Ex parte McCabe

• Court: U.S. District Court — Western District of Texas
• Citation: Ex parte McCabe, 46 F. 363 (W.D. Tex. 1891)
• Decision Date: 02 April 1891
• Parties: Ex parte McCABE.

46 F. 363

Ex parte McCABE.

United States District Court, W.D. Texas, Austin Division.

April 2, 1891

George R. Scott and F. R. Graves, for petitioner.

MAXEY J.

On the 26th of February, 1891, a petition, duly verified by affidavit, was presented to the court on behalf of Mrs. Mary Inez McCabe, stating that she had been arrested by the sheriff of Nueces county, Tex., and was now illegally detained and restrained of her liberty. It is alleged in the petition that the petitioner was born in Bandera county Tex., of parents of American birth; that her husband, H. T McCabe, was born in the state of Illinois, of parents of American birth, and that both she and her husband have continued to be and are now citizens of the United States. The further allegations are made:

'That since the 13th day of February, A.D. 1891, she has been unlawfully and illegally restrained of her liberty by one Patrick Whelan, sheriff of Nueces county, and who pretends to be acting under and by authority of a certain treaty and convention between the United States of America and the republic of Mexico, of date the 11th of December, 1861, and by virtue of certain telegraphic and other pretended writs and papers from a pretended officer, who styles himself the county judge of Cameron county, and extradition agent, county of Cameron, and the copies of the which said papers and process are hereto attached.'

After reciting other facts, not necessary to consider, the petition prays for the issuance of a writ of habeas corpus. Among the papers attached as exhibits to the petition, the only one deserving of notice is the writ issued by Judge FORTO in the following form 'THE UNITED STATES OF AMERICA.'

'The State of Texas to the Sheriff or any Constable of Nueces County, Texas, greeting: Whereas, pursuant to the existing treaty between the United States of America and the republic of Mexico for the extradition of criminal fugitives from justice under certain circumstances, the Hon. LAMON F FLORES, judge in and for the third judicial district of the state of Tamaulipas, and extradition agent in and for said district in said state of Tamaulipas, republic of Mexico, has made requisition and application in due form to me, E. C. FORTO, county judge of Cameron county, Texas, and extradition agent, for the arrest of Maria Inez McCabe, who stands charged with the crime of murder, alleged to have been committed in the town of Reynosa, within the third judicial district, as aforesaid, on the 18th day of August, 1890, be feloniously killing one Max Stein, at such time and place, and that the said Maria Inez McCabe has fled from the custody of the proper officers in the city of Matamoras, in said state of Tamaulipas, and has taken refuge in this state of Texas from the laws and justice of the state of Tamaulipas as aforesaid. And whereas, it appears proper that the said Maria Inez McCabe should be apprehended, as requested in said requisition and application made by the said judge of the third judicial district of the said state of Tamaulipas, and extradition agent as aforesaid, on the 14th day of February, 1891, and that the said charge preferred against her, the said Maria Inez McCabe, be examined in the manner provided for by law: Now, I, E. C. FORTO, county judge of Cameron county, Texas, and extradition agent, do hereby command you to arrest the said Maria Inez McCabe, if to be found in your county, and bring her before me as such county judge of said Cameron county, Texas, and extradition agent, at my office in the city of Brownsville, in said county of Cameron, and state of Texas, forthwith, then and there to answer the said requisition and application for arrest and extradition, as aforesaid, and that the necessary proceedings may be had in pursuance to law, in order that the criminality of the said Maria Inez McCabe may be heard and considered, and, if deemed sufficient to sustain the charge, that she may be surrendered under the law. Herein fail not, but of this writ make due return, showing how you have executed the same.

'Witness my official signature, and the seal of the county court of the county of Cameron, at office in the city of Brownsville, Texas, on this 16th day of February, A.D. 1891.

(Signed) 'E. C. FORTO,'

'County Judge and Extradition Agent, Cameron County, Texas.'

On the day the petition was presented, a writ of habeas corpus was directed to be issued to Sheriff Whelan, and a certiorari to Judge FORTO, and the order of court further directed the clerk to transmit a copy of the order, by registered mail, to the consul of the republic of Mexico, resident at Brownsville. The writs to the county judge and sheriff, respectively, were made returnable the 17th of March, 1891, on which day the sheriff produced the prisoner before the court, and made return to the habeas corpus, the material portion of which is in the following words:

'In obedience to the within writ, I hereby produce before the Hon. district court of the United States for the western district of Texas Mary Inez McCabe, and attach hereto the writ of E. C. FORTO, county judge of Cameron county and extradition agent, upon which authority I had and held the said Mary Inez McCabe at the time of service upon me of the within write of habeas corpus.' The writ of certiorari was not served upon the county judge in Cameron county, but in Austin, and only a few days before the day set for the hearing. His sworn answer shows that it was impracticable for him to procure copies of the proceedings had before him in time for the 17th; and to avoid further delay, the following statement made by Judge FORTO, and on file among the papers of the cause, and accepted as a sufficient return to the writ:

'That the warrant for the arrest of Mrs. M. I. McCabe was based on a requisition made by the district judge and extradition agent at Matamoras, Mexico. That said requisition charges the said M. I. McCabe with having committed the crime of murder, as recited in said warrant. That said requisition is not certified to by the American consul residing at Matamoras, Mexico, and that it came to me through the Mexican consul at Brownsville.'

As directed by the order of court, the clerk transmitted by registered mail a copy of the order before mentioned to the Mexican consul at Brownsville, and his reply, acknowledging receipt, is now on file.

It will thus be seen that the warrant for the arrest of the prisoner was predicated upon the requisition made by Hon. LAMON F. FLORES, federal judge of the third district of the state of Tamaulipas, and acting as extradition agent for said district. And the sheriff of Nueces county was commanded by the warrant to arrest Mrs. McCabe, and to take her before the county judge of Cameron county, 'then and there to answer the said requisition and application for arrest and extradition. ' Judge FORTO had before him no 'complaint made under oath' charging the prisoner with crime, nor was there in fact presented to him any complaint, document, or other paper as a predicate for the warrant, except the requisition of Judge FLORES. The only step taken by the county judge was the issuance of the warrant of arrest. Thenceforth he performed no official act in relation to the proceeding. At the hearing on the 17th inst., which was ex parte, no one appearing for the Mexican government, the only evidence introduced by the prisoner was on the question of citizenship, and from the proof it clearly appears that both she and her husband are now, and have been continuously since their births, citizens of the United States. The court desires here to state that the expression of its views will be limited solely to the objections urged by counsel for petitioner. Other questions, as those affecting the regularity and validity of the requisition emanating from Judge FLORES, and the competency of the sheriff of a county to execute a warrant of arrest issued pursuant to the extradition statutes, and perhaps some others, which are suggested by the proceedings in this case, will be passed over, and their consideration reserved. Upon the foregoing record, the question arises, shall the prisoner be discharged, or remanded to custody to be dealt with by the proper authorities, as the laws of extradition and the treaty between the United States and the republic of Mexico direct? Her counsel insist upon an immediate discharge, and assign in support of their contention three specified grounds: (1) The warrant which issued for the arrest of the petitioner is void, because it fails to disclose upon its face that the officer issuing it was duly authorized for that purpose by the chief executive of Texas. (2) The warrant is without validity for the further reason that it was not based upon a complaint under oath. (3) The petitioner, being a citizen of the United States, cannot lawfully be surrendered to the authorities of Mexico for punishment for crime committed within the jurisdiction of the latter republic.

The first point requiring the consideration of the court is whether the questions suggested by the objections of counsel are raised in such manner as to be reviewable on a writ of habeas corpus. It is settled law that a writ of habeas corpus in a case of extradition cannot perform the office of a writ of error. Employing the language of the supreme court:

'The main question to be considered upon such a writ of habeas corpus must be, 'Had the commissioner jurisdiction to hear and decide upon the complaint made by the Mexican consul?' and, also, was there sufficient legal ground for his action in committing the prisoner to await the requisition of the Mexican authorities?' Benson v. McMahon, 127 U.S. 462, 8 S.Ct. 1240.

It is not deemed necessary to enter upon a discussion of the proposition, and...