United States v. Tittemore

Decision Date20 December 1932
Docket NumberNo. 4847.,4847.
Citation61 F.2d 909
PartiesUNITED STATES ex rel. WALMER et al. v. TITTEMORE, Marshal, et al.
CourtU.S. Court of Appeals — Seventh Circuit

Kenneth C. Charlton, of Birmingham, Ala., and Harry I. Weisbrod, of Chicago, Ill., for appellants.

Levi Bancroft, U. S. Atty., and E. J. Koelzer, Asst. U. S. Atty., both of Milwaukee, Wis., Stanley M. Ryan, U. S. Atty., and Lyman T. Powell, Jr., Asst. U. S. Atty., both of Madison, Wis., for appellees.

Before ALSCHULER and EVANS, Circuit Judges, and WILKERSON, District Judge.

EVANS, Circuit Judge.

An indictment was returned by a grand jury against Ted Doe and Shorty Roe and numerous other individuals in the Western District of Wisconsin. Petitioners were arrested in the Eastern District of Wisconsin and unsuccessfully contested, before a commissioner, removal to the Western District. Evidence was received by the court commissioner identifying petitioners as the parties named in the indictment, Ted Doe and Shorty Roe. Immediately after the order of removal was entered, appellants filed their several recognizances in accordance with said order, which provided that they thereupon be discharged from custody. Thereafter they sought a writ of habeas corpus from the District Court of the Eastern District of Wisconsin. Their petition was denied, and they appealed.

Two questions are here involved. An unfavorable answer to either is fatal to the successful prosecution of the appeal.

First. May A, arrested in one district upon a warrant there issued upon an indictment returned in another district, and whose identity, notwithstanding he is called B in the indictment, is established by a government witness before the court commissioner before whom removal proceedings are pending, review, by habeas corpus action brought in the district court where the arrest is made, the issue of identity of the party named in the indictment?

Second. May one who has been arrested pursuant to a criminal warrant issued upon the return of an indictment by a federal grand jury, and who has been released on his giving bond for his appearance in the court wherein the indictment was returned, after unsuccessfully contesting removal proceedings from one federal district to another, obtain his release through a writ of habeas corpus?

Our answer to both questions must be in the negative.

The first question is thus answered on the authority of Horner v. United States, 143 U. S. 207, 12 S. Ct....

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13 cases
  • Strand v. Schmittroth
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 3 Diciembre 1957
    ...of harmony with the later Supreme Court cases on the point, and refuses to follow it. In accord with Rowland, see United States ex rel. Walmer v. Tittemore, 7 Cir., 61 F.2d 909. 32 18 U.S.C.A. §§ 3651, 3653. 33 18 U.S.C.A. § 3653. 34 Taylor v. Taintor, 16 Wall. 366, 83 U.S. 366, 21 L.Ed. 28......
  • Matysek v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 15 Enero 1965
    ...or not, its authority is seriously undermined, if not nullified completely, by the later seventh circuit case of United States ex rel. Walmer v. Tittemore, 61 F.2d 909 (1932). There, in a habeas corpus proceeding, the second question specifically raised was: may one who was arrested and pos......
  • Moss v. State of Maryland
    • United States
    • U.S. District Court — District of Maryland
    • 31 Julio 1967
    ...1 The one case to the contrary, MacKenzie v. Barrett, 7 Cir. 1905, 141 F. 964, was overruled sub silentio in United States ex rel. Walmer v. Tittemore, 7 Cir. 1932, 61 F.2d 909, 910. (Rowland v. State of Arkansas, 8 Cir. 1950, 179 F.2d 2 When requesting consolidation and even during argumen......
  • United States v. Bradford
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 24 Enero 1952
    ...Stallings v. Splain, 253 U.S. 339, 343, 40 S. Ct. 537, 64 L.Ed. 940; Sibray v. United States, 3 Cir., 185 F. 401, 403; United States v. Tittemore, 7 Cir., 61 F.2d 909; Rowland v. Arkansas, 8 Cir., 179 F.2d 709. 5 United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263. 6 9 Cir., 186 F.2d 704. 7......
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