In re Thaw

• Decision Date: 21 December 1908
• Docket Number: 61.,59
• Citation: 166 F. 71
• Parties: In re THAW. v. LAMB. O'MARA
• Court: U.S. Court of Appeals — Third Circuit

166 F. 71

In re THAW.

O'MARA v. LAMB.

Nos. 59, 61.

United States Court of Appeals, Third Circuit.

December 21, 1908

William A. Stone, for petitioner.

Asa Bird Gardiner, for appellee.

Before DALLAS, GRAY, and BUFFINGTON, Circuit Judges.

DALLAS Circuit Judge.

On August 7, 1908, there was filed in the office of the District Court of the United States for the Western District of Pennsylvania a petition of Henry Kendall Thaw, addressed to Hon. James S. Young, judge of that court, praying that the petitioner be adjudged to be a bankrupt, and on August 12 1908, such adjudication was made. On September 7, 1908, Roger O'Mara was appointed trustee of the bankrupt's estate, and on the 12th day of October following he filed a petition praying 'the court to make an order directing that a writ of habeas corpus ad testificandum be issued to Dr. Robert B. Lamb, superintendent of Matteawan State Hospital of New York, or Dr. Baker, his assistant, directing him to bring the body of the said Henry Kendall Thaw before this honorable court (the District Court aforesaid) at Pittsburg, Pennsylvania, forthwith, and there to have him present to testify in the above matter. ' This petition was brought to the attention, not of Judge Young, but of Hon Robert W. Archbald, District Judge for the Middle District of Pennsylvania, who had been designated and appointed 'to hold the Circuit and District Courts of the United States in and for the Western District of Pennsylvania, at and during the May term, 1908, of said court, in the aid of Hon. James S. Young, district judge for said district ' and thereupon Judge Archbald 'ordered that a writ of habeas corpus ad testificandum be issued as therein prayed for, the said Henry Kendall Thaw to be returned again to the said Matteawan State Hospital upon having given in his testimony. ' In pursuance of this order the writ which is copied in the margin was issued, ^[1] and on October 19, 1908 Dr. Robert B. Lamb filed a statement in writing addressed to the Honorable James S. Young, Judge, etc., wherein he apprised the court that Thaw was 'in custody of the state of New York as a person duly adjudged insane,' and demanded that the said writ be 'quashed and dismissed.' To this statement Mr. O'Mara filed an answer, in which he alleged, inter alia:

'That the service of said writ upon said Dr. Robert B. Lamb, under the direction of the said Honorable Robert W. Archbald, judge, is a part and parcel of the same proceedings (set forth in the answer) begun and started while he was specially designated to act as judge of the court of the Western district of Pennsylvania. * * * Wherefore (the paper concludes) your respondent makes answer and requests that all manner of things pertaining to such proceedings in reference to the writ of habeas corpus ad testificandum directed to Dr. Robert B. Lamb be referred to his honor, Robert W. Archbald, to be heard and determined by him.'

Notwithstanding this request, the 'per curiam' order now complained of was made by Judge Young, ^[2] and thereupon O'Mara instituted an appeal to this court, which, however, though not formally withdrawn, has properly been abandoned and a petition for revision substituted.

Upon that petition the case has been argued and submitted, and the question presented for determination is whether it is true, as the petition avers and the assignment of error upon the appeal had specified, that 'the said District Court of the United States, Judge James S. Young presiding, erred in making an order quashing said writ of habeas corpus ad testificandum and directing that the petition therefor be dismissed.'

That the writ under consideration was rightfully allowed in the first instance need not be questioned, and we think is not questionable; but in our opinion it is likewise clear that the order under which it was issued was subject to revocation and the writ itself to annulment. This, indeed, is not denied; but it is insisted that, as the writ was issued by direction of Judge Archbald, he alone was empowered to quash it, and that Judge Young, though he 'intended no discourtesy to Judge Archbald, * * * had no such power. ' This proposition could not be sustained, even if the term for which Judge Archbald had been designated to hold court in the Western district had not expired, as in fact it had, when the power to quash was exercised. The contention that the order allowing the writ 'was an order of a judge, not of a court, and is signed by a judge, and not by the court,' and that 'therefore it was not returnable to the court, or to any other judge, but was returnable to Judge Archbald, the judge who issued it,' is not well founded. The petition for the writ was not addressed to any particular judge, and it did not pray that Thaw should be brought before Judge Archbald at any place in the Middle district or elsewhere, but that he should be brought before the District Court of the Western district, there to testify in a matter pending in that court, and this prayer the order pursued and the writ in substance embodied.

That writ was not the high prerogative writ of habeas corpus, the great object of which is deliverance from unlawful imprisonment, and which either a court, a justice, or a judge may grant and adjudicate, but was merely the ancient common-law precept to bring a prisoner into court to testify and it was none the less the process of the court from which it issued because the order for its issuance emanated from a judge at chambers. It was granted and issued to bring a prisoner before the United States District Court at Pittsburg, in order that his testimony might there be taken, and it was directed to the custodian...