Pugh

212 F.2d 761 PUGH, v. UNITED STATES. No. 13506. United States Court of Appeals, Ninth Circuit. Feb. 26, 1954. As Amended May 20, 1954. Rehearing Denied June 1, 1954. Crain & Phelan, Finton J. Phelan, Agana, Guam, Schofield, Hanson & Jenkins, Thomas M. Jenkins, San Francisco, Cal., for appellant. John P. Raker, U.S. Atty., Agana, Guam, Robert H. Schnacke, Asst. U.S. Atty., San Francisco, Cal., for appellee. Before DENMAN, Chief Judge, and HEALY and POPE, Circuit Judges. POPE, Circuit Judge. 1 Pugh was prosecuted in the District Court of Guam and there found guilty of stealing property of the United States in violation of s. 641, Title 18, U.S.C.A. His attempted appeal to this court from the judgment of conviction was dismissed as not having been taken in time, 197 F.2d 509 . He then moved in the court below D.C., 106 F.Supp. 209 , under § 2255 of Title 28 for an order vacating the sentence as void, for the reason that he was prosecuted upon an information only, with no indictment by a grand jury, and none waived, and also because he was denied trial by jury. 2 The information was filed, and the case was tried, in conformity with a general order or fule of the District…

concurring-in the dismissal of the action but dissenting from the grounding of the court’s opinion on the Federal Rules of Criminal Procedure instead of 48 U.S. C.A. § 1424(a) creating the jurisdiction of the District Court of Guam, which the Rules do no more than implement.

A. The right to indictment is conferred by the statute creating the jurisdiction of the court and not by its rules which merely implement its jurisdiction.

All the court’s discussion of the Constitution following the flag in Guam is way by the mark, that contention not being seriously pressed at the hearing. Such discussion is no more than brutum fulmen about the obvious fact that the Constitution does not follow the flag, thus obscuring the single issue in the case and at the same time ignoring the principal contention made#at the hearing.

*765 That single issue is, has Congress created in the Guam district court by the express language of 48 U.S.C.A. § 1424 (a) the jurisdiction to try persons accused of felonies only by indictment unless waived, as in the district courts of the United States and as it has created such limited jurisdiction in the district courts of Puerto Rico and the Virgin Islands.

The…

Pugh was prosecuted in the District Court of Guam and there found guilty of stealing property of the United States in violation of § 641, Title 18, U.S.C.A. His attempted appeal to this court from the judgment of conviction was dismissed as not having been taken in time, 197 F.2d 509 . He then moved in the court below D.C., 106 F.Supp. 209 , under § 2255 of Title 28 for an order vacating the sentence as void, for the reason that he was prosecuted upon an information only, with no indictment by a grand jury, and none waived, and also because he was denied trial by jury.

The information was filed, and the-case was tried, in conformity with a general order or rule of the District Court of Guam, made July 17, 1951, as-follows: “It is herewith ordered that in prosecutions before the District Court, of Guam, wherein the accused is charged with an offense against the United States, the United States may proceed by information, rather than by indictment. It is further ordered that trials, criminal and civil, shall be conducted before the court without a jury.”

Clearly enough, the contention that Pugh should have been prosecuted by indictment of a grand jury, or tried by petit jury,…