Biddle v. Luvisch

287 F. 699, 1923 U.S. App. LEXIS 2377

• Court: Court of Appeals for the Eighth Circuit
• Decided: February 26, 1923
• Docket: No. 6125
• Status: Published

Opinions

TRIEBER, District Judge.

This is an appeal by the warden of the United States penitentiary at Leavenworth, Kan., from a judgment discharging the appellee from confinement in the penitentiary on a writ of habeas corpus.

The only question involved is the sufficiéncy of the indictment containing three counts, charging a violation of section 161 of the Penal Code (Comp. St. § 10331), to which appellee had entered a plea of guilty, and upon that plea was sentenced to imprisonment for the term of five years. The counts only differ in that the first charges making of a plate, the second possession of a plate, both charging them to be in the likeness and similitude of certain plates designed by the Dominion of Canada, a foreign government, .for the printing of the genuine issues of certain obligations and securities of said government. The third charges the sale of 1,200 counterfeit prints in the likeness and similitude of the genuine obligations and securities of that foreign government. The description of these securities and obligations of the Dominion of Canada is set out in each count, but need not be set out now, as the first count of the indictment will be inserted, which differs from the other counts only as stated. That count,» omitting the jurisdictional allegations, charges that the defendants (there were four others indicted jointly with appellee)—

“did then and there unlawfully, willfully, feloniously, and knowingly, and without lawful authority, cause and procure to be made and engraved a certain zinc half tone'plate in the likeness and similitude of certain plates and impressions designated by a certain foreign government, to wit, the Dominion of Canada, for the printing of the genuine issues of certain obligations and securities of the said foreign government, to wit, certain inland excise stamps of the denomination of one cent, bearing the following words and figures, to wit: The numerals ‘1912’ at each end and in the center of said stamp, and the words ‘Certified manufactured in the year,’ and the signature of, to wit, ‘J. W. Vincent,’ and a large scroll numeral ‘1,’ all on the left side of the center of said stamp, and in the center thereof the word ‘Ottawa’ above the numerals ‘1912,’ and beneath said numerals the word ‘Canada,’ and on the right of the center of said stamp appears first the word ‘cent’ and then ‘bottled in bond under excise supervision, Deputy Minr. Inland Revenue’ — contrary to the form, force, and effect of the act of Congress in such case made and provided, and against the peace and dignity of the United States.”

As the writ of habeas corpus cannot serve as a writ of error for the correction of errors, but is a collateral attack on a judgment of a superior court, the only questions to be determined are the jurisdiction of the court, which imposed the sentence on the petitioner, or whether the allegations in the indictment fail to charge a violation of any penal law of the United States and therefore the judgment of conviction is wholly void. Ex parte Parks, 93 U. S. 18, 23 L. Ed. 787; Collins v. Johnston, 237 U. S. 502, 35 Sup. Ct. 649, 59 L. Ed. 1071; Collins v. Morgan, 243 Fed. 495, 156 C. C. A. 193, decided by this court; Bens v. United States, 266 Fed. 152 (2d C. C. A.), certiorari denied 254 U. S. 634, 41 Sup. Ct. 8, 65 L. Ed. 449. The jurisdiction of the court, which sentenced petitioner is not questioned.

The question and only question left for consideration is whether the indictment charges a violation of section 161 of the Penal Code. If it does the judgment discharging the petitioner must be reversed, otherwise affirmed. The learned trial judge held that section 147, Penal Code (Comp. St. § 10317), defines “obligations and securities of the United States” and section 220, Penal Code (Comp. St. § 10390), makes it an offense to counterfeit postage stamps of a foreign government and as the description in the indictment of the. forged instruments shows that the counterfeit instruments were stamps, these sections control, and therefore none of the counts of the indictment charges a violation of any law of the United States. The indictment charges that the instruments are plates for counterfeit securities and obligations, and not postage stamps; therefore section 220 does not apply.

Section 147 does not attempt to define “securities or obligations” of a foreign government, but only “securities or obligations of the United States.” This section is therefore inapplicable to the indictment in the instant case. The indictment in express language charges that the inland excise stamps described therein are “obligations and securities” of the Dominion of Canada. What the laws of Canada declare these inland excise stamps, which petitioner is charged with counterfeiting, we cannot judicially know, as the courts of the United States cannot take judicial notice of the laws of foreign nations, but they must be proved at the trial by competent evidence. Pierce v. Indseth, 106 U. S. 546, 551, 1 Sup. Ct. 418, 27 L. Ed. 254; Liverpool, etc., Co. v. Phenix Ins. Co., 129 U. S. 397, 445, 9 Sup. Ct. 469, 32 L. Ed. 788; Cuba R. Co. v. Crosby, 222 U. S. 473, 32 Sup. Ct. 132, 56 L. Ed. 274, 38 L. R. A. (N. S.) 40; The Hanna Nielsen, 273 Fed. 171 (2d C. C. A.); Yang-Tsze Ins. Ass’n v. Furness, 215 Fed. 859, 132 C. C. A. 201; Panama El. Ry. v. Moyers, 249 Fed. 19, 161 C. C. A. 79; Ufford v. Spaulding, 156 Mass. 65, 30 N. E. 360.

Had the petitioner not entered a plea of guilty, thereby admitting the truth of every material allegation in the indictment, including that alleging that these instruments are obligations and securities of the Dominion of Canada, it would have devolved upon the government to prove by competent evidence that the laws of the Dominion of Canada made these stamps “obligations or securities” of that government, and, if it failed to do so, petitioner would have been entitled to a directed verdict of not guilty. His plea of guilty relieved the government, of the necessity of such proof, as he admitted them to be as charged. If the contention of appellee is correct, the government would have been denied the right to introduce evidence at the trial tending to show that the laws of the Dominion of Canada declared these stamps to be “obligations or securities” of its government, as charged in the indictment.

The court below erred in discharging the appellee on the writ, and its judgment is reversed.