Ex parte Harvell

Decision Date30 September 1920
Citation267 F. 997
PartiesEx parte HARVELL.
CourtU.S. Court of Appeals — Fourth Circuit

McClammy & Burgwyn, of Wilmington, N.C., for petitioner.

E. F Aydlett, Dist. Atty., and C. E. Thompson, Asst. Dist. Atty both of Elizabeth City, N.C., for respondent.

COMMON District Judge.

On September 16, 1920, T. H. Harvell, in behalf of C. W Harvell, presented his petition, duly verified, alleging that C. W. Harvell was imprisoned in the county jail of New Hanover county and restrained of his liberty--

'by a government agent from the Department of Justice; * * * that the cause of such imprisonment or restraint, according to the knowledge and belief of the petitioner, is under the Mann Act (Comp. St. Secs. 8812-8819), but no warrant or order of arrest, or other process, as this petitioner believes and alleges, has ever been issued; that no warrant has been read to petitioner, no charge has ever been made against him, and no process ever served upon him, other than the said C. W. Harvell was taken into custody by an agent of the government and incarcerated in the common jail of New Hanover county, without being permitted to give bond; that the legality of his imprisonment has not been inquired into.'

Petitioner prayed that a writ of habeas corpus issue, etc. The writ was directed to the jailer of New Hanover county, and pursuant thereto, R. L. Harber, deputy sheriff and jailer, produced the body of C. W. Harvell before me at the Federal Court Building in the city of Wilmington, and in his return to the writ produced a mittimus in the following words and figures:

'Remand.

Form 41.

'United States Department of Justice E. District.

'September 16, 1920.

'To the Keeper of New Hanover County Jail:

'C. W. Harvell, a United States prisoner, is hereby remanded to your custody.

S. S. Nelms, Agt. Dept. J.,

'Pr. A. B. West.

F. C. Hamby, 'Dept. Justice.'

The district attorney not being in Wilmington, the hearing of the petition was continued until Tuesday, September 21, 1920, at Laurinburg, N.C. Petitioner was admitted to bail in the sum of $500 for his appearance at that time and place.

A copy of the petition, writ, return, and order were transmitted to E. F. Aydlett, Esq., district attorney, at Elizabeth City, N.C. The petition, writ, and return thereon were heard at Laurinburg, N.C., September 21, 1920; the petitioner being present and represented by his attorney, K. O. Burgwyn, Esq., and the government by C. E. Thompson, Esq., assistant district attorney. No answer was filed to the petition or return of the jailer.

S. S. Nelms made an oral statement from which it appeared that petitioner was, on September 16, 1920, in the city of Wilmington, his home being about six miles distant, in an adjoining county; that Nelms, as an assistant agent of the Department of Justice, received information, which he regarded reliable, that petitioner had violated the Mann Act. He also received information which caused him to believe that, unless apprehended, petitioner would attempt to make his escape. He was, at that time, under bond for his appearance before the state court upon a charge based upon the same facts of which Nelms had received information. He declined to give the name of the person who informed him that petitioner would attempt to escape, or in what such information consisted. The United States commissioner at Wilmington, N.C., was, on September 16, 1920, away from the city. Resident commissioners were at Jacksonville and Whiteville, in adjacent counties. Nelms wired such information as he had to F. C. Hamby, Esq., Agent Department of Justice, at Raleigh. He received an answer, but the telegram was not produced on the hearing. Nelms says that he had not received an answer to his telegram to Hamby at the time he arrested petitioner. A warrant was issued by W. P. Batchelor, Esq., United States commissioner at Raleigh, N.C., upon the complaint and affidavit of Hamby, based upon the telegram from Nelms. It reached Wilmington, N.C., on the night of September 16th. Nelms says:

'I arrested Harvell and turned him over to West, deputy marshal. Petitioner's home is six miles from Wilmington.'

No testimony was offered, or heard, touching the question of petitioner's guilt, or of his alleged purpose to escape. The only question considered was directed to the authority of either the agent of the Department of Justice or the deputy marshal to arrest and imprison petitioner without a warrant, or other authority than that shown upon the hearing.

Passing the question respecting the extent of the authority vested in an agent of an executive department to arrest and commit a citizen to imprisonment, without the intervention of an officer empowered to hear and determine whether probable cause for such arrest had been shown, and conceding to such agent the authority of a marshal, or his deputy, the very important question is presented whether he is, or can be without violating the constitutional and statutory rights of the citizen, authorized to pursue the course disclosed by the record in this proceeding.

I am not inadvertent to the fact that the United States is legally at war with the Imperial Government of Germany. The offense with which petitioner is charged had no relation to a state of war, nor is it suggested that such offense was committed within five miles of any army camp. It may not be inappropriate to call the attention of officers in the civil service of the government to the declaration of the Supreme Court that--

'The Constitution of the United States is a law for rulers and people equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of men than that any of its provisions can be suspended during any of the exigencies of government. ' Ex parte Milligan, 4 Wall. 120.

The inquiry therefore comes: When, and under what circumstances, may an officer, authorized to arrest a citizen charged with violation of the Penal Code of the United States (35 Stat. 1088), do so without a warrant, and what may he do with the person arrested? It must always be kept in mind that federal officers and courts have no power or jurisdiction to arrest, try, or punish a citizen, unless the act with which he is charged violates a federal statute. In that respect their power is subject to limitations not imposed upon state officers and courts having jurisdiction to arrest, to try, and to punish for what are known as 'common-law offenses.'

It is not questioned that federal officers may arrest, without a warrant, persons who commit, in their presence, acts declared by the Penal Code to be misdemeanors. It may be that they may, within certain limitations, arrest without a warrant persons charged with acts declared to be felonies by the Penal Code, not committed in their presence. The only statute which I find conferring such authority is section 1676, U.S. Comp. Statutes Annotated 1916, vol. 3, p. 3484 (2d Ed.), which provides that when a marshal, or his deputy, 'shall find any person or persons in the act of operating an illicit distillery, it shall be lawful for such marshal or deputy marshal to arrest such person or persons, and take him or them forthwith before some judicial officer.'

While my attention is not directed to any other statute conferring such authority, it has been held that, under the provisions of section 1674, Comp. Stat. (R.S. Sec. 1014) vol. 3, p. 3447:

'All proceedings for holding an accused person to answer to a criminal charge are assimilated to those under the laws of the state in which the proceedings take place. ' See note 13, p. 3451, Comp. Stat. 2d Ed. (West Publishing Co. Edition).

It is also held that, in the absence of any constitutional or statutory provisions, the common law furnishes the rule as to the mode of procedure in criminal cases in the federal courts. U.S. v. Kilpatrick (D.C.) 16 F. 765; 4 Blk.Com. (Jones) § 328, p. 2512, and notes. Section 1674, Comp. Stat., after naming the officers who may issue warrants for the arrest of persons charged with violation of the federal Penal Code, among whom are commissioners, mayors of cities, and justices of the peace, prescribes that the procedure shall be 'agreeably to the usual mode of process against offenders in such state. ' Section 1678, Comp. Statutes, vol. 3, p. 3484, prescribes, in unmistakable terms, the duty of an officer arresting a citizen charged with violating a federal statute, 'to take the defendant before the nearest * * * judicial officer having jurisdiction under existing laws for a hearing, commitment, or taking bail.'

This is in accord with the provisions carefully guarding the right of the citizen, found in the North Carolina Statutes. Chapter 80, Pell's Rev. 1908. Conceding the power to arrest petitioner, the offense charged being a felony, although no proof is offered to sustain the suggestion that he would escape before a warrant could be procured, and of the fact that he was...

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7 cases
  • O'Connor v. United States
    • United States
    • U.S. District Court — District of New Jersey
    • June 17, 1922
    ... ... or other parts of the United States Constitution (United ... States v. Welsh (D.C.) 247 F. 239; Ex parte Harvell ... (D.C.) 267 F. 997; United States v. Borkowski (D.C.) ... 268 F. 408; United States v. Kraus (D.C.) 270 F ... 578, 582; Kathriner v ... ...
  • State v. Barreras
    • United States
    • New Mexico Supreme Court
    • July 14, 1958
    ...jurisdictional issue assigned. Counsel for defendant cites but one case in support of his legal conclusions, the case of Ex parte Harvell, D.C.E.D.N.C., 267 F. 997. Contrary to counsel's position, that case is not authority for the proposition that an examining magistrate loses jurisdiction......
  • United States v. Daison
    • United States
    • U.S. District Court — Eastern District of Michigan
    • March 31, 1923
    ...presence of such officer when the latter is apprised thereof by his own senses. United States v. Murphy, 264 F. 842 (D.C.); Ex parte Harvell, 267 F. 997 (D.C.); United States v. Borkowski, 268 F. 408 Kathriner v. United States, 276 F. 808 (C.C.A. 9); Elrod v. Moss, 278 F. 123 (C.C.A. 4); In......
  • Goulis v. Judge of Third District Court of Eastern Middlesex
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 20, 1923
    ... ... rather than a part of the judicial power itself. This was the ... view taken by the Supreme Court of Alabama in Ex parte Gist, ... 26 Alabama, 156, wherein the authority of justices of the ... peace and other such officers to arrest and commit for a ... violation of ... upon State magistrates. In re Jessie's Heirs, 259 F. 694 ... United States v. Rykowski, 267 F. 866. Ex parte Harvell, 267 ... F. 997. United States v. Borkowski, 268 F. 408. Ex parte ... Swift, 276 F. 57 ...        In principle the ... case is somewhat ... ...
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