Biggerstaff v. United States

• Decision Date: 30 October 1919
• Docket Number: 5342.
• Citation: 260 F. 926
• Parties: BIGGERSTAFF v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

260 F. 926

BIGGERSTAFF v. UNITED STATES.

No. 5342.

United States Court of Appeals, Eighth Circuit.

October 30, 1919

E. J Burkett, of Lincoln, Neb. (Burkett, Wilson & Brown, of Lincoln, Neb., on the brief), for plaintiff in error.

T. S Allen, U.S. Atty., of Lincoln, Neb. (F. A. Peterson, Asst U.S. Atty., of Omaha, Neb., on the brief), for the United States.

Before HOOK and STONE, Circuit Judges, and AMIDON, District Judge.

HOOK Circuit Judge.

Biggerstaff was convicted and sentenced for violating the White Slave Traffic Act of June 25, 1910 (36 Stat. 825, c. 395 (Comp. St. Secs. 8812-8819)). The offense was charged to have been committed in the Chadron division of the district of Nebraska. The indictment was found and returned in the Omaha division by a grand jury drawn from the district at large, and thence transferred to the Chadron division for trial.

A demurrer to the indictment, which was overruled, specified as a ground that the finding and return of the indictment in the Omaha division was contrary to section 53 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1101 (Comp. St. Sec. 1035)), which says:

'All prosecutions for crimes or offenses shall be had within the division of such districts where the same were committed, unless the court, or the judge thereof, upon the application of the defendant, shall order the cause to be transferred for prosecution to another division of the district.'

The point made turns upon the meaning of the word 'prosecutions' as employed in the statute; that is to say, whether a prosecution includes the inquiry of the grand jury and the finding of the indictment. It was proper to draw the grand jurors from the district at large. Clement v. United States, 149 F. 305, 79 C.C.A. 243. And if the indictment was lawfully found in the Omaha division, it was lawfully returned there, provided it was afterwards transferred to the proper division for trial. The return of an indictment is naturally made to the court and at the session where the grand jury is performing its functions. We think the term 'prosecution,' in this statute, means the proceedings which follow the finding and return of the indictment, and does not embrace the preliminary inquiry and the making of the accusation. Until the latter is done there is no case or cause against the accused to be prosecuted. While persons are sometimes held in bail or confinement to await the action of a grand jury, it is not always so. That is merely precautionary. It is the process on the indictment which brings them into court to answer the accusation. It does not necessarily follow that the proceedings of a grand jury are specially directed at the person finally accused. There may at first be no formal charge against any particular person. The probability of the commission of a public offense and of the identity of the perpetrator may not be disclosed until the conclusion of their investigations. Even the locality of the criminal act, whether in one division or another, may at first be in doubt. Except as to some fundamental requirements in respect of the constitution and conduct of grand juries, the persons finally indicted are not entitled to subject their proceedings to the scrutiny and tests of a trial. McKinney v. United States, 199 F. 25, 117 C.C.A. 403. In Blair v. United States, 250 U.S. 273, 39 Sup.Ct. 468, 63 L.Ed. . . ., the court, in speaking of a grand jury, said:

'It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by...