In re Benson

• Decision Date: 23 November 1893
• Citation: 58 F. 962
• Court: U.S. District Court — Northern District of California
• Parties: In re BENSON.

58 F. 962

In re BENSON.

United States Circuit Court, N.D. California.

November 23, 1893

J. C Campbell, for petitioner.

Chas A. Garter, U.S. Atty., and F. S. Stratton, Special Asst. U.S Atty., for the United States.

HANFORD District Judge.

To give a clear understanding of this case and of my reasons for granting the petition, it is necessary to make a brief statement of the proceedings connected with the indictment set forth in the petition, as the same appear of record. The acts for which the government prosecutes the petitioner, M F. Reilly, George H. Perrin, and others were committed in the state of California prior to the act of congress dividing the district of California, and creating the southern district of said state, and establishing United States circuit and district courts for said new district, and continuing the previously existing circuit and district courts as circuit and district courts for the northern district of California. The act contains the following saving clause:

'Sec. 11. That all offenses heretofore committed in the district of California shall be prosecuted tried and determined in the same manner and with the same effect to all intents and purposes, as if this act had not been passed.' 24 Stat. 310.

To give effect to this provision, the courts have held that for the prosecution, trial, and decision of all cases for offenses committed within the state prior to the date of the act, and for the purpose of issuing and enforcing judicial writs and process in such cases, the courts for the district of California continue to exist. U.S. v. Benson, 31 F. 896, 12 Sawy. 477. In November, 1887, a grand jury presented to the circuit court for said district a number of indictments, including the indictment against Benson and Reilly set forth in the petition, and a similar indictment against Perrin, McNee, and Benson, to which further reference will be made. Indictments in kindred cases were also returned to the district court in December, 1886, and to the circuit court in February, 1888. The defendants, upon being arraigned, by pleas in abatement and demurrers denied the jurisdiction of the courts, and questioned the validity of each of the several indictments on various grounds, but in most of the cases their pleas and demurrers have been overruled. The prosecution of these cases has necessarily caused great expense to the government. The successive incumbents of the office of United States attorney for the district and special counsel on behalf of the government have been vigorous and untiring in their efforts to succeed, and those now in charge of the cases are still uncompromising and zealous. Among other causes for delay in the final determination of the cases have been changes in the judiciary by the death of the circuit judge for the ninth circuit and of the district judge for the northern district of California. The present circuit judge residing in the district and district judge for the northern district of California are both disqualified in these cases by reason of having been, in the performance of official and professional duties previous to their respective appointments to the bench, required to act in matters connected with the prosecution of these cases. To facilitate the proceedings, the district judge for the district of Washington has been, pursuant to section 592, Rev. St., designated and appointed to have and exercise the powers of district judge for the district of California, and to hold a circuit court for said district, commencing on a day set for the trial of the case upon the indictment set forth in the petition and another similar case. Thereupon the defendants in the two cases for which trials had been so arranged, by their attorneys, applied to said district judge for leave to withdraw their pleas of not guilty, and to again present the questions as to the validity of the indictments by demurring thereto. After hearing full arguments, I found the objections to the indictments to be serious. I entertained grave doubts whether the defects in the indictments would be cured by verdicts against the defendants, and deemed it to be inexpedient for the government to go to trial in said cases unless such verdicts, if secured, could be lawfully sustained. Therefore, said applications were granted, and afterwards the demurrers were argued before Hon. William B. Gilbert, circuit judge, and myself, and taken under advisement. Upon consulting together, the judges found it impossible to render a decision sustaining said indictments without disregarding the rules of pleading in criminal cases under the laws of the United States, as given and repeatedly affirmed by the decisions of the supreme court, and we were reluctant to sustain the demurrers, because these indictments, with others, had been previously demurred to, and the court had sustained them, and, no opinion having been filed, we were in the dark as to the reasons for the court's ruling. We therefore announced that the order fixing a date for the trials would be vacated, and that we would hold the demurrers under advisement until the justice of the supreme court allotted to the ninth circuit, the only surviving judge of the circuit court who had previously considered the demurrers, could be induced to hear a reargument, or at least be consulted. The trials being thus postponed indefinitely, the defendant Benson was by his sureties surrendered into the custody of the marshal, and he then filed his petition for a writ of habeas corpus in the circuit court for the northern district of California.

Having regard to the right of the defeated party, whether it be the government or the prisoner, to appeal from the judgment of the circuit court to the circuit court of appeals, and as Judge Gilbert would be disqualified from sitting as a member of the appellate court if he should decide the case in the circuit court, he deemed it expedient and necessary to make an order designating the district judge for the district of Washington to hold said circuit court during the pendency of the habeas corpus proceedings. The writ having been issued, the marshal made return thereon, showing that he holds the petitioner awaiting trial upon the indictment set forth in the petition under a mittimus issued by the circuit court for the district of California, after the surrender of the petitioner by his bail, and not otherwise. Thereupon the prisoner's attorney moved for his discharge on the ground that the return is insufficient, inasmuch as it admits that the prisoner is detained in actual custody for no cause other than to hold him for trial upon the indictment set forth in his petition; that said indictment does not charge the commission of any acts constituting a crime under the laws of the United States,--and hence the petitioner is deprived of his liberty without due process of law, in violation of the provisions of the fourteenth amendment to the constitution. This is the only ground for the motion which I have considered, although the petition states that the imprisonment is illegal for other reasons.

The indictment is set forth in haec verba in the petition. It is founded upon section 5440, Rev. St., and attempts to charge an unlawful conspiracy to defraud the United States. The first count charges:

'That John A. Benson and M. F. Reilly, late of the district of California, heretofore, to wit, on the 17th day of December, in the year of our Lord one thousand eight hundred and eighty-four, at the city and county of San Francisco, state and district of California, and within the jurisdiction of this honorable court, did unlawfully, corruptly, and wickedly conspire, combine, and agree together, and with divers other persons to the said grand jurors unknown, to defraud the United States of a large sum of money, to wit, the sum of twenty-five hundred, lawful money of the United States, by the means and in the manner following: That is to say, that they, the said John A. Benson and M. F. Reilly, well knowing that a certain contract had, before the date last hereinbefore stated, been procured, secured, and entered into by and between John W. Fitzpatrick, then and there being a United States deputy surveyor in and for the state of California, on the one part, and W. H. Brown, then and there being the United States surveyor general in and for the state of California, on the other part, whereby the said John W. Fitzpatrick, in his capacity aforesaid, in substance and effect undertook, agreed, and promised.'

Following the foregoing quotation is a minute statement of the stipulations, terms, and conditions of a contract to survey certain public lands which are described, with repeated allegations that said Benson and Reilly each had full knowledge of each of said stipulations, terms, and conditions, the substance of which are as follows: Said Fitzpatrick agreed that he would in person, and in his official capacity as a United States deputy surveyor, truly and faithfully survey the lands described, and establish and mark all the lines and corners thereof, in strict conformity with the laws of the United States, the printed manual of surveying instructions, and other surveying instructions issued by the commissioner of the general land office, and with such special instructions as he should receive from the surveyor general in conformity therewith; that said Fitzpatrick would not commence said surveys until he should be officially notified of the approval of the contract by the commissioner of the general land office; and that he would complete the same, and return true field notes thereof to the surveyor general on or before the 30th day of June, 1885. Compensation for making said surveys was to be at specified rates, and no accounts therefor to be...