UNITED STATES V. COLLINS.
65
I find, therefore, that upon the facts admitted by the demurrer, the offense in this case does not constitute willful murder, because (1) apart from statute, such an offense has never been so treated by the courts of the United States when the death was in a foreign country; (2) the only statute (originally that of 1825) under which the case can be brought, makes the case not murder, but a felony, following the ruling of Mr. Justice Washington that it could not be called "murder," but might he adjudged a felony; (3) because the l'evisers evidently intended to continue this distinction, and deliberately avoided calling the offense "murder," by carefully adopting a phraseology and a grammatical construction which necessarily exclude it from the designation of murdElr in the first line {)f section 5329; and (4) because the third clause of section 4 of the act of 1825, and the third clause of section 5339 of the Revised St:;tutes, cannot constitute murder, except by narrowing their scope through the insertion of a proviso that the death occur within a year and a day,-a limitation upon the act which I have no right to impose. The demurrer is, therefore, overruled, and the plea in abatement sustained. UNITED STATES v. COLLINS. (District Court, S. D. California. January 26, 1891.) WARRANT OF 0'1 IXFORMATION A'1D BELIEF.
Under the Penal Code of California, and, accordingly, by virtue of Rev. St. § 1014, in the courts of the United States sitting in that state, a complaint made to a committing magistrate, upon information and belief only, is insufficient to give such magistrate jurisdiction to issue a warrant of arrest for the accused person, or to iSsue a subpoena for a witness.
On Demurrer to Indictment. George J. Denis, U. S. Atty. Walter D. Tupper, for defendant. WELLBORN, District Judge. Defendant is charged with violating section 5399 of the Revised Statutes of the United States. which, among other things, provides that every person who obstructs or impedes the due administration of justice in any court of the United States shall be punished by fine, etc. T'here are two counts in the indictment. The first count alleges substantially that on the 13th day of November, 1896, and prior thereto, Dante R. Prince W3.S a duly appointed and qualified commissioner of the circuit court of the United States in and for the Southern district of Oalifornia. at the city of Fresno, Oa1., within said district, and while acting in his official capacity, at the time and place aforesaid, one B. T. Alford appeared before him, the said commissioner, and by his written affidavit and complaint, upon information and belief, accused one J. H. Terry of the crime of having deposited in the United States post office, at said city of Fresno, an obscene and lewd letter; that thereupon said commissioner issued a warrant for the arrest of said Terry, under which said Terry was arrested, and brought before said 79F.-6
66
79 FEDERAL REPORTER.
coIrtiliis'sioner on the 14th day of November, 1896, wh.en said commissionerfixea the 19th day of the s'aid month for conducting the examinationof said Terry on said charge; that at the time said complaint was filed, and at a..ll the times thereafter in said count mentioned, the letter therein referred to was in the possession of the defendant herein, John H. Collins, and after the filing of said complaint, and on the day that it was filed, said commissioner issued a subprena in said action against said Terry, directing said Collins to appear before him on the s'aid 19th day of November, 1896, as a witness on the part of the United States, and also is,s:ued an order, in writing, directipg said Collins to deliver to Deputy United States Marshal B. T. Alford said letter, said order reciting that said letter was needed on the part of the United States in said actioD; that said subprena and order were duly served upon said Collins on said 14th day of November, 1896; but that S'aid Collins willfully and corruptly refused to deliver said letter to said Alford or said commissioner. The second count is similar to the first, except that it charges the defendant with a willful and corrupt refusal to obey a subpuma duces tecum, issued in the same action, and under the eame circumstances, as were the subpama and order mentioned in the first count. A demurrer has been interposed to the indictment. on the ground that the alleged complaint filed before the commissioner, being upon information and belief, was, in contemplation of law, no complaint at all, and therefore the commissioner was without jurisdiction to issue the subprenas in question. Section 1014 of the Revised Statutes of the United States provides that, for any crime against the United States, the offender may by anyone of certain officers., therein named, and agreeably to the usual mode of process against offenders in such state, be held for trial before suC!b. court of the United States as has cognizance of the offense. It has been repeatedly held' that it was the intention of congress, by this section, "to assimilate all the proceedings for holding accused persons to answer, before a court of the United States, to the proceedings had for similar purposes by the laws of the state where the proceedings should take place." U. S. v. Rundlett, Fed. Cas. No. 16,208; U. S. v. Harden, 10 Fed. 803; U. S. v. Horton, Fed. Cas. No. 15,393. To determine, therefore, the question now before the court, reference must be had to the statutes and decisions of California. Under what circumstances, then, may a committing magistrate in California subprena a witness? This question is answered by section 1326 of the Penal Code of said state, the pertinent provisions of which are as follows: "Sec. 1326. The process by which the attendance of a witness before a court or magistrate is required is a subprena; it may be signed and issued by: (1) A magistrate before whom a complaint is laid, for witnesses in the state, either on behalf ot the people or of the defendant. * * *..
The word. "complaint" is defined in section 806 of Baid Code, as follows: "Sec. 800. The complaint Is the allegation in writing made to a court or ma:istrate that a person has been guilty of some designll.U!d offense."
UKITED STATES V. COLLINS.
fl7
It will be observed that, according to this section, the allegation necessary to constitute a complaint is not the mere statement of an opinion, but the allegation of the fact "that a person has been guilty of some designated offense." The word "complaint," as defined in said section, includes the accusation made before the committing magistrate, and also the information filed by the district attorney in the trial court. The requirements of the law as to the information filed in the trial court are prescribed in section 809 of said Code. Verification by affidavit is not among these requirements, for the reason, I take it, that a district attorney is presumed to be acting. when he presents an information, under the sanctions of his official oath. The law, however, is different with reference to the complaint or accusation made before a committing magistrate, as appears from sections 811, 812, and 813, Pen. Code Oal., which are as follows: . "Sec. 811. When an information is laid before a magistrate of the commission of a public offense, triable within the county, he must examine on oath the informant or prosecutor, and any witnesses he may produce, and take their depositions in writing, and reuse them to be subscribed by the parties making them. "Sec. 812. The depoSlition must set forth the facts stated by the prosecutor and his witnesses, tending to establish the commission of the offense and the guilt of the defendant. "Sec. 813. If the magistrate is satisfied therefrom that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, he must issue a warrant of arrest,"
In order, then, to authorize a magistrate, for the purposes of preliminary examination, to issue a subpcena, there must be laid before him a written complaint on oath, alleging that a person therein named has been guilty of some designated offense. Does the indictment in the case at bar show such a complaint? I think not. The affidavit made by Alford before Commissioner Prince, being upon infOl'lllation and belief, did not allege any material fact whatever, but was simply the statement of affiant's opinion. Referring to an affidavit of this sort, the supreme court of California has said: "It ia obvious that this affidavit does not directly charge that petitioner has c"Ommitted any offense, and it would be a dangerous precedent to establish that any man may be deprived of his liberty, and removed to another state, upon such an accusation. The statement therein that affiant 'has reason to believe, and does beli ve,' that petitioner embezzled or fraudulently converted to his own use the property mentioned, is not the statement of any fact, and for that reason the affidavit is fatally defectJive. .. .. .. But the defect in the affidavit before us is not a merely formal one. The objectJion to its sufficiency is substantial, and it is that, in judgment of law, it does not make any charge at all," Ex parte Spears, 88 Cal. 642, 26 Pac. 608.
And e,en in the case of People v. Smith, 1 Cal. 11, cited by the government, while, contrary to the later cases as hereinafter shown, it is held that it is too late for the defendant to object to the affidavit, on which was issued the warrant for his arrest, after examina· tion and commitment, the court says: "It is claimed that tlle affidavit in pursuance of which the warrant was issued is defective, because it is alleged to be upon information merely. If this were so, we should feel disposed to regard it as of but little value, for an affidavit which states no fact within the knowledge of the person making it can be of but little weight in anr legal proceeding."
68
79· FEDERAL REPORTER.
That such an affidavit does not confer jurisdiction to issue a warrant of arrest has been expressly held by the supreme court of California. Ex parte Dimmig, 74 Oal. 164, 15 Pac. 619. In that case the court, referring to the aforesaid sections 811, 812, and 813, says: "Uuder these provisions, a magistrate has no jurisdiction to issue a warrant of arrest without some evidence tending to show the guilt of the Imrty named in
the warrant. The original information may be sulfide nt, though made only upon information and belief, if followed by the deposition of the complainant, or some other witness, stating facts tending to show the guilt of the party charged. Of courge, where there was some evidence upon which the magistrate acted, we would not interfere. It may be also true that the original information might be treated as a depusition; and in such view, if it contained po,sitive evidence of 1\acts tending to show guilt, it might be suflicient as a basis for the issuance of a warrant. But a mere affidavit in the form of an information, containing no evidence, and fullowed by no deposition stating any fact tending to show guilt, is insufficient to support a warrant. The liberty of a citizen eannot be violated upon the mere expression of an opinion under oath that he is guilty of a crime."
It is, however, urged by the government, that, while an affidavit upon information and belief may not confer jurisdiction to issue a ,,,arrant of arrest, it would confer jurisdiction to compel, by subpwnas, the attendance of witnesses before the magistrate, to enable him to determine whether or not a warrant of arrest ought to issue. The authorities cited to support this contention are People v. Smith, 1 Cal. 9, and People v. Staples, 91 Gal. 23, 27 Pac. 523. It seems to me, however, illogical to JLOld that a magistrate has jurisdiction to compel the attendance of witnesses to enable him to determine whether or not a person ought to be arrested for crime, and Jet is without jurisdiction to order the arrest. Moreover, the doctrine of the two cases last cited, that the commitment authorizes the filing of an information, and that it is too late after the commitment to raise an objection to the sufficiellcy of the affidavit on which the arrest was originallJ made, has been practically, if not in terms, overruled bJ the later cases of People v. Ohristian, 101 Cal. 471,35 Pac. 1043. and People v. Howard, 111 Cal. 655, 44 Pac. 342. I extract from the opinion in the latter case the following: "It remains to be determined whether the fact that the complaint. upon which a defendant is arrested and committed states no o·ffense against him is so fatal to the regularity of the proceeding as to require the informa tion based thereon, itself suilicient in form, to be set aside, upon the ground t.hat he has never been legally held to answer. Some of the earlier cases, arising under the provision of our present constitution providing for progecutions by informatiun, seem to treat the character or sufficiency o'! the complaint before the magistrate as largely an immaterial or nonessential factor in determining the regularity of the proceeding for a commitment (see People v. Velarde, 59 Cal. 457: People v. 'Vhee!er, 65 Cal. 77, 2 Pac. 892; People v. Staples, tn Cal. 23, 27 Pac. 523); although none of those caSef3, we think, go to the extent of holding that the complaint need Dot state an offense. But iu the recent case of People v. Christian,. 101 Cal. 471, B5 Pac. 1043, where the Iatest expression of the court upon the subject is to be found, all the earlier caSef3 are fully reviewed, and the reasoning and conclusion in that case would Soeem to impart more dignity and importance to the oilice of th.at pleading in criminal prosecutions than theretofore accorded it. In that ca.se the' defendant was charged with an with a deadly weapon upon one George Magin, and was held to n,nswer therefor. The distrk-t attorney filed an information charging him with such an assault npon one George 'Massino.' It was held that the information must be set aside, the court, after stating the facts showing that defendant had been brought before the magistrate to defend himself against
UNITED STATES V. COLT,TNS.
69
a charge of ass-aulting Magin, saying: 'Under those circumstances, and under a complaint charging that offense, he could not be called upon to defend himselt for assaulting one Massino, for there was no complaint on file upon which to base an examination of that character.' And, after reviewing the cases upon the subject, it is said: 'It may be laid down as an unquestioned proposition that the district attorney has no authority to disregard the commitment, and cull from the evidence taken at the preliminary examination some real or imaginary offense not included in the complaint upon which the defpndant was charged and examined. * * * 'L'he district attorney is not only required to file the informatiou for some offense included in the allegations of the complaint, but the magistrate likewise only has the power to commit for some offense included therein.' ..
The court further says: "Thc j)rillciples to be deduced from this case are that the complaint lodged with the magistrate constitutes the groundwork of the whole superstructur'e to be thereafter built thereon, and draws the lines which must circumscribe the limits the prospcution can take. 'L'he defendant, in other words, may be competently informed against and tried for any offense charged in the comj)laint, or iucluded therein, but beyond that limitation the prosecution cannot go. * * * From these principles it would seem to follow as a necessary corollary that if the complaint is the measure of the people's rights in proceeding against a defendant in any case, Such complaint must charge him with a pubHc offense. If the commitment and information cannot go beyond the complaint. and the latter fails to state any crime, the logic is irresistible that the defendant has not been legally held to answer for an offense. And this must be true. It cannot be that it was ever contemplated, either by the framers of the constitution, or by the leglslature :proceeding under that instrument, that a party can be arrested and put to the indignity and public shame of detention and examination upon a criminal charge, to say nothing of the inconvenience and pecuniary detriment incurred thereby, without a formal complaint, which charges, at least in substantial effect, some offense known to the law; for, if the complajnt need not state an offense, it would subserve no useful purpose, since a pleading which does not state a cause of action is, in legal contemplation, no pleading. That such was not the purpose or intent of the legislature is evident from section 806 of the Penal Code, which provides that 'the complaint is the aJll'gation in writing, made to a court or magistrate, that a person has been guilty of some designated offense.' "
I have examined the federal decisions cited by the government, but do not think they antagonize my views, as above indicated. In U. S. v. 'rinklepaugh, 2,s Fed. Oas. 193, the claim was not made that the warrant in question was a nullity. This is shown by the following extract from the opinion: "It is admitted by the counsel for the defendants that the warrant is a valid warrant, so far as it respects the action of the marshal, 0-1' any persons acting nndel' him, by his authority; and that he and they were not only authorized, but were bound, to execute it."
This language could hardly be applied to any process considered absolutely null and void. If, in U. S. v. Martin, 17 Fed. 150, or U. S. v. Reese, 27 Fed. Cas. 746, which are the other federal decisions cited by the government, there be anything with which this opinion apparently contliets, it is a sufficient answer to say that the decisions of said cases did not depend upon California laws. The conclusion is to my mind irresistible that Alford's affidavit or complaint before Commissioner being upon information. and belief, did not confer upon the latter jurisdiction to make the order or issue the subprenas set forth in the indictment, and therefore the demurrer thereto is sustained.
70
79 FEDERAL REPORTER. In re BESHEARS. (District Court, S. D. Iowa. February 23, 1897.)
CRIMINAL
Upon an application to a district judge, under liev. St. § 1014, tor an order for the removal of a prisoner in the custody of the marshal to another district for trial, the prisoner is entitled to notice, and, if he desires it, to be brought before the judge for the purpose of presenting any objections he may have to the making of the order.
TO A:'IOTHER DISTinCT FOlt TIUAL-NoTJOE.
On application of Frank P. Bradley, United States marshal, Southern district of Iowa, for warrant of removal to district of Kansas of John Canedy, alias James A. Beshears. Upon February 19, 1897, J. J. Steadman, a commissioner ot the circuit court in and for the Southern district of Iowa, upon information duly filed before him, charging John Canedy, alias James A. Beshears, with having committed in the district of Kansas a violation of section 5392, Rev. St., issued his warrant for arrest of said Canedy, alias Beshears. The marshal of said Southern district of Iowa thereupon arrested said defendant, and brought him before said commissioner. Upon the hearing under said information it appeared that an indictment against said Canedy, alias Beshl'ars, had been duly found in said distrIct of Kansas; wherefore, after due examination, said commissioner ordered said defendant to give his due bond in the sum of $1,000 for his appearance at the next term of the district court at said district of Kansas, at Topeka, to answer said charge, and, in default thereof, that said defendant be committed to the custody of said marshal, until discharged by dne process of law. Application having been made by said marshal to the district judge of the Southern district of Iowa for a warrant of removal of said defendant to the district of Kansas, it appeared that said defl'ndant had neither notice nor knowledge of the making of said application. Thereupon the warrant of removal was refused until defendant had such notice, such refusal being announced as follows:
Mt. Pleasant, Iowa, Feb. 23, 1897. Frank P. Bradley, Esq., U. S. Marshal, Council Bluffs, Iowa. Dear Sir: Your letter of the 20th inst., containing papers with reference to the case of John Canedy, alias James A. Beshears, at hand. You inclose certified copy of indictment as presented by the grand jury of the First division of the district of Kansrus, charging said Canedy, alias Beshears, with the crime of perjury, and also certified copy of the record of J. J. Steadman, commissioner of the United States circuit court of this district, showing the arrest of the prisoner in this district, his examination before said commissioner, and commitment for trial in said district of Kansas· for the crime charged, and the fixing of baH at one thousand dollars. You further state that the prisoner is in your custody, and is unable to give said bail. You ask for an order, under section 1014, Rev. St., directing his removal to the district of Kansas. for trial, and add: "I would have brought the prisoner before you, but the de.partment intimated lately that that was an unnecessary expense." The practice in this district, without an exception, so far as I have been able to understand, since the time of In re Bailey (1869) 1 Woolw. 422, Fed. Cas. No. 730, has been to have the prisoner brought before. the judge for such examination as may be found nee-
IN RE BESHEARS.
71
essary, before the application to remove ripens into the order of reo, moval. I have not found any decision directly upon the point here raised. Nor, in my examination of the reports of the federal courts, have I found any case where the report of the case shows affirmatively that the prisoner was not brought personally before the judge to whom the application for removal was presented. In the statement of the facts, or in the reasoning of the judge, each opinion which I have examined seems to regard as a matter of course the presence of the prisoner upon the hearing of the application for order of removal. The authority for the order of removal is section 1014, Rev. St., latter part of section. After providing the method by which of· fenders against the United States statutes may be arrested, imprisoned, or bailed for trial, the section provides: "And where any offender or witness is committed in any district other than that where the offense is to be tried, it shall be the duty of the judge ot the district where such offender or witness is imprisoned, seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had."
May the order for removal be made upon ex parte hearing in the absence of the prisoner, and upon the face of the papers from the committing magistrate, or should such order be made after the prisoner has had opportunity, if he desire, to contest the application therefor? I think it might well be assumed that the prisoner may, if he will, waive his personal appearance on the hearing or such application. Such Waiving would then justify the judge, if no objections are presented, in assuming that the prisoner thereby consented to the order for removal, in that he makes no resistance thereto. But here it is also assumed that the prisoner has notice or knowledge of the making of the application. He could not fairly be held to waive that of which he had neither notice nor knowledge. He is in cnstody, imprisoned. How can he acquire such notice or knowledge? Only by being brought personally before the judge, or being given opportunity for personally waiving his presence. Should he desire to present objections to the application, how is the opportunity afforded him, if it be determined whether the order of removal shall issue in his absence and without notice to him that the order was about to be asked? Possibly this opportunity might be afforded him on a habeas corpus hearing, after the order of removal had been made. But in a large number of cases-perhaps the large majority-sufficient time does not elapse between the issuing of the order by the judge and the execution by the marshal to permit the ready issuing of the writ. As a general rule, the execution follows close on the issuing of the order. Again, in many, if not in most, of these cases, the prisoner is thus arrested and imprisoned away from his home and friends, and thus he has little opportunity to sue out the writ of habeas corpus. But, if he could readily sue out the writ, why put him to such necessity, when, upon the hearing of the application, substantially the same field of resistance is opened to him as upon the hearing upon the writ? As the judges are now situated, since the establishment of the United States circuit court
72
of appeals, such writ, especially in this circuit, must generally be sued out before the district judge who issues the order of removal. Why thus ask the judge first to make whatever investigation he may deem necessary before is,suing the order, and then to traverse the same ground, though perhaps more thoroughly, in a hearing upon the writ? One of the earliest cases which my examination of this matter has brought to my attention is that of In re Bailey, 1 Woolw. 422, Fed. Oas. No. 730, which came before Justice Miller, in this cir· cuit, in 1869. In the course of his examination as to whether he should issue an order of removal for the defendant to the Northern district of Illinois, it appears he submitted the matter to District Judge Love, of this district, and in his communication to Justice :MiIler, Judge Love uses this language: "I, however, without giving any opinion upon the general question, held, as I have always done in cases of indictment, that the prisoner should be brought before me in order that the fact of indentity might be inquired into. In this I proceeded upon the idea that the finding in the other district, whether by indictment or otherwise, established nothing with regard to the identity of the prisoner. The marsh'al, in making the arrest, might mistake the man, and remove to a remote state an individual not charged with any offense whatever."
While the case just cited does not bring directly in review the question whether there ehould be a hearing before the district judge in the presence of the prisoner when the committing magistrate within this district has, under section 1014, Rev. St., ordered the prisoner committed to await the order of removal, nevertheless the statement of J,udge Love is very suggestive as to the practice uni· formly followed by him in this district. The case of In re Buell, 3 Dill. 116, l!"ed. Cas. No. 2,102, contains some remarks of Circuit Judge Dillon which are pertinent to the general subject of this inquiry. This case was decided in 1875. District Judge Treat had discharged, upon habeas corpus, Buell, who had been ordered removed to the District of Oolumbia, under section 1014, Rev. St. The matter came before Circuit Judge Dillon upon appeal, who uses this language: "It is argued that the question of the sufficiency of the indictment is tor th" court in which it was found, and not for the district judge on such application. I cannot agree to this proposition in the breadth claimed for it in the present case. This provision devolves upon a high judicial officer of the government a useful and important duty. In a country of such vast extent as ours, it is no light matter to arrest a supposed offender, and, on the mere order of an inferior magistrate. remove him hundreds, it may be thousands, of miles for trial. The law wisely requires th" previous sanction of the district judge to such removal. Mere technical defenses to an indictment should not be regarded; but the district who should order the removal of a pri.soner, when the only probable cause relied on or shown was an indictment, and that indictment failed to show any offense against the laws of the United States, or showed the offense not committd or tr-iable in the distr-ict to which the removal is sought, would misconceive his duty. and fail to protect the liberty of the citizen."
In the case of In re Ellerbe, 13 Fed. 530, 532, Circuit Judge McCrary was called upon to hear a petition in habeas corpus. The judge of the district had ordered the removal of the prisoner for trial to another state. In the course of his decision, Circuit Judge McOrary remarks:
IN BE BESHEARS.
73
"It It!! next Insisted on behalf of the petitioner that he Is entitled to a hearing before he can be sent out of the district, and that he has not had such a hearing as the law requires. It was, no doubt, the duty of the marshal of the Eastern district ()f Arkansas to apply to the judge of his district for an order for the arrest of the petitioner; and it was the duty ()f the district judge to enter into such investigation as was necessary to enable him to determine whether the petitioner should be sent out of the district to answer the charge against him. Precisely how far the district judge was authorized to go upon such a hearing it is not necessary in the present case to determine. Certain it is that he had the right to inquire into the question of the prisoner's identity. This would be necessary in any case, for the judgment of the court in another district, however con-· elusive UPO'll other questions, would establish nothing with regard to the identity of the prisoner."
In the case of In re Corning, 51 Fed. 205, 206, Judge Ricks, of the Northern district of Ohio, upon application for an order to remO'Ve the defendants, who had been indicted in the district of setts, uses this language: 'The order of removal is not a mere ministerial act on the part of the district judge, but is a judicial functio'll including the exercise of a judicial discretion UPOIl the papers presented in support of the application."
In the case of In re Terrell, 51 Fed. 213, 214, Oircuit .Judge Lacombe, on the hearing upon habeas eorpus, uses these words: , . "It is not disputed by the district attorney that it is not only the right. but the duty, of the district court, before ordering removal, to look into the indicotment so far as to be s-atisfied th'at an offense against the United States is charged, and that it is such an offense as may lawfully be tried in the forum to which it is claimed the accused should be removed; and the same right and duty arises upon habeas corpus, whether the petitioner is held under a warrant issued by the district judge whose action is thus reviewed or under a warrant of the commissioner to await the action of the district judge. The later decisions of the circuit court abundantly establil>h this position."
After citing various cases, Oircuit Judge Lacombe proceeds: "'1'here is good cause for holding that this power should be exercised liberally whenever the judge before whom the questions are raised on application for a warrant (}f removal or on habeas oorpus is satisfied, from the faoe of the iridict· ment, that were such indictment before him for trial, and demurred to, he would quash it. This is a country of vast extent, and it would be a grave abuse o'f the rights of the citizen if, when charged with alleged offenses, committed perhaps in some place he had never visited, he were removed to a district thousands ()f miles from his home, to answer to an indictment fatally defective, on any mere theory of a comity which would require the sufficiency to be tested only in the particular court in which it is pending."
In U. S. v. Brawner, 7 Fed. 86, 87, Judge Hammond was considering an application for an order for removal under section 1014. In the course of his opinion, when considering the power of the district judge with reference to the order of removal, he remarks: "The very purpose of conferring the power is to secure the judicial sanction of a supervisory judge for the action of the committing magistrate in so important a rrintter as that of removing a citizen from one state or district to another for trial upon a criminal charge. If the warrant of removal is to be issued mechanically, and as a mere ministerial act, there is no reason why the committing magistrate should not have been reqnired to issue it at once upon neglect or refusal to give bail. 'fhe necessary implication from the method of proeedure adopted by the statutes is that the judge of the district * * * must judicially determine whether the pris,oner shall he taken to another district for trial, and that may refuse his warrant where it appears that the removal shonld not be made, or where he would adn,it the party to bail. Doubtless the action of the committing magistrate is prima facie sufficient as a basis for the warrant, but
74
it is not conclusive. While the judge Elhould not unnecessarily require another or further preliminary examination, if it al}pear to him neeesilary that the bail should be reduced, or that for any reason the prisoner shQuld again be heard in ilefense, I have no doubt that it is his duty to pass fully upon the case, and determine for himself whether he should be further held or removed."
Other decisions might be quoted containing points pertinent to the general features under consideration (D. S. v. White, 25 Fed. 716; In re Wolf, 27 Fed. 606, 609; D. S. v. Rogers, 23 Fed. 658, 661; In re Graves, 29 Fed. 60, 66; D. S. v. Horner, 44 Fed. 677), whose general trend is with the extracts above quoted. All the cases recognize not only the right, but the duty, of the district judge to examine into the merits of the matter as presented to him to such an extent as may be necessary to enable him to pass satisfactorily upon the question, and determine intelligently whether the prisoner shall be removed. If granting the application for removal could be considered a matter merely of course, no investigation would be necessary by the district judge; but he may not delegate his duties in this regard to the commissioner who has acted as an examining magistrate in the matter within his district. He must determine and act for himself in the line of his judicial duty. How can he know whether the prisoner desires to present objections to the application, if his hearing be ex parte, and without notice to the prisoner? While the matter of expense is not to be overlooked, nevertheless expense is of secondary importance where the liberty of the citizen is involved. In my judgment, the prisoner should have an opportunity to be heard in the matter of the application, if he so desire. Possibly, the queSition of his identity may be regarded as concluded for the purpose of removal by the decision of the committing magistrate. See Horner v. D. S., 143 D. S. 207, 215, 12 Sup. Ct. 407, 522. But, were this point conceded, the prisoner should be permitted to urge in person and by counsel whatever further objections he may desire to present with reference to the validity of the indictment, its sufficiency to place him upon trial, and whether he can be tried thereupon for the crime therein charged in the district to which his removal is sought. Opportunity can be afforded him to present his objections to the application only by his being apprised that the application is to be presented. In the case named in your letter, as well as in all other cases where, after commitment by a magistrate in this district, an order for removal in thus sought, I desire that you shall notify the prisoner of the time when such application will be presented to me, with a statement of his right to be present, and present objections thereto, if he so desire. If he shall waive objections to the application, it may be presented without his presence. Let the waiver be in writing, signed by him, and presented with the application. Or you may serve such notification upon him, and your return thereon may show the fact of such waiver, if it exists. But in any case where the prisoner shall object to his removal, and express his desire to present objections at the hearing, you are hereby authorized and directed to bring him personally before me with the application for his removal. In all cases where no previous examination has been made by a magistrate of this district, the pris-
GATES IRON WORKS V. KIMBELL &\ COBB STON.
co.
75
oner should be brought personally before me with the application for his removal. This may be considered by you as a standing or· der in the r-espects above noted. Sincerely yours, JNO. S. WOOLSON, U. S. Diirtrict Judge.
UNITED STATES v. DUDLEY. (CIrcuit Court of Appeals, Second Circuit. February 23, 1891.) CuSTOMS DUTIES-CLASSIFICATION-DRESSED LUMBER.
Boards and planks ot uniform length, width, and thickness, planed and matched tor splines, are not dutiable as "manufactures of wood," under paragraph 181, Act 1894, but are entitled to free entry 84 "dressed lumber." under paragraph 676. 74 Fed. 548, affirmed. .
Appeal from the Circuit Court of the United States for- the District of Vermont. This is an appeal from a decision ot the circuit court, district of Vermont, reversing a decision of the board of general appraisers which affirmed a decision of the collector of customs classifying certain importations for duty under the tariff act of August 28, 1894. The articles imported were boards and planks, each piece of a specified length, width, and thickness, planed on one side, and matched or grooved for splines. The collector classified some of the Importations under paragraph 181, as "manufactures of wood not specially provided for," and others under section 8, as "articles manufactured in whole or In part, not provided tor in this act." The importers claimed that their importations were free tram duty, under paragraph 676, 8.8 "lumber, dressed."
John H. Senter and Edward B. Whitney, for appellant. J. P. Tucker and C. A. Prouty, for appellee. Befor-e LACOMBE and SHIPMAN, Circuit Judges. PER CURIAM. Inasmuch as the judges who hear-d this appeal are divided in opinion, the decision of the cir-cuit court is affirmed.
= GATES IRON WORKS v. KIMBELL &;
COBB STONE 00.
(Circuit Oourt, N. D. Illinois. March 8, 1897.) PATENTB-INVENTION-INFRINGEMENT-STONE CRUSHERS.
The Gates patent, No. 259,681, for an improvement In stone and ore crushers, whereby, instead of the ball and socket bearing of the prior art, there Is used a conical crusher-head, fItting into a cylindrical bearing so that the pressure is along a line of some length, Instead of upon a point, covers a useful and patentable Invention, and Is Infringed by a orusher having a cylindrical crusher-head and a conical bearing to receive the same.
This was a suit in equity by the Gates Iron Works commenced against the Kimball & Cobb Stone Company for alleged infringement of a patent relating to stone crushers. Frazer & Chalmers were afterwards substituted as party defendant. Abner & Str-ong, for complainant. . Bond, Adams, Pickard & Jackson, for defendant.