*1 197 Supreme Court Barber14 v. Barber recognized the doctrine of Florida saying: delivery, constructive delivery is determined question of locality of
largely by the nature given.15 or articles
the article momentary physical require
To Maxcy possession to Mrs. transfer of and re- issued
of a stock certificate and stored in her name
corded corporation in she was which
vault of a officer, shareholder, continually a form of tokenism
director courts do not
in which we think indulge. judgment
Florida would both as to Estate
is reversed Hugh Gregg Maxcy and the Estate
Maxcy. Both are remanded causes attorneys’
determination of additional expenses
fees and allowable as deduc- gift taxes, any,
tions; applicable adjustments in both estates
recognized by parties all neces-
sary.
Reversed and remanded. America,
UNITED STATES Plaintiff-Appellee, HATHCOCK, Defendant-Appellant.
Carl
No. 29642. Appeals, States Court Fifth Circuit. Carrington, McCain, Cole- March 1971. Robert G. Blumenthal, Sloman, man, & Johnson Rehearing Rehearing En Denied de- Dallas, (Court-appointed) Tex. May 6, 1971. Denied Banc fendant-appellant. Atty., Farris, Anthony U. S. J. P. Gough, Meadows,
Dewey R. F. James Tex., Houston, Attys., Asst. U. S. plaintiff-appellee. SIMPSON, JONES, BELL and
Before Judges. note (Fla. at 715. See cases cited 15. Id. also 713 So. Fla. supra. 1937). *2 198
SIMPSON, Judge: granted application court the writ, provided but in its order that trial by appeal This is an Carl Hathcock counsel for Hathcock consult should from a conviction in the district court the U. S. Marshal and tender the neces- (Title conspiracy 18, on a count U.S.C. § sary transportation fees “for and sub- 371) (Ti- and on two counts substantive sistence, Haynes. etc.” of the witness 18, 2314) unlawfully tle and U.S.C. § by was Sherman advised Mar- U. S. knowingly transporting in interstate shal that trans- fees for goods, whiskey, commerce i. e. valued portation Haynes and subsistence $5,000.00.1 excess of approximately would amount $800.00. by appel- In the initial brief filed financially pay Hathcock was unable to grounds lant four of error were asserted sum, learning such a and of this relating sufficiency of the evi- requirement, verbally Sherman renewed dence, charge judge’s trial application his a writ habeas cor- jury, judge’s and the trial comments on pus ad testificandum to be issued responsive the evidence. A brief was Haynes, application but this time the by appellee, contesting filed all of pauperis. was made in forma Subsequent the above asserted errors. point judge At this called filing brief, appel- of the initial prosecution counsel for the and the de- lant filed with this motion Court a to in- chambers, long placed fense into and clude additional documents in the record telephone Haynes distance call to at the support brief thereof. mo- The Leavenworth, penitentiary federal granted by judge tion was of this Kansas. Sherman and the U. Attor- S. September 15, Court on 1970. ney, Dimmitt, spoke Mr. each to and questioned Haynes, on extension tele- This action resulted in the addition to phones. Haynes explained on the tele- affidavits, the record by of two one Mr. phone testify that he would in substance Ted (Sherman), Richard Sherman coun- appellant that was unconnected with the appellant sel court, in the trial being offense with which he was by Haynes James A. charged, (Haynes) and stated that he (Haynes), named in the indictment as a willing testify would be at the trial of co-defendant, but at the time of Hath- appellant. cock’s serving trial convicted and his confinement pris- sentence in the federal The trial court informed Sherman system (footnote on 1, supra). In sub- that his motion for a writ of habeas cor- stance the set affidavits forth the fol- pus Haynes ad testificandum directed to lowing sworn February 3, facts: On granted would be would Sherman as- 1970, prior one week to the scheduled Haynes sure the court Hathcock, 10, February date of used as a witness behalf of Hathcock. attorney Sherman filed the district in- Because Sherman had been unable to application court an for writ of habeas potential Haynes terview the ex- corpus ad produc- testificandum for the tensively private and in he under- was Haynes, tion of then confined in the standably unwilling guarantee penitentiary United States at Leaven- Haynes testify would in fact be called to worth, Kansas, as a material application as a defense witness. Hathcock. accordingly by was denied the district judge. original application cor- The form of writ habeas for the writ was pauperis. not in pus by forma The district ad testificandum submitted Sher- Charged Taylor, Haynes with Hathcock were Julius J. have been affirmed Taylor Gulledge, Mosely, Gulledge Lee and James this Court. et al. v. United Haynes. Gulledge, Mosely, States, 880; 1969, A. 5 Cir. 405 F.2d Haynes together, Haynes 1969, States, were tried v. 5 Cir. 415 United having 347, 1024, not been arrested at the time of F.2d 90 cert. denied 396 U.S. Gulledge, their trial. 600, (1070). The convictions of S.Ct. 24 518 L.Ed.2d
199
1967,
States,
original
374
ap- Barnes
5 Cir.
v. United
in connection with
man
917,
126,
88
denied 389 U.S.
F.2d
cert.
Mar-
the U.
plication
returned
S.
273; Thompson
v.
L.Ed.2d
13, 1970,
S.Ct.
“unexecuted
on March
shal
States,
F.2d 826.
5 Cir.
the United
attorney did not furnish
defendant’s
States,
Cir.
In
Welsh
ex-
necessary deposit
fees and
to cover
*3
scope of
outlined the
F.2d
we
penses”.
that discretion:
urges
of the
refusal
that
the
Hathcock
court
that
district
hold
the
“We
judge
grant
condition
trial
to
without
refusing
that a
in
to order
sub-
erred
application for
pauperis
in
the
forma
Dr.
poena
for
service on
be issued
to
directed
a
ad testificandum
writ
Ewing. Admittedly,
un-
Welsh
Haynes
deprived
a material
of
pay
of the witness.
the
testimony
able to
fees
have been
whose
could
witness
requirement
trial,
only
of
the
The
and
of the
the outcome
critical
to
Fed.R.Crim.P.,
17(b),
present Rule
vested
discretion
was an abuse of the
satisfactory
17(b)
quoted supra, note
is ‘a
by
judge
F.R.Crim.P.
the trial
* * *
presence
showing
that
the
of the
a denial
and
as well
constituted
necessary
right
to an ade-
of the witness
to
is
appellant’s
Amendment
Sixth
showing
obtaining
quate
must be
defense.’
process
The
compulsory
wit-
court,
‘satisfactory’
right
the district
not
and Fifth Amendment
nesses
the district
court
liberty
means that
due
which
deprived
without
of his
to be
grant-
a
discretion
exercises
broad
process.
denying
ing
the issu-
a motion for
or
government
response dis-
filed no
The
by
subpoena
defend-
made
a
of a
ance
affida-
puting
to in the
facts sworn
the
pay
financially
the fees
unable to
ant
argument
vits,
counsel for
on
oral
process
of
of the witness.
abuse
government
appellee
the
stated
the
that
emphasizes
the
so often encountered
dispute
factual contents
did not
the
Clearly,
necessity
discretion.
for such
deal
we
the affidavit.
For this reason
however,
is
abso-
discretion
not
the
affida-
in the
the matters set forth
judicial
lute,
discretion
but is a sound
undisputed
facts.
vits
subject
appeal.
on
to review
Procedure
Federal Rule of Criminal
discretion to be
of the
“The breadth
17(b) provides:
by
under
court
exercised
(b)
Pay. The
Defendant
considerably
Unable
17(b)
narrowed
Rule
is
any
a
time that
court shall order at
rights
by
de-
two constitutional
the
subpoena
on a
be issued for service
(1)
Amendment
fendant:
the Sixth
upon
parte appli-
named
an ex
process
witness
right
compulsory
‘to have
cation of a defendant
a satisfac-
favor’;
obtaining
witnesses
his
tory showing
fi-
is
right
that
defendant
the
(2)
the Fifth Amendment
nancially
pay
unable to
the fees of the
against
protection
dis-
unreasonable
presence
the
and that
the
that,
witness
as be-
crimination which means
adequate
necessary
is
to an
financially
able
those
tween those
sub-
If the court orders the
defense.
financially
pay
fees of
unable to
the
poena
the costs
to be issued
incurred
witness,
be no more
there should
by
process
fees of the wit-
and the
than is
discrimination
subpoenaed
paid in
ness so
shall
against
process.
protect
abuse of
We
manner
in which similar
the same
agree
prescribed by
test
with the
paid
in case of
costs and fees are
that,
D.C.
‘
subpoenaed
in behalf of
*
**
if
accused avers facts
government.
which,
true,
relevant
case,
requests
any
17(b)
issue
application
An
under Rule
granted,
subpoenas
un-
must be
compulsory process
for witness
inherently
are
less the averments
government expense
is addressed
face,
their
or
on
unless
incredible
court.
discretion
sound
shows,
certainly
the Government
either
in- modest and reasonable and
far
troducing
right
compulso-
evidence or from matters
from an abuse of the
record,
already
ry process.
the aver-
ments are untrue or that
the re-
holding merely
appel-
Our
is
that the
quest is otherwise frivolous.’
in this
lant
instance met the burden cast
States, 1963,
Greenwell v. United
[115 upon
17(b)
him
U.S.App.D.C. 44,]
F.2d
110. district court
in de-
abused its discretion
places
That
test
burden
show- nying
production
of the witness.
ing frivolity
process
or abuse of
requirement
that defense counsel
Government,
properly
it
where
be-
put Haynes
bind himself in advance to
longs.”
(Foot-
retrial.
Reversed and remanded. PETITION FOR REHEARING
ON REHEAR-
AND PETITION FOR
ING EN BANC
PER CURIAM: Rehearing is denied The Petition Judge panel nor
and no of this member regular on the active service Court
having polled requested that the Court (Rule rehearing banc, Federal en Procedure; Appellate Local
Rules of 12) the Petition
Fifth Circuit Rule
Rehearing En Banc is denied. *5 L. Par Richard
Willie J. FLUKER Plaintiffs-Appellants, sons, EDUCA OF
ALABAMA STATE BOARD Defendants-Appellees. al., TION et No. 30670
Summary Calendar.* Appeals, States Court Fifth Circuit. 31, 1971.
March * [1] prises, Inc. v. Citizens 5th Cir.; see Isbell Enter- Casualty Co. of d New Part York, I. et al., 5th Cir. F.2 notes recog- necessity and the counsel ments