Ex parte Whitten

• Citation: 67 F. 230
• Court: U.S. District Court — District of Connecticut
• Decision Date: 04 April 1895
• Parties: Ex parte WHITTEN.

67 F. 230

Ex parte WHITTEN.

United States Circuit Court, D. Connecticut.

April 4, 1895

Wm. H Baker and A. D. Penney, for petitioner.

T. E Doolittle and L. N. Blydenburgh, for the State.

TOWNSEND District Judge,

Petition for a writ of habeas corpus alleging that the petitioner is a citizen of the state of Massachusetts, and that he is now detained in Connecticut, in violation of the constitution and laws of the United States. The writ was issued, and the sheriff brought the petitioner into this court, and made return, as to the cause of his detention and imprisonment that he was committed to jail by virtue of a mittimus, in the form provided for by statute, duly issued by a justice of the peace on the application of the bondsman upon oath that the petitioner intended to abscond. A hearing was had upon a motion to quash the return. As counsel have asked for a speedy disposition of the case, I have confined myself herein to a brief statement of my conclusions. The petitioner was arrested in Massachusetts, and brought into this state under a warrant issued by the governor of Massachusetts upon the requisition of the governor of Connecticut, accompanied by a certified copy of the indictment charging the crime, and an affidavit that the petitioner was a fugitive from justice. It is claimed in support of the petition that the indictment was procured by mistake, and that the prisoner was not in fact a fugitive from justice. These claims are denied by the attorney for the state. In view of the conclusions reached it is not necessary to pass upon these questions of fact. It may be assumed, in the disposition of this motion, that the allegations in the petition are true. Counsel for the petitioner claims that he can prove, in the first place, that the indictment is invalid or void by reason of some mistake on the part of the grand jury. But the effect of an inquiry into this question, assuming such evidence to be admissible and true, would be to call upon the federal court to examine into the proceedings under which said indictment was obtained, and to determine collaterally its sufficiency under the laws of this state. It has been repeatedly decided by the supreme court of the United States, in cases of this character, that while the federal court may have power, in its discretion, to issue writs of habeas corpus to state courts in cases of urgency, and where it appears that the petitioner is restrained of his liberty in violation of his rights under the constitution, the exercise of such power, before the question has been raised or determined in the state court, is one which ought not to be encouraged. As is said by Mr. Justice Brown, delivering the opinion of the supreme court in Cook v. Hart, 146 U.S. 183, 195, 13 Sup.Ct. 40:

'The party charged waives no defect of jurisdiction by submitting to a trial of his case upon the merits, and we think that comity demands that the state courts, under whose process he is held, and which are equally with the federal courts charged with the duty of protecting the accused in the enjoyment of his constitutional rights, should be appealed to in the first instance. Should such rights be denied, his remedy in the federal court will remain unimpaired.'

It is further claimed that the petitioner was not a fugitive from justice, and that, inasmuch as extradition proceedings are based upon the statutes of the United States, the question whether he was in fact such fugitive is a federal question which it is the duty of this court to decide. But it is not denied that the demand made upon the executive authority of the asylum state,...