Ex parte Collins

• Decision Date: 22 November 1906
• Docket Number: 14,017.
• Citation: 149 F. 573
• Court: U.S. District Court — Northern District of California
• Parties: Ex parte COLLINS.

149 F. 573

Ex parte COLLINS.

No. 14,017.

United States Circuit Court, N.D. California.

November 22, 1906

George D. Collins, in pro. per.

WOLVERTON District Judge.

The petitioner, having been convicted in the Superior Court of the state of California, in and for the city and county of San Francisco, of the crime of perjury, and being in the custody of the sheriff of said city and county, pending an appeal to the Court of Appeals of the state, has filed in this court a petition praying for the issuance of a writ of habeas corpus that he may be released from such custody. The petitioner was indicted on July 13, 1905, by the grand jury impaneled in said superior court for the crime of perjury alleged to have been committed on June 30, 1905. Prior thereto he departed from the United States to the Dominion of Canada. Proceedings were instituted for his extradition, that he might be tried for the offense charged against him, and he was accordingly returned to this country. Thereafter his cause came on for trial, resulting on December 23, 1905, in a disagreement of the jury. He became a witness in his own behalf. On the following 29th of the same month the prisoner was again indicted by the grand jury, sitting in the same court, upon another charge of perjury alleged to have been committed on December 12, 1905; that is, while he was a witness at the trial under his previous indictment. For this offense latterly charged he was convicted on February 27 1906, and is now in the custody of the sheriff pending an appeal as above indicated. An order having been issued to the sheriff and William Hoff Cook, the prosecuting attorney for said city and county, to show cause, they have made returns separately, from which these facts appear, among others which are narrated in detail, disclosing the entire history of the case from its inception.

The petitioner has interposed demurrers to these returns challenging the jurisdiction of the state court to try the petitioner for any other offense than that for which he was extradited, whether committed prior or subsequent, until he is either convicted for such offense and has served his sentence, and has had a reasonable time to return again to Canada, or acquitted and has had a like opportunity to depart this country. The case has been carefully and exhaustively presented, and questions of peculiar moment and interest have been discussed. There lies, however, at the very threshold of the inquiry, a question of the discretion of this court to take cognizance by habeas corpus now and to determine the matters and things involved, notwithstanding the petitioner's cause is still pending in the state court. All the questions here raised have been made matter for adjudication in the state court, and I must and ought to assume that they will be passed upon in due course and rightly determined, so that justice will be rendered to petitioner there eventually as well as in this court. Furthermore, the petitioner's right of review does not end with the Court of Appeals of this state, but he will have the right of appeal to the Supreme Court of that jurisdiction, and, if the judgment there is against him, he has a right of a writ of error from the Supreme Court of the United States, the same tribunal of final cognizance that can be reached through federal jurisdiction. Ultimately, therefore, his grievances will receive attention at the hands of the highest judicial tribunal of the land, and there appears no particular reason why his relief should not be as expeditious in the one channel as in the other. There is no doubt that the Circuit Courts of the United States have jurisdiction in habeas corpus to discharge from custody a person restrained of his liberty, in alleged violation of the Constitution of the United States or of any treaty thereof; and it is unnecessary to cite authorities in support of the proposition, but in the exercise of that jurisdiction the Circuit Courts have a discretion, legal, however, in character, to be controlled by such principles as are applicable to the particular case in hand. The Supreme Court of the United States, in the case of New York v. Eno, 155 U.S. 89, 93, 15 Sup.Ct. 30, 39 L.Ed. 80, in stating what was determined by the prior case of Ex parte Royall, 117 U.S. 241, 6 Sup.Ct. 734, 29 L.Ed. 868, where the subject is most ably and exhaustively treated, says:

'This court held that Congress intended to invest the courts of the Union and the justices and judges thereof with power, upon writ of habeas corpus, to restore to liberty any person within their respective jurisdictions who is held in custody, by whatever authority, in violation of the Constitution or any law or treaty of the United States; that the statute contemplated that cases might arise when the power thus conferred should be exercised during the progress of proceedings instituted against the petitioner in a state court, or by or under the authority of a state, on account of the very matter presented for determination by the writ of habeas corpus. But it was adjudged that the statute did not imperatively require the Circuit Court by writ of habeas corpus to wrest the petitioner from the custody of the state officers in advance of his trial in the state court; that while the Circuit Court of the United States has the power to do so, and could discharge the accused in advance of his trial, if he be restrained of his liberty in violation of the National Constitution, it is not bound in every case to exercise such power immediately upon application being made for the writ.'

In the Royall Case it seems that, in addition to the petition presented to the Circuit Court, Royall made application to the Supreme Court of the United States direct for a writ of habeas corpus, based upon the same facts as those set forth in the petition addressed to the Circuit Court, and the application was denied; the court saying (Ex parte Royall (Original) 117 U.S. 254, 255, 6 Sup.Ct. 734 (29 L.Ed. 868)):

'It is sufficient to say that if this court has power, under existing legislation and upon habeas corpus, to discharge the petitioner, who is in custody under the process of a state court of original jurisdiction for trial on an indictment charging him with an offense against the laws of that state, upon which it is not necessary to express an opinion, such power ought not, for the reasons given in the other cases just decided (Ex parte Royall No. 1 and Exparte Royall No. 2,

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