In re James

• Decision Date: 01 January 1884
• Citation: 18 F. 853
• Parties: In re JAMES.
• Court: U.S. District Court — Western District of Missouri

18 F. 853

In re JAMES.

United States Circuit Court, W.D. Missouri.

1884

Comingo Slover & Philips, for petitioner.

Mr Warner, Dist. Atty., for United States.

KREKEL J.

It appears that on the fourth day of December, 1883, Joseph H McGee, the United States marshal of the Western district of Missouri, filed his affidavit before Fred. W. Perkins, one of the United States commissioners for this district, charging the defendant, Frank James, with conspiring to rob and with robbing one Alexander S. Smith, a paymaster of the United States, of $5,000, money belonging to the United States alleging that said robbery took place on the eleventh day of March, 1881, in the Northern district of Alabama, and in support of his affidavit produced an indictment found by a United States grand jury of said district, charging said James and others with conspiracy to rob and with robbing said paymaster of $5,000 belonging to the government. A warrant was thereupon issued by the commissioner and placed in the hands of the United States marshal of the district for execution. On the twenty-first day of December, 1883, the marshal, under said warrant, arrested the defendant, James, and brought him before the commissioner. The defendant waived examination, whereupon the commissioner committed him to the custody of the marshal, who applies for an order to transfer the prisoner to the Northern district of Alabama, to answer the indictment for robbery there pending against him. It is in proof that at the time of the arrest by the marshal, the defendant, James, was in custody of Robert N. Hudspeth and others, claiming that they had him in keeping as his bondsmen, and protesting against the defendant's arrest, which protest the marshal ignored. They now appear and file their petition praying that the prisoner before the criminal court of Jackson county, Missouri, on the fourteenth day of January, 1884, to answer an indictment pending in that court against him for robbery in the first degree. In support of their petition they present a transcript from the criminal court of Jackson county, showing the finding of the indictment spoken of, defendant's arrest and incarceration in the county jail of Jackson county, his arraignment and plea of not guilty, the order allowing bail to be given, and petitioners becoming his bondsmen. The question is, who shall have possession of the prisoner, the United States, that it may proceed against him under the indictment for robbery charged to have been committed on the eleventh day of March, 1881, in Alabama, or the bondsmen, that they may produce him in person before the criminal court of Jackson county to answer the indictment for robbery charged to have been committed in Jackson county, Missouri, on the seventh day of September, 1881.

A preliminary question as to the practice of making orders of transfer, such as now applied for, can be disposed of in a few words. Section 1014, Rev. St. 1878, among other things, provides that 'when any offender or witness is committed in any district other than that where the offense is to be tried, it shall be the duty of the judge of the district where such offender or witness is imprisoned, seasonably to issue, and the marshal to execute, a warrant for his removal to the district where the trial is to be had. ' Under this statute it was held by Judge HAMMOND, of the Western district of Tennessee, in the Brawner Case, 7 F. 86, that the practice of hearing an application for removal without invoking the writ of habeas corpus is admissible and proper. In the case cited, as well as the Buell Case, decided by Judges DILLON and TREAT, (3 Dill. 116,) it was held that in acting on such motions the judge is not necessarily performing a ministerial duty, but that he may look into the proceedings before the commissioner, or the court in which the indictment was found, for the purpose of enabling him to properly determine questions pertaining to the removal, and grant or refuse the order accordingly. There can be but little, if any, doubt that the question as to who is legally entitled to the prisoner can properly be passed on in the proceedings before me.

The question of importance which the case presents grows out of the dual form of government under which we live. The federal, as well as the state governments, have their own criminal code, and appropriate machinery for their enforcement. A long line of decisions in civil cases have quite well settled the law that whatever tribunal first obtains jurisdiction of the subject-matter in controversy shall maintain it. The rules laid down in civil cases have been followed and applied in criminal causes wherever they could properly be made applicable.

It has been argued that no conflict between the federal and state governments arises in this case, because the controversy is between the federal authorities and the sureties on James' bond. While this would seem so at first glance, a nearer view discloses that its correctness depends on the relations securities in a bail bond sustain to the state and the prisoner. By taking bail, the state parts with the exclusive control of the prisoner, and consents that the bondsmen may exercise direct control over him, but for the purpose only to enable them to produce him in court in conformity to their undertaking. The state retains the right in certain contingencies to resume the custody of the offender. If, for instance, he were to threaten or commit a new violation of law, it could not be claimed that the delinquent was free from arrest for the new offense because he was on bail. Bail bonds should be so drawn, and recognitions so taken, as to bind the delinquent to good behavior while out on bail, and the liability of the bondsmen should extend to such a provision as well as producing the defendant in court. To this security, at least, it would seem society is entitled as against one who has been indicted. Without such security, accused may be turned loose to further prey upon the community. The laws of Missouri allow bonds and recognitions to be taken as suggested, and it ought to be in all cases. The state, by allowing bail to be taken, does not relinquish its rights over the prisoner to the extent of disabling it from arresting him, if he were about to pass beyond its jurisdiction. The leading purpose on the part of the state in taking bail is to secure the offender's appearance for trial, while at the same time allowing him all personal freedom not inconsistent with this object. In this state and sureties have a common and joint interest, and each has the right at any time to interfere when the accused threatens or is about to defeat the purposes of the bail bond.

The principles of the law stated are continually acted on in practice. When a bail bond or recognizance is forfeited by the sureties failing to produce their principal, the court at the time it declares the forfeiture, issues its warrant for the arrest of the offender, thus asserting its suspended rights to have the custody of the prisoner. Under the views expressed, the state of Missouri, by its judicial officers, might well have appeared in these proceedings, and alone or jointly with the bondsmen of James objected to his transfer beyond the jurisdiction of the state. Their failing to do...