Opinion
No. 14116.
November 22, 1952.
Wm. O. Stevenson, in pro. per.
Warren G. Moore, U.S. Atty., Tyler, Tex., Burton K. Philips, Lt. Col. JAGC, Headquarters, 5th Army, Chicago, Ill., for appellee.
Before HUTCHESON, Chief Judge, and BORAH and RIVES, Circuit Judges.
Alleging that he was being unlawfully detained as a prisoner in the United States Correctional Institution, at Texarkana, under a sentence imposed upon him by a general court martial, appellant filed in the court below a habeas corpus petition against the warden seeking release from custody.
While the petitioner made general attacks upon the constitution and proceedings of the court, including an attack upon the severity of the sentence, his principal contention was that he was not inducted into military service, and the sentencing court was, therefore, without jurisdiction.
An order to show cause having issued, and the warden having made a return thereto denying all the claims of the petitioner, that he was being illegally held in custody and particularly that he had not been inducted into service, the issues tendered were set for trial and were tried on the record and oral evidence, including that of the plaintiff.
The hearing concluded, the district judge made findings of fact and conclusions of law amply supported by them, and entered judgment discharging the warden on the order to show cause and denying the application for the writ.
Appealing from the judgment, petitioner is here insisting that the judgment was wrong and must be reversed; while the warden, insisting that the evidence fully supports the findings of fact and that, upon the authority of the cases cited by the district judge, his conclusions of law and judgment were demanded, urges that the appeal is frivolous and the judgment must be affirmed.
Sanford v. Callan, 5 Cir., 148 F.2d 376, certiorari dismissed 326 U.S. 679, 66 S.Ct. 6, 90 L.Ed. 397; Mayborn v. Heflebower, 5 Cir., 145 F.2d 864, certiorari denied 325 U.S. 854, 65 S.Ct. 1087, 89 L.Ed. 1975; Hibbs v. Catovolo, 5 Cir., 145 F.2d 866; certiorari denied 325 U.S. 854, 65 S.Ct. 1085, 89 L.Ed. 1974; Reaves v. Ainsworth, 219 U.S. 296, 31 S.Ct. 230, 55 L.Ed. 225; Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3; Humphrey v. Smith, 336 U.S. 695, 69 S.Ct. 830, 93 L.Ed. 986; Altmayer v. Stanford, 5 Cir., 148 F.2d 161.
Since we agree with the warden that this is so, it will serve no useful purpose for us to set out the testimony or discuss the established legal principles involved. It will suffice to say that upon the facts found and for the reasons given by the district judge, the judgment appealed from is
Affirmed.