In re Bruce

• Decision Date: 25 June 1904
• Citation: 132 F. 390
• Parties: In re BRUCE.
• Court: U.S. Court of Appeals — Fourth Circuit

132 F. 390

In re BRUCE.

United States Circuit Court, D. Maryland.

June 25, 1904

E. A Poe, for the State of New Jersey.

Thomas Ireland Elliott, R. B. Tippett, and Wilson J. Carroll, for petitioner.

MORRIS District Judge.

The Circuit Court of Appeals for the Fourth Circuit having reversed the former ruling of this court dismissing the writ (Bruce v. Rayner, 124 F. 481, 62 C.C.A. 501), it is now the duty of this court, upon the testimony which as been adduced before it, to determine whether the petitioner is a fugitive from justice, in the sense of the acts of Congress in relation to the interstate extradition of persons charged with crime, and in the sense of the proviso of the statute law of New Jersey excepting from the benefit of its statute of limitation in criminal cases persons fleeing from justice.

If there were no question arising under the New Jersey statute of limitations, the matter, I think, would be free from difficulty. It is admitted, and from the inception of these habeas corpus proceedings has been admitted, that the petitioner, in the city of Newark, N.J., on March 11, 1897 contracted the marriage which the indictment charges was bigamous, and that after the indictment was filed, and when the warrant for his arrest was issued by the New Jersey court having jurisdiction of the crime, the petitioner was not within its jurisdiction, but was found in Maryland. These facts present a prima facie case requiring compliance, under section 5278 of the United States Revised Statutes (U.S Comp. St. 1901, p. 3597), with the demand of the Governor of New Jersey, so far as affected by the question of the applicant being prima facie a fugitive from justice.

In Roberts v. Reilly, 116 U.S. 80-97, 6 Sup.Ct. 291, 29 L.Ed. 544, the Supreme Court said:

'To be a fugitive from justice, in the sense of the act of Congress regulating the subject under consideration, it is not necessary that the party charged should have left the state in which the crime is alleged to have been committed after an indictment found, or for the purpose of avoiding prosecution anticipated or begun, but simply that, having within a state committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process, to answer for his offense, he has left its jurisdiction' and is found within the territory of another.'

And in Ex parte Reggel, 114 U.S. 642-651, 5 Sup.Ct. 1148, 29 L.Ed. 250, the Supreme Court said:

'The appellant was entitled, under the act of Congress, to insist upon proof that he was within the demanding state at the time he is alleged to have committed the crime charged, and subsequently withdrew from her jurisdiction, so that he could not be reached by her criminal process.'

The difficulty in the present proceeding arises when this court proceeds to consider the defense set up by the applicant to the prima facie case. The offense charged in the indictment is alleged to have been committed March 11, 1897, and the indictment was found in December, 1902-- a lapse of over five years. A statute of New Jersey enacts that no person shall be prosecuted, tried, or punished for any offense, not punishable with death, unless the indictment shall be found within two years from the time of committing the offense, provided that nothing therein contained shall extend to any person fleeing from justice.

The Circuit Court of Appeals held on the appeal in the present case that this court should determine, upon evidence: First. Whether the accused was within the state when the crime charged is alleged to have been committed. That fact the applicant has never controverted. 'Second. That, being amenable to original process, he either concealed himself or avoided it so that he could not be served, or that he departed the state and so avoided service.

If, therefore, it could be shown that he did not conceal himself within the state during the period in which he was amenable to criminal process, this would be evidence tending to establish the fact that he was not a fugitive from justice. This testimony would not go to the sufficiency of the indictment, or to any matter of defense. It would be directed solely to the question whether he was a fugitive from justice-- a question of fact. The court, as has been seen, can inquire whether the accused was within the state at the date of the alleged crime, and, pursuing its inquiry, it can ascertain if, being within the state at that time, he remained within reach of its criminal process during the whole period for which such process could run. If this be established, then it could reasonably be concluded that he is not a fugitive from justice, and so not within the provisions of the Constitution or the act of Congress.' 124 F. 483, 486, 62 C.C.A. 505, 506.

The petitioner's testimony given before this court is that up to two weeks before his marriage he had been living in New York; that he was married in New Jersey, March 11, 1897, and lived there with the lady he then married until January or February, 1898, when, on business of a corporation by which he was employed, he went to Pittsburg, and remained there and in West Virginia, pursuing his employment, until the latter part of August, 1898, when he made a trip...