Haas v. Henkel, ante, p.
216 U. S. 462,
followed as to jurisdiction of commissioner under § 1014,
Rev.Stat., to remove accused who has also been indicted in the
district from which removal is sought.
One good count in an indictment, under which a trial may be had
in the district to which removal is sought, is enough to support an
order of removal in habeas corpus proceedings,
Horner v. United
States, 143 U. S. 207,
even though accused may be held to bail in the district from which
removal is sought on an indictment of which some of the counts are
similar.
But an indictment which alleges that the offense was committed
in the district where found does not conclusively destroy the
prima facie case made in a removal proceeding by the
indictment found in the district to which removal is sought and
which alleges that the offense was committed therein, and if the
commissioner also heard evidence upon which he based his decision,
that decision is not open to review in habeas corpus
proceedings.
In this case, the independent evidence which was offered to show
that accused was not in the district where the indictment was found
was not conclusive.
163 F. 904 affirmed.
The facts are stated in the opinion.
MR. JUSTICE LURTON, delivered the opinion of the Court.
The appellant, Theodore H. Price, was, on March 1, 1909,
Page 216 U. S. 489
committed by a United States Commissioner for the Southern
District of New York to the custody of the appellee, as marshal for
that district, to await an order of removal to the District of
Columbia for trial upon two indictments, numbered respectively
26,088 and 26,089, being two of the indictments considered in the
case of
Haas v. Henkel, just disposed of. Price thereupon
filed his petition in the Circuit Court of the United States for
the Southern District of New York alleging that his imprisonment
was unlawful and in violation of the Constitution of the United
States, and praying for a writ of habeas corpus and certiorari, and
that he might be discharged from such arrest. Upon a hearing, his
petition was dismissed and he was remanded to the custody of the
marshal. From this order he has prayed this appeal.
This appeal and that of Haas were argued together, the
difference between the two being slight. The two New York
indictments against Price which he had been held to answer when
these removal proceedings were begun were numbered 307 and 308. The
first charged him with having entered into a conspiracy with Moses
Haas, Edwin S. Holmes, Jr., and other persons unknown to defraud
the United States, and the other charged him with having conspired
with Haas to bribe Holmes, an official in the Statistical Bureau of
the Department of Agriculture, to violate his duty. These
indictments allege the conspiracy to have been formed in the
Southern District of New York. They are in all respects similar to
the two District of Columbia indictments against the same persons
which lay the locus of the conspiracy in the District of Columbia,
except that certain counts in the latter indictments charge
particular offenses not charged in either of the New York
indictments.
It is now insisted that the order of the commissioner,
committing appellant to the custody of the marshal to wait a
removal, is void:
1. Because § 1014, Rev.Stat., does not authorize a removal from
the district where an accused is found when he
Page 216 U. S. 490
is there under bail to answer local indictments for the same
offense.
2. That the commitment to await an order of removal was illegal
and an abuse of power because the District of Columbia indictments
did not substantially charge any offense against the United
States.
3. That the record certified by the commissioner under the
certiorari issued by the circuit court does not show any evidence
justifying a conclusion that there was probable cause to believe
that the appellant had committed any crime in the District of
Columbia.
As two of the counts included in one of the District of Columbia
indictments are for particular offenses similar in character but
not identical with those covered by either of the two New York
indictments, it is apparent that appellant has not been held in New
York to answer all of the offenses which he is charged with having
committed in the District of Columbia, and could not be brought to
trial under the New York indictments for the offenses charged by
the fifth and seventh counts of one of the District of Columbia
indictments. This alone serves to take the case out of the precise
situation presented by the first objection against the order made
by the commissioner. If there is one good count under which a trial
might be had in the district to which the removal is sought, it is
enough to support an order in a habeas corpus proceeding.
Horner v. United States, 143 U. S. 207,
143 U. S.
214.
But, for the reasons already stated in the opinion in the
Haas case, just handed down, we are of opinion that
absolute identity in the two sets of indictments does not operate
to defeat a removal if the government elect to try in another
district, and that the only function of a commissioner before whom
a removal complaint is made in such a situation is to be satisfied
that there is probable cause to believe that the accused is guilty
of an offense charged to have been committed in the district to
which the removal is sought. This case, upon this point as well as
upon the point that the two indictments here
Page 216 U. S. 491
involved do not sufficiently charge an offense against the
United States, is governed by the opinion and judgment in the
Haas case.
This brings us to the only question which is not necessarily
concluded by the opinion in the
Haas case -- namely,
whether there was any substantial evidence before the commissioner
upon which he might, in the exercise of his jurisdiction, decide
that there was probable cause for believing that appellant had
committed within the District of Columbia the offenses charged in
the indictments against him found in that district.
That at least a
prima facie case for the removal was
made by the introduction of the indictments returned against him in
the District of Columbia is not disputable. That much efficacy is
attributed to a certified copy of an indictment found in a
competent court of another district when put in evidence in a
removal proceeding.
Bryant v. United States, 167 U.
S. 104;
Greene v. Henkel, 183 U.
S. 249;
Hyde v. Shine, 199 U. S.
62;
Beavers v. Henkel, 194 U. S.
73. But the evidence of probable cause afforded by the
indictment is not conclusive. For this reason, it has been held
that the refusal of a commissioner to hear evidence offered for the
purpose of showing that no offense had been committed, triable in
the district to which removal was sought, would be a denial of a
right secured under the Constitution.
Tinsley v. Treat,
205 U. S. 20. But
in this case there was no closing of the door to evidence offered
to show a want of probable cause. Copies of the New York
indictments against appellant for many of the same offenses were
received in evidence, as tending to show that the conspiring, if
any there was, had been done in New York, and not in the District
of Columbia. Some evidence tending to show that Price was not in
the District of Columbia at the time when the conspiracies are
charged to have been formed was also introduced. There was also
some evidence offered questioning the identity of the appellant
with the person accused by the District of Columbia indictments.
The probative weight of certified copies of the New York
indictments is necessarily
Page 216 U. S. 492
limited to such counts as are identical in the two sets of
indictments. This would leave counts five and seven of indictment
No. 26,088 unaffected as evidence of probable cause, and justify
the order of commitment, although there might be conclusive
evidence that the offense charged in the other counts had not been
committed in the District of Columbia, as charged.
Horner v.
United States, 143 U. S. 207.
But it cannot be conceded that the introduction of copies of the
New York indictments operated to destroy the evidential effect of
the indictments found in the District of Columbia, even as to the
identical counts. In the case of
Haas v. Henkel, we held
that such evidence did not so conclusively destroy the evidence
afforded by copies of the District of Columbia indictments as to
leave no testimony upon which the commissioner might, upon the
whole case, decide that there was proof of probable cause.
The commissioner had before him competent evidence in the
certified copies of the District of Columbia indictments upon which
he might base a conclusion of probable cause. At most, the New York
indictments, together with the evidence tending to prove that
appellant had not been in the District of Columbia at any of the
times when the conspiracy was said to have been formed, only made
an issue which the commissioner had jurisdiction to decide, and
when we find from the proceedings before him that he did hear such
evidence upon which he might base his decision, that decision is
not open for review upon a petition for a writ of habeas corpus.
In re Oteiza y Cortes, 136 U. S. 330;
Bryant v. United States, supra; Greene v. Henkel,
183 U. S. 249,
183 U. S. 261;
Hyde v. Shine, 199 U. S. 62,
199 U. S. 84.
This is the rule, as stated by Mr. Justice Brown, speaking for the
court in
Hyde v. Shine, cited above, where it was
said:
"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
Page 216 U. S. 493
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 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."
The evidence, independent of that afforded by the New York
indictments, relied upon to show that appellant was not in the
District of Columbia when the conspiracy is charged to have been
formed has been examined. It cannot be said to be at all
conclusive. First, it leaves out of consideration the fact that the
indictments may be sustained by evidence of a conspiracy formed at
dates before the finding of the indictment, other than those named,
if not barred by the statute of limitations.
Ledbetter v.
United States, 170 U. S. 606,
170 U. S. 612.
Second, it does not exclude the possibility that the conspiracy may
have been formed in the District of Columbia without appellant's
being physically present when the conspiracy was formed.
In re
Palliser, 136 U. S. 257,
136 U. S. 265;
Burton v. United States, 202 U. S. 344,
202 U. S. 387;
United States v. Thayer, 209 U. S. 39,
209 U. S. 43. In
Burton v. United States, cited above, it was said by this
Court that
"the constitutional requirement is that the crime shall be tried
in the state or district where committed, not necessarily in the
state or district where the party happened to be at the time."
Upon the whole case, we are satisfied that there is not shown
that entire absence of evidence which, upon an appeal
Page 216 U. S. 494
like this, would require us to hold that the decision that there
was probable cause was void as not based upon any evidence.
Final order 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.