1. In proceedings under § 1014, R.S., the inquiry is limited to
the question whether there is probable cause to believe the
prisoner guilty, so as to justify his commitment and removal for
trial. P. 283 U. S.
2. When the indictment is produced before the committing
magistrate, it is received not as a pleading, but as evidence
establishing or tending to establish the commission of an offense,
and the magistrate has authority to pass upon it only in that
aspect. He has no authority to determine it sufficiency as a
pleading. P. 283 U. S.
3. The magistrate in removal proceedings has no power to hold
the facts pleaded in an indictment insufficient to charge an
offense, when that question is reasonably open to a difference of
opinion. Doubtful questions of law relating to the sufficiency of
the indictment or the validity of the statute upon which the
indictment is based, as well as all doubtful questions of fact, are
matters to be left for the trial court to determine. P.
283 U. S.
District Court reversed.
p. 812, to review an order of the
district court discharging the relator Cunningham in habeas corpus.
The relator was in custody of a U.S. Marshal for removal for trial
under an indictment in the District of Columbia. See also
26 F.2d 272; 33 id.
261; 279 U. S. 597
Page 283 U. S. 639
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
On April 20, 1928, an indictment was returned by a grand jury in
the Supreme Court of the District of Columbia charging the
respondent, Cunningham, with a violation of § 102, R.S.
(U.S.C. Title 2,
§ 192), in having refused to answer pertinent questions put to him
by a committee of the United States Senate. It is not necessary to
reproduce the indictment. For present purposes, the facts pleaded
therein sufficiently appear in the opinion of this Court in
Barry v. United States ex rel. Cunningham, 279 U.
. After indictment, respondent was arrested in
Pennsylvania upon a warrant issued under § 1014, R.S. (U.S.C. Title
18, § 591), and taken before a United States district judge sitting
as a committing magistrate. Section 1014 provides:
"For any crime or offense against the United States, the
offender may, by any justice or judge of the United States, or by
any commissioner of a circuit court to take bail, or by any
chancellor, judge of a supreme or superior court, chief or first
judge of common pleas, mayor of a city, justice of the peace, or
other magistrate, of any state where he may be found, and agreeably
to the usual mode of process against offenders in such state, and
at the expense of the United States, be arrested and imprisoned, or
bailed, as the case may be, for trial before such court of the
United States as by law has cognizance of the offense. "
Page 283 U. S. 640
That section further provides for the removal of the offender,
if committed, to the district where the offense is to be tried.
At the hearing before the District Judge, the government, to
show probable cause, introduced in evidence a certified copy of the
indictment, and rested. Respondent challenged the sufficiency of
the indictment upon the ground that the questions set forth
therein, which he had refused to answer, were not pertinent to the
committee's inquiry, and introduced a transcript of the proceedings
before the committee. The district judge ordered respondent's
commitment and his removal to the District of Columbia. Respondent
thereupon sought his discharge from the custody of the United
States marshal, and filed a petition for a writ of habeas corpus to
that end in the federal district court presided over by the same
judge. That court held the indictment sufficient to support the
commitment and removal, and dismissed the petition. 26 F.2d 272. On
appeal to the Circuit Court of Appeals for the Third Circuit, the
order of the district court was reversed on the ground that the
indictment disclosed that the questions propounded to respondent
were not pertinent to the inquiry, and therefore there was not
probable cause for respondent's commitment and removal to another
district for trial. 33 F.2d 261.
After our decision in the Barry
the court of appeals granted a rehearing, but, upon consideration,
adhered to its former decision. 50 F.2d 411. Thereupon, the United
States marshal applied to this Court for a writ of certiorari,
which was granted, but with an order vacating the judgments of both
lower courts and remanding the cause to the district court with
directions to dismiss the proceeding as abated. Mathues v.
United States ex rel. Cunningham,
282 U.S. 802. This was done
because the United States marshal named in the petition had gone
out of office and no substitution had been made within the
Page 283 U. S. 641
period. Respondent then surrendered himself to United States
Marshal Fetters, who was then in office, and filed a new habeas
corpus petition, and, upon that petition, after a hearing, the
district court ordered the respondent to be discharged, 50 F.2d
449, deeming itself bound by the opinion of the court of appeals
upon the former appeal. It is this last order which is now here for
review, this Court having granted a writ of certiorari pending the
disposition of an appeal therefrom to the court below.
In proceedings under § 1014, R.S., the inquiry is limited to the
question whether there is probable cause to believe the prisoner
guilty, so as to justify his commitment and removal for trial. This
inquiry may take place in advance of indictment or without the
production of the indictment if one has been returned. When the
indictment is produced before the committing magistrate, it is
received not as a pleading, but as evidence establishing or tending
to establish the commission of an offense, and the magistrate has
authority to pass upon it only in that aspect. He has no authority
to determine its sufficiency as a pleading. Morse v. United
States, 267 U. S. 80
267 U. S. 83
and cases cited.
Whether the indictment in this case properly could be held
sufficient by the trial court upon demurrer we have no occasion to
consider. Without going into particulars, we think it clearly
sufficient for removal purposes. The most that can be said is that
the question whether the indictment is sufficient to put the
respondent on trial is fairly debatable. It was never intended by §
1014 that an examining magistrate should have the power in removal
proceedings to hold the facts pleaded in an indictment insufficient
to charge an offense when that question is reasonably open to a
difference of opinion. Doubtful questions of law relating to the
sufficiency of the indictment or the validity of the statute upon
which the indictment
Page 283 U. S. 642
is based, as well as all doubtful questions of fact, are matters
to be left for the trial court to determine. Parker v. United
3 F.2d 903, 904, and cases cited.
In Hughes v. Gault, 271 U. S. 142
this Court, after pointing out that the proceedings under § 1014,
R.S., were intrusted not only to judges and commissioners of the
United States and judges of state courts, but to any "mayor of a
city, justice of the peace, or other magistrate, of any state where
[the accused] may be found," said (p. 271 U. S.
"Obviously, in order to make it the duty of the judge to issue
the warrant, a mayor or a magistrate not a lawyer cannot be
expected to do more than to decide in a summary way that the
indictment is intended to charge an offense against the laws of the
United States, that the person before him is the person charged,
and that there is probable cause to believe him guilty, without the
magistrate's being held to more than avoiding palpable
A rule in respect of the power of one of the magistrates named
in the statute, of course, applies to all.
And see Rodman v. Pothier, 264 U.
, 264 U. S. 402
Henry v. Henkel, 235 U. S. 219
235 U. S.
The first order of commitment and removal made by the district
judge was proper, and should have been sustained. In the trial
court, the accused will have every opportunity to test the
sufficiency of the indictment, since there, it is not evidence, but
the very "foundation of the charge." Benson v. Henkel,
198 U. S. 1
198 U. S. 12
The judgment of the district court must be reversed, and the
cause remanded to that court for further proceedings in conformity
with this opinion.
It is so ordered.
"Sec. 102. Every person who having been summoned as a witness by
the authority of either House of Congress, to give testimony or to
produce papers upon any matter under inquiry before either House,
or any committee of either House of Congress, willfully makes
default, or who, having appeared, refuses to answer any question
pertinent to the question under inquiry, shall be deemed guilty of
a misdemeanor, punishable by a fine of not more than $1,000 nor
less than $100, and imprisonment in a common jail for not less than
one month nor more than twelve months."