Opinion · Court of Appeals for the Fifth Circuit

Brown v. Zerbst

99 F.2d 745

Type: Opinion
Court: Court of Appeals for the Fifth Circuit
Jurisdiction: Federal
Date: 1938-11-04
Topic: general

McCORD, Circuit Judge. Three.indictments were returned against appellant in the United States District Court for the Western District of North Carolina: He was convicted, sentenced, and is now confined' in the United States Penitentiary at Atlanta, Georgia. . Appellant petitioned for habeas corpus alleging, .that, oh the first and second indictments "the' conspiracy and violation of the revenue laws .were predicated upon United States ‘Statutes' which had been repealed, and’-’that the third indictment did not allege facts constituting a crime or violation ,',of any United States Statute, and that his' conviction was further unlawful because he was not tried by a jury. ' This'"appeal is. from an order .discharging ' the writ and remanding the appellant to the custody of the appellee. The first indictment was under the general conspiracy" statute, 18 U.S.C.A. § 88, and was predicated upon 26 U.S.C.A. §§ H’55(e) (R.S. § 3256), 1155(f) (2) (R.S. § 3257), 1162, 1184, 1185.

Citator

UpLaw has not yet analyzed Brown v. Zerbst. The absence of a flag is not a finding that it is good law.

Cited by: 6 opinions

BROWN v. ZERBST,99 F.2d 745(5th Cir. 1938)

BROWN v. ZERBST, Warden.^fn*

No. 8808.

Circuit Court of Appeals, Fifth Circuit.

November 4, 1938.

Page 746

Appeal from the District Court of the United States for the Northern District of Georgia; E. Marvin Underwood, Judge.

Proceeding by John H. Brown against F.G. Zerbst, Warden of the United States Penitentiary, Atlanta, Ga., for a writ of habeas corpus. From an order discharging the writ and remanding the petitioner to custody, the petitioner appeals.

Affirmed.

L.F. Klutz, of Newton, N.C., and John H. Brown, in pro. per., of Atlanta, Ga., for appellant.

Lawrence S. Camp, U.S. Atty., and Harvey H. Tisinger and J. Ellis Mundy, Asst. U.S. Attys., all of Atlanta, Ga., for appellee.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

McCORD, Circuit Judge.

Three indictments were returned against appellant in the United States District Court for the Western District of North Carolina. He was convicted, sentenced, and is now confined in the United States Penitentiary at Atlanta, Georgia.

Appellant petitioned for habeas corpus alleging that on the first and second indictments the conspiracy and violation of the revenue laws were predicated upon United States Statutes which had been repealed, and that the third indictment did not allege facts constituting a crime or violation of any United States Statute, and that his conviction was further unlawful because he was not tried by a jury. This appeal is from an order discharging the writ and remanding the appellant to the custody of the appellee.

The first indictment was under the general conspiracy statute, 18 U.S.C.A. § 88, and was predicated upon 26 U.S.C.A. §§ 1155(e) (R.S. § 3256), 1155(f)(2) (R.S. § 3257), 1162, 1184, 1185. The statutes under which the appellant was sentenced under the second indictment are 26 U.S.C.A. §§ 1162 (R.S. § 3258), 1184 (R.S. § 3281). Upon careful examination of these statutes it will be seen that they were in effect at the time of the commission of the alleged offenses. Tramp v. United States, 8 Cir.,86 F.2d 82, and cases cited.

The third indictment, under which appellant was convicted, charged an assault upon an officer of the United States with a dangerous or deadly weapon in violation of 18 U.S.C.A. §§ 253, 254. The appellant contends that the person assaulted, an investigator of the Alcohol Tax Unit, was not an officer of the United States within the meaning of the statute. The officer assaulted had the duties and authority of an officer of the Internal Revenue with regard to enforcing the internal revenue laws with respect to liquor (Treasury Decision, 4432, Vol. 32, p. 211,) and was, therefore, an officer within the meaning of the above sections.

The appellant further contended that he was denied trial by jury, but we find no merit to this contention. On the hearing of the petition for habeas corpus original interrogatories of the Presiding Judge, the attorney for the United States, and the Deputy Clerk of the Court, and a deposition of the defense counsel were introduced showing affirmatively that the appellant waived his right to trial by jury in open court, and that such waiver was intelligently and deliberately made. A trial by jury in a criminal case may be waived. Patton v. United States,281 U.S. 276,50 S.Ct. 253,74 L.Ed. 854, 70 A.L.R. 263.

The judgment of the District Court is affirmed.Page 750

Writ of certiorari denied59 S.Ct. 365, 83 L.Ed. ___. ↩