Under section 753 of the Revised Statutes, the courts of the
United States have power to grant writs of habeas corpus for the
purpose of inquiring into the cause of restraint of liberty of any
person in jail, in custody under the authority of a state, in
violation of the Constitution, or of a law or treaty of the United
States, but, except in cases of peculiar urgency, will not
discharge the prisoner in advance of a final determination of his
case in the courts of the state, and even after such final
Page 160 U. S. 232
determination in those courts, will generally leave the
petitioner to his remedy by writ of error from this Court.
In a petition for a writ of habeas corpus, verified by oath, as
required by Rev.Stat. section 754, only distinct and unambiguous
allegations of fact, not denied by the return nor controlled by
other evidence, can be assumed to be admitted.
A warrant of extradition of the Governor of a state issued upon
the requisition of the governor of another state, accompanied by a
copy of an indictment, is
prima facie evidence, at least,
that the accused had been indicted and was a fugitive from justice,
and, when the court in which the indictment was found had
jurisdiction of the offense, is sufficient to make it the duty of
the courts of the United States to decline interposition by writ of
habeas corpus and to leave the question of the lawfulness of the
detention of the prisoner, in the state in which he was indicted,
to be inquired into and determined, in the first instance, by the
courts of the state.
A prisoner in custody under authority of a state will not be
discharged by a court of the United States by writ of habeas corpus
because an indictment against him lacked the words "a true bill,"
or was found by the grand jury by mistake or misconception, or
because a mittimus issued by a justice of the peace, under a
statute of the state, upon application of a surety on a
recognizance, and affidavit that the principal intended to abscond,
does not conform to that statute.
This was a petition, filed March 26, 1895, in the Circuit Court
of the United States for the District of Connecticut, and addressed
to the Honorable William K. Townsend, the District Judge, as a
judge of the circuit court, for a writ of habeas corpus to the
Sheriff of the County of New Haven, in the State of Connecticut.
The petition was signed by the petitioner, and verified by his
oath, and was as follows:
"The petition of George E. Whitten respectfully shows to your
honor that he is now a prisoner confined in the custody of Charles
A. Tomlinson, Sheriff of the County of New Haven, in the county
jail in the City of New Haven, in said county, for a supposed
criminal offense, to-wit, a crime of murder in the second
degree."
"Your petitioner also shows that such confinement is by virtue
of a warrant, a copy whereof is in the possession of said sheriff,
and your petitioner avers that, to the best of his knowledge, he is
not committed or detained by virtue of any process of law known to
the courts of the United States or
Page 160 U. S. 233
the several states, but he is now detained in violation of the
Constitution of the United States in violation of the laws of the
United States and in violation of the Constitution and laws of the
State of Connecticut, and that he is not held in confinement by
virtue of any final judgment or decree of any competent court or
tribunal of criminal jurisdiction or by virtue of any process
issued upon such judgment or decree, but is held without due
process of law."
"And your petitioner further says that, at the time of his
arrest and for a long time prior thereto, he was a citizen of
Massachusetts, and was extradited from Massachusetts for said
alleged crime in January, 1895, and he says that he is advised by
his counsel, William H. Baker, residing at Boston, and so believes,
that his said imprisonment is illegal, and that said illegality
consisted in this, to-wit:"
"That in August and September, 1893, this petitioner was tried
before the local court sitting within and for the County of New
Haven, State of Connecticut, upon a charge of murder in the second
degree, being the same alleged charge for which he was extradited,
and was after a full hearing thereof discharged from said
court."
"That thereafterwards, this petitioner remained in the City of
New Haven, State of Connecticut, for a long time -- during at least
two sessions of the grand jury -- and then removed to Newton, in
the Commonwealth of Massachusetts, sometime early in the year
1894."
"That he was in January, 1895, while such citizen of
Massachusetts, arrested and extradited from the State of
Massachusetts upon a warrant issued by the Governor of
Massachusetts on demand and application of the Governor of
Connecticut, alleging that an indictment had been found by the
grand jury against him of murder within and for the County of New
Haven, being the same charge on which he was tried as above. This
petitioner was taken to the said City of New Haven by virtue
thereof."
"This petitioner avers that no indictment was ever found against
him by any grand jury sitting at any time within the State of
Connecticut, nor no indictment as and for a true bill
Page 160 U. S. 234
ever was presented by any grand jury in said State of
Connecticut against him, which he is ready to verify and prove, and
any pretended indictment was found by mistake or misconception and
was not their true verdict or finding."
"Further, you petitioner says that he was not at the time of
this extradition as aforesaid a fugitive from justice from said
State of Connecticut."
"Wherefore you petitioner prays a writ of habeas corpus to the
end that he may be discharged from custody, and be allowed to
depart safely from out the State of Connecticut to the Commonwealth
of Massachusetts without interference in any way by the state
authorities of the State of Connecticut, without reference to said
charge made against him."
On March 27th, a writ of habeas corpus was issued accordingly by
the district judge, returnable forthwith at a special term of the
circuit court.
On March 28th, the sheriff made his return to the writ, stating,
as the cause of the petitioner's detention and imprisonment, that
he was committed to the jail by virtue of the following
mittimus:
"To the Sheriff of New Haven County, His Deputy, or Any Proper
Officer or Indifferent Person, Greeting:"
"Whereas Lucius B. Hinman, of New Haven, Conn., did on the 17th
day of January, 1895, enter into a recognizance in the sum of five
thousand dollars for the appearance of George E. Whitten, of the
Town of Newton, State of Massachusetts, before the superior court
to be holden at New Haven, within and for the County of New Haven,
on the first Tuesday of January, 1895, and the said Lucius B.
Hinman now believes that said George E. Whitten intends to abscond,
and having produced the evidence that he is surety as aforesaid for
the said George E. Whitten, and hath applied to me for a mittimus,
and hath made oath before me that the statements in his said
application are true:"
"These are therefore by authority of the State of Connecticut,
to command you that you forthwith arrest the said George E.
Whitten, and him commit to the jail of said New Haven
Page 160 U. S. 235
County, and the keeper of said jail is hereby ordered to receive
the said George E. Whitten, and him safely keep within said jail,
until he be discharged by due order of law. Hereof fail not, but
due service and return make."
"Dated at New Haven, this 26th day of March, A.D. 1895."
"John S. Fowler, Justice of the Peace"
The petitioner moved to quash the return, as insufficient to
justify his detention.
The circuit court, upon a hearing, denied the motion, and
discharged the writ of habeas corpus, without prejudice to the
right of the petitioner to renew the motion, and filed an opinion
by the district judge (67 F. 230), in which the grounds of decision
were stated as follows:
"The writ was issued, and the sheriff brought the petitioner
into this court, and made return as to the cause of his detention
and imprisonment, that he was committed to jail by virtue of a
mittimus in the form provided for by statute, duly issued by a
justice of the peace on the application of the bondsman, upon oath
that the petitioner intended to abscond. A hearing was had upon a
motion to quash the return."
"The petitioner was arrested in Massachusetts, and brought into
this state, under a warrant issued by the Governor of Massachusetts
upon the requisition of the Governor of Connecticut, accompanied by
a certified copy of the indictment charging the crime, and an
affidavit that the petitioner was a fugitive from justice."
"It is claimed in support of the petition that the indictment
was procured by mistake, and that the prisoner was not in fact a
fugitive from justice. These claims are denied by the attorney for
the state. In view of the conclusions reached, it is not necessary
to pass upon these questions of fact. It may be assumed, in the
disposition of this motion, that all the allegations in the
petition are true."
"Counsel for the petitioner claims that he can prove, in the
first place, that the indictment is invalid or void by reason of
some mistake on the part of the grand jury. But the effect of
Page 160 U. S. 236
an inquiry into this question, assuming such evidence to be
admissible and true, would be to call upon the federal court to
examine into the proceedings under which said indictment was
obtained, and to determine collaterally its sufficiency under the
laws of this state."
"It is further claimed that the petitioner was not a fugitive
from justice, and that, inasmuch as extradition proceedings are
based upon the statutes of the United States, the question whether
he was in fact such fugitive is a federal question, which it is the
duty of this Court to decide. But it is not denied that the demand
made upon the executive authority of the asylum state, and his
action thereon, were proper in form, and it will not be assumed in
advance that he has surrendered the petitioner upon insufficient
evidence."
"I do not mean to be understood as denying the right to this
prisoner at an appropriate time to introduce evidence that he was
not a fugitive from justice, or that the evidence before the
Governor of Massachusetts was insufficient to authorize his action,
nor do I intend at this time to pass upon the merits of this or any
other questions presented, nor to intimate what disposition might
be made of these claims in case they were brought before this Court
after final action in the state court. All that is now decided is
that it must be assumed in advance that the petitioner may obtain
all the protection to which he may be entitled in the courts of
this state."
"In view of the principle of right and law underlying the
forbearance which the federal and state courts exercise towards
each other in order to avoid conflict, I should not be justified in
passing upon such questions in advance of the proceedings in the
state courts."
On April 25th, the petitioner filed in the circuit court an
appeal, reciting the petition, the return, and the motion to quash
the return, and concluding as follows:
"The said Circuit Court of the United States for the District of
Connecticut, on the 28th day of March, 1895, made final ruling, and
decreed that, upon the face of the petition, without hearing any
evidence to sustain the petition [and
Page 160 U. S. 237
denying the petitioner the right to introduce any evidence to
sustain said petition or tending to sustain it, which the plaintiff
duly offered], the writ should be discharged, and that the motion
to quash said return be denied, and it was afterwards so decreed
and ordered."
"Wherefore this petitioner appeals from the whole of said decree
of said circuit court, and the petition, return, motion to quash,
decree, writ, and all other papers forming a record of said cause
may be sent to the Supreme Court of the United States without
delay, together with this appeal, and moves that the said supreme
court will proceed to hear the said cause anew, and that the said
decree of the said circuit court be reversed, and for such further
order and decree to be made as will to the Supreme Court of the
United States seem just and right. The petition for the writ of
habeas corpus, the writ of habeas corpus, the return of the
sheriff, the motion to quash, and the decree of the court are
hereby made a part of this appeal."
On the same day, that appeal was allowed by the district
judge.
On May 8th, the petitioner filed a paper purporting to amend his
appeal by inserting the words above printed in brackets, and with
this paper filed the following letter, addressed to his counsel by
the district judge:
"United States Courts, Judges' Chambers, New Haven, May 4, 1895.
William H. Baker, Esq., 39 Court Street, Boston, Mass."
"Dear Sir: Continuous court engagements night and day for two
days have prevented an earlier reply to your letter of April 29th.
I had supposed that the record contained a statement of the fact
that the court declined to hear the evidence, and, if not, I am
willing that the statement of said fact should be inserted in the
record, provided it can be properly done at this time."
"Yours, truly,"
"William K. Townsend"
The record transmitted to this Court set forth the matters
Page 160 U. S. 238
above stated; but showed no further order amending the record,
or allowing the amendment of the appeal.
MR. JUSTICE GRAY, after stating the case, delivered the opinion
of the Court.
By the judicial system of the United States, established by
Congress under the power conferred upon it by the Constitution, the
jurisdiction of the courts of the several states has not been
controlled or interfered with except so far as necessary to secure
the supremacy of the Constitution, laws, and treaties of the United
States.
With this end, three different methods have been provided by
statute for bringing before the courts of the United States
proceedings begun in the courts of the states:
First. From the earliest organization of the courts of the
United States, final judgments, whether, in civil or in criminal
cases, rendered by the highest court of a state in which a decision
in the case could be had against a right specially set up or
claimed under the Constitution, laws, or treaties of the United
States may be reexamined and reversed or affirmed by this Court on
writ of error. Acts of September 24, 1789, c. 20, § 25, 1 Stat. 85;
February 5, 1867, c. 28, § 2, 14 Stat. 386; Rev.Stat. § 709;
Martin v. Hunter's
Lessee, 1 Wheat. 304;
Cohens v.
Virginia, 6 Wheat. 264. Such appellate jurisdiction
is expressly limited to cases in which the decision of the state
court is against the right claimed under the Constitution, laws, or
treaties of the United States, because, when the decision of that
court is in favor of such a right, no revision by this Court is
necessary to protect the national government in the exercise of its
right full powers.
Gordon v.
Caldcleugh, 3 Cranch 268;
Montgomery
v. Hernandez, 12 Wheat. 129;
Commonwealth Bank v.
Griffith, 14 Pet. 56,
39 U. S. 58;
Missouri v. Andriano, 138 U. S. 496,
138 U. S.
500-501.
Page 160 U. S. 239
Second. By the Judiciary Act of 1789, the only other way of
transferring a case from a state court to a court of the United
States was under section 12, by removal into the circuit court of
the United States, before trial, of civil actions against aliens,
or between citizens of different states. 1 Stat. 79. Such right of
removal for trial has been regulated, and extended to cases arising
under the Constitution, laws, or treaties of the United States by
successive acts of Congress which need not be particularly referred
to, inasmuch as the present case is not one of such a removal.
Third. By section 14 of the old Judiciary Act, the courts of the
United States were authorized in general terms to issue writs of
habeas corpus and other writs necessary for the exercise of their
respective jurisdictions
"provided that writs of habeas corpus shall in no case extend to
prisoners in jail unless when they are in custody under or by color
of the authority of the United States, or are committed for trial
before some court of the same, or are necessary to be brought into
court to testify."
1 Stat. 81. Under that act, no writ of habeas corpus except
ad testificandum could be issued in the case of a prisoner
in jail under commitment by a court or magistrate of a state.
Ex Parte Dorr,
3 How. 103;
In re Burrus, 136 U.
S. 586,
136 U. S.
593.
By subsequent acts of Congress, however, the power of the courts
of the United States to issue writs of habeas corpus of prisoners
in jail has been extended to the case of any person in custody for
an act done or omitted in pursuance of a law of the United States,
or of an order or process of a court or judge thereof, or in
custody in violation of the Constitution or of a law or treaty of
the United States, or who, being a subject or citizen of and
domiciled in a foreign state, is in custody for an act done or
omitted under any right or exemption claimed under a foreign state,
and depending upon the law of nations. Acts March 2, 1833, c. 57, §
7, 4 Stat. 634; August 29, 1842, c. 257, 5 Stat. 539; February 5,
1867, c. 28, § 1, 14 Stat. 385; Rev.Stat. § 753.
By the existing statutes, this Court and the circuit and
district courts, and any justice or judge thereof, have power
Page 160 U. S. 240
to grant writs of habeas corpus for the purpose of inquiring
into the cause of restraint of liberty of any prisoner in jail who
"is in custody in violation of the Constitution or of a law or
treaty of the United States," and
"the court or justice or judge to whom the application is made
shall forthwith award a writ of habeas corpus unless it appears
from the petition itself that the party is not entitled
thereto,"
and
"shall proceed in a summary way to determine the facts of the
case by hearing the testimony and arguments, and thereupon to
dispose of the party as law and justice may require."
Rev.Stat. §§ 751-755, 761.
The power thus granted to the courts and judges of the United
States clearly extends to prisoners held in custody under the
authority of a state in violation of the Constitution, laws, or
treaties of the United States. But in the exercise of this power,
the courts of the United States are not bound to discharge by writ
of habeas corpus every such prisoner.
The principles which should govern their action in this matter
were stated upon great consideration in the leading case of
Ex
Parte Royall, 117 U. S. 241, and
were repeated in one of the most recent cases upon the subject, as
follows:
"We cannot suppose that Congress intended to compel those courts
by such means to draw to themselves, in the first instance the
control of all criminal prosecutions commenced in state courts
exercising authority within the same territorial limits where the
accused claims that he is held in custody in violation of the
Constitution of the United States. The injunction to hear the case
summarily, and thereupon 'to dispose of the party as law and
justice require,' does not deprive the court of discretion as to
the time and mode in which it will exert the powers conferred upon
it. That discretion should be exercised in the light of the
relations existing under our system of government between the
judicial tribunals of the Union and of the states, and in
recognition of the fact that the public good requires that those
relations be not disturbed by unnecessary conflict between courts
equally bound to guard and protect rights secured by the
Constitution. . . . Where a person is in custody, under process
from a state court of original
Page 160 U. S. 241
jurisdiction, for an alleged offense against the laws of such
state, and it is claimed that he is restrained of his liberty in
violation of the Constitution of the United States, the circuit
court has a discretion whether it will discharge him, upon habeas
corpus in advance of his trial in the court in which he is
indicted; that discretion, however, to be subordinated to any
special circumstances requiring immediate action. When the state
court shall have finally acted upon the case, the circuit court has
still a discretion whether, under all the circumstances then
existing, the accused, if convicted, shall be put to his writ of
error from the highest court of the state, or whether it will
proceed, by writ of habeas corpus, summarily to determine whether
the petitioner is restrained of his liberty in violation of the
Constitution of the United States."
Ex Parte Royall, 117 U. S. 241,
117 U. S.
251-253;
New York v. Eno, 155 U. S.
89,
155 U. S. 93-95.
In
Ex Parte Royall and in
New York v. Eno, it was
recognized that, in cases of urgency, such as those of prisoners in
custody by authority of a state for an act done or omitted to be
done in pursuance of a law of the United States, or of an order or
process of a court of the United States, or otherwise involving the
authority and operations of the general government, or its
relations to foreign nations, the courts of the United States
should interpose by writ of habeas corpus.
Such an exceptional case was
In re Neagle, 135 U. S.
1, in which a deputy marshal of the United States,
charged under the Constitution and laws of the United States with
the duty of guarding and protecting a judge of a court of the
United States, and of doing whatever might be necessary for that
purpose, even to the taking of human life, was discharged on habeas
corpus from custody under commitment by a magistrate of a state on
a charge of homicide committed in the performance of that duty.
Such also was
In re Loney, 134 U.
S. 372, in which a person arrested by order of a
magistrate of a state, for perjury in testimony given in the case
of a contested congressional election, was discharged on habeas
corpus, because a charge of such perjury was within the exclusive
cognizance of the courts of the
Page 160 U. S. 242
United States, and to permit it to be prosecuted in the state
courts would greatly impede and embarrass the administration of
justice in a national tribunal.
Such, again, was
Wildenhus' Case, 120 U. S.
1, in which the question was decided on habeas corpus
whether an arrest, under authority of a state, of one of the crew
of a foreign merchant vessel, charged with the commission of a
crime on board of her while in a port within the state, was
contrary to the provisions of a treaty between the United States
and the country to which the vessel belonged.
But, except in such peculiar and urgent cases, the courts of the
United States will not discharge the prisoner by habeas corpus in
advance of a final determination of his case in the courts of the
state; and, even after such final determination in those courts,
will generally leave the petitioner to the usual and orderly course
of proceeding by writ of error from this Court.
Ex Parte
Royall, 117 U. S. 241;
Ex Parte Fonda, 117 U. S. 516;
In re Duncan, 139 U. S. 449;
In re Wood, 140 U. S. 278;
In re Jugiro, 140 U. S. 291;
Cook v. Hart, 146 U. S. 183;
In re Frederich, 149 U. S. 70;
New York v. Eno, 155 U. S. 89;
Pepke v. Cronan, 155 U. S. 100;
Bergemann v. Backer, 157 U. S. 655.
In a petition for a writ of habeas corpus, verified by the oath
of the petitioner, as required by section 754 of the Revised
Statutes, facts duly alleged may be taken to be true, unless denied
by the return, or controlled by other evidence. But no allegation
of fact in the petition can be assumed to be admitted, unless
distinct and unambiguous.
The facts upon which the lawfulness of the imprisonment of this
petitioner depends are obscuredly and imperfectly presented in his
petition and in the record transmitted to this Court.
The general allegations in the petition that the petitioner is
detained in violation of the Constitution and laws of the United
States and of the Constitution and laws of the State of
Connecticut, and is held without due process of law, are averments
of mere conclusions of law, and not of matters of fact.
Cuddy's
Case, 131 U. S. 280,
131 U. S.
286.
Page 160 U. S. 243
The petition begins by alleging that the petitioner is a
prisoner confined by the sheriff of the County of New Haven in the
county jail for a supposed criminal offense, to-wit, the crime of
murder in the second degree, and that his imprisonment is by virtue
of a warrant, a copy whereof is in the possession of the sheriff.
It also alleges that the petitioner was a citizen of Massachusetts,
and was extradited from that state for said alleged crime in
January, 1895. So far, certainly, no unlawful imprisonment is
shown.
The allegation that in August and September, 1893, he was tried
before a local court in New Haven upon the same charge, and, upon a
full hearing, was discharged by the court, would seem to point to a
hearing and discharge upon an application for his committal to jail
to await prosecution, rather than to a formal trial and acquittal,
and, whatever effect it might have, if pleaded to a subsequent
indictment, affords no ground for his discharge on habeas corpus.
Ex Parte Bigelow, 113 U. S. 328;
Belt, Petitioner, 159 U. S. 95.
It is then alleged that he remained in New Haven during at least
two sessions of the grand jury, and then, early in 1894, removed to
Massachusetts, and that in January, 1895, he was arrested in
Massachusetts, and brought to New Haven upon a warrant of
extradition, issued by the Governor of Massachusetts upon the
demand of the Governor of Connecticut, alleging that an indictment
for murder had been found against him by the grand jury of the
County of New Haven. These allegations are immaterial, except as
introductory to the remaining allegations of the petition.
One of these allegations is
"that no indictment was ever found against him by any grand jury
sitting at any time within the State of Connecticut, nor no
indictment as and for a true bill ever was presented by any grand
jury in said State of Connecticut against him, which he is ready to
verify and prove, and any pretended indictment was found by mistake
or misconception, and was not their true verdict or finding."
It is not alleged that it appears by the records of the court
that no indictment was presented by the grand jury, and it is by no
means clear that it was intended to allege anything
Page 160 U. S. 244
more than that an indictment, actually presented by the grand
jury to the court, locked the words, "A true bill," and was found
by the grand jury by mistake and misconception. Such matters are
proper subjects of inquiry in the courts of the state, but afford
no ground for interposition by the courts of the United States by
writ of habeas corpus.
In re Wood, 140 U.
S. 278;
In re Wilson, 140 U.
S. 575.
The only other allegation in the petition is that the petitioner
was not at the time of his extradition from Massachusetts a
fugitive from the justice of Connecticut.
The record, independently of the opinion of the circuit court,
does not show what, if any, evidence was introduced at the hearing
upon which the writ of habeas corpus was discharged, and the
prisoner left in custody. The case was heard by the circuit court,
and not by the district judge at chambers or out of court. Had it
been so heard by him, there could have been no appeal to this Court
from his decision. Rev.Stat. §§ 751, 752, 764; Act March 3, 1885,
c. 353, 23 Stat. 437;
Carper v. Fitzgerald, 121 U. S.
87;
Lambert v. Barrett, 157 U.
S. 697. The subsequent correspondence between the
district judge and the petitioner's counsel had no proper place in
the record of the court, and it does not appear that the judge
intended or expected his letter to be filed or recorded. In that
letter, he did no more than express his willingness that the record
should be amended, provided it could properly be done. It does not
appear that the judge afterwards allowed, or was requested to
allow, any amendment of the record, or of the appeal, and the
petitioner or his counsel could not amend either the record or the
appeal by his own act without leave of the judge.
If, in order to ascertain what was proved, or offered to be
proved at the hearing, we turn to the opinion filed in the court
below and sent up with the record, it thereby appears that the
petitioner offered to prove that the indictment against him was
procured by some mistake of the grand jury, and that he was not in
fact a fugitive from justice, and that the judge assumed, for the
purpose of the disposition of the writ of habeas corpus, that all
the allegations of the petition were true.
Page 160 U. S. 245
But if the opinion can be referred to as showing part of what
took place at the hearing, it may likewise be referred to as
showing other matters then before the court, and especially the
proceedings for extradition.
As to those proceedings, the opinion (consistently with the
allegations of the petition, so far as anything upon the subject is
distinctly and unequivocally alleged therein) not only states, as
uncontroverted facts, that the petitioner was arrested in
Massachusetts and brought into Connecticut under a warrant of
extradition issued by the Governor of Massachusetts upon a
requisition of the Governor of Connecticut, accompanied by a
certified copy of the indictment, and by an affidavit that the
petitioner was a fugitive from justice, but expressly says that it
was not denied that the demand upon the executive authority of
Massachusetts, and his action thereon were proper in form.
A warrant of extradition of the governor of a state, issued upon
the requisition of the governor of another state, accompanied by a
copy of an indictment, is
prima facie evidence, at least,
that the accused had been indicted and was a fugitive from justice,
and, when the court in which the indictment was found has
jurisdiction of the offense (which there is nothing in this case to
impugn), is sufficient to make it the duty of the courts of the
United States to decline interposition by writ of habeas corpus and
to leave the question of the lawfulness of the detention of the
prisoner in the state in which he was indicted to be inquired into
and determined in the first instance by the courts of the state,
which are empowered and obliged, equally with the courts of the
United States, to recognize and uphold the supremacy of the
Constitution and laws of the United States.
Robb v.
Connolly, 111 U. S. 624;
Ex Parte Reggel, 114 U. S. 642;
Roberts v. Reilly, 116 U. S. 80;
Cook v. Hart, 146 U. S. 183;
Pearce v. Texas, 155 U. S. 311.
The return of the sheriff to the writ of habeas corpus does not
(as it might well have done) set forth the indictment, and the
warrant of extradition, as grounds for the detention of the
prisoner. But any defect in the return in this respect affords
no
Page 160 U. S. 246
reason why the courts of the United States should take the
prisoner out of the custody of the authorities of the state.
The return does show that the petitioner is held in custody by
the sheriff by virtue of a mittimus issued to him by a justice of
the peace in accordance with sections 962 and 1613 of the General
Statutes of Connecticut of 1887,
* which authorize
the surety on a recognizance, either in civil or in criminal
proceedings, upon making affidavit that his principal intends to
abscond, to obtain from a justice of the peace a mittimus to commit
him to jail.
The only objections taken by the petitioner to the sufficiency
of this mittimus are first that it shows that the recognizance was
entered into on the 17th of January, 1895, for his appearance
"before the superior court to be holden at New Haven, within and
for the County of New Haven, on the first Tuesday of January,
1895," which was a day already passed, and second that it describes
him as "of the Town of Newton, State of Massachusetts," while the
statute only authorizes the issue of a mittimus by "a justice of
the peace of the county in which such principal resides." But the
first Tuesday of January was the day appointed by law for the
beginning of the term of the superior court, Conn.Gen.Stat. § 1615.
And the question whether the recognizance might be construed as
requiring an appearance at a subsequent day in the course of the
term,
Page 160 U. S. 247
as well as the question whether the word "resides," as used in
the statute, implies domicile or only presence in the county, is a
question which should be left to the decision of the courts of the
state.
There could be no better illustration than this case affords of
the wisdom, if not necessity, of the rule established by the
decisions of this Court above cited that a prisoner in custody
under the authority of a state should not, except in a case of
peculiar urgency, be discharged by a court or judge of the United
States upon a writ of habeas corpus in advance of any proceedings
in the courts of the state to test the validity of his arrest and
detention. To adopt a different rule would unduly interfere with
the exercise of the criminal jurisdiction of the several states and
with the performance by this Court of its appropriate duties.
Order affirmed.
*
"SEC. 962. Any bail or surety who has entered into a
recognizance for the personal appearance of another, and shall
afterwards believe that his principal intends to abscond, may apply
to a justice of the peace in the county in which such principal
resides, produce his bail bond, or evidence of his being bail or
surety, and verify the reason of his application by oath or
otherwise, and thereupon such justice shall forthwith grant a
mittimus, directed to a proper officer or indifferent person of
such county, commanding him forthwith to arrest such principal, and
commit him to the jail of such county, and the keeper of such jail
shall receive such principal, and retain him in jail until
discharged by due order of law, and such surrender of the principal
shall be a full discharge of the surety upon his bond or
recognizance."
"SEC. 1613. Any surety in a recognizance in criminal
proceedings, who believes that his principal intends to abscond,
may have the same remedy, and proceed and be discharged in the same
manner, as sureties upon bail bonds in civil actions."
