U.S. Supreme Court
Andersen v. Treat, 172 U.S. 24 (1898)
Andersen v. Treat
Argued November 8, 1898
Decided November 14, 1898
172 U.S. 24
The principle that a writ of habeas corpus cannot be made use of as a writ of error is again announced and affirmed.
Where a petition for a writ of habeas corpus is founded upon judicial proceedings which are claimed to be void, and those proceedings and the records thereof are insufficiently set forth in the petition, the originals may be referred to on the hearing.
It appearing on examination of the original record and proceedings that the contention of the petitioner as to the facts is not supported by them, this case comes within the general rule that the judgment of a court having jurisdiction of the offense charged and of the party charged with its commission is not open to collateral attack, and it is held that the district court could not have done otherwise than deny the writ, and its order in that respect is affirmed, and the mandate ordered to issue at once.
John Andersen was indicted in the Circuit Court of the United States for the Eastern District of Virginia at the November term thereof, A.D. 1897, and, December 23, 1897, convicted of the murder, on August 6, 1897, on the high seas, of William Wallace Saunders, mate of the American vessel Olive Pecker, and sentenced to death. The case was brought to this Court on error, and the judgment was affirmed, May 9, 1898. 170 U. S. 170 U.S. 481. The mandate having gone down, execution of the sentence was fixed for August 26, 1898. On that day (H. G. Miller and P. J. Morris assuming to act as his counsel), Andersen filed a petition in the District Court of the United States for the Eastern District of Virginia praying for a writ of habeas corpus on the ground that he was held in custody for execution "in violation of the laws and the Constitution of the United States of America" in that he had been deprived "of the free exercise of his rights to be represented by counsel, in accordance with Article 6 of the amendment of the Constitution of the United States." chanroblesvirtualawlibrary
The petition stated:
"Your petitioner represents that, on the 7th day of November, 1897, he was delivered to the United States Marshal for the Eastern District of Virginia, charged with having committed the crime of murder within the maritime jurisdiction of the United States of America; that as a prisoner of the said United States marshal, he was confined on the day of his delivery in the city jail in the City of Norfolk to await his examination, as provided by law, before the United States Commissioner for the Eastern District of Virginia; that, on that day, viz., the 7th day of November, 1897, while thus detained in the city jail of the City of Norfolk, he employed as counsel to represent him one P. J. Morris, an attorney at law, residing in the City of Norfolk, Virginia."
"Your petitioner further represents that after securing the services of the said Morris, on the same day the said Morris called at the city jail (the place of the detention of your petitioner) and asked permission to see your petitioner, to consult with him as attorney and client. Your petitioner represents that admission was refused my said attorney for the reason that the District Attorney of the United States for the Eastern District of Virginia had instructed the jailer and others in charge of your petitioner to allow no one, without exception, to see your petitioner, whereupon your petitioner represents that, on the 7th day of November, 1897, my said attorney asked permission, by phone, of the District Attorney for the Eastern District of Virginia to permit him to visit the said jail and consult with your petitioner, that said application was refused, and that, on account of the order of the district attorney lodged with the jailers and keepers of the prison in which your petitioner was detained, your petitioner was denied the right of the assistance of counsel to represent your petitioner."
"Your petitioner further represents that the district attorney for the Eastern District of Virginia informed your petitioner's counsel on the night of the 7th of November, 1897, that he would let him know on the following day whether or not permission would be granted your petitioner's counsel to consult
with your petitioner. Your petitioner represents that, instead of informing my said attorney, and giving my said attorney full notice as to the time when your petitioner's preliminary hearing would be held, and before the United States District Attorney for the Eastern District of Virginia had given my said attorney permission to consult with me, I was taken in irons, handcuffed, to the office of the United States commissioner and examined without aid or presence of my attorney. Your petitioner further represents that before the time the said examination was completed and statements made by me were finished my said attorney discovered that said examination was going on without his presence, and before any consultation could be held between your petitioner and his said attorney, and my said attorney thereupon applied to the said district attorney of the United States and to the Honorable Robert W. Hughes, late judge for the Eastern District of Virginia, and was told by them that as the defense of your petitioner was inconsistent with the defense of others charged at the same time with complicity in the destruction of the vessel Olive Pecker, that any attorney representing both prisoners was objectionable, and that the court would not permit the same attorney to represent both your petitioner and the other prisoners, and therefore the court would assign him an attorney to represent him. Your petitioner therefore represents that he was deprived of the free exercise of his right to be represented by counsel, in accordance with article 6 of the amendment of the Constitution of the United States, and that therefore by the action of the court in depriving him of the right to select his own counsel, the court exceeded its power and jurisdiction, and that therefore the trial and proceedings therein are null and void, and that the judgment and the sentence of the court are void and in violation of his constitutional rights, as he will show."
The matter came on for hearing on the petition, together with an order and certain papers, which were made part of the proceedings by consent of parties, and were as follows:
(1) The order was entered by district judge Hughes on December 14, 1897, nunc pro tunc as of November 8, and chanroblesvirtualawlibrary
"The court having, on the 8th day of November, 1897, upon its own motion, as well as upon the request of the accused, John Andersen, assigned George McIntosh, Esq., as counsel for the said John Andersen, under and by notice of sec. 1034 of the Revised Statutes of the United States, and it appearing to the court that he has since then performed the duties of such counsel, and has been recognized as such by this Court in all proceedings had herein."
"And it further appearing that no entry of said assignment was made in the minutes of this court for the said 8th day of November, A.D. 1897, it is hereby ordered that the said assignment be now entered by the clerk of this Court as of the said 8th day of November, A.D. 1897."