Kirk v. United States

• Decision Date: 11 July 1903
• Citation: 124 F. 324
• Parties: KIRK v. UNITED STATES et al.
• Court: U.S. District Court — Northern District of New York

124 F. 324

KIRK v. UNITED STATES et al.

United States Circuit Court, N.D. New York.

July 11, 1903

Kellogg & Rose, for complainant.

George B. Curtiss, U.S. Atty., for defendants.

RAY District Judge.

Prior to the 20th day of January, 1902, an indictment was found against one John F. Gaynor and others in the United States District Court for the Eastern Division of the Southern District of Georgia, and which indictment charged the said Gaynor and others with having unlawfully, knowingly, and feloniously confederated, etc., to defraud the government of the United States, and with having defrauded the said government of a large amount of money, contrary to law pursuant to such conspiracy. The said John F. Gaynor is, and at all times, both before and at the time of finding such indictment and since, has been, a resident and an inhabitant of the county of Onondaga in the state of New York.

Said indictment having been found in said District Court, and the defendant Gaynor being a resident of the state of New York in said state proceedings were taken to apprehend the said Gaynor and remove him to said district, where said indictment was found, for trial. He was arrested and charged with said crime, on oath, before John A. Shields, one of the commissioners of the United States, of the Southern District of New York, and an examination having been had before said commissioner, and the commissioner having decided that it appeared to him that the offense with which the said Gaynor stood charged had been committed, and that there was probable cause to believe the said Gaynor guilty thereof, the said commissioner held Gaynor to await the warrant of removal by the United States district judge; and the United States district judge for the Southern District of New York having heard application for said warrant of removal on the 28th day of May, 1901, issued such a warrant to the marshal for the Southern District of New York, by virtue of which it was directed that the said John F. Gaynor be removed to the Southern District of Georgia for trail in the District Court of the United States for the Eastern Division of the Southern District of said state of Georgia. The marshal of the said Southern District of New York took the said John F Gaynor into his custody under said warrant, and said Gaynor applied for a writ of habeas corpus, but same was denied, and on appeal the order denying the writ was affirmed by the Supreme Court of the United States on the 6th day of January, 1902. The mandate of the Supreme Court was then filed in the Circuit Court, and the judgment of the Supreme Court on the 17th day of January, 1902, was made the judgment of the Circuit Court, and Second Circuit, surrendered himself to the marshal of said Southern District of the state of New York under said warrant for removal to Georgia for trial. Thereupon the said John F. Gaynor tendered bail for his appearance in Georgia and in said district for trial under said indictment.

Gaynor entered into a recognizance on the 20th day of January, 1902, before said John A. Shields as said commissioner, with one William B. Kirk, of Syracuse, N.Y., the complainant in this action, as surety, whereby they severally acknowledged themselves to owe to the United States of America the sum of $40,000, separately to be levied and made of their respective goods and chattels, lands, and tenements to the use of the United States, if default should be made in the condition following, to wit:

'Now, therefore, the condition of this recognizance is such, that if the said John F. Gaynor shall personally appear at the Term of the District Court of the United States for the Eastern Division of the Southern District of Georgia, to be holden on the second Tuesday in February 1902, and from day to day and from term to term should the case be continued, and then and there to answer to such matters and things as have or shall be objected against him, and to stand to, abide and perform the orders of this Court, and not depart the said Court without leave, then this recognizance to be void, otherwise to remain in full force and virtue.'

This was signed by John F. Gaynor, the defendant in said indictment, and by William B. Kirk aforesaid as surety, and same was signed and acknowledged in the Southern District of the state of New York before said Shields, a United States commissioner for said district, said Kirk, however, being a resident of Syracuse, in the Northern District of the state of New York. This recognizance was approved by Hon. E. Henry Lacombe, United States circuit judge for the Second Circuit. This recognizance was filed in the clerk's office of the United States District Court, Eastern Division, Southern District of Georgia, on the 22d day of January, 1902. The said Gaynor was then discharged in the Southern District of the state of New York, and was not removed to nor taken to, nor did he appear in, the said United States District Court, Eastern Division, Southern District of Georgia.

At the February term of the said District Court, Eastern Division, Southern District of Georgia, the said court ordered the said John F. Gaynor to appear before the court on the 6th day of March, 1902, to answer to the charge then and there pending against him on indictments Nos. 322 and 371, of which said order the counsel of record of the said John F. Gaynor had due notice and the said John F. Gaynor had due notice.

At a District Court held in said Eastern Division of the Southern District of Georgia, begun on Tuesday, February 11, 1902, that being the second Tuesday of February of that year, an order was entered reciting that at the November term, 1899, of the said District Court, a true bill of indictment was found charging said Gaynor with having, within the Eastern Division of the Southern District of Georgia, on the 1st day of January, 1897, conspired to defraud the United States, and with having defrauded the government pursuant to such conspiracy, and in said order said indictment is referred to as having been numbered 322 upon the criminal dockets of said court. The said order also recites the recognize so entered into by Gaynor and Kirk. Said order further recites that at the said February term, 1902, a true bill of indictment charging said John F. Gaynor and others with unlawfully, knowingly, and feloniously conspiring, etc., to defraud the United States, and with defrauding the United States accordingly, was found, and refers to the said indictment now on file in the Eastern Division of the Southern District of Georgia, and numbered 371 upon the criminal dockets of said court. The said order then recites that at the said February term of the said District Court for the Eastern Division of the Southern District of Georgia, on the 28th day of February, 1902, an order was made in the matter of both said indictments, docket number 322 and docket number 371, stating:

'The defendants, Benjamin D. Greene, John F. Gaynor, William T. Gaynor and Edward H. Gaynor, charged as aforesaid, under bail for appearance before this Court at this Term of the Court in that behalf, are ordered by the Court personally to appear before this Court in the United States Court Room in the City of Savannah in the above stated matter, on Thursday, March 6th, 1902, at 10 o'clock A.M., then and there to stand to, abide and perform the orders of the Court in the premises.'

This order was indorsed:

'District Court of U.S., Eastern Division, Southern District of Georgia. No. 371. United States vs. Benjamin D. Greene, et al. Indictment No. 371. Order to Appear. Filed February 28, 1902. S. F. B. Gillespie, Deputy Clerk.'

March 6, 1902, an order was made, which in the heading refers to both docket numbers, and which recites the order of February 28th directing the defendants to appear on the 6th day of March, and also recites that March 6, 1902, in the said courtroom, the said Benjamin D. Greene and John F. Gaynor were duly called, but failed to appear or answer to their names when called, and also recites that their counsel then stated that they were unable to give any reason for the nonappearance of said defendants, and also recites that, the court having awaited their appearance until the hour for adjournment of court this day, and they being still in default, but their counsel asking until tomorrow before proceedings be taken to forfeit their recognizances: 'It is therefore ordered that said defendants, Benjamin D. Greene and John F. Gaynor, be given until 10 o'clock A.M. March 7th, 1902, to appear and abide the order of the Court, and that they do appear at that time at the said Court Room to abide the order of the Court in the premises.'

This order was indorsed as a proceeding on indictment No. 371.

An order of said court was made on the 7th day of March, 1902, reciting the arrest of Gaynor and his commitment by Shields, United States commissioner, and the order for his removal, and the giving of said recognizance hereinbefore mentioned and its approval, and also reciting the condition of said recognizance, and then continues:

'Now on this 7th day of March, 1902, at the February term, 1902, of the said District Court of the United States for the Eastern Division of the Southern District of Georgia, the said John F. Gaynor, principal, being solemnly called to come into Court to answer said charge, and having been duly notified to appear before the Court on this day to stand to and abide the orders of the Court in the premises; and the said William B. Kirk, his bail, having been warned to present the body of his said principal whom he engaged to be present this day to answer said charge, and said parties respectively having wholly made default: It is, therefore, considered and ordered by the Court that

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