In re Fox

• Decision Date: 08 July 1892
• Citation: 51 F. 427
• Court: U.S. District Court — Northern District of California
• Parties: In re FOX.

51 F. 427

In re FOX.

United States District Court, N.D. California.

July 8, 1892

Carroll Cook, for petitioner.

John A Hosmer, Asst. Dist. Atty., for respondent.

MORROW District Judge.

Mortimer Fox was, on the 13th day of December, 1891, indicted by the grand jury of this court for offenses against the postal laws. The first count of the indictment is based upon section 3892 of the Revised Statutes of the United States, and charges the accused with the offense of taking a letter, which had been in a post office of the United States before said letter had been delivered to the person to whom it had been directed, with the design to obstruct the correspondence of said person. The second count is based upon section 5470 of the Revised Statutes, and charges the accused with the offense of receiving a check and order for the payment of money stolen from the mail. These crimes are charged to have been committed in the city and county of San Francisco on the 7th day of September, 1891. The accused was arrested at Omaha, Neb., and, by the order of the United States district judge of that district, he was removed to this district. He was arraigned in this court March 11, 1892 when his attorney interposed a demurrer to the indictment. The demurrer was sustained as to the first count, and overruled as to the second count. The accused was thereupon, on the 29th day of April, 1892, admitted to bail in the sum of $1,500, and released from custody. It was provided in the bail bond, among other things, that he should appear in court on the 9th day of May, 1892, and afterwards, whenever or wherever he might be required to answer the said indictment.

On the 9th day of May, 1892, the attorney for the accused appeared in court, and, representing that his client had been arrested and imprisoned by the state authorities, moved for a bench warrant to issue to apprehend and bring the accused into this court. The warrant was issued and placed in the hands of the marshal, who, on May 12, 1892, made return that the party was in the custody of the state authorities, and that he was unable to serve the writ. Thereupon the attorney for the accused sued out this writ of habeas corpus. It appears that, immediately after the accused gave bail and was released from custody of the United States marshal, he was arrested and imprisoned by the police of the city and county of San Francisco, upon warrants charging him with crimes, under the laws of the state of California; and, while so in prison, he was again arrested upon a warrant, issued out of the police court of the city of Oakland, in the county of Alameda, in this state, and was thereupon taken to the city prison of Oakland, where he has since been confined. The petition for the writ of habeas corpus alleges that the accused is imprisoned, detained, confined, and restrained of his liberty by the chief of police of Oakland, and that the said imprisonment, detention confinement, and restraint are illegal, and that the illegality thereof consists in the fact that the said Fox was, prior to the said detention by the said chief of police, and is now, under indictment in this court, and in the custody of this court; that a bench warrant has been issued out of this court for the arrest of said Fox on said indictment, but, by reason of the detention aforesaid, the bondsmen of said Fox on said indictment are unable to produce and surrender said Fox into the actual custody of this court, and said detention is contrary to the laws of the United States, and against the jurisdiction of this court.

To the writ of habeas corpus the chief of police of Oakland has made return that he holds the defendant, Mortimer Fox, in his custody on a charge of felony, viz., forgery, alleged to been committed on the 14th day of October, 1891, and also by virtue of a warrant of arrest issued out of the police court of the city of Oakland, on a complaint duly sworn to by C. R. Yates, charging the defendant, Mortimer Fox, with the crime of forgery. A copy of the complaint and warrant is annexed to the return, from which it appears that the defendant is charged with having committed the crime of forgery on the 14th day of October, 1891, at the city of Oakland, in this state, in forging an indorsement on a certain check or order for payment of money, with intent to defraud the Oakland Bank of Savings. The police court of Oakland has jurisdiction to examine this case, and commit and hold the accused to bail for trial in the proper court. The only question is as to the extent of the jurisdiction that court has acquired over the person of the defendant to detain him in prison to answer the charge preferred against him in that court, while he is under bail to appear and answer an indictment in this court. The object sought to be accomplished by the writ of habeas corpus in this case is therefore to take the defendant out of the custody of the state authorities, and place him in the custody of the United States marshal of this district, to respond to the indictment in this court. This application comes from the accused, but his attorney claims also to represent the sureties on the bail bond, who, it is said, desire to surrender the accused, under the provisions of section 1018 of the Revised Statutes, as follows:

'Any party charged with a criminal offense, and admitted to bail, may, in vacation, be arrested by his bail, and delivered to the marshal or his deputy, before any judge or other officer having power to commit for such offense; and, at the request of such bail, the judge or other officer shall recommit the party so arrested to the custody of the marshal, and indorse on the recognizance, or certified copy thereof, the discharge and exoneratur of such bail; and the party so committed shall therefrom be held in custody until discharged by due course of law.'

The power to award the writ of habeas corpus by the courts of the United States is found in the following provision of the Revised Statutes:

'Sec. 751. The supreme court, and the circuit and district courts, shall have power to issue writs of habeas corpus.

'Sec. 752. The several justices and judges of the said courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty.

'Sec. 753. The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof; or is in custody in violation of the constitution, or of a law or treaty of the United States; or, being a subject or citizen of a foreign state, and domiciled therein, is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission or order or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations; or unless it is necessary to bring the prisoner into court to testify.'

It is urged that, although Fox is in jail, he is in custody in violation of a law of the United States, and, under the provisions of section 753 of the Revised Statutes, just cited, the writ of habeas corpus issued by this court extends to him. It is not contended, however, that his imprisonment is in violation of any statute law of the United States, but it is claimed, in effect, that his imprisonment by the state court is in violation of the law of procedure which gives this court authority to exercise its jurisdiction undisturbed.

In Taylor v. Taintor, 16 Wall. 466-370, the supreme court declared the doctrine that--

'Where a state court and a court of the United States may each take jurisdiction, the tribunal which first gets it holds it to the exclusion of the other, until its duty is fully performed and the jurisdiction invoked is exhausted, and this rule applies alike in both civil and criminal cases. It is, indeed, a principle of universal jurisprudence that, where jurisdiction has attached to person or thing, it is, unless there is some provision to the contrary, exclusive in effect until it has wrought its function.'

But how and by whom may this question of jurisdiction be raised? Has the accused, whose alleged malefactions have brought him within the range of two jurisdictions, the right to select the one to which he will first respond? When the questions involved in this case were argued by counsel representing the accused and his sureties on one side, and opposed by counsel representing the state authorities on...