In re Terrell

• Decision Date: 28 June 1892
• Citation: 51 F. 213
• Parties: In re TERRELL. v. GREENHUT et al. UNITED STATES
• Court: U.S. District Court — Southern District of New York

51 F. 213

In re TERRELL.

UNITED STATES v. GREENHUT et al.

United States Circuit Court, S.D. New York.

June 28, 1892

Thos Thacher and Elihu Root, for petitioner.

Edward Mitchell, Dist. Atty., and Maxwell Evarts, Asst. Dist. Atty for the United States.

LACOMBE Circuit Judge.

The petitioner was arrested in this district upon a warrant issued by a United States commissioner here. The warrant was based upon an affidavit, which was itself based solely upon the fourth count in an indictment found by the grand jury in the district court of the United States for the district of Massachusetts. The petitioner being in custody of the United States marshal to await the order of the district judge under Rev. St. Sec. 1014, for his removal to the district of Massachusetts, writs of habeas corpus and certiorari were issued, to which returns have been made. It is not disputed by the district attorney that it is not only the right, but the duty, of the district court, before ordering removal, to look into the indictment, so far as to be satisfied that an offense against the United States is charged, and that it is such an offense as many lawfully be tried in the forum to which it is claimed the accused should be removed; and the same right and duty arises upon habeas corpus, whether the petitioner is held under the warrant of removal issued by the district judge whose decision is thus reviewed, or under the warrant of the commissioner to await the action of the district judge. The later decisions of the circuit courts abundantly establish this proposition. In re Buell, 3 Dill. 116; In re Doig, 4 F. 193; U.S. v. Brawner, 7 Fed.Rep. 86; U.S. v. Rogers, 23 F. 658; U.S. V Fowkes, 49 F. 50. This practice was followed in Re Pallisser, 136 U.S. 257, 10 S.Ct. 1034, and approved by the supreme court in Horner v. U.S., 143 U.S. 207, 12 S.Ct. 407. There is good cause for holding that this power should be exercised liberally, whenever the judge before whom the questions are raised, on application for a warrant of removal, or on habeas corpus, is satisfied, from the face of the indictment, that were such indictment before him for trial, and demurred to, he would quash it. This is a county of vast extent, and it would be a grave abuse of the rights of the citizen if, when charged with alleged offenses committed perhaps in some place he had never visited, he were removable to a district thousands of miles from his home, to answer to an indictment fatally defective, on any mere theory of a comity which would require the sufficiency of the indictment to be tested only in the particular court in which it is pending. Nor should the mere novelty of the points raised be held to preclude the court, before which comes the question of removal, from passing upon them, when it has no doubt as to show it would pass upon them if the cause were pending before it. If the questions...