Barrett v. Bigger

• Decision Date: 03 January 1927
• Docket Number: No. 4474.,4474.
• Parties: BARRETT v. BIGGER, Agent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

57 App. DC 81, 17 F.2d 669 (1927)

BARRETT v. BIGGER, Agent.

No. 4474.

Court of Appeals of District of Columbia.

Submitted December 7, 1926.

Decided January 3, 1927.

Petition for Rehearing Denied January 15, 1927.

R. H. McNeill and J. W. Maher, both of Washington, D. C., for appellant.

Peyton Gordon and Neil Burkinshaw, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, ROBB, Associate Justice, and HATFIELD, Judge of the United States Court of Customs Appeals.

MARTIN, Chief Justice.

The appellant, Thomas F. Barrett, was arrested upon a warrant issued by the Supreme Court of the District of Columbia, under authority of section 930, D. C. Code, upon a requisition of the Governor of Pennsylvania, based upon an indictment found against appellant in that state, charging him with the crime of obtaining money under false pretenses. He applied to the Supreme Court of the District for a writ of habeas corpus as a means of testing the legality of his detention. Upon a hearing duly had the writ was discharged, the petition dismissed, and appellant was remanded to the custody of appellee. This appeal was then taken.

Appellant states in his brief that there are but two questions to be inquired into by this appeal: First, "Are the (requisition) papers on their face regular in form; that is, do they state substantially a charge of crime against the accused upon which he can be tried if extradited?" and, second, "Is the accused a fugitive from the justice of the demanding state?" Appellant contends that each of these questions must be answered in the negative.

Appellant's first contention is based upon the record of the proceedings had in the Pennsylvania court in his case, a copy of which is annexed to the requisition petition. This discloses that the indictment against him was found by a grand jury of Sullivan county, Pa., in the month of November, 1919; that he appeared in court at various times thereafter, and entered into various recognizances for future appearances, and that on September 8, 1921, a jury was called and sworn in his case; that the jury was then discharged, the record failing to show a legal necessity for this order, or that appellant as defendant consented thereto. Appellant claims that by reason of the impaneling and swearing of a jury he was placed in jeopardy, and therefore cannot again be put to trial upon the indictment. He claims accordingly that the requisition petition fails to state a charge of crime against him upon which he can be tried if extradited, and that he should therefore be discharged from appellee's custody.

We cannot agree with this contention. The entry in the record to which appellant refers reads as follows: "September 8, 1921. — Jury called and sworn." There is no entry of the discharge of the jury or the date thereof, although manifestly the court must have ordered such a discharge. No ground for the court's order is stated in the record, nor is any reference made to either consent or objection of the defendant thereto. But under date of the next day, to wit, September 9, 1921, appears the following entry: "Cont'd to Nov. Sess. 1921, on request of Dft.; consented to by Dist. Atty., Prosecutor, and Private Counsel. (See Trial List No. 5, page 69)." It also appears that the defendant on the same day entered into a recognizance...