266 F2d 29 Finley v. United States

266 F.2d 29

Grovene James FINLEY, Appellant,
UNITED STATES of America, Appellee.

No. 17627.

United States Court of Appeals Fifth Circuit.

April 30, 1959.

Rehearing Denied July 29, 1959.

Grovene James Finley, in pro. per.

W. Howard Fowler and Truett Smith, Asst. U. S. Attys., Frank O. Evans, U. S. Atty., Macon, Ga., for appellee.

Before TUTTLE, CAMERON and WISDOM, Circuit Judges.

WISDOM, Circuit Judge:

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January 16, 1959 Grovene James Finley, appellant, filed a motion termed a "Motion for a Proper Return". The object of the motion was to obtain an order "showing" to the Superior Court of Harris County, Georgia that he was under the exclusive jurisdiction of the District Court for the Middle District of Georgia and therefore not subject to trial on State charges on January 26, 1959 or, in the alternative, that he was entitled to an order waiving the exclusive jurisdiction to the State of Georgia. There is no connection between the crime for which he was convicted in the federal court and the offense with which he is charged in the state court. The District Court dismissed the motion.


The doctrine of comity between two sovereigns is elastic. The principle that a probationer is under the custody of the federal court is an accepted fiction. But comity cannot be stretched nor fictitious custody made real to the extent of establishing an open season for federal probationers to commit state crimes and avoid trial in state courts while on probation. In the absence of objections by the United States, the probationer cannot object. The question is one of comity between the United States and the State of Georgia. The sovereign having prior jurisdiction and custody may waive that right and permit another sovereign to proceed with prosecution of a prisoner. Rawls v. United States, 10 Cir., 1948, 166 F.2d 532, certiorari denied 334 U.S. 848, 68 S.Ct. 1498, 92 L.Ed. 1771; United States of America ex rel. Pasela v. Fenno, 1948, 2 Cir., 167 F.2d 593; United States ex rel. Spellman v. Murphy, 7 Cir., 1954, 217 F. 2d 247; Strand v. Schmittroth, 9 Cir., 1956, 233 F.2d 598; and Hall v. Looney, 10 Cir., 1958, 256 F.2d 59. Dillingham v. United States, 5 Cir., 1935, 76 F.2d 35 merely involved a question as to the terms of probation and as to whether such terms had been violated.

The appeal is