Price v. McCarty

• Decision Date: 24 June 1898
• Docket Number: 105.
• Citation: 89 F. 84
• Parties: PRICE v. McCARTY, United States Marshal.
• Court: U.S. Court of Appeals — Second Circuit

89 F. 84

PRICE v. McCARTY, United States Marshal.

No. 105.

United States Court of Appeals, Second Circuit.

June 24, 1898

A. J Rose, for appellant.

Max J Koehler, Asst. U.S. Atty., for appellee.

Before WALLACE and SHIPMAN, Circuit Judges.

WALLACE Circuit Judge.

This is an appeal from an order of the United States circuit court for the Southern district of New York dismissing a writ of habeas corpus, and remanding the petitioner therein to the custody of the marshal for removal to the District of Columbia. 83 F. 830. The appellant was arrested at the city of New York upon a warrant issued by a commissioner of the circuit court charging him with the offense of larceny committed at the city of Washington. After an examination before the commissioner, he was committed to the custody of the marshal pending the issuance of a warrant of removal by the district judge. Thereafter, upon an application by the United States attorney, the district judge issued a warrant commanding the marshal to remove the prisoner for trial in the District of Columbia, and deliver him to the marshal of that district. The proceedings were instituted under section 1014 of the United States Revised Statutes.

The assignments of error which are not addressed to the want of authority of the district judge to issue the warrant of removal do not require consideration. The writ of habeas corpus is not to be used to perform the functions of a writ of error or appeal. In re Tyler, 149 U.S. 164, 13 Sup.Ct. 785; In re Frederick, 149 U.S. 70, 13 Sup.Ct. 793. If there was a proper case for the removal of the prisoner pursuant to the provisions of the section, the court below properly remanded him to the custody of the marshal, notwithstanding there were irregularities or errors of procedure in his arrest, examination, or commitment. The object and office of the writ 'is to ascertain whether the prisoner can legally be detained in custody, and, if sufficient ground for his detention by the government is shown, he is not to be discharged for defects in the original arrest or commitment. ' Nishimura Ekiu v. U.S., 142 U.S. 651, 12 Sup.Ct. 336; Iasigi v. Van de Carr, 166 U.S. 391, 17 Sup.Ct. 595; Coleman v. Tennessee, 97 U.S. 509-519; U.S. v. McBratney, 104 U.S 621-624. It is the duty of the court on habeas corpus 'to dispose of the party as law and justice require. ' Rev St. U.S. Sec. 761.

The record of the proceedings upon which the warrant of removal was issued is contained in the return by the district judge made to the writ of certiorari which accompanied the writ of habeas corpus, and includes the evidence produced before the commissioner. We are to examine this record to ascertain whether a case within the purview of the statute was presented for the consideration of the district judge sufficient to authorize the exercise of the judicial power which the statute conferred upon him. The statute provides that commissioners of the circuit courts and certain other magistrates 'may arrest and imprison, or bail, the offender for trial before such court of the United States as by law has cognizance of the offense. ' It further provides that, when the offender 'is committed in any district other than that where the offense is to be tried,' it shall be the duty of the district judge where such offender is imprisoned 'seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had. ' That provision, as was said by Judge Dillon, in Re Buell, 3 Dill. 116, Fed. Cas. No. 2,102, 'devolves on a high judicial officer of the government a useful and important duty. In a country of such vast extent as ours, it is no light matter to arrest a supposed offender, and, on the mere order of an inferior magistrate, to remove him hundreds, it may be thousands, of miles for trial. The law wisely requires the previous sanction of the district judge to such a removal. ' The issuing of a warrant is not a mere ministerial act, for, if it were, it could as well have been intrusted to the committing magistrate. The provision contemplates that the district judge shall determine, in the exercise of judicial discretion, whether the prisoner shall be taken to another jurisdiction for trial, and that he may refuse the warrant if, in his judgment, the removal should not be made. Doubtless the action of the committing magistrate is prima facie sufficient for the basis of the warrant, but it is not conclusive; and while the judge should not unnecessarily require another or preliminary examination, if in his judgment it is expedient that the prisoner be further heard in defense, it is his duty to pass fully upon the case, and determine for himself whether the removal should be ordered. U.S. v. Brawner, 7 Fed. 88; In re Wolfe, 27 F. 606; U.S. v. Fowkes, 3 C.C.A. 394, 53 F. 13. Whether he has authority to review the proceedings before the committing magistrate, and discharge the prisoner, unless the question of the...