Hudspeth v. Tornello

BRATTON, Circuit Judge. The grand jury of the United States Court for the Middle District of Tennessee returned an indictment against William Humbert Tornello, hereinafter referred to as petitioner, in which it was charged that he entered the building occupied and used by the Third National Bank of Nashville, Tennessee, with the intent to commit therein a certain felony, namely, uttering and cashing a forged check in the amount of $119, defrauding and depriving the bank of its funds in that amount, and appropriating the same to his own use and benefit. Petitioner was found guilty and sentenced to a term of three years in the penitentiary, to run concurrently with a term then being served under sentence by the United States Court for Colorado, and to pay a fine of $750. Commitment issued and petitioner was placed in the United States penitentiary at Leavenworth, Kansas, for service of such sentence. While so confined, petitioner filed in the United ■ States Court for Kansas his petition for the writ of habeas corpus in which he challenged the validity of the judgment and sentence of, the court in Tennessee on the ground that the indictment failed to charge any offense under the laws of the United States. The court in Kansas ordered petitioner discharged and the warden appealed. The decisive question of law presented was determined in the recent case of Hudspeth v. Melville, 10 Cir., 127 F.2d 373. It would not serve any useful purpose to repeat in substance that which we said there. It is sufficient to say that we adhere to the views there expressed. On the authority of Hudspeth v. Melville, supra, the order is reversed and the cause remanded with directions to enter and order discharging the writ and directing the issuance of appropriate process for the return of petitioner to the custody of the warden.