Waley

(dissenting).

This appeal presents great difficulties.

In the first place, the threats which appellant avers impelled his plea of guilt were not those to which he refers when he says in his petition “ * * * these (threats) didn’t bother me.”. This incident should therefore be given no consideration.

In the second place, the petition for the writ .of coram nobis'was never considered on the merits of the factual allegations, but was dismissed by the trial court as beyond, its jurisdiction. Res judicata, cannot be premised upon that proceeding. Therefore this incident cannot be taken as disposing of the case.

The majority opinion seems to assume that a constitutional' right has been violated or that an existing constitutional right of appellant need not be observed because appellant has waived either the violation or the .observation of such right.

*589 It is the very gist of the recent opinion in Walker v. Johnston, 312 U.S. 275 , 61 S.Ct. 574 , 85 L.Ed. 830 , that if a relevant and material issue of fact is presented in the proceedings the court cannot resolve such issue without a hearing. Appellant states, in effect, that his plea was not a truthful or voluntary one but…

This is an appeal from an order denying appellant’s petition for a writ of habeas corpus.

On June 19, 1935, appellant, his wife, and one Dainard were indicted, in count one, for transporting in interstate commerce a person who had been kidnapped, in violation of 18 U.S.C.A. § 408a and 408b, and in count two, for conspiring to transport a person, who had been kidnapped, in interstate commerce, in violation of 18 U.S.C.A. § 408c. Appellant pleaded guilty to both counts, being represented by counsel, and was sentenced to imprisonment for 45 years on the first count and 2 years on the second count, the sentences to run concurrently, and he is now imprisoned on Alcatraz Island, pursuant to that sentence.

In his petition for a writ of habeas corpus, appellant alleged that he (1) was being confined for an offense he did not commit in that the kidnapped person was not transported outside the State of Washington, in which state the kidnapping occurred; and (2) was forced to plead guilty because he was threatened with death by agents of the Federal Bureau of Investigation. He further stated in the petition that in July, 1939, he filed in the court where the indictment was presented, a…