Haas v. Henkel, ante, p.
216 U. S. 462,
followed as to jurisdiction of commissioner under § 1014,
Rev.Stat., in removal proceedings to remove accused who has been
indicted in more than one district.
The fact that the person whose removal is sought is under bond
to appear in other removal proceedings on prior indictments does
not prevent the removal order's being issued. The effect could only
be to exonerate the sureties.
The rule that the jurisdiction over the person by one federal
court must be respected until exhausted is one of comity only, and
has a limited application in criminal cases. It will not prevent
removal under § 1014, Rev.Stat., where the cases are not the
same.
Even if a second removal proceeding does amount to an election
by the government to abandon the first complaint, that fact does
not affect the jurisdiction of the commissioner.
Disregard of comity between federal courts at the instance of
the government is not an invasion of constitutional rights of the
accused. It does not affect the jurisdiction of the commissioner,
and even if his decision is erroneous, it cannot be attacked on
habeas corpus. Habeas corpus is not writ of error.
166 F. 627 affirmed.
The facts are stated in the opinion.
Page 216 U. S. 484
MR. JUSTICE LURTON delivered the opinion of the Court.
This is an appeal from a judgment of the circuit court denying
the application of the appellant to be discharged from arrest on a
writ of habeas corpus and remanding him to the custody of the
marshal.
The case differs from the case of
Haas v. Henkel, just
disposed of, only in certain particulars; otherwise it is governed
by the opinion in that case.
1. Peckham is included in only two of the indictments against
Haas -- namely Nos. 26,086 and 26,087. The first charges a
conspiracy with Edwin S. Holmes, Jr., and Moses Haas to defraud the
United States; the other with a conspiracy with Haas, and others
unknown, to commit an offense against the United States -- that of
bribing Holmes, an assistant statistician in the Department of
Agriculture, to do an act in violation of his official duty.
Neither of the indictments found in the District of Columbia
against Peckham includes the count charging a conspiracy to bribe
Holmes to falsify one of the official cotton crop reports.
In all other matters, this appeal is controlled by the opinion
and judgment in the
Haas case unless a different result
must follow from the facts now to be stated.
In 1905, three indictments were returned against Peckham,
Holmes, and Haas in the Supreme Court for the District of Columbia,
charging them with conspiring to defraud the United States and to
commit an offense against the United States. A warrant for
Peckham's arrest was issued in the Northern District of New York
upon a complaint filed with the commissioner for his removal to the
District of Columbia for trial. Peckham appeared and waived
examination, and gave bail for his appearance in the District of
Columbia court to answer the indictments there pending.
Subsequently his
Page 216 U. S. 485
sureties surrendered him, pursuant to § 1018, Rev.Stat.,
whereupon the commissioner issued a warrant recommitting him to the
custody of the United States Marshal for the Northern District of
New York. Thereupon he applied to District Judge Ray of that
district for a writ of habeas corpus, alleging, upon the facts
stated, that his detention was contrary to law and in violation of
the Constitution of the United States, for that the aforesaid
indictments did not charge any crime or offense against the United
States. Upon a hearing before Judge Ray, the petition was
dismissed, the writ denied, and Peckham remanded to the custody of
the marshal, and an order made at the same time for his removal to
the District of Columbia. From this judgment an appeal was at once
allowed to the Circuit Court of Appeals for the Second Circuit. In
consequence of this, Judge Ray directed that the execution of the
removal order made by him be stayed until the appeal should be
disposed of. That stay order was made January 10, 1906, and was
still in force when, in November, 1908, the proceedings for his
removal to answer the 1908 indictments were had. The pendency of
the proceedings for his removal from the Northern District of New
York to answer the District of Columbia indictments found in 1905,
and of his appeal from the judgment of the circuit court for that
district, and the order made staying the removal order made in the
proceedings referred to, were shown in evidence before the
commissioner in the proceedings under review in the present appeal
as a legal obstacle to any order of removal to answer the 1908
indictments, and also as evidence bearing upon the defense of the
statute of limitations as a bar to those indictments. The 1905
indictments are for similar offenses to those charged in the later
indictments of 1908, but they are not for the same offenses. They
charge conspiracy at a different time and with respect of different
cotton reports, and were therefore offenses distinct from those
included in the later indictments.
But it is said that, while the removal proceedings in the
Northern District of New York are pending, appellant cannot
Page 216 U. S. 486
be removed under the later complaint without disregarding the
jurisdiction over his person which first attached by virtue of the
prior effort to remove him to the District of Columbia. That
Peckham is under bond to appear and comply with the order of
removal made by Judge Ray, and therefore constructively in the
custody of his sureties, must be conceded. But if the performance
of the condition of that bail bond is rendered impossible by his
removal in these subsequent proceedings at the instance of the
United States, the effect may be to exonerate his sureties.
Taylor v.
Taintor, 16 Wall. 371;
Beavers v. Haubert,
198 U. S. 77,
198 U. S. 85.
But it is said that removal to the District of Columbia is
forbidden under Judge Ray's order of January 10, 1906, and that a
removal under the order made by the commissioner in the proceedings
now under review will invalidate the order of Judge Ray.
This is a fanciful claim. He will not be removed under or in
pursuance of the original order of removal, execution of which has
been stayed, but under an order made in an altogether distinct and
subsequent proceeding to answer distinct offenses.
Finally, it is said that the jurisdiction of the court for the
Northern District of New York, having attached to the person of
appellant, must be respected as exclusive until its jurisdiction is
exhausted.
The rule is one of comity only, and has a wide application in
civil cases, but a limited one in criminal cases.
See In re
Johnson, 167 U. S. 120,
167 U. S. 125,
and
Beavers v. Haubert, 198 U. S. 77,
198 U. S. 84.
But when, as here, the subsequent proceedings for the removal of
appellant are to answer indictments later found for other and
distinct offenses, the question is quite a different one, for the
"cases" are not the same. That they are "cases" against the same
offender is not of itself sufficient to constitute the second
proceedings void as an unlawful interference with the jurisdiction
of the Circuit Court for the Northern District of New York. The
present case differs upon this point from that of
Beavers v.
Haubert in that the consent of the court of prior jurisdiction
was not obtained as in that. In that case,
Page 216 U. S. 487
the Court reserved the question as to "whether the government
had the right of election, without such consent," to proceed in
either of the two districts in which indictments were pending. But
there is here no question of electing whether to try in the
Northern District of New York or in the District of Columbia, but
whether it would elect between the two removal proceedings, the
object of each being to remove the appellant to the same place for
trial. The institution of the second removal proceeding without the
consent of the Circuit Court for the Northern District of New York
may very well be regarded as an election by the United States, the
plaintiff in both cases to abandon the first complaint. But, aside
from this, and assuming, without deciding, that the removal
proceedings were in disregard of the prior proceedings and
therefore erroneous, the jurisdiction of the commissioner was not
affected. No constitutional right of the appellant was invaded. A
petition for a writ of habeas corpus is not a writ of error. The
error, if any, was a mere disregard of a rule of comity, which is
not reversible in a proceeding of this character.
In principle, the case is governed by
Beavers v.
Haubert, and the final order of the Circuit Court is
Affirmed.
BREWER, J., concurring:
I concur in affirming the orders of removal in these cases, but
my concurrence must not be taken as holding that the indictments
will stand the final test of validity or sufficiency. Assuming that
there is a doubt in respect to these matters, as I think there is,
and as seems to be suggested by the opinion in No. 367, I am of the
opinion that such doubt should be settled by direct action in the
court in which the indictments were returned, and not in removal
proceedings.
MR. JUSTICE McKENNA concurs in the result, but reserves opinion
whether the facts alleged in the indictment constitute a conspiracy
to defraud the United States.