Ex parte Hyde

• Decision Date: 03 September 1904
• Docket Number: 13,652,13,653.
• Citation: 194 F. 207
• Court: U.S. District Court — Northern District of California
• Parties: Ex parte HYDE et al.

194 F. 207

Ex parte HYDE et al.

Nos. 13,652, 13,653.

United States Circuit Court, N.D. California.

September 3, 1904

F. J Heney, Sp. Asst. Atty. Gen., Arthur B. Pugh and Oliver E Pagan, Sp. Asst. U.S. Attys., and Marshall B. Woodworth, U.S Atty., for the United States.

G. W McEnerney and Bert Schlesinger, for defendant Hyde.

Samuel Knight, for defendant Dimond.

MORROW Circuit Judge (orally).

Two applications have been presented to the court, one on behalf of F. A. Hyde, and the other on behalf of Henry P. Dimond, for writs of habeas corpus. The petitioners allege that they are held by the United States marshal under color of authority of the United States by virtue of warrants of removal issued under section 1014 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 716), the warrants of removal being dated September 2, 1904, signed by the Honorable J. J. De Haven, judge of the District Court of the United States for the Northern district of California, and that they have been committed and are detained only by virtue of said warrants and not otherwise, and not by virtue of any judgment, decree, or final order of any court or judge thereof.

Section 1014 of the Revised Statutes of the United States provides as follows:

'For any crime or offense against the United States, the offender may, by any justice or judge of the United States, or by any commissioner of a Circuit Court to take bail, * * * be arrested and imprisoned or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense. * * * And where any offender is committed in any district other than that where the offense is to be tried, it shall be the duty of the judge of the district where such offender is imprisoned, seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had.'

It appears that the petitioners were indicted by the grand jury of the Supreme Court of the District of Columbia, in which indictment they are charged with having conspired with others to defraud the United States out of the possession and use of, and the title to, divers large tracts of public land of the United States open and to be opened to selection under the laws of the United States in that behalf, in lieu of lands included and to be included within the limits of certain forest reserves established and to be established by the United States in the states of California and Oregon.

The indictment is based upon section 5440 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 3676), which provides that:

'If two or more persons conspire, either to commit any offense against the United States or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars, and to imprisonment for not more than two years, or both fine and imprisonment, in the discretion of the court.'

The petitioners are residents of this district. The indictment was accordingly sent to this district, and the petitioners were arrested here and brought before the commissioner of this district, examined with respect to the charges contained in the indictment, and were held by the commissioner to answer the charges.

Upon application to the district judge for a warrant, the district judge reviewed the proceedings before the commissioner, and determined that they should be held under the indictment, and issued his warrant for removal. The matter is now brought to the attention of this court by petition for writ of habeas corpus, and the court is urged to issue writs of habeas corpus upon the ground that there is a debatable question in this case as to whether these petitioners should be held upon this indictment and removed to the District of Columbia for trial.

I have determined that I will consider the merits of the case upon this application for writs of habeas corpus. I believe I am justified in this action upon the authority of decisions of the Supreme Court of the United States approving such a course.

In the case of Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281, I find upon page 110 of 4 Wall. (18 L.Ed. 281) the following, with reference to the procedure upon petition for writ of habeas corpus:

'It is true that it is usual for a court, on application for a writ of habeas corpus, to issue the writ, and, on the return, to dispose of the case; but the court can elect to waive the issuing of the writ and consider whether, upon the facts presented in the petition, the prisoner, if brought before it, could be discharged. One of the very points on which the case of Tobias Watkins, reported in 3 Pet. 193, 7 L.Ed. 650, turned was whether, if the writ was issued, the petitioner would be remanded upon the case which he had made. The Chief Justice, in delivering the opinion of the court, said: 'The cause of imprisonment is shown as fully by the petitioner as it could appear on the return of the writ; consequently, the writ ought not to be awarded if the court is satisfied that the prisoner would be remanded to prison.'

That opinion was followed in the case of Ex parte Royall, reported in 117 U.S. 241, 6 Sup.Ct. 734, 29 L.Ed. 868. The part of the opinion of the court to which I refer is on page 250 of 117 U.S., on page 739 of 6 Sup.Ct. (29 L.Ed. 868). The court, speaking of the proceeding in that case, said:

'It remains, however, to be considered whether the refusal of that court to issue the writ and to take the accused from the custody of the state officer can be sustained upon any other ground than the one upon which it proceeded. If it can be, the judgment will not be reversed because an insufficient reason may have been assigned for the dismissal of the petitions. Undoubtedly the writ should be forthwith awarded, 'unless it appears from the petition itself that the party is not entitled thereto'; and the case summarily heard and determined 'as law and justice require.' Such are the express requirements of the statute. If, however, it is apparent upon the petition that the writ, if issued, ought not, on principles of law and justice, to result in the immediate discharge of the accused from custody, the court is not bound to award it as soon as the application is made'-- citing a number of cases.

These cases have been followed in a number of other cases that have come before the courts of the United States, so that it is clearly within the province of the court to inquire preliminarily, upon the allegations of the petition, whether it shall issue the writs of habeas corpus or not.

The objections to the warrant of removal and to the petitioners being held upon the indictment in this case are based upon the charges contained in the indictment, and not upon any matter outside of that document. It is therefore competent for the court to examine into this case upon the merits, upon this application.

What is the scope of such an examination? That is the first question the court is called upon to determine. This is an application to review the action of the commissioner in holding the defendants to answer to this indictment. It is also a petition to review the action of the district judge in issuing the warrant of removal. Both proceedings are claimed to be erroneous, because: First, the indictment fails to charge the petitioner with the commission of any crime or offense against the laws of the United States, or any frauds against the United States; and, second, the Supreme Court of the District of Columbia is without jurisdiction to try the offense, or any offense said to be set up in the indictment.

In the case of Horner v. United States, 143 U.S. 207, 12 Sup.Ct. 407, 36 L.Ed. 126, this very question of the scope of the inquiry upon writ of habeas corpus involving removal was considered by the court. It was there sought by writ of habeas corpus to test the sufficiency of the indictment upon which the petitioner was held under the lottery act for sending circulars through the mails for the sale of certain Austrian bonds, which were charged to be nothing but a scheme for a lottery. The question made on the petition for the writ of habeas corpus was that the bonds were not a lottery, within the meaning of the federal statute. The Supreme Court held that the question whether the scheme was a lottery was a question to be determined by the commissioner, by the grand jury, and by the District or Circuit Court in which the indictment was to be tried, and that it was not for the Circuit Court or for the Supreme Court, on the writ of habeas corpus, to determine this question in advance.

This case was referred to in another case, brought before Circuit Judge Taft of the Ohio Circuit, that of In re Rickelt, reported in 61 F. 203. Judge Taft follows the case of Horner v. United States, and decided that a writ of habeas corpus would not lie to determine the question of law whether the facts proved before a United States commissioner on a preliminary hearing are sufficient to constitute the crime for which the prisoner has been committed. In this connection the court said:

'The only question which it is sought to make here on behalf of the petitioner is that the facts developed before the commissioner were not evidence sufficient to constitute the offense described in section 3892 (U.S. Comp. St. 1901, p. 2657). That is a mere question of law, the decision of which is in the first instance committed, by section 1014 of the Revised Statutes, to the jurisdiction of the United States commissioner before whom the preliminary examination is had. * * * The writ of habeas

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