. Dravo Contracting Co., 302 U.S. 134, 146, 58

Sup. Ct. 208, 214, 82 L. Ed. 114, A. L. R. 318 6

Johnson v. Zerbst, 58 Sup. Ct., page 1019 6, 10, 20

Kahl v. U. S.,19 U. 8. 367 6

Lange, Ex parte, 18 Wall. 163, 21 L. Ed. 872 %)

—8008

Bh ar ae

ii INDEX

Page

Mooney v. Holohan, 294 U. 8. 103 6,19

Moore v. Dempsey, 261 U.S.86......... 18

Myers v. U. 8S., 256 Fed. 779 (C. C. A. 5, 1919) Pia, 7

eS oe 3S oO) errr 15

Pothier Case (1923, D. C. R. L.), 285 Fed. 632 2 (1923,

C. C. A.), 291 Fed. 311 (1924), 264 U. S. 399, 44

Oe FT ON 8 eS eearerere 16

Powell v. Alabama, 287 U. S. 45 (page 59).......... 6,10

Safford v. U. S. (1918, C. C. A., N. Y.), 252 Fed. 471,

ae OY ee eee 13

Scott v. Sanford (1856), 19 How. 393, 401, 402, .

RR ey Ma ca a a, Scr Ge el 14

St. Clair v. U. S8., 154 U. S. 134, 14 Sup. Ct. 1002, 38

L. Ed. 936 (1894) Bb ayn ap ine ae eae 16

U.S. v. Burns, Fed. Rep., Vol. 54, page 359 (1893). 17

U.S. v. Cruikshank, 92 U.S. 542... 2: ae

U.S. v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31L. Ed

ee ena s 2 are gb Ga Wales sioeis 7,17

U.S. v. Pridgeon, 153 U. S. 48, 14 Sup. Ct. 746, 38 L

Oe ee ema et ot han cos e642 7

me ye SS eee eer 7

Walsh v. Archer, 73 F. (2d) 197 {C. C. A. 9, 1934)... 5

Yarbrough, Ex parte, 110 U. S. = 4 Sup. Ct. 152,

Fe 5 | Bee 21

SraTurTss.

Federal Constitution, Art. 1, Section 8, Clause 17,

Fifth, Sixth and Tenth Amendments eae SO

Georgia Laws, Act of November 19, 1890, page 199. . 14

Judicial Code, Sec. 240 (a), as amended by the Act of

February 13, 1935............... 9

16U.S. C. A., Section 424, Act of August 19, 1890 14

18 U.S. C. A., Section 562... ll

ae oon Sections 451 and 453 18

28 U. S. C. A., Section 832, as amended by Act of

January 31, 1928 ees 3,12

Text Booxs Crrep.

Foster Federal Practice (6th Ed., 1921), Vol. 3, p.

2578 13

Hughes on Federal Procedure (24 Ed.), pp. 32, 33 14

SUPREME COURT OF THE UNITED STATES

OCTOBER » seit 1938

ov

No¥359

HUGH ALLEN BOWEN,

Petitioner,

vs.

JAMES A. JOHNSTON, Wanrpen, Unitep States

Penrrentiary, ALCATRAZ, CALIFORNIA.

a |

/ .

PETITION.

“® Hugh Allen Bowen, in proper persona, prays that a writ -

of Certiorari issue to review the judgment of the United

States Circuit Court of Appeals for the Ninth Circuit Court

of Appeals for the Ninth Circuit entered in the above cause

on June 27, 1938, affirming the judgment of the United

States District Court for the Northern District of Cali-

fornia:

_. Summary of Statement of Matter Involved.

The petitioner filed his petition for the writ of habeas

corpus, complaining of his detention in the Federal Peniten-

tiary in Alcatraz, California, alleging that he was held in

violation of his constitutional rights. He was arrested by

1b

a

2

the sheriff of Hamilton County, Tennessee, on February 12,

1931, together with one John E. Smith, charged with the

murder under the laws of the State of Georgia, and placed._

in the Hamilton County jail. It was alleged that said crime

was committed within the limits of the Chickamauga and

Chattanooga National Park in the State of Georgia.

‘ Petitioner contended that he was not a fugitive fromthe

State of Geegrgia, and filed a writ of habeas corpus in the

Hamilton County Court, demanding his release. The case

was heard by the Honorable L. D. Miller. At the hearing

were officials from the State of Georgia, and the Superin-

tendent of the Chickamauga and Chattanooga National

Park, with maps, the laws of Georgia and of the United

States, and other papers, to show that the State of Georgia

had qxclusive jurisdiction over the crime, and that the

United States did not have such jurisdiction.

Judge Miller, after due consideration, ruled that the State

of Georgia had exclusive jurisdiction over crimes committed

within the boundaries “@f the Park, and ordered petitioner

removed to the State of Georgia, to be tried under State

laws. Whereupon petitioner appealed to the Tennessee

State Court of Appeals. He remained in jail ten months

pending the outcome of this appeal, when the United States

indicted and took him to Atlanta, Georgia, to await trial. He

remained in the Atlanta County jail another fourteen

months before he was tried. He urged every United States

“Marshal and every other person who visited the jail to ask

the judge and District Attorney to give him a preliminary

hearing, that he might know the nature of the offense

charged against him. But at no time was he given a hearing

of any nature whatsoever.

Petitioner was utterly without funds, but his Mother em-

ployed one M. Neal Andrews, an attorney of questionable

legal training, to defend both the petitioner and his brother,

Frank Bowen, who were jointly charged in the indictment.

>

3

. =

John E. Smith was tried separately, convicted, and sbn-

tenced to life imprisonment.

Petitioner took a pauper’s oath as a means to obtain wit-

nesses in his own behalf and to get the court to furnish a

stenographer to take the record in order that he might ap-

peal the case, as provided for in Section 832 of Title 28,

U.'S. C. A.

On the morning of February 6, 1933, petitioner and Frank

Bowen were taken to the Federal court room in Rome,

Georgia, and the trial proceeded. The petitioner was not

informed of the nature of the charge against him until after

the trial was underway, when he asked the court if he were

being tried for first degree murder, or,fer manslaughter.

The court replied that it was for first degree murder and

that thereafter all inquiries made on behalf of petitioner

should be directed to the court by defense counsel. Peti-

tioner then had his attorney ask the court if a stenographer

were present to take the record. The court stated that in-

asmuch as petitioner was prosecuting the case as a pauper,

the court could not feel justified in putting the Government

to the additional expense of hiring a reporter to maintain

the record.

Petitioner produced testimony by two surveyors to show

that the crime was not committed within the limits of the

Park, that the deceased’s body was found more than two

hundred (200) yards from the nearest bound of the Park.

No testimony was offered by the Government to refute these

statements. However the court instructed the jury to the

effect that, inasmuch as the indictment alleged that the

crime was committed within the boundaries of the Park, it

- should disregard the expert testimony, and so find that the

United States had jurisdiction over the offense.

The Government used as a witness against petitioner,

one Estell Roddy, who admitted that he was then at lib-

erty or bail pending the outcome of an indictment for per-

2b

Pee ee — - . -

Se ey SAR Oe SR et OSS

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4

jury under the laws of the State of Georgia. Petitioner

took an exception to the admissidn of his testimony, as well

as the above named part of the’ court’s instruction to the

jury. The petitioner was convicted wholly and entirely on

circumstantial evidence. Not one scintilla of substantial

evidence was introduced on the part of the United States.

The jury found petitioner guilty and acquitted his

brother, Frank Bowen. After the court passed sentence

@ against petitioner, his attorney served notice of Rppeal and

told petitioner that hé, the attorney, would take care of the

appeal, and told the petitioner to go on ahead to the peniten-

tiary and ‘‘don’t worry about it’’. Petitioner was taken

to the penitentiary and was quarantined in a tubercular

ward of the prison hospital, away from the other inmates.

He remained in this ward all the time he was, in the At-

lanta Penitentiary.

Petitioner had had only a fifth grade education, had never

been arrested before for any crime or misdemeanor what-

soever, and had got the slightest knowledge as to what pro-

cedure to pursue in effecting his appeal. He was allowed

to write to his Mother, but not to his attorney. His Mother

wrote to the attorney numerous times, but he would make no

reply to her letters.

Thirty days before appeal time elapsed, petitioner’s

Mother made an expensive trip to see AttorneyeAndrews

regarding the appeal. Attorney Andrews told her that, to

be frank about tter, he was making a strong bid for

appointment as an assistant United States District Attor-

ney, that if he insisted on carrying out the appeal, it would

greatly endanger his chance of getting the appointment,

and that he suggested she engage some other attorney to

proceed with the appeal. She told him that she was with-

out funds or any other means of employing another attor-

ney. He told her to go on back home and he would see what

could be ‘‘done about it’’.

Pe saicreen or sss a aie oS, ae

x

Two weeks after the time elapsed for taking the appeel,

petitioner’s Mother made another expensive trip of a hun-

dred and fifty miles to see Attorney Andrews about the case,

and he told her that he did everything possible within his

power td appeal the case, but that no record of the testi-

mony had been kept, and that there was absolutely nothing

on which he could base an appeal.

Petitioner was later transferred to the Federal Hos-

pital for Delinquents at Springfield, Missouri, from there

to the Fort Leavenworth, Kansas, Penitentiary, hence to

Alcatraz Prison, his present place of confinement.

Petitioner filed his petition for the writ of habeas corpus

(No. 22539-L) on September 25, 1937, in the District Court

for the Northern District of California, and on October 9,

1937, the writ was denied. Petitioner appealed to the Cir-

cuit Court of Appeals for the Ninth Circuit, and the de-

cision of the District Court was affirmed on June 27, 1938.

The Circuit Court of Appeals in the opinion it returned

stated :

‘‘Appellant’s principal claim is that the District

Court in which he was tried had no jurisdiction over the

Park in which it is alleged the crime was committed

* * * and that the indictment is defective in not al-

leging the details of such cession to the United States

by the State of Georgia.’’ Citing Archer v. Heath, 30

F. (2d) 933 TC. C. A. 9, 1929).

The Circuit Court of Appeals further stated:

‘*But if the United States could constitutionally ac-

quire jurisdiction over the park, then the question

whether in fact the United States did have such juris-

diction over the Park and over the Appellant becomes

a seriously controverted question of law and fact within

the meaning of Walsh v. Archer, 73 F. (2d) 197 (C.C. A.

9, 1934), supra, and it is not within our province to

question this on habeas corpus.”’

a we =

.

The Circuit Court of Appeals further stated in ‘referring

to petitioner’s contention that he was deprived of due proc-

ess Of law in that he was denied the right to appeal, that

he had the right to a preliminary hearing, and to be in-

formed of the nature of the crime and to be confronted with

the witnesses against him.

‘“‘The other objections urged by the appellant are

wholly insufficiept in point of law and call for no dis-

cussion.’’ |

Reason for Granting the Writ.

1. The decision of the Circuit Court of Appeals in the

case at bar involves important questions of constitutional

law and of the State’s rights. Such decisions of this Court

as discuss the right of an accused to a speedy trial, to be

confronted with the witnesses and to be informed of the (

accusation against him, and depriving him of life aid*lib-

erty without due precess as guaranteed by the 5th and 6th

Amendments of the Constitution, indicated that the de-

cision of the Cirguit Court of Appeals in holding tkat the

writ of habeas corpus will rot lie, is in direct conflict with

the applicable decisions of this Court, particularly the cases

of Johnson v. Zerbst (decided by this Court May, 1938) ;

Mooney v. Holohan, 294 U. S. 103; Powell v.. Alabama, 287

U. 8. 45; Brown v. Mississippi, 297 U. 8. i)

2. The decision of the Circuit Court of Appeals, while not

specifically holding that a State could not qualify jurisdic-

tion in its cession of land within its boundaries to the United

States, it teft such an inference, and is probably not in

harmony with the recent case of Collins v. Yosemite Iark

and Curry Co. (decided by this Court May 31, 1938), and

the cases of Kohl v. U. S.,91 U. 8. 367; James v. Dravo Con-

tracting Company, 302 U. S. 134, 146, 58 Sup. Ct. 208, 214,

82 L. Ed. 114, A. Le R. 318; Fort Leavenworth R. Co. v.

Lowe, 114 U. S. 525, 541, 5 Sup. Ct. 995, 29 L. Ed. —.

3. The decision of the Circuit Court of Appeals that where

there is doubt as to whether or not the Court has jurisdir-

tion over the crime, but it appears from the record by aver-

ment, intendment, and implication that the court did have

jurisdiction, though such jurisdiction was expressly and

specifically reserved to the State by the act’ of cession by the

Legislature thereof, and came before the Circuit Court of

Appeals for consideration, that the record can not be ex-

amined on.habeas corpus, is probably in conflict with John-

son v. Zerbst, supra, and U. S. v. Pridgeon, 153 U.S. 48,

14 Sup. Ct. 746, 38 L. Ed. 631, and others, and in direct con-

flict with the Tenth Amendment of the) Constitution.

4 The decisions of this Court which discuss the language

of an indictment in charging the offense and describing with

particularity the time, manner, and place of coinmissien

of the crime, especially where jurisdiction is involved, in-

dicates that the decision of the Circuit Court of Appeals ;

Campbell v. Aderhold, 67 F. (2d) 246 (C. C. A. 5, 1933) ; and

Myers v. United States, 956 Fed. 779 (C. C. A. 5, 1919), are

probably in conflict with the applicable decisions of this

Court, particularly U. S. v. Hess, 124 U. S. 483, 8 Sup. Ct.

571, 31 L. Ed. 516; U. S. v. Cruikshank, 92 U. S. 542; and

7. S. v. Simmons, 96 U. 8S. 360.

Whether the decision of the Circuit Court of Appeals is

based upon the theory that the petitioner was not deprived

of due process of law and the right to a speedy trial, to be

informed of the nature of the crime and to be confronted

with the witnesses against him, as guaranteed by the Con-

stitution, or whether the decision is based upon the proposi-

tion that such deprivations were of such slight degree as

not to warrant interference with the void sentence through

the process of habeas corpus (the only way open to peti-

tioner when denied the right of appeal), or whether upon

the theory that the United States District courts can exercise

‘

“

jurisdiction over criminal and other process within a State,

when jurisdiction over such process is expressly and specifi-

cally reserved by the State, it is submittéd that the decision

is in conflict with the principles of justice as announced by

this Court in the cases cited in that it deprives petitioner of

the right of appeal (due process) and other rights as guar-

, anteed by the Fifth and Sixth Amendments of the Consti-

tution, and encroaches upon the prerogatives of State

rights, as laid down by the Tenth Amendment of the Fed-

eral Constitution.

Wuenerore petitioner respectfully prays that the petition

be granted. =

Hucx ALLEN Bowen,

Petitioner-A ppellant,

In Proper Persona.

« BRIEF IN SUPPORT OF PETITION.

There was no reported opinion of the District Court.

The opinion of the Circuit Court of Appeals is printed at

pages 79-84 of the record.

Jurisdiction.

The judgment of the Circuit Court of Appeals sought to

be reviewed was entered on June 27, 1938. Jurisdiction to

issue the wrif requested.is found in the provisions of Sec-

tion 240 (A).of the Judicial Code, as amended by the Act

of February 13, 1925.

: a

Statement of the Case.

A statement of the case will be found in the petition.

Specification of Error.

Petitioner contends that the Circuit Court of Appeals

erred: 4

1. In holding that the United States had jurisdiction over

the offense allegedly committed by the petitioner.

2. In failing to hold that the petitioner was denied ‘‘due

process’’. :

ty ‘ .

3. In failing to hold that the bill of indictment is so

fatally defective that it is insufficient to charge any offense

against the United States.

4. In not reversing the judgment of the trial court and

releasing petitioner as prayed for in his petition for writ

of habeas corpus.

10

The trial and conviction of the petitioner deprived him due

_process of law and of the right to a speedy and public trial

‘in violation of Fifth and Sixth Amendments of the Constitu-

tion, such trial and conviction being under the color of

authority usurped from the sovereign powers of the State

of Georgia, in violation of the Tenth Amendment of the

Constitution of the United States.

The Fifth Amendment provides that, ‘‘No person shall

be * * * deprived of life, liberty, or property, with-

out due process of law.’’ The Sixth Amendment declares

that, ‘‘In all criminal prosecution, the accused shall enjoy

the right to a_speedy and public trial * °* ° and to

be informed of the nature and cause of the accusation; to

be confronted with the witnesses against him; and to have

compulsory process for obtaining witnesses in his favor

* 2° * .*? Tre Tenth Amendment declares, ‘‘The powers

not delegated to the United States by the Constitution, nor

prohibited by it to the States, are reserved to the States

= or to the people.’’

nema r might have been the Court’s opinion prior to

Johnson v.\Zerbst, 58 Sup. Ct. 1019, it was by that decision

established that abandonment or waiver of ‘‘fundamental

constitutional rights’’ by force or by ignorance could not be

‘acquiesced in by the Supreme Court of the United States.

The refusal by the trial court to provide for the keeping

of the record in a trial for a capital offense is tantamount

to denying the accused witnesses in his favor the right of

appeal, and of the assistance of counsel, within the meaning

of Powell v. Alabama, 287 U. S. 45, where a ‘‘mere pre-

tense’’ was substituted for a trial.

The widely controverted question as to the power of the

United States to exercise jurisdiction over land acquired by

cession was unmistakably settled by the case of Collins v.

rr

11 )

al

Yosemite Park and Curry Co., 58 Sup. Ct., page 1013, where

the Supreme Court said:

‘« Jurisdiction obtained by consent or cession may be

qualified by agreement or through offer and acceptance

or ratification. It is a matter of arraingment. These

arraignments the courts will recognize and respect.’’

The issue of whether the petitioner in the instant case was

deprived of his. constitutional rights is therefore presented

under the Fifth and Sixth Amendments, and upon the facts

of the instant case it must be held, it is submiited, he was

deprived of those rights.

When the petitioner first was arrested, the Federal au-

thorities contended that they had no jurisdiction to try him

in the Federal courts, and worked in concert with the prose-

cuting officials of the State of Georgia to show that the

State had exclusive jurisdiction, in order to effect petition-

er’s return on extradition to the State of Georgia, for trial

under its laws. But ten months later, when the State dis-

closed that there was insufficient evidence to support a con-

viction, the United States sought aud obtained an indict-

ment against petitioner, and took him into custody.

He had been already in jail ten months, and he waited

another fourteen months in Federal custody without any

manner of preliminary examination whatsoever, and was

not informed of the crime against him, until the day he

was taken to trial, and after the trial was underway. Un-

der the Sixth Amendment and Section 562 of the U. S.

Criminal Code Act of Congress April 30, 1790, which later

provides that, ‘‘* * * When any person is indicted of

any other capital offense, such copy of the indictment and

list of the jurors and witnesses shall be delivered to him

at least two entire days before the trial,’’ petitioner was

entitled to these rights set forth therein. There could be

no due process without them.

12

Because petitioner was without funds he made oath in

forma pauperis, in order to obtain witnesses in his favor,

and to get the court to furnish a stenographer to keep the

record. The court denied this request, thereby depriving

the petitioner of his right to appeal and prosecute to final-

ity his cause under the pauper affidavit, as provided for

in Section 832 of Judicial Code, amended by Act of Con-

gress January 31, 1928. '

It is just as well that the court refused to allow the wit-

nesses to testify for the petitioner, because when the trial

ended, the case ended, for there was nothing for a superior

court to review. But even if an orderly appeal had been

open, petitioner could not have appealed, because his attor-

ney ‘‘sold him out’’ in exchange for appointment as Assist-

ant U.S. District Attorney. This may well come under the

case of Brown v. Mississippi, 297 U. S. 278. In that case,

the accused had been convicted upon the confessions ob-

tained by third-degree methods, and his constitutional right

against self incrimination was thus denied. The accused

was represented by counsel and it was contended that fail-

ure by counsel to move for the exclusion of the confessions,

operated as a waiver of the constitutional right against self

incrimination. The Supreme Court held that the denial of

this right was not a mere error which could be thus waived

by the attorney fer the accused, but was an error which

rendered the trial a nullity. Mr. Justice Hughes said, at

page 286:

‘‘That complaint is not of the commission of mere

error, but of a wrong so fundamental that it made the

whole proceedings a mere pretense of a trial and ren-

dered the conviction and sentence wholly void. Moore

v. Dempsey, supra.’’

In all capital, as well as non-capital, cases, the record of

the trial must be preserved. In Johnson v. Zerbst, supra,

the court said, at page 1023:

13

‘*While an accused may waive the right to counsel,

whether there is a proper waiver should be determined

by the trial court, and it would be fitting and proper

for that determination to appear upon the record.’’

The court further states,

‘‘A waiver is ordinarily an intentional relinquish-

ment or abandonment of a known right and privilege.’’

The petitioner in the instant case did not intentionally

waive his right of appeal; he did everything within his feeble

power to persuade the court to maintain the record, that

he might have something upon which to base an appeal.

Petitioner believes that under the Sixth Amendment he

was entitled to a preliminary hearing. Foster Federal

Practice (6th Ed., 1921), Vol. 3, p. 2578, states:

‘$A person arrested under process of a Federal Court

has the right to a preliminary investigation of the

charge against him and to proof of probable cause

before he is committed to await an indictment or for

trial.’’ /

Circuit Judge Ward, in Safford v. U. S. (1918 C. ©. A.,

N. Y.), 252 Fed. 471, 473, said:

‘*It would be a scandal to arrest and imprison citi-

zens without giving them a hearing and we would not

interfere with this uniform and wholesome practice,

except under absolute necessity.’’ 3

Mr. Justice White said, in Golosby v. U. S. (1895), 160

U. S. 70, 73, 16 Sup. Ct. 216-218, 40 L. Ed. 343:

‘*The contention at bar that, because there had been

no preliminary examination of the accused, he was

thereby deprived of his constitutional guaranty to be

confronted by the witnesses, by mere statement demon-

strates its error.”’

14

Mr. Hughes, in Federal Procedure (2d Ed.) pp. 32-33,

thinks the right of preliminary examination exists in all

cases.

Where a case is removed from a State to Federal court,

it is incumbent upon the Federal judge to make a thorough

examination to determine whether the United States has

jurisdiction to try the case.

Said Chief Justice Ellsworth :

‘** And the fair presumption ir that a cause is without

jurisdiction until the contrary appears. This renders

it necessary inasmuch as the proceedings of no court

can be deemed valid further than its jurisdiction ap-

pears, or can be presumed, to set forth upon the rec-

ord * * ®* the facts or circumstances which give

jurisdiction, either expressly or in such manner as to

render them certain by lega! intendment.’’ Scott v.

Sanford (1856), 19 How. 393, 401, 402 L. Ed. 691.

There is nothing contained in Section 424, Title 16, Act

of Congress, August 19, 1890, giving Federal cvurts juris-

diction to serve criminal process within the Chickamauga

and Chattanooga National Park. On the contrary, the act

of cession by the Legislature of the State of Georgia,

November 19, 1890, page 199, provides :

‘«# * * Provided: that this cession is upon the ex-

press condition that the State of Georgia shall so far

retain a concurrent jurisdiction with the United States

over said lands and roads, as that all civil dnd criminal

process issned under the authority of this State may

be exeented thereon in like manner as if this Act had

not been passed; and Upon the further express con-

ditions, that the State shall retain its civil and crim-

inal jurisdiction over persons and citizens in said ceded

territory as over other persons and citizens in the

eo a

This language is so plain that in no sense of the word

should it be misconstrued.

15

There can be no question about the power of the United

States to exercise jurisdiction over land acquired for pur-

poses other than enumerated in Article I, Sec. 8, Clause 17,

of the Constitution; and it must be conceded that a State

may qualify its cession of jurisdiction over lands ceded to

the United States. The recent case of Collins v. Yosemite

Park and Curry Co., erases all doubt as to this question,

when the court said:

‘ ‘‘ Jurisdiction obtained by consent or cession may be

qualified by agreement or through offer and acceptance

or ratification.’’

The indictment charged that the crime was committed

‘‘in the Rome Division of the District aforesaid, and within

the jurisdiction of said Court, »»d within a certain place

and on certain lands reserved and acquired for the exclu-

sive jurisdiction thereof * * * to wit, Chickamauga and

Chattanooga National Park * * °’’. That the said de-

fendants ‘‘did then and there unlawfully, wilfully, delib-

erately and with malice aforethought, upon one, Raymond

Kington, a human being make an assault, “aa

and murder him * * * by shooting and wounding him

in the head and neck with a certain loaded shotgun * ° °

then and there held in the hands of one of the defendants

but which particular one of said defendants is to the grand

jurors unknown.”’

‘‘In a certain place’’ covers an area of 28,000 acres of

land, more or less, extending into two (2) counties or more.

In Partson v. U. S., 20 F. (2d) 127, the court said:

‘‘The allegation of the place was ineffectual, because

it permitted the government to prove an offense any-

where in the large county of St. Louis, and this indict-

ment and a judgment of conviction or acquittal under

it would not protect the defendant from another pros-

ecntion for the same offense.”’

16

In the instant case it was necessary for the indictment to

describe by metes and bounds, and by general particulars

the place of commission of the crime, in order to show that

it was contmitted within the limits of the Park. For some-

times the question of whether a crime is for State or Fed-

eral cognizance may turn upon an exceedingly exact loca-

tion of the offense, where a man is shot when leaving a

postoffice building. A foot may well turn the scale either

way, with all the differences thereby involved. Often the

question, too, even when the locality is fixed is one of no

little difficulty. See, for example, the celebrated Pothier

Case (1923) (D. C., R. 1.), 285 Fed. 632 (1923 C. C. A.),

291 F.811 (1924), 264 U. S. 399, 44 Sup. Ct. 360, 68 L. Ed.

759.

The petitioner was convicted along with John E. Smith,

and since Smith now confesses that he and he alone was

guilty, and that petitioner had not even guilty knowledge

(see exhibits B and C of transcript) petitioner is entitled

to discharge. In St. Clair v. U. S., 154 U. S. 134, 14 Sup.

Ct. 1002, 38 L. Ed. 936 (1894), the court said:

‘“‘The indictment charged that the defendants, St.

Clair, Spraf and Hansen, acting jointly, killed and

murdered Fitzgerald. The offense was one which, in

its nature, might be committed by one or more of the

defendants. Proof of the guilt of either one would

have authorized his conviction, and the acquittal of the

other.’’ (Page 100 of 14 Sup. Ct.)

~

In that case three men were charged with beating and

throwing overboard from a vessel one of their own crew.

It is possible for the three men to beat one man and murder

him, not so in the instant case. The indictment does not

allege a common design or purpose upon the part of three

defendants to kill and murder, nor does it allege a con-

spiracy or unlawful agreement to compass a criminal pur-

pose, nor does it allege any intent or guilty knowledge on

¥

17

the part of the petitioner. It would not be possible for

three men to murder one man with one shotgun. The intent

and conspiracy should appear upon the face of the bill of

indictment. In U. S. v. Hess, 124 U. S. 483, 8 Sup. Ct. 571,

31 L. Ed. 516, Mr. Justice Field used this language:

‘‘No essential element of the crime can be omitted

without destroying the whole pleading.’’

In U. S. v. Cruikshank, 92 U. S. 542, the Court said:

‘‘It is an elementary principle of criminal pleading

that where the definition of an offense, whether it be

at common law or at statute, includes generic terms it

it not suficient that the indictment shall charge the of-

fense in the same generic terms as in the definition ; but

it must state the species—it must decend to particu-

lars.”’

The indictment did not sufficiently describe the place of

commission of the crime to protect the petitioner from a

second conviction for the same offense. The court said: in

U. S. v. Burns, Fed. Reporter, Vol. 54 (page 359):

‘‘The defendants should be advised more clearly

-* * * as to the place where it was so done, what

was it, and where was it? the evidence must show

it, and the District Attorney must be advised as

to the place, or the prosecution must fail. Then

why should not the defendants be informed? The

government does not wish their conviction unless they

be guilty, and it should not be permitted to demand

their conviction until if has given them a full and fair

opportunity to make their defense to a plain and posi-

tive charge.”’

And on page 361:

‘‘Surely it is not sufficient to say that the offense was

committed at the District of West Virginia, at a place

on the bank of the Little Kanowka River, and thus per-

mit the United States to offer testimony tending to lo-

18

cate the place anywhere in five counties, from the

source to the mouth of the river.’’

The Government has convicted and sentenced this peti-

tioner to prison for the rest of his natural life, of an offense

which is clearly beyond its jusisdiction, and since the Dis-

trict Court had no jurisdiction over the cause, nor over the

petitioner, it follows that any judgment issuing therefrom

is null and void. o

The court below had jurisdiction to discharge the peti-

tioner on writ of habeas corpus.

The statutes regulating the issuance of writs of habeas

corpus, so far as here material provide:

‘*Power of courts, the Supreme Court and the Dis-

trict Courts shall have power to issue writs of habeas

corpus’’, (28 U.S. C. A. See. 451.)

‘*When prisoner is in jail. The writ of habeas cor-

pus shall in no case extend to a prisoner in jail unless

where he * * ®* is in custody in violation of the

Constitution or of a law or treaty of the United States

2m 5 te Us a OD

The question presented is whether a judgment of con-

viction entered im a trial conducted in violation of the re-

quirements of due process of law, and where it is plainly

shown upon its face that the court was without jurisdiction

to try is such that it ‘‘is void and may be questioned col-

laterally.’’

It is respectfully submitted that the prec'se question has

been answered in the affirmative by the Supreme Court.

In Moore v. Dempsey, 261 U.S. 86, the prisoners had been

sentenced after a trial dominated by a mob. The trial court

bad jurisdiction of the offense and the accused, but the Su-

preme Court held that the mob domination of the trial de-

prived the prisoners of their liberty without due process of

19

law, and reversed the order of the lower court, dismissing

a petition for habeas corpus.

Moore v. Dempsey was followed by the Circuit Court of

Appeals for the Fifth Circuit, in Downer vy. Dunaway, 53

F. (2a) 586, in which it was agreed that, although the trial

had been dominated by a mob, the remedy of the petitioner

was by a motion for a new trial or appeal from the convic-

tion, and not by habeas corpus. The Circuit Court of Ap-

peals overruled this argument upon the ground that the

failure of counsel appointed by the court for the prisoner

to move for a new trial because of fear of mob violence was

a failure of the corrective process of the court.

In the instant case the attorney was not dominated by

any fear of a mob; he was dominated by a different type

of fear—The fear that he would not*be appointed an As-

sistant District Attorney. But he gained the appointment,

and petitioner lost his right of appeal.

The analogy between deprivation of liberty without due

process of law through mob domination and similar dep-

rivation through the denial of the right to appeal and to

the assistance of counsel in preparing it, was recognized

by the Supreme Court in Powell v. Alabama, supra, in

which it was held that: )

“«@ © © 4 defendant charged with a serious crime,

must not be stripped of his right to have sufficient time

to advise with counsel and prepare his defense. To

do that would not be proceeding in the calm spirit of

regulated justice, but to go forward with the haste of

the mob.” (287 U. S. at page 59.)

Now it might narrowly be construed that in the instant

case there are no characteristics of mob domination dis-

cernible. But the principle announced by this Court in the

cases of Mooney v. Holohan, 294 U. S. 103, and Brown v.

Mississippi, 297 U. S. 278, has given the matter a broader

construction. In neither of those cases was there present

20

any of these circumstantes of mob domination, but the court

* nevertheless held that upon the showing of the facts there

asserted, the trial in each instant was a ‘‘mere pretense.’’

In fact the court there grouped the several different types

of circumstances together and classified them all as a dep-

rivation of ... right which made the trial nullity

as was said e court:

«<# * * Nor may a State through the acts of its

officers, contrive a conviction through the pretense of a

trial which, in truth, is but used as a means of depriv-

ing a defendant of liberty through a deliberate decep-

tion of court and jury by the presentation of testimony

known to be perjured.’’

There is nothing conclusive that perjured testimony was

committed in the instant case, but where a witness admits .

under oath that he is at liberty on bail under an indictment

for perjury, there exists strong indications that perjured

testimony was present.

In Johneon v. Zerbst, 58 Sup. Ct. (on pages 1024-25), Mr

Justice Black said in commenting upon habeas corpus:

‘“# * * it is open to the courts of the United

States, upon an application for a writ of habeas corpus,

to look, beyond forms and inquire into very substance

of the matter * * *. To dgprive a citizen of his

only effective remedy would not only be contrary to the

rudimentary demands of justice, but destructive of a

constifutional guaranty specifically designed to prevent

injustice * * * The judgment of conviction pro-

nounced by a court without jurisdiction is void, and

one imprisoned thereunder may be released on habeas

corpus.”’

In Ex parte Lange., 18 Wall. 163, 21 L. Ed. 872, Mr.

Justice Miller said in delivering the opinion of the court:

‘‘The authority of the court in such a case, under ‘the

constitution of the United States, and the fourteenth

section of the judicial Act of 1789, to issue this writ,

21

and S examine the proceedings in the inferior court,

so far as may be necessary to ascertaim whether that

court had exceded its authority, is no longer an open

question. While therefore, it is true that a writ of

habeas corpus cannot generally be made to subserve

the purpose of a writ of error, yet when a prisoner is

held without any lawful authority, and by order beyond

the jurisdiction of an inferior Federal Court to make,

this court will, in favor of liberty, grant the writ, not

to review the whole case, but to examine the authority

of the) court below to act at all.’’

Similar language was used by Mr. Justice Miller in Ex

parte Yarbrough, 110 U. S. 652-653, 4 Sup. Ct. 152, 28 L.

Ed. 274:

‘This court has no general authority to review, on

error or appeal the judgments of the Circuit Courts of

the United States, in cases within their criminal juris-

diction, is beyond question; but it is equally well set-

tled that, when a prisoner is held under the sentence

of any court of the United States in regard to a matter

wholly beyond or without jurisdiction of that court, it

is not only within the authority of the Supreme Court,

but it is its duty, to inquire into the cause of commit-

ment, when the matter is properly brought to its at-

tention, and if found to be, as charged, a matter of

which such a court had no jurisdiction, to discharge a

prisoner from confinement.”’

c Conclusion.

The question involved in this case are important ques-

tions of Federal law in which the opinion of the Circuit

Court of Appeals is probably in conflict with decisions of

this Court and which should be decided by this Court. It is,

therefore, respectfully submitted that this petition for cer-

tiorari, should be granted.

Respectfully submitted,

Hvuexu ALLEN Bowen,

Petitioner.

(8008)