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BEEBE v. SANFORD, Warden.

No. 10722.

Circuit Court of Appeals, Fifth Circuit.

Oct. 22, 1943.

William A. Beebe, in pro. per., for appellant.

M. Neil Andrews, U. S. Atty., and Harvey H. Tisinger, Asst. U. S. Atty., both of Atlanta, Ga., for appellee.

Before SIBLEY, HOLMES, and WALLER, Circuit Judges.

WALLER, Circuit Judge.

This is a proceeding in habeas corpus by the petitioner who was convicted and sentenced to a term of five years in the penitentiary.

' The sole ground for the writ was that the petitioner was prevented from securing a material witness because of the failure of the Assistant United States Attorney to authorize the jailer to furnish petitioner with long distance telephone service in securing a witness.

It affirmatively appears that the petitioner had stated to the Court more than a month prior to his trial that the only witness he desired was one Hickey, who was then serving a sentence in the United States Industrial Reformatory at Chilli-cothe, Ohio, and that the said witness was produced and present at the trial. No request was made by the petitioner for the issuance of a subpoena to any witness. On the contrary, he advised the Court that he desired to have only Hickey as a witness. The case was called for trial and nothing was said by the petitioner to the Court as to a desire to procure other witnesses until after the trial of the case was in full progress. The Court thereupon properly ruled that the request had come too late.

The mere writing of a letter to an Assistant United States Attorney requesting him to direct the jailer to allow a prisoner to use the long distance telephone in order to communicate with a prospective witness in another State and the non-action by the Assistant United States Attorney on the request falls far short of being a denial of due process for the procuration of defendant’s witness.

The judgment of the Court below in discharging the writ and remanding the petitioner to the custody of the Warden is affirmed.

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