James v. Lawrence, 10159.
| Decision Date | 15 March 1949 |
| Docket Number | No. 10159.,10159. |
| Citation | 84 US App. DC 355,176 F.2d 18 |
| Parties | JAMES et al. v. LAWRENCE. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Messrs. Henry Lincoln Johnson, Jr., and Curtis P. Mitchell for appellants.
Mr. Charles B. Murray, Asst. U. S. Atty., for appellee.
Before STEPHENS, Chief Judge, and WILBUR K. MILLER and PRETTYMAN, Circuit Judges.
This is an appeal from an order denying a motion of the appellants to require the appellee, as United States Commissioner, to show cause why he should not proceed with a preliminary hearing in the case of United States v. Stance James and Oliver James (the appellants), or in the alternative, discharge them and return to them certain property seized under search warrant.
The order was entered after a hearing held by the District Court upon a complaint and motion filed by the appellants and upon an "opposition" filed by the Commissioner. By stipulation of the parties through their respective counsel, briefs were waived and the appeal was presented for summary disposition by this court solely upon the record and the oral argument.
The facts, which are without dispute, are as follows: On or about February 20, 1949, complaint was made under oath before the Commissioner, charging that the appellants and one Singleton had, on or about January 23 of the same year, during the night time entered a dwelling in the District of Columbia and stolen therefrom money in the sum of $60,000.00 and jewelry valued at approximately $4,000.00. Upon the basis of such complaint and of affidavits made before him, the Commissioner issued a warrant to search certain premises known as 1600 A Street, S. E., in the District. On February 20, a return on this warrant, made by the Chief Deputy United States Marshal for the District, reported that, under authority of the warrant, a revolver, various articles of jewelry, certain gold coins and other articles, including approximately $4,654.00 in money, had been seized from the premises described which were represented as being those of the appellant Oliver James. In addition to the search warrant the Commissioner issued warrants of arrest for the appellants and Singleton. These warrants were based upon affidavits accusing them jointly of committing the entering and larceny referred to.
At about 2:00 p. m., of February 20, which was a Sunday, the appellants were brought before the Commissioner by virtue of the warrants of arrest. They were represented by counsel, who, in their behalf, demanded that the preliminary examination provided for by Rule 5, Federal Rules of Criminal Procedure, 18 U.S.C.A., be held at that time. Counsel for the United States, however, upon the ground that additional time was needed for the procurement of necessary witnesses and testimony, requested a continuance until March 10. The Commissioner granted this continuance. Bond was then fixed in the sum of $7,500.00 and on February 23, 1949, the appellants furnished bond and were released and are now at large on bond. On March 10 the appellants and their counsel appeared before the Commissioner ready for the preliminary examination set for that date. The United States attorney requested that the examination be further postponed upon the ground that the evidence concerning the offenses charged against the appellants had been submitted to the grand jury and that that body had not yet reported its findings. The appellants objected to the continuance thus sought, but the Commissioner nevertheless continued the examination until March 17, 1949, upon the condition, however, that it should be held on that date unless before then the grand jury had reported its findings. On March 11 the appellants filed their complaint and motion in the District Court and on the same day the "opposition" was filed and a hearing held on the complaint, motion, and opposition, and the order appealed from was entered.
Rule 5, Federal Rules of Criminal Procedure, provides:
(a)...
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Rettig v. United States
...that commissioners are unavailable on Sunday.19 But that theory is refuted, at least in this jurisdiction, by James v. Lawrence, 1949, 84 U.S.App.D.C. 355, 356, 176 F.2d 18, 19, where a preliminary hearing before a commissioner took place at 2:00 p. m. on a Sunday. No language in the rule j......
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State v. Tominaga
...finds an indictment no purpose remains for conducting a preliminary hearing before a committing magistrate. See also James v. Lawrence, 84 U.S.App.D.C. 355, 176 F.2d 18; United States ex rel. Bogish v. Tees, 3 Cir., 211 F.2d 69; Davis v. United States, 8 Cir., 210 F.2d 118; Yodock v. United......
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State v. Higley
...and the determination of probable cause. The previous federal rule required a hearing in a reasonable time only. In James v. Lawrence (D.C.Cir.1949), 176 F.2d 18, 20, the court found that 18 days was not unreasonable. There the State asked for a continuance and the court noted that it must ......
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Wilson v. Anderson
...Cf. George Hart, Jr. v. Reid, Habeas Corpus 18-62, Writ sustained and petitioner released, Jan. 17, 1962 (D.D.C.). James v. Lawrence, 84 U.S.App.D.C. 355, 176 F.2d 18 (1949), is distinguishable on its facts. See the statement of three judges on the petition for rehearing en banc in Lloyd v.......