Bert Strand, Sheriff of San Diego County, State of California v. William Schmittroth

(dissenting).

I cannot accept the conclusion that the United States District Court for the Southern District of California was correct in ordering the California state sheriff of San Diego County to release the prisoner because he was “insulated” with an impenetrable coat of immunity: federal probation.

When federal courts grant habeas corpus petitions for state prisoners after conviction in a state court (I mean: due process habeas corpus), the federal courts are exercising what our Supreme Court holds is a paramount right and duty of the judicial system of the sovereignty of the United States itself. Much different is the variety of habeas corpus we have here. If the federal court in San Diego can say to the state sheriff of San Diego County, “Don’t touch our probationers without our consent”, then an inescapable corollary is that a state prisoner, arrested by federal agents and indicted by a federal grand jury, can rush into his state court, sue out a writ of habeas corpus and get a state order to the United States marshal of the Southern District of California commanding the release of the state probationer.

And in this competitive field of judicial intermeddling I am sure…

I.

On September 15, 1953, a complaint captioned “The People of the State of California, plaintiff, vs. William Roth, defendant,” was lodged in the Municipal Court, San Diego Judicial District, County of San Diego, State of California. It charged the said Roth with the commission of a felony, to wit, uttering and passing a check bearing a fictitious name with intent to cheat and defraud certain California persons named in the complaint. Complainant prayed that a warrant issue for Roth’s arrest.

Sometime in January, 1955, Roth (appellee herein) was apprehended and delivered to the custody of the San Diego Police Department on a warrant issued by the San Diego authorities. A preliminary hearing was set for and held on February 10, 1955 in the Municipal Court of San Diego Judicial District. The preliminary examination was held in the Municipal Court which determined that there was reasonable cause to believe that Roth (whose true name appears to be Schmittroth) had committed an offense against the State of California, and ordered him held in custody of appellant sheriff pending further proceedings. Appellee raised the question of State court jurisdiction over him (for reasons noted…

233 F.2d 598 Bert STRAND, Sheriff of San Diego County, State of California, Appellant, v. William SCHMITTROTH, Appellee. No. 14733. United States Court of Appeals Ninth Circuit. May 3, 1956. James Don Keller, Dist. Atty., Claude B. Brown, Deputy Dist. Atty., County of San Diego, San Diego, Cal., Edmund G. Brown, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., State of California, for appellant. Oscar F. Irwin, San Diego, Cal., for appellee. Laughlin E. Waters, U.S. Atty., Louis Lee Abbott, James T. Barnes, Asst. U.S. Attys., Los Angeles, Cal., amici curiae. Before HEALY, BONE and CHAMBERS, Circuit Judges. BONE, Circuit Judge. I. 1 On September 15, 1953, a complaint captioned 'The People of the State of California, plaintiff, vs. William Roth, defendant,' was lodged in the Municipal Court, San Diego Judicial District, County of San Diego, State of California. It charged the said Roth with the commission of a felony, to wit, uttering and passing a check bearing a fictitious name with intent to cheat and defraud certain California persons named in the complaint. Complainant prayed that a warrant issue for Roth's arrest. 2 Sometime in January,…