402 F2d 763 Henderson v. Cronvich

402 F.2d 763

George J. HENDERSON, Appellant,
v.
Alwynn CRONVICH, Appellee.

No. 25605.

United States Court of Appeals Fifth Circuit.

November 4, 1968.

Samuel S. Dalton, New Orleans, La., for appellant.

James K. Gaudet, Gretna, La., William P. Schuler, Asst. Atty. Gen., Baton Rouge, La., for appellee.

Before COLEMAN and MORGAN, Circuit Judges, and HUNTER, District Judge.

PER CURIAM:

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1

Under Louisiana law a defendant may be prosecuted by information for an offense less than capital.1 In capital cases an indictment is prerequisite.

2

The appellant, in state custody under an information for an offense less than capital, unsuccessfully sought relief by habeas corpus in the United States District Court for the Eastern District of Louisiana. He contended there, and he argues here, that the provision of the Fifth Amendment to the Constitution of the United States which prohibits prosecution for infamous crimes except on the indictment of a Grand Jury applies to the states under the due process clause of the Fourteenth Amendment; therefore his detention upon a bill of information rather than an indictment violates his federal constitutional rights.

3

In Hurtado v. People of State of California,2 and again in Gaines v. State of Washington,3 the Supreme Court has held that the indictment clause of the Fifth Amendment does not apply to the states. In the absence of some clear indication that the Supreme Court would no longer follow these precedents we are, of course, bound to follow them. As recently as 1964 the Tenth Circuit in Blakesley v. Crouse,4 and as recently as 1965 the Sixth Circuit in Saunders v. Buckhoe,5 followed the rule announced in Hurtado and Gaines.

4

We therefore hold that the Louisiana procedure is not constitutionally invalid and we affirm the judgment of the District Court.

5

Affirmed.

Notes:

1

Article I, § 9, Louisiana Constitution; Article 382, Louisiana Code of Criminal Procedure

2

110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232 (1884)

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3

277 U.S. 81, 48 S.Ct. 468, 72 L.Ed. 793 (1928)