1. Appellants were arrested under a federal indictment in New
York while traveling through the state to attend trial under
another indictment which they had given bail to answer in the
District of Columbia, and were thus prevented from being present
there at the time set.
Held that the arrest was not in
violation of the due process of law clause of the Fifth Amendment.
P.
267 U. S.
81.
2. Even if arrest in such circumstances be a breach of comity as
between the two federal tribunals, the objection does not concern
the constitutional rights of the persons arrested, nor involve a
question of jurisdiction or any error reviewable on habeas corpus.
Id.
3. A judgment of a district court in habeas corpus which
discharges a defendant held by a commissioner under Rev.Stats. §
1014 for removal to another district and which is based on a
finding that the indictment does not charge a criminal offense, is
not
res judicata either as to the validity of the bench
warrant issued by the court in which the indictment is pending or
as to the sufficiency of the indictment itself. P.
267 U. S.
82.
292 F. 273 affirmed.
Appeals from judgments of the district court dismissing writs of
habeas corpus.
Page 267 U. S. 81
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
Appellants, under indictment in the District of Columbia, while
passing through New York on February 6, 1923, on their way to
Washington for trial, were arrested and taken from the train by a
United States marshal upon bench warrants issued on federal
indictments found in New York charging them with fraudulent uses of
the mails. Previously, their removal to New York from Connecticut
and Massachusetts, respectively, for trial under these indictments
had been sought under § 1014, Rev.Stats.. The removal of Harry F.
Morse from Connecticut had been granted by the commissioner, but,
upon habeas corpus proceedings, he had been discharged from custody
by the Connecticut Federal District Court for want of probable
cause, principally on the ground that the New York indictment was
insufficient to charge a criminal offense (287 F. 906), although
the New York court had previously held it good. The proceedings for
the removal of Benjamin W. Morse from Massachusetts were still
pending before the commissioner at the time of the arrest. Both
appellants were on bail to answer the District of Columbia
indictment. Their case had been peremptorily set for trial on the
morning following the arrest, and the effect of it was to prevent
their appearance at the time set. Upon these facts, writs of habeas
corpus were granted by the federal District Court for the Southern
District of New York. After a hearing, the writs were dismissed,
and these appeals followed.
First. It is contended that the arrest of appellants in
New York, while en route to Washington for trial, under the
circumstances stated, was arbitrary, unauthorized, and
Page 267 U. S. 82
illegal, and constituted a violation of the due process of law
clause of the Fifth Amendment. The contention is plainly without
merit. The principle that, when the jurisdiction of a court has
attached, it must be respected as exclusive until exhausted is a
rule of comity, having a wide application in civil cases but a
limited one in criminal cases.
Peckham v. Henkel,
216 U. S. 483,
216 U. S. 486.
The mutual forbearance which two federal courts having coordinate
jurisdiction should exercise to prevent conflicts by avoiding
interferences with the process of each other, has "perhaps no
higher sanction than the utility which comes from concord."
Covell v. Heyman, 111 U. S. 176,
111 U. S. 182.
But, this aside, if there be a violation of the rule of comity
here, it primarily concerns only the courts or the sovereignty
which is their common superior, and cannot avail the appellants
indicted for crimes in the different jurisdictions. Moreover, their
constitutional rights are not affected, and if there was error in
any respect, it is not reviewable on habeas corpus.
Peckham v.
Henkel, supra, p.
216 U. S. 487;
Beavers v. Haubert, 198 U. S. 77,
198 U. S. 85.
And see In re Fox, 51 F. 427, 430;
United States v.
Marring, 170 F. 476, 479-480.
Second. It is urged that the decision of the Federal
District Court in Connecticut discharging Harry F. Morse was
res judicata, and conclusively determined (1) that the New
York bench warrant was illegally issued, and therefore could not be
made the basis for the subsequent arrest in New York, and (2) that
the indictment was fatally defective. In respect of the first
contention, it is enough to say that the warrant upon which the
Connecticut arrest was made was that issued by the commissioner,
and not the New York bench warrant upon which the present arrest
was made. The discharge of the prisoner determined that he could
not be held upon the process issued by the commissioner. It had
nothing to do with the question whether he could be arrested and
held in New York
Page 267 U. S. 83
upon the process issued by the trial court.
See Ex parte
Milburn, 9 Pet. 704,
34 U. S. 710;
Barbee v. Weatherspoon, 88 N.C.19, 20-22;
In re
Begerow, 136 Cal. 293, 299.
The second contention proceeds upon a complete misconception of
the purpose for which the indictment is produced and considered in
removal proceedings, and the authoritative effect of the ruling of
the commissioner and the court on habeas corpus in respect thereof.
The inquiry in such proceedings is whether there is probable cause
to believe the prisoner guilty and justify his removal for trial.
That inquiry may be made and the prisoner removed to the trial
district in advance of indictment or without the production of the
indictment if one has been found.
Greene v. Henkel,
183 U. S. 249,
183 U. S. 260;
Pierce v. Creecy, 210 U. S. 387,
210 U. S. 403;
United States v. Greene, 100 F. 941, 943. The indictment
was before the commissioner as evidence for the purpose of
establishing or tending to establish the commission of an offense,
and the commissioner had authority to pass upon its effect in that
aspect only. The court reviewing the action of the commissioner
under § 1014 upon habeas corpus was governed by the same rules and
its decision was subject to the same limitation.
Henry v.
Henkel, 235 U. S. 219,
235 U. S. 230;
Benson v. Palmer, 31 App.D.C. 561, 564, 565. Neither had
authority to determine the sufficiency of the indictment as a
pleading.
"The only safe rule is to abandon entirely the standard to which
the indictment must conform, judged as a criminal pleading, and
consider only whether it shows satisfactorily that the fugitive has
been in fact, however inartificially, charged with crime in the
state from which he has fled."
Pierce v. Creecy, supra, pp.
210 U. S.
401-402. In
Benson v. Henkel, 198 U. S.
1,
198 U. S. 12,
this Court said:
"While we have no desire to minimize what we have already said
with regard to the indictment setting out the substance of the
offense in language sufficient to apprise
Page 267 U. S. 84
the accused of the nature of the charge against him, still it
must be borne in mind that the indictment is merely offered as
proof of the charge originally contained in the complaint, and not
as a complaint, in itself, or foundation of the charge, which may
be supported by oral testimony as well as by the indictment. When
the accused is arraigned in the trial court, he may take advantage
of every insufficiency in the indictment, since it is there the
very foundation of the charge, but to hold it to be the duty of the
commissioner to determine the validity of every indictment as a
pleading, when offered only as evidence, is to put in his hands a
dangerous power which might be subject to serious abuse. If, for
instance, he were moved by personal considerations, popular clamor,
or insufficient knowledge of the law to discharge the accused by
reason of the insufficiency of the indictment, it might turn out
that the indictment was perfectly valid, and that the accused
should have been held. But the evil, once done, is or may be
irremediable, and the commissioner, in setting himself up as a
court of last resort to determine the validity of the indictment,
is liable to do a gross injustice."
See also Benson v. Palmer, supra; United States v.
Reddin, 193 F. 798, 802;
In re Hacker, 73 F. 464;
In re Dana, 68 F. 886, 890;
Ex parte Mitchell, 1
La.Ann. 413, 414.
Benson v. Palmer, supra, contains a very
full review of the precise question here under consideration. In
the course of the opinion, the Court, after pointing out that the
discharge of the accused from the process under which he was held
in the removal proceedings had nothing to do with the process upon
which he was subsequently arrested and held by the trial court,
that the indictment could be considered in such proceedings only as
evidence, and that a finding thereon "concludes the proceedings for
removal, but not for trial," said (p. 568):
"It is not the policy of our criminal jurisprudence that an
accused shall be permitted to escape trial on the merits of the
Page 267 U. S. 85
charge against him, through a mere defect in the preliminary
proceedings leading up to the trial. No discharge by writ of habeas
corpus will operate as a bar to further proceedings in the same
cause unless the inquiry on the petition for the writ involves a
full investigation into the merits of the case -- the guilt or
innocence of the accused."
It is unnecessary to refer to other authorities. While they are
not entirely harmonious, the rule to be deduced therefrom is that
the judgment in a habeas corpus proceeding can be regarded as
conclusive upon the merits only where the case presented is one
which calls for a final determination of the ultimate facts and of
the law, and not where the proceeding is preliminary and ancillary
to a trial upon the merits.
See, for example, United States v.
Chung Shee, 71 F. 277, 280;
Kurtz v. State, 22 Fla.
36, 45. Thus, it is held that a judgment in a preliminary
examination discharging an accused person for want of probable
cause is not conclusive upon the question of his guilt or
innocence, and constitutes no bar to a subsequent trial in the
court to which the indictment is returned.
Commonwealth v.
Hamilton, 129 Mass. 479, 481. Likewise, in extradition
proceedings, a discharge for insufficient evidence will not
preclude a second inquiry.
In re Kelly, 26 F. 852.
And
see Collins v. Loisel, 262 U. S. 426,
262 U. S. 429;
In re Begerow, supra, p. 298. The functions of the
commissioner and the court in removal proceedings under § 1014 are
of like character, and exercised with like effect. The judgment
rendered therein, whatever may be its effect in subsequent
proceedings of the same character involving the same question --
Salinger v. Loisel, 265 U. S. 224,
265 U. S.
230-232;
Collins v. Loisel, supra, p.
252 U. S. 430;
United States v. Haas, 167 F. 211, 212 -- does not abridge
the power of the trial court to deal independently with the main
cause if the accused be subsequently arrested and brought before
that court to answer to the indictment. In other words, the
commissioner, or the court in review on habeas corpus, for
Page 267 U. S. 86
lack of power cannot conclusively adjudge the indictment,
qua indictment, to be either good or bad, or pass finally
upon the guilt or innocence of the accused. A decision discharging
the prisoner neither annuls the indictment nor blots out the
offense. Upon the case here presented, the trial court alone had
plenary jurisdiction over the cause, and consequently alone had
plenary power to pass upon the sufficiency of the indictment as to
the pleading which initiated and was the foundation of the
prosecution.
Judgment affirmed.
Mandate to issue forthwith.