Ex parte Marrin

• Decision Date: 07 October 1908
• Citation: 164 F. 631
• Parties: Ex parte MARRIN.
• Court: U.S. District Court — Eastern District of New York

164 F. 631

Ex parte MARRIN.

United States District Court, E.D. New York.

October 7, 1908

George Young Bauchle, for petitioner.

William P. Allen, Asst. U.S. Atty., John F. Clarke, Dist. Atty., and Peter P. Smith, Asst. Dist. Atty., for respondents.

George L. Naught, for American Surety Company.

CHATFIELD District Judge.

The present application is based upon a writ of habeas corpus issued out of this court upon the petition of Frank C Marrin, the person claimed to be imprisoned without warrant of law. The facts of the proceeding are as follows:

Upon the 3d day of May, 1895, the grand jury of the county of Kings, in the state of New York, found true bills of indictment against Frank C. Marrin upon charges of forgery and grand larceny. These indictments have been pending undisposed of, until the present time. The record upon this proceeding shows some dispute as to the whereabouts of Marrin from the time of the finding of the above indictments until the year 1907, but nothing that bears upon the present application occurred until Marrin was arrested in Buffalo N.Y., by the United States authorities, upon an indictment found in the District Court for the Eastern District of Pennsylvania, charging a scheme to defraud under the postal laws of the United States. Upon that charge Marrin was removed to Philadelphia, tried, convicted, and sentenced upon October 3, 1907, to four years' imprisonment, to pay a fine of $5,000, and to pay the costs of the trial. From that sentence an appeal to the United States Circuit Court of Appeals in the Third Circuit has been taken, which appeal is now pending and has progressed to such a point that, on the 15th day of June, 1908, Marrin was released from custody by the United States court in Philadelphia upon a bail bond running during the pendency of the appeal, in the sum of $10,000. This bail was furnished by a surety company, and the return to the writ of habeas corpus contains an allegation that the surety company has been indemnified for the amount of this bail bond.

The charge is suggested that the surety company does not take interest in being able to produce the defendant to the extent that a personal surety might, for the reason that the indemnity held by the company, coupled with the payment of a premium and the reputation acquired through prompt payment of a defaulted bond, render them indifferent to the actual production of the person bailed, in accordance with the terms of the bond.

For the purposes of the present application this, however, would seem to be entirely immaterial. A bail bond given by a surety company is authorized by Act Aug. 13, 1894, c. 282, 28 Stat. 279 (U.S. Comp. St. 1901, p. 2315), has been accepted by the courts frequently since the passage of the law, and differs in no way, so far as its legal status is concerned, from the bond of an individual. The question of motive, unless the issue of good faith is material, has nothing to do with this application.

Upon the 19th day of September, 1908, while Marrin was in the borough of Brooklyn, in the state of New York (and therefore without the boundaries of the Eastern district of Pennsylvania, and beyond the territorial jurisdiction of the United States court and of the Circuit Court of Appeals, in which the case above mentioned was pending), a warrant, based upon the old indictments filed in Kings county in 1895, was obtained from the County Court of the county of Kings, and upon this warrant Marrin was arrested in the city of New York, brought to the county of Kings, and arraigned upon the 1895 indictments. Upon the arraignment and upon the adjourned day the defendant Marrin stood mute, protesting against the jurisdiction of the County Court, and upon the 2d day of October, 1908, obtained this present writ of habeas corpus, addressed to the district attorney of the county of Kings, the warden of the city prison, and the American Surety Company of New York. On the return day the warden of the city prison has produced the petitioner and has filed a return setting forth the commitment of the County Court for the county of Kings, under date of October 2, 1908. The district attorney for the county of Kings joins in this return and sets up the pertinent facts of the record above recited. The American Surety Company appeared in court, by attorney, made no answer to the writ, and disavowed any interest in the matter, except in the obligation imposed upon it by the bail bond furnished in the city of Philadelphia. The application was brought to the attention of the United States through the district attorney of the United States for the Eastern district of New York, the United States was represented in court by an assistant United States attorney for this district, and the statement was entered upon the record that the United States had no motion to make, did not apply for the custody of the said Frank C. Marrin, and cared neither to join in nor oppose the present application.

One further matter must be noted in connection with the facts of the situation. On the 14th day of March, 1907, in the city of Philadelphia, while awaiting trial in the United States District Court for the Eastern District of Pennsylvania, Marrin was released on bail, and thereafter arrested in the city of Philadelphia upon a bench warrant based upon the indictments found in the County Court of Kings county above referred to, with a view to his extradition to the state of New York. Immediately thereafter a writ of habeas corpus was procured out of the United States District Court for the Eastern District of Pennsylvania, and upon the hearing Marrin was discharged. He was thus freed from the arrest on the bench warrant in Philadelphia, but was held by the United States District Court upon his bail bond to await trial on the indictment then pending in the United States District Court for that district.

It will thus be seen that Judge McPherson held a release upon bail in the city of Philadelphia to be equivalent to the custody of the United States court for that district, and that a defendant in custody and awaiting trial could not be taken out of the jurisdiction of the court without the permission of the court itself.

The attention of this court has not been called to any opinion of Judge McPherson, and the record does not show whether he decided that Marrin should be held for trial because the United States District Court had jurisdiction over him and did not relinquish the same, thus compelling the state authorities in Philadelphia to wait until the United States authorities should turn over Marrin to them, or whether Judge McPherson intended to hold that Marrin, while out on bail, was legally in the position of a defendant in the physical custody of the United States marshal and committed in default of bail.

The record of the case as above set forth appears, as has been stated, from the petition, the returns, and an exhibit presented at the hearing. The return of the warden and the district attorney was not traversed, and the petitioner, Marrin, contented himself with arguing upon the face of the record that the County Court of Kings county could not retain jurisdiction of his person and hold him for trial at the present time, but that he must be released and allowed to hold himself in readiness to deliver himself or be delivered by his surety to the District Court of the United States in the Eastern District of Pennsylvania, whenever the surety might desire to surrender him, under the provisions of section 1018 of the Revised Statutes (U.S. Comp. St. 1901, p. 719), or whenever the terms of the bail bond on appeal should be fulfilled and his attendance should be required.

This contention is directly opposed by the district attorney of the county of Kings, who in person and as attorney for the warden has argued the writ on behalf of the respondents. The district attorney contends that while a person is at large on bail no immunity as such exists guaranteeing him freedom from arrest for crime committed prior to the giving of bail or subsequent thereto. The district attorney cites as an illustration of his argument the following proposition Suppose a man were arrested in New Jersey for a so-called technical violation of the internal revenue laws of...