In re Kelly

• Decision Date: 10 November 1890
• Citation: 46 F. 653
• Parties: In re KELLY.
• Court: U.S. Court of Appeals — Ninth Circuit

46 F. 653

In re KELLY.

United States Circuit Court, D. Oregon.

November 10, 1890

Syllabus by the Court

It is a sufficient designation in a commitment of the crime of inveigling a person, with the intent to cause him to be sent out of the state against his will, if it states that the party has been held to answer for 'the crime of enticing and inveigling Alfred Armstrong and William Kelly to leave the state of Oregon against their will;' for from this statement it must be implied that the inveiglement was 'with the intent' that they should so leave the state.

To inveigle another by false and fraudulent representations, or otherwise, with intent that such other should be thereby induced to leave the state of his apparent free will, is equivalent to causing him to be sent out of the state against his will, contrary to section 1746 of the Laws of Oregon (Compilation 1887.) The crime defined by section 1746 (Comp. 1887) of the Laws of Oregon is completely committed whenever, by false and fraudulent representations, or other means adequate to that end, the person inveigled is caused or induced to surrender himself to the guidance or control of those whom the party guilty of the inveiglement purposed and expected to take him or cause him to be taken, out of the state; and a prosecution therefor cannot be maintained in any other county than the one in which such inveiglement took place.

A commitment by a justice of the peace for a crime not committed in his county is void for want of jurisdiction, and the party held thereunder is deprived of his liberty without due process of law, contrary to the fourteenth amendment.

Mr Franklin P. Mays, Mr. Edward N. Deady, and Mr. Charles E. Lockwood, for petitioner.

Mr. Henry E. McGinn and Mr. Paul R. Deady, for respondent.

DEADY J.

On the petition of Joseph Kelly, filed in this court October 30, 1890, a writ of habeas corpus was allowed by me, returnable to this court, directed to H. A. Smith, sheriff of Clatsop county, commanding him to produce the body of said Kelly, alleged by him to be unlawfully detained, together with the cause of detention. On November 3d the sheriff produced the body, and made return that he held the petitioner in custody in pursuance of a commitment issued by A. A. Cleveland, a justice of the peace for the precinct of Astoria, in Clatsop county, Or., dated October 30, 1890. The commitment, after stating the venue, Astoria, Clatsop county, and entitling the cause, continues as follows:

'In the Name of the State of Oregon, to the Sheriff of the County aforesaid: An order having been made this day by me that Joseph Kelly, who has been duly held to answer before the grand jury for the crime of enticing and inveigling Alfred Armstrong and William Kelly to leave the state of Oregon against their will, be confined in the county jail to await the action of the grand jury of Clatsop county, Oregon, you are hereby commanded to receive him into your custody, and detain him accordingly, or until he be otherwise legally discharged.

'A. A. Cleveland, Justice of the Peace for Astoria Precinct.

'Dated this 30th day of October, A.D. 1890.'

In the corner are the words: 'Bail fixed in the sum of $1,000 in each case.'

To this return there was a demurrer filed, on the ground that the commitment did not sufficiently designate any crime known to the law. By consent of counsel, evidence was also offered by the petitioner and respondent on the question of whether, as a matter of fact, any crime had been committed by the petitioner, as alleged, in Clatsop county; and if on the argument the court should be of the opinion that the commitment is sufficient, and overrule the demurrer, the matter should then be considered on the question whether any crime had been committed by the petitioner over which the justice issuing the commitment had jurisdiction.

The crime on which it is claimed the petitioner stands committed is defined by the law of this state in section 1746 of the compilation of 1887. It reads:

'Every person who, without lawful authority, forcibly seizes and confines another, or inveigles or kidnaps another, with intent either (1) to cause such other person to be secretly confined or imprisoned in this state against his will; or (2) to cause such other person to be sent out of this state against his will,-- shall be punished by imprisonment in the state penitentiary not less than one nor more than ten years.'

It is evident that the crime for which this commitment is intended, and for which it is attempted, at least, to commit the petitioner, is the one referred to in the second subdivision of the section: 'To cause such other person to be sent out of this state against his will.'

Section 1610 of the compilation of 1887 prescribes the form of the commitment by a magistrate, which may be substantially in the following form:

'In the Name of the State of Oregon, to the Sheriff of the County of . . ., greeting: An order having been this day made by me that A.B. be held to answer upon a charge, (designating it generally,) you are therefore commanded to receive him in your custody, and detain him until legally discharged. ' Dated and signed.

To inveigle a person, as it is claimed in this case the petitioner did these parties, Armstrong and Kelly, is to seduce them, to entice them, not by force, but by some art, some device, some representation which is essentially false, and calculated to secure action on the part of the person sought to be inveigled; to secure his acquiescence in the purpose of the mover, so that he may become within the control of some person or persons, with intent that he be sent out of the state; and the device, the art, the seduction, the inveiglement, must be, I suppose, adequate to that end. It is not necessary that force be used. Using force is a distinct case, and, where no force is necessary to be used, the party goes apparently with his will, but on a false impression of where or why he is so going. It stands to reason that the party who acts upon a false representation, upon a device or trice, which misleads him, though apparently acting with his own free will, is, within the meaning of this statute, acting against his will; and if he so goes out of the state, or is sent out of the state in pursuance of that inveiglement, he is sent out of it, within the meaning of this statute.

The crime is to be designated generally, according to the statute, in the commitment. A crime that has a general or generic name is a simple thing to describe,-- as murder, arson, burglary, larceny; but a crime that consists of several particulars, and has no generic name, and is described in the statute, must necessarily (although it may be designated generally) be designated with more particularity than a crime like murder, arson, or burglary. This is a crime that consists of two particulars,-- the inveigling, and the intent that the party should thereby be sent out of the state. The justice says in the commitment that the petitioner has been held to answer 'for the crime of enticing and inveigling Alfred Armstrong and William Kelly to leave the state of Oregon against their will. ' If it had been said in the commitment, 'with intent to send them out of the state against their will,' it would have followed the language of the statute, and no question as to the sufficiency could be made.

Courts are not required, nor justified, I think, in applying the nice rules of construction to a commitment by a justice of the peace that they may and often do necessarily in the consideration of indictments by grand juries. My own opinion is, although I had an impression to the contrary when I first heard the commitment read, that it is sufficient; that, if the petitioner enticed and inveigled the men to leave the state against their will, he did so with intent that they should so depart. He could not have done so without such intent. The intent must have accompanied the act. It is necessarily implied in the statement that 'he enticed and inveigled them to leave the state against their will,' and what is necessarily implied in the language used must, I think, be considered as expressed. The commitment is, I think, upon reflection and examination, sufficient.

The section defining this crime is taken from section 272, Pen.Code N.Y. 1864, where it was substantially complied from 2 Rev.St.p. 664, Sec. 30. In Hadden v. People, 25 N.Y. 372, it was held, under the revised statutes, that procuring the intoxication of a sailor, and getting him on shipboard in that condition, with the intent and expectation that the sailor would be thus carried out of the state, is a violation of the statute, even though in fact the ship be not destined to leave the state. If the party charged with the commission of the crime believes that the ship is going out of the state, and inveigles the sailor on board with the expectation and purpose that he shall go out of the state on the ship, he has committed the crime; and, although the ship does not go out of the state, even though it does not intend to go out of the state, it does not excuse him. His crime is committed when the party is inveigled on board the ship with the intent on his part that he should thereby be taken or got out of the state without his free will.

The evidence in this case is somewhat meager. The men, Armstrong and Kelly, were examined, as were also the petitioner, Mr Byrnes, the harbor master, the expressman who took...