Ex parte Hibbs

• Decision Date: 04 February 1886
• Citation: 26 F. 421
• Parties: Ex parte HIBBS.
• Court: U.S. District Court — District of Oregon

26 F. 421

Ex parte HIBBS.

United States District Court, D. Oregon.

February 4, 1886

Frank Ganahl, Richard Williams, and George Burnett, for prisoner.

James F. Watson and James H. Hawley, for defendant.

DEADY J.

On December 19, 1885, a writ of habeas corpus was allowed by me directed to Fred. Dubois, and returnable before this court on December 24th, commanding him then and there to produce the body of Isaac N. Hibbs, together with the cause of his capture and detention. The writ was allowed on the petition of Ella Hibbs, the wife of the prisoner, alleging substantially that in July last said Hibbs was unlawfully delivered to John J. Murphy, a post-office inspector of the United States, by 'the authorities of British Columbia,' on a pretended warrant of extradition, wherein he was charged with the crime of forging a certain postal money order, 22,768, and by said Murphy conveyed to Lewiston Idaho, where he was indicted for said crime, and 'duly acquitted thereof,' but that said Dubois has nevertheless taken said Hibbs into his custody, and is transporting him to Decatur, Illinois, there 'to be tried upon an alleged and pretended charge of uttering forged money orders,' which crime is not mentioned in said pretended warrant of extradition; that the petitioner is unable to ascertain the tenor of the pretended process on which said Hibbs is detained, but she believes and is advised by counsel that the same is illegal, because there is no legal process whatever to authorize the restraint of said Hibbs; and that said Dubois is about to transport said Hibbs through the county of Umatilla, in this district, en route to Iowa.

The writ was served on Dubois on December 21st, as he was passing through Umatilla county with Hibbs in his custody, and, by an arrangement between counsel, he had until January 4th to produce the body and made his return to the writ, at which time an order was made committing Hibbs to the jail of this county pending the proceeding. Owing to the great delay in getting copies of papers from Victoria and Lewiston, the proceeding, by consent of counsel, was delayed from time to time, so that the return was filed on the seventh inst., and the reply thereto on the 15th. The case was heard on the fifteenth, sixteenth, and eighteenth inst., and during the argument, by consent of counsel, copies of the complaint before the committing magistrate at Victoria, in British Columbia, under the Canadian 'extradition act of 1877,' together with his 'judgment' and certificate of committal to the minister of justice of the Dominion government and the record of the proceeding in U.S. v. Hibbs, in the district court, at Lewiston, were put in evidence, with the understanding that the facts stated therein should have weight in the consideration and determination of the case according to their legal effect.

From the pleadings and papers, it appears that on July 27, 1885 Mr. John J. Murphy, a postal inspector of the United States, made a complaint at Victoria, in British Columbia, before Hon. Mr. Justice CREASE, of the supreme court of said province, under the Canadian extradition act of 1877, in which he accused the prisoner, Isaac N. Hibbs, of the crime of forging and uttering, at Lewiston, Idaho, while acting as postmaster thereat, postal money order 22,768, with intent to defraud the United States; and on July 29th made another complaint under said act before said justice, in which he accused said Hibbs of forging and uttering at the same place, and while so acting as postmaster, 35 other postal money orders, numbered between 22,647 and 22,810, both inclusive, with intent to defraud the United States; that said orders were drawn on the ninth, tenth, and eleventh of April, 1885, for the sum of $100 each; six of them being drawn on each of the following offices: Leadville, Colorado; Decatur, Illinois; Kearney, Nebraska; Lake City, Minnesota; Plankington, Dakota; and Nebraska City, Nebraska; and that said Hibbs, on May 2, 1885, did forge the name of J. G. Wilson on the backs of three drafts, dated April 24, 1885, and drawn by the National Bank of Nebraska City on the National Bank of Omaha in favor of said Wilson for $200 each, which drafts were so issued in payment of the six orders drawn by Hibbs on the office at Nebraska City, and were thereafter negotiated by him through the National Bank at Lewiston. After an examination of the case Mr. Justice CREASE held the prisoner for extradition under the tenth article of the treaty of August 9, 1842, with Great Britain, on all the charges made against him, as appears by 'the judgment' which he then delivered and refers to in his report to the minister of justice; and on July 31st he issued a warrant committing Hibbs to the common jail of Victoria, 'on the ground of his being accused of the crime of forgery within the jurisdiction of the United States of America,' until duly discharged.

From this 'judgment' it also appears that Hibbs, as postmaster, wrote letters of advice to the postmasters at the several offices on which these orders were drawn, informing them that the same were purchased by J. G. Wilson or W. H. Dent, fictitious persons, so far as appears, and were payable to certain banks, naming them, to which latter he, at the same time, wrote letters, in the name of such purchaser, inclosing the orders, and asking that they be collected, and the funds remitted to the writer in a registered letter, directed to Pierce City, Idaho, which being done, the packages passed through his office, at Lewiston, and were taken out by him, and the contents converted to his own use; that no application was made for any of these orders, and no money paid for any of them; and that the prisoner confessed, when arrested, to having obtained by this means over $20,000.

On September 10, 1885, a warrant for the extradition of Hibbs was issued by the minister of justice, addressed to the keeper of the common jail at Victoria and to J. J. Murphy. It recites that Isaac Newton Hibbs, accused of the crime of forgery within the jurisdiction of the United States of America, 'was delivered into the custody of said keeper by the warrant of Mr. Justice CREASE, aforesaid, to await his surrender to the United States of America,' and that an application for a writ of habeas corpus, made to the supreme court of British Columbia by said Hibbs, was refused, and commands said keeper to deliver Hibbs to the custody of said Murphy, and the latter to receive him, and convey him within the jurisdiction of the United States, and there place him in the custody of any person appointed thereby to receive him. That thereafter the said keeper, pursuant to said warrant, delivered said Hibbs to said Murphy, who thereupon conveyed him to Lewiston, and there delivered him into the custody of the proper authority for trial on said charge in the district court for Nez Perces county, Idaho; but it does not appear that said Murphy ever had said warrant of extradition in his possession, or that the same is on file in the clerk's office of said court. That on November 20, 1885, the grand jury of said district court found four indictments against Hibbs, thereby accusing him of the crime of forging, at Lewiston, on April 10, 1885, four certain postal money orders for the sum of $100 each, and of uttering one such order, with intent to defraud the United States, as follows: No. 1, for forging order 22,773; No, 2. for forging order 22,768; No. 3, forging order 22,770, and for uttering the same, well knowing that it was forged; No. 4, forging order 22,771, and a letter of advice thereabout of the same number, to the postmaster at the office on which said order was drawn, stating that the same had been purchased by J. G. Wilson, and was payable to the national bank at that place,-- Decatur, Illinois,-- it being also alleged in indictments 1 and 2 that the defendant therein falsely signed and issued a letter of advice in each of said cases, of the same number as the order mentioned therein, stating that the purchaser of the same was J. G. Wilson, and that it was issued in favor of the national bank at Decatur, Illinois.

On the same day a bench-warrant was issued on each of these indictments, indorsed, 'Admit to bail in the sum of $3,000,' on which Hibbs was brought into court and arraigned, when a plea to the jurisdiction in indictment 1 was interposed, which was argued and considered as a plea to the other three indictments also, to the effect that the indictments in each case charged a crime for which the defendant was not extradited; which plea set forth the circumstances of the arrest and extradition of Hibbs from British Columbia substantially as above stated, but averred that the charge on which he was arrested and extradited was the forging and uttering of order 22,768, and no other. The court overruled the plea; whereupon a demurrer was filed to one of the indictments on the grounds (1) that it charged more than one offense; and (2) that the facts stated did not constitute any offense,-- which was argued and considered as a demurrer to all four of the indictments, and overruled by the court. On December 8th the plea of 'not guilty' was entered in each case, and, by consent of counsel, indictments 2, 3, and 4 were ordered 'consolidated for the purposes of a trial thereon,' which commenced on the following day, and ended on the 16th, with a verdict of not guilty, as charged in the indictment, 'of uttering order 22,770,' or 'of forging order 22,771;' and a statement that the jury were unable to agree on the charge in indictment 2, for forging order 22,768,-- which verdict was received, and the jury discharged from the further consideration of the case, and 'the prisoner was remanded to custody. ' On the following day the court...