Section 1014, Rev.Stat., authorizes a removal from a judicial
district in a state to the District of Columbia.
Benson v.
Henkel, 198 U. S. 1.
Where the indictment charges that a conspiracy was entered into
in a district, the trial court of that district has jurisdiction of
the offense although the overt acts carrying out the conspiracy
were committed in another jurisdiction.
While this Court does not approve the practice of indicting
citizens in courts far distant from their residence if they can be
tried in courts of their own jurisdiction, § 1014, Rev.Stat.,
contains no discrimination based upon
Page 199 U. S. 63
distance, and requires the commitment to be made for trial
before the court having cognizance of the offense, and, in the
absence of an exception in the statute, the court cannot create
one.
Section 23, c. 35, Comp.Stat. District of Columbia, giving the
Criminal Court of the District jurisdiction of all crimes and
misdemeanors committed in the District not lawfully triable in any
other court has reference only to other courts within the District,
and was not intended to change the law with respect to the general
jurisdiction of courts having jurisdiction of the same offense.
On the facts in this case, the indictment, which charges a
completed conspiracy to defraud the United States by means of
obtaining state lands through sales to fictitious persons and then
exchanging them for land of the United States under the forest
reserve acts,
held sufficient notwithstanding that the
state received full compensation for the lands.
The states and the United States have power to punish violations
of a statute enacted as a part of the public policy even though
they may not have suffered any pecuniary damage from such
violations.
A patent to a fictitious person is in legal effect no more than
a declaration that the government thereby conveys the property to
no one, and in such a case, the doctrine that a subsequent
bona
fide purchaser is protected does not apply.
Whether the act charged is or is not a crime is one which the
trial court is competent to decide, and, under the circumstances of
this case, this Court will not review the validity of the
indictment upon habeas corpus.
While a federal court on habeas corpus may order the
petitioner's discharge if there is an entire lack of evidence to
support the accusation, where a
prima facie case is made
by the indictment, and the commissioner receives evidence on
petitioner's behalf, it is for him to determine whether probable
cause existed, and the court will not weigh the evidence on habeas
corpus.
The requirement in § 1014, Rev.Stat., that proceedings for
removal shall be agreeable to the usual state procedure applies to
the proceedings for arrest and examination of the accused before
the commissioner, but not to subsequent independent proceedings
before the circuit court on habeas corpus.
While the circuit court has power to issue a writ of certiorari
auxiliary to the writ of habeas corpus, it is wholly discretionary
with it, and its refusal to do so cannot be assigned as error.
This is an appeal from an order of the circuit court denying the
appellant's application for writs of habeas corpus and certiorari
and dismissing his petition therefor.
The proceedings which culminated in the arrest and remanding of
the appellant originated in an indictment found in the Supreme
Court of the District of Columbia against the appellant
Page 199 U. S. 64
and John A. Benson, Henry P. Dimond, and Joost H. Schneider,
charging them with a conspiracy, under Rev.Stat. § 5440, "to
defraud the United States out of the possession and use of, and the
title to, divers large tracts of the public lands of the United
States." All of the defendants except Schneider are residents of
San Francisco, California. Upon a complaint made, based upon such
indictment, before a United States commissioner for the Northern
District of California, Hyde was arrested under Rev.Stat. § 1014,
taken before a commissioner, and held to bail to answer the
indictment in the sum of $50,000, and in default thereof was
committed to the custody of the defendant, Shine, to await the
order of the district judge for his removal to the District of
Columbia, or until he should be discharged by due course of law.
Upon such order of removal being issued,
United States v.
Hyde, 132 F. 545, appellant presented his petition to the
Circuit Court for the Northern District of California, praying for
writs of habeas corpus and certiorari, and for his discharge from
imprisonment, which were denied, and this appeal taken.
Page 199 U. S. 75
MR. JUSTICE BROWN delivered the opinion of the Court.
The petitioner assigns as error --
1. That Rev.Stat. § 1014, does not authorize a removal from a
judicial district in a state to the District of Columbia;
2. That the Supreme Court of the District of Columbia has no
jurisdiction over the alleged offense charged in the
indictment;
3. That the indictment charges no offense against the United
States;
4. That the evidence introduced before the commissioner proved
that there was no probable cause for believing him guilty of the
offense, and that the writ of certiorari should have been issued to
bring the record before the court, and upon its inspection the
appellant should have been discharged.
1. The first assignment is practically disposed of by the recent
case of
Benson v. Henkel, 198 U. S.
1, in which one of the codefendants of the petitioner in
this case, who had been arrested in Brooklyn, was held to be
properly removed to the
Page 199 U. S. 76
District of Columbia under Rev.Stat. § 1014. No additional
considerations being presented, that case must be treated as
controlling.
2. The second assignment, that the Supreme Court of the District
of Columbia had no jurisdiction of the alleged offense, is based
upon the proposition that the conspiracy, if any existed, was
entered into either in the Northern District of California or the
District of Oregon, and that nothing but overt acts in pursuance of
the conspiracy were done in the District of Columbia. Granting that
the gravamen of the offense is the conspiracy, and that, at common
law, it was neither necessary to aver nor prove an overt act,
Rex v. Gill, 2 B. & Ald. 205;
Bannon v. United
States, 156 U. S. 464,
156 U. S. 468,
an overt act is necessary, under Rev.Stat. § 5440, to complete the
offense. The language of the section is,
"if two or more persons conspire either to commit any offense
against the United States, or to defraud the United States in any
manner or for any purpose, and one or more of such parties do any
act to effect the object of the conspiracy, all the parties to such
conspiracy shall be liable,"
etc.
It was aptly said by Mr. Justice Woods in
United States v.
Britton, 108 U. S. 199,
108 U. S. 204,
that the offense consisted in the conspiracy, and that the overt
act afforded a
locus penitentiae, so that, before the act
done, either one or all of the parties may abandon their design and
thus avoid the penalty prescribed by the statute. As the indictment
in this case charges that the conspiracy was entered into in the
City of Washington, it becomes unnecessary to consider whether an
indictment will lie within the jurisdiction where the overt act was
committed, though there are many authorities to that effect.
King v. Brisac, 4 East 164;
People v. Mather, 4
Wend. 229;
Commonwealth v. Gillespie, 7 S. & R. 469;
Noyes v. State, 41 N.J.L. 418;
Commonwealth v.
Corlies, 3 Brews. 575.
We have ourselves decided that, if the conspiracy be entered
into within the jurisdiction of the trial court, the indictment
will lie there though the overt act is shown to have been
committed
Page 199 U. S. 77
in another jurisdiction or even in a foreign country.
Dealy
v. United States, 152 U. S. 539;
In re Palliser, 136 U. S. 257;
King v. Brisac, 4 East 164; Rev.Stat. § 731.
In this connection, it is also suggested that, as the conspiracy
is alleged in all the counts to have been entered into prior to
January 1, 1902, as well as the overt act charged in fifteen of the
counts, the Supreme Court of the District of Columbia cannot take
cognizance of the case under the new code which took effect upon
that date, and that we must look to the law prior thereto to
determine the jurisdiction of that court. By § 23, c. 35, of the
Compiled Statutes of the District of Columbia, it was enacted
that
"the criminal court of the District of Columbia shall have
jurisdiction of all crimes and misdemeanors committed in said
district not lawfully triable in any other court and which are
required by law to be prosecuted by indictment or information."
The argument is made that, as the conspiracy in this case was
triable in California or Oregon, as well as in the District of
Columbia, it was lawfully triable in another court, and hence the
Supreme Court of the District of Columbia has no jurisdiction. We
are not impressed with the force of this contention. Chapter 35
provides for the organization of the judiciary of the District of
Columbia, and relates exclusively to the jurisdiction and powers of
the several courts of the District, providing that one of the
justices may hold a criminal court, and that such court shall have
jurisdiction of all crimes and misdemeanors committed in said
District not lawfully triable in any other court, and which are
required by law to be prosecuted by indictment or information. It
is entirely clear that this has reference only to other courts
within the District, and was not intended to change the law with
respect to the general jurisdiction of courts having jurisdiction
of the same offense.
Although it involves a seeming hardship to commit an accused
person in San Francisco for trial in the District of Columbia, the
terms of Rev.Stat. § 1014 are as applicable to such a case as they
would be if the arrest were made in Baltimore.
Page 199 U. S. 78
The section makes no discrimination based upon distance, and
requires the commitment to be made for trial before the court
having cognizance of the offense, wherever that court may sit.
Where the statute contains no exception, the courts cannot create
one. Indeed, the Constitution itself requires that the trial of all
crimes shall be held in the state where the crimes have been
committed, and the power of Congress to order the surrender of
accused persons from other states is a necessary complement to the
duty of trying offenses in the jurisdiction where the crime was
committed. But we do not wish to be understood as approving the
practice of indicting citizens of distant states in the courts of
this District, where an indictment will lie in the state of the
domicil of such person, unless in exceptional cases where the
circumstances seem to demand that this course shall be taken. To
require a citizen to undertake a long journey across the continent
to face his accusers, and to incur the expense of taking his
witnesses and of employing counsel in a distant city involves a
serious hardship to which he ought not to be subjected if the case
can be tried in a court of his own jurisdiction.
3. The third assignment -- that the indictment charges no
offense against the United States -- requires a statement of its
substance. As it contains forty-two different counts and covers
some ninety-four pages of printed matter, a consideration of each
count would unnecessarily prolong this opinion. The conspiracy
charged embraced certain false practices by the defendants whereby
school lands were to be obtained fraudulently from the States of
California and Oregon by Hyde and Benson (1) in the names of
fictitious persons and (2) in the names of persons not qualified to
purchase the same, whereby the said Hyde and Benson were to cause
and require such school lands to be relinquished by means of false
and forged relinquishments, assignments, and conveyances to the
United States in exchange for public lands, to be selected, and for
titles thereto by patents to be obtained by and on behalf of the
said Hyde and Benson. A further element of the conspiracy
Page 199 U. S. 79
is that defendants were, by bribery, to induce certain United
States officials in the General Land Office at Washington, in the
District of Columbia, corruptly and contrary to their official
duties, to aid defendants to secure the approval of their
fraudulent selections in advance of their regular order, and to
inform defendants of any discovery or investigation by the
government of their said fraudulent practices.
To grasp the significance of these somewhat complicated counts,
and to appreciate the details of the offense charged, it should be
borne in mind that the government had granted to California and
Oregon large tracts of lands, many of which were covered with
forests, known as school lands. Congress subsequently changed its
intention with regard to them, and desired to retain them as forest
reserves, and to reacquire the title thereto, and, for that
purpose, enacted a law approved June 4, 1897, 30 Stat. 11, 36, as
follows:
"That in cases in which a tract covered by an unperfected
bona fide claim or by a patent is included within the
limits of a public forest reservation, the settler or owner thereof
may, if he desires to do so, relinquish the tract to the
government, and may select in lieu thereof a tract of vacant land
open to settlement, not exceeding in area the tract covered by his
claim or patent, and no charge shall be made in such cases for
making the entry of record or issuing the patent to cover the tract
selected."
It seems that both of these states had passed laws by which any
citizen of the United States resident in such state, or any person
who had declared his intention to become a citizen, might acquire
from such states a section or half section of such lands at $1.25
per acre. They were required to make application to the land
offices of the state and to make the necessary affidavits to show
that they were qualified to purchase them, and that they were
purchasing them for their own use or benefit, and had not sold or
agreed to sell the same. Doubtless the intention was that the sale
should be made to persons who desired to settle upon the lands, but
there was
Page 199 U. S. 80
nothing to prohibit such persons from afterwards disposing of
them by assigning the certificates of purchase, and in this method
the assignee might, by purchase from several patentees, acquire
title to an unlimited amount of such lands, and might thereafter
exchange such lands under the Act of June 4, 1897, with the United
States, provided he had acquired a valid title from the states, and
convey the same to the United States in lieu of the land to be
granted by the government.
The argument of the defendants that, while the procuring of
these school lands from the states through persons who were not
qualified to purchase them, and did not desire to purchase them for
their own use, and by supporting their application by false
affidavits and forged assignments of the certificates of purchase,
might have been a violation of the policy of the states of
California and Oregon, and a fraud upon such states, it fails to
show that the United States could have in any way been defrauded.
The argument assumes that the title acquired by the defendants from
the states in question was such a title as, upon conveyance to the
United States, would vest in the latter a title good as against all
the world, and therefore that the United States were not
defrauded.
While it is doubtless true that, by means of these corrupt and
fraudulent practices, Hyde and Benson may have obtained titles to
these lands, it does not follow that the states might not have
disaffirmed such titles and recovered the lands. In this
particular, the case is covered by that of
Moffat v. United
States, 112 U. S. 24. Nor
does it follow that, when subsequent conveyances were made to the
United States of these lands under the Act of June 4, 1897, a good
title was vested in the grantee. In the
Moffat case, it
was held that a patent issued to a fictitious person conveys no
title which can be transferred to a person subsequently purchasing
in good faith from a supposed owner. In delivering the opinion of
the Court, Mr. Justice Field observed:
"The patents, being issued to fictitious parties, could not
transfer the title, and no one could derive any right under a
conveyance in the name of the
Page 199 U. S. 81
supposed patentees. A patent to a fictitious person is, in legal
effect, no more than a declaration that the government thereby
conveys the property to no one. There is in such case no room for
the application of the doctrine that a subsequent
bona
fide purchaser is protected. A subsequent purchaser is bound
to know whether there was in fact a patentee -- a person once in
being, and not a mere myth -- and he will always be presumed to
take his conveyance upon the knowledge of the truth in this
respect. To the application of this doctrine of a
bona
fide purchaser there must be a genuine instrument, having a
legal existence, as well as one appearing on its face to pass the
title. It cannot arise on a forged instrument or one executed to
fictitious parties -- that is, to no parties at all, however much
deceived thereby the purchaser may be."
The argument that this indictment cannot be sustained because
the United States, having received the school lands in lieu of the
lands patented, were defrauded of nothing, if valid at all, applies
equally to the school lands for which the States of California and
Oregon must have received a statutory compensation, fixed at $1.25
per acre. Having received this compensation, it may be said with
equal propriety that they were defrauded of nothing. The result of
the argument, then, is that, although a gross imposition was
practiced upon the states by the procuring of patents in favor of
fictitious persons or of disqualified persons by the use of forged
affidavits, assignments, or other documents, no indictment therefor
would lie because the states had received the same consideration
they would have received had the patents been issued to persons
qualified under the statutes to purchase the lands. The unsoundness
of this argument needs no demonstration. The states have a right to
punish a violation of a statute enacted as part of their public
policy, notwithstanding they may have suffered no pecuniary damage
therefrom.
The same argument applies to the United States, whose lands have
been procured in plain violation of the spirit, if not the letter,
of the statute, and by a further step in the same fraudulent
Page 199 U. S. 82
scheme. By the Act of June 4, 1897, 30 Stat. 36, it is provided
that, in any case in which a tract covered by an unperfected
bona fide claim or by a patent is included within the
limits of a public forest reservation, the settler or owner thereof
may, if he desires to do so, relinquish the tract to the
government, etc. The privilege of the act is therefore reserved to
a settler or owner, and as there is no claim that Hyde was a
settler upon the lands, it only remains to consider whether he was
an "owner" within the act. Although the word "owner" has a variety
of meanings, and may under certain circumstances include an
equitable as well as a legal ownership, or even a right of present
use and possession, it implies something more than a bare legal
title, and we know of no authority for saying that a person in
possession of land under a void deed can be regarded as the owner
thereof. Ownership may not imply a perfect title, but it implies
something more than the possession of land under a title which is
void, and when the government holds out to owners of lands an
inducement to relinquish such lands in exchange for others, it
implies that the persons with whom it is dealing, if not the owners
in fee simple, are at least
bona fide owners, with
authority to dispose of and vest a good title thereto. We are clear
that the defendant does not fall within this category, and that the
United States may justly claim to have been defrauded out of the
land patented to him.
Cosmos Exploration Co. v. Gray Eagle Oil
Co., 190 U. S. 301,
190 U. S. 308;
Johnson v. Crookshanks, 21 Or. 339;
Directors &c.
v. Abila, 106 Cal. 355.
Whatever may be the rule in equity as to the necessity of
proving an actual loss or damage to the plaintiff, we think a case
is made out under this statute by proof of a conspiracy to defraud,
and the commission of an overt act, notwithstanding the United
States may have received a consideration for the lands, and
suffered no pecuniary loss.
MacLaren v. Cochran, 44 Minn.
255. The law punishes the false practices by which the lands were
obtained, and the question whether the government stands in the
position of a
bona fide purchaser
Page 199 U. S. 83
with respect to the school lands is not one which can be
litigated in a criminal prosecution for a violation of law.
Even if the United States were in a position to claim the rights
of a
bona fide purchaser to the state lands, the methods
by which these lands were acquired from the states, and the lands
in exchange therefor procured from the United States would be
nonetheless a fraud of which the latter might take advantage in a
criminal prosecution. The indictment under § 5440 charges a
conspiracy to defraud the United States out of the possession, use
of, and title thereto of divers large tracts of public lands, and
if the title to these lands were obtained by fraudulent practices
and in pursuance of a fraudulent design, it is nonetheless within
the statute, though the United States might succeed in defeating a
recovery of the state lands by setting up the rights of a
bona
fide purchaser. Under the circumstances, it cannot be doubted
that the United States might maintain a bill to cancel the patents
to the exchanged lands procured by these fraudulent means
notwithstanding their title to the forest reserve lands might be
good.
Other minor objections are taken to the indictment: that no
description is given of the lands out of which the defendants are
alleged to have conspired to defraud the government,
Dealy v.
United States, 152 U. S. 539,
152 U. S. 543;
that it is uncertain in its allegations as to the means to be used
to carry out the alleged conspiracy; that the names representing
the fictitious persons and of those not qualified to purchase,
through whom the fraud was effected, are not given; that the
allegations of the indictment are indefinite and inconsistent; that
the conclusion is improper, etc.
It is sufficient to say of these objections that they are proper
to be considered by the trial court, and that we do not feel called
upon to express our own opinion in regard to them. Criticisms of
this character are completely covered by the recent decision of
this Court in
Benson v. Henkel as well as in the cases of
Ex Parte
Watkins, 3 Pet. 193,
28 U. S. 206,
and
Ex Parte Parks, 93 U. S. 18, in both
of which the petitioners sought
Page 199 U. S. 84
by writ of habeas corpus to review the validity of certain
indictments under which they had been convicted in the courts
below, and in both this Court declined to review the action of the
court below. It was held that the question whether the act charged
was or was not a crime was one which the trial court was competent
to decide, and which this Court would not review upon a writ of
habeas corpus.
Our conclusion is that, for the purposes of this case, the
indictment is sufficient.
4. The fourth assignment -- that there was no probable cause for
believing the petitioner guilty of the offense charged and that the
writ of certiorari should have been issued to bring the record
before the court -- is based upon that clause of § 1014 which
requires that proceedings for the removal of persons from one
district to another shall be "agreeably to the usual mode of
process against offenders in such state," and section 1487 of the
Code of California is cited to the effect that the petitioner shall
be discharged where he has been committed upon a criminal charge
without reasonable or probable cause. Certain cases are also cited
from the Supreme Court of California to the effect that it is the
right of the prisoner to have the court consider the question of
probable cause upon the writ of habeas corpus.
People v.
Smith, 1 Cal. 9;
Ex Parte Palmer, 86 Cal. 631;
Ex
Parte Walpole, 85 Cal. 362.
But see, contra, Ex Parte
Long, 114 Cal. 159.
In the federal courts, however, it is well settled that, upon
habeas corpus, the court will not weigh the evidence, although, if
there is an entire lack of evidence to support the accusation, the
court may order his discharge. In this case, however, the
production of the indictment made at least a
prima facie
case against the accused, and if the commissioner received evidence
on his behalf, it was for him to say whether, upon the whole
testimony, there was proof of probable cause.
In re
Oteiza, 136 U. S. 330;
Bryant v. United States, 167 U. S. 104. The
requirement that the usual mode of process adopted in the state
shall be pursued refers to the proceedings for the
Page 199 U. S. 85
arrest and examination of the accused before the commissioner;
but it has no bearing upon the subsequent independent proceeding
before the circuit court upon habeas corpus. In this case, the
commissioner did receive evidence on behalf of the appellants, and,
upon such evidence, found the existence of probable cause, and
committed the defendants, and upon application to the district
judge for the warrant of removal he reviewed his action, but did
not pass upon the weight of the evidence.
While the circuit court may have had power to issue a writ of
certiorari auxiliary to the writ of habeas corpus,
Ex Parte
Burford, 3 Cranch 448;
In re Martin, 5
Blatchf. 303;
Ex Parte
Bollman, 4 Cranch 100; Church on Habeas Corpus, §
260, it was under no obligation to do so, and its refusal cannot be
assigned as error. Certiorari is a discretionary writ, and is often
denied where the power to issue it is unquestionable.
People ex
Rel. Church v. Allegany County, 15 Wend. 206;
People ex
Rel. Vanderbilt v. Stilwell, 19 N.Y. 531;
Rowe v.
Rowe, 28 Mich. 353. Petitions for habeas corpus are frequently
accompanied by applications for certiorari as ancillary thereto,
and both are awarded or denied together. Appellant had nothing to
complain of in the denial of the writ, and his petition should have
set forth the evidence relied upon to show a want of probable
cause.
Terlinden v. Ames, 184
U. S. 279;
Craemer v. Washington, 168
U. S. 128.
There was no error in the action of the circuit court, and its
judgment is therefore affirmed.
MR. JUSTICE PECKHAM, dissenting.
I dissent from the opinion and judgment of the Court in this
case, and wish simply to state the grounds of my dissent, without
any attempt to do more. The indictment avers that the
Page 199 U. S. 86
conspiracy was entered into in Washington, District of Columbia,
on December 30, 1901, and the opinion holds, in substance (and
rightly, as I think), that it is essential to aver its formation in
the District in order to give the courts therein jurisdiction of
the offense. The indictment constitutes
prima facie
evidence of probable cause, but evidence may be given to rebut it.
It is averred in the application for the writs of habeas corpus and
certiorari, in the case of Hyde, that the evidence taken before the
commissioner showed indisputably that the petitioner was never in
the District of Columbia except upon one occasion in 1901, and then
only for about six hours, and that he was not then guilty of any of
the offenses charged in the indictment, and, in the case of Dimond,
it was said the evidence showed that the transactions complained of
as a conspiracy occurred in California or Oregon, of which former
state the defendant was, and had been for twenty years, a resident.
In other words, it was claimed that the evidence before the
commissioner showed conclusively and without contradiction that
there was no probable cause to believe the defendants guilty of any
offense as charged in the indictment. The writ of certiorari was
called for in order that this evidence might be brought before the
circuit judge, so that he could see from it that there was
affirmative and conclusive proof of the absence of probable cause.
The applications for the writs of habeas corpus and of certiorari
were both denied. The opinion of the circuit judge, delivered upon
refusing the writs, shows that the question of the want of probable
cause to believe defendants guilty, based upon the absence of both
defendants from the District of Columbia at the time of the alleged
formation of the conspiracy, was not touched upon by him, but the
objections considered were those based upon the charge contained in
the indictment and whether it charged an offense under the laws of
the United States. This Court now holds that the refusal of the
judge to grant the writ of certiorari was within his
discretion.
I think this is not the case for the application of the rule
Page 199 U. S. 87
stated in the cases cited in the opinion of the Court. Those
from New York were based upon a matter of public policy, where the
purpose was to overturn proceedings in assessments and taxation in
which the public was interested, and the courts refused in such
cases to grant the writ. The result of the refusal in this case is
to prevent the review of the findings of the commissioner before
whom the original proceeding was had, upon the question of probable
cause. I admit that the weight of evidence will not, in such cases,
be reviewed here, but evidence which conclusively rebuts the
presumption of probable cause arising from the indictment, and
which is uncontradicted, may be looked at, and a finding of
probable cause reversed. In order to refer to it, the evidence must
be part of the record, and in such a case as this, the application
for a writ of certiorari to bring up the evidence which the
petitioner avers shows such fact is not addressed to the discretion
of the court, but, on the contrary, the petitioner has the right to
demand that it shall be granted. The right is none the less when
the want of probable cause rests upon conclusive evidence of the
absence of the defendants from the district at the time when the
indictment alleges the conspiracy was formed in such district. If
defendants were not then there, they could not be guilty of the
crime charged in the indictment. This case is an extreme
illustration of the very great hardship involved in sending a man
3,000 miles across the continent, from California or Oregon, to
this district for trial, where he is to bring his witnesses, and
where, on such trial, it will appear that the court must direct an
acquittal because the averment of the formation of the conspiracy
at Washington, D.C., is shown to be false to a demonstration.
The expense to a defendant in his necessary preparation for
trial, and in procuring the attendance of witnesses in his behalf
from such a distance, must necessarily be enormous, and in many, if
not in most, cases, utterly beyond the ability of a defendant to
pay. The enforcement of the criminal law should not be made
oppressive in such cases, and therefore, when it
Page 199 U. S. 88
appears there was no probable cause to found the indictment
upon, the order of removal should be refused.
I am authorized to say that MR. JUSTICE WHITE and MR. JUSTICE
McKENNA concur in this dissent.