Samuel Henry Grace, III v. United States

Ninth Circuit

Samuel Henry Grace, III v. United States

375 F.2d 119, 1967 U.S. App. LEXIS 7044

CourtCourt of Appeals for the Ninth Circuit

DecidedMarch 21, 1967

Docket21067_1

StatusPublished

Cited by3 cases

This text of 375 F.2d 119 (Samuel Henry Grace, III v. United States) 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.

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Samuel Henry Grace, III v. United States, 375 F.2d 119, 1967 U.S. App. LEXIS 7044 (9th Cir. 1967).

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Opinion

PER CURIAM:

Appellant Grace was originally convicted on October 26, 1962, of a Dyer Act violation in Nebraska (transporting a stolen motor vehicle in interstate commerce). He was placed on probation, which probation was revoked on December 4, 1964, and appellant was placed in the custody of the Attorney General. The Bureau of Prisons, acting on behalf *120 of the Attorney General, placed appellant at first in ai Federal Reformatory at El Reno, Oklahoma, and then in a “Federal Youth Camp” at Tucson, Arizona. On November 13, 1965, appellant was a member of a “field tour,” transported by bus from the Youth Camp to the University of Arizona under the supervision of a “recreation officer,” to observe a football game between the Arizona and the United States Air Force teams. After the game, upon boarding the bus to return to the camp, appellant was found missing. He was subsequently picked up by the Winslow, Arizona, police department, and while detained there, asked to speak to an F.B.I. agent. He then admitted he had escaped the custody of the Youth Camp.

Appellant was indicted for such escape (18 U.S.C. § 751), was tried without a jury, convicted, and sentenced to three years imprisonment, concurrent to his existing sentence under the Dyer Act.

Appellant specifies but one error on this appeal, namely, that once a preliminary hearing is commenced before a United States Commissioner there can be no grand jury indictment of a prisoner. No authority for this rule of law has been submitted to us.

Appellant relies upon (but miscites) United States v. Universita, 192 F.Supp. 154 (S.D.N.Y.1961). In that habeas corpus case, preliminary examination had been continued at the government’s request, and an indictment thereafter returned. The writ, requested on the basis the defendant had been denied a preliminary examination, was denied; the court ruling (contrary to appellant’s position here) that “[t]he action of the grand jury * * * superseded and eliminated the need for a preliminary examination.” Id. at 155.

Appellant’s position was rejected in United States v. Gray, 87 F.Supp. 436, 437 (D.C.1949), where Judge Holtzoff stated: “* * * [T]he Grand Jury had a right to hear the evidence presented against this defendant and find the indictment against him, irrespective of whether a preliminary hearing had or had not been held.” Cf. also: United States v. Brace, 192 F.Supp. 714 (D.Md. 1961).

This appeal approaches the frivolous. Appointed counsel may be congratulated for excessive zeal on behalf of his client, but no more.

Affirmed.

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PER CURIAM:

Appellant Grace was originally convicted on October 26, 1962, of a Dyer Act violation in Nebraska (transporting a stolen motor vehicle in interstate commerce). He was placed on probation, which probation was revoked on December 4, 1964, and appellant was placed in the custody of the Attorney General. The Bureau of Prisons, acting on behalf *120 of the Attorney General, placed appellant at first in ai Federal Reformatory at El Reno, Oklahoma, and then in a “Federal Youth Camp” at Tucson, Arizona. On November 13, 1965, appellant was a member of a “field tour,” transported by bus from the Youth Camp to the University of Arizona under the supervision of a “recreation officer,” to observe a football game between the Arizona and the United States Air Force teams. After the game, upon boarding the bus to return to the camp, appellant was found missing. He was subsequently picked up by the Winslow, Arizona, police department, and while detained there, asked to speak to an F.B.I. agent. He then admitted he had escaped the custody of the Youth Camp.

Appellant was indicted for such escape (18 U.S.C. § 751), was tried without a jury, convicted, and sentenced to three years imprisonment, concurrent to his existing sentence under the Dyer Act.

Appellant specifies but one error on this appeal, namely, that once a preliminary hearing is commenced before a United States Commissioner there can be no grand jury indictment of a prisoner. No authority for this rule of law has been submitted to us.

Appellant relies upon (but miscites) United States v. Universita, 192 F.Supp. 154 (S.D.N.Y.1961). In that habeas corpus case, preliminary examination had been continued at the government’s request, and an indictment thereafter returned. The writ, requested on the basis the defendant had been denied a preliminary examination, was denied; the court ruling (contrary to appellant’s position here) that “[t]he action of the grand jury * * * superseded and eliminated the need for a preliminary examination.” Id. at 155.

Appellant’s position was rejected in United States v. Gray, 87 F.Supp. 436, 437 (D.C.1949), where Judge Holtzoff stated: “* * * [T]he Grand Jury had a right to hear the evidence presented against this defendant and find the indictment against him, irrespective of whether a preliminary hearing had or had not been held.” Cf. also: United States v. Brace, 192 F.Supp. 714 (D.Md. 1961).

This appeal approaches the frivolous. Appointed counsel may be congratulated for excessive zeal on behalf of his client, but no more.

Affirmed.

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375 F.2d 119, 1967 U.S. App. LEXIS 7044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/samuel-henry-grace-iii-v-united-states-ca9-1967.

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