Ex Parte Greene

Ninth Circuit

Ex Parte Greene

138 F.2d 668, 1943 U.S. App. LEXIS 2627

CourtCourt of Appeals for the Ninth Circuit

DecidedOctober 25, 1943

StatusPublished

This text of 138 F.2d 668 (Ex Parte Greene) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ex Parte Greene, 138 F.2d 668, 1943 U.S. App. LEXIS 2627 (9th Cir. 1943).

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Opinion

WILBUR, Circuit Judge.

The petitioner asks leave to prosecute in forma pauperis his accompanying petition for writ of habeas corpus.

Petitioner was indicted for violation of 15 U.S.C.A. §§ 901, 902, 905, plead guilty and received a sentence that will expire December 24, 1943. The act forbids one who has been convicted of a crime of violence to ship or receive a gun in interstate commerce, and makes possession of a gun by such a person presumptive evidence that it was so shipped.

In Tot v. United States and United States v. Delia, 319 U.S. 463, 63 S.Ct. 1241, 1246, 87 L.Ed. 1519, decided June 7, 1943, the Supreme Court held the presumption unconstitutional because of absence of rational factual relationship between the premise (conviction of a crime of violence) and the conclusion (subsequent interstate shipment of a gun). The court further said: “Even if the presumption in question were in itself reasonable, we think that the nature of the offense, and the elements which go to constitute it, render it impossible to sustain the statute, for the reason that one element of the offense is the prior conviction of a crime of violence. If the presumption warrants conviction unless the defendant comes forward with evidence in explanation and if, as is necessarily true, such evidence must be credited by the jury if the presumption is to be rebutted, the defendant is under the handicap, if he takes the witness stand, of admitting prior conviction of violent crimes. His evidence as to acquisition of the firearm or ammunition is thus discredited in the eyes of the jury before it is given.”

The foregoing passage, stating that it-would be “impossible to sustain the statute” apparently does not refer to the whole statute, but only to the presumption, which was [669]*669the only part of the statute before the court, or to which the discussion and reasoning appear relevant. Since petitioner plead guilty, there was no occasion to invoke the presumption, and so its validity or invalidity does not concern him.

Leave to proceed in forma pauperis is denied because the petition is without merit.

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WILBUR, Circuit Judge.

The petitioner asks leave to prosecute in forma pauperis his accompanying petition for writ of habeas corpus.

Petitioner was indicted for violation of 15 U.S.C.A. §§ 901, 902, 905, plead guilty and received a sentence that will expire December 24, 1943. The act forbids one who has been convicted of a crime of violence to ship or receive a gun in interstate commerce, and makes possession of a gun by such a person presumptive evidence that it was so shipped.

In Tot v. United States and United States v. Delia, 319 U.S. 463, 63 S.Ct. 1241, 1246, 87 L.Ed. 1519, decided June 7, 1943, the Supreme Court held the presumption unconstitutional because of absence of rational factual relationship between the premise (conviction of a crime of violence) and the conclusion (subsequent interstate shipment of a gun). The court further said: “Even if the presumption in question were in itself reasonable, we think that the nature of the offense, and the elements which go to constitute it, render it impossible to sustain the statute, for the reason that one element of the offense is the prior conviction of a crime of violence. If the presumption warrants conviction unless the defendant comes forward with evidence in explanation and if, as is necessarily true, such evidence must be credited by the jury if the presumption is to be rebutted, the defendant is under the handicap, if he takes the witness stand, of admitting prior conviction of violent crimes. His evidence as to acquisition of the firearm or ammunition is thus discredited in the eyes of the jury before it is given.”

The foregoing passage, stating that it-would be “impossible to sustain the statute” apparently does not refer to the whole statute, but only to the presumption, which was [669]*669the only part of the statute before the court, or to which the discussion and reasoning appear relevant. Since petitioner plead guilty, there was no occasion to invoke the presumption, and so its validity or invalidity does not concern him.

Leave to proceed in forma pauperis is denied because the petition is without merit.

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138 F.2d 668, 1943 U.S. App. LEXIS 2627, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-greene-ca9-1943.

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