United States v. Averett

• Decision Date: 08 June 1928
• Citation: United States v. Averett, 26 F.2d 676 (W.D. Va. 1928)
• Parties: UNITED STATES v. AVERETT et al.
• Court: U.S. District Court — Western District of Virginia

26 F.2d 676 (1928)

UNITED STATES v. AVERETT et al.

District Court, W. D. Virginia.

June 8, 1928.

Joseph C. Shaffer, U. S. Atty., of Roanoke, Va., and C. E. Gentry, Asst. U. S. Atty., of Charlottesville, Va.

Carter & Talbott, Hugh T. Williams, Marvin I. Walton, and J. C. Carter, all of Danville, Va., for defendants.

McDOWELL, District Judge.

The four defendants, negroes heretofore employed by the Southern Railway Company at its railroad station in Danville, Va., were arrested by Danville police officers on March 15, 1928. Shortly thereafter a warrant was issued by the United States commissioner in Danville, charging the defendants (under section 194, Criminal Code 18 USCA § 317) with a joint theft of $27,000 in money from a mail pouch. The commissioner at first designated March 19th for a preliminary examination, and at that time apparently fixed bail at $5,000 for each defendant. On the 19th, on the defendants' motion, the examination was postponed until March 21st. On that date, on the motion of government counsel, the examination was postponed until April 24th. On April 9th, an indictment was returned by the grand jury of this court at Abingdon, making the same charge that was set out in the warrant. This case was presented to the grand jury by the district attorney on the testimony of witnesses. The case was by order entered at Abingdon transferred to Danville for trial. Since the indictment the commissioner has not held or attempted to hold a preliminary examination. The first opportunity for a trial of this case at Danville will not arrive until September 10, 1928. The defendants do not desire that the trial be held elsewhere than at Danville.

On May 21st notice was given by counsel for the defendants that on May 28th motions that a preliminary examination be ordered and that the penalty in the bail bonds be reduced would be made. These motions were made, were resisted by the government, and must now be disposed of.

(A) The Motion to Reduce Bail.

The four defendants were charged before Commissioner Barksdale with the joint theft of $27,000 in money. If no part of the stolen money had been recovered at the time he fixed the bail of each defendant at $5,000, he manifestly made the bail too small. The presence of the defendants at a trial in court was not adequately insured by requiring bail, in a sum $7,000 less than the sum alleged to have been stolen. The defendants, if guilty, were allowed an opportunity to indemnify sureties with a part of the stolen money and then to flee, which should not have been allowed.

Since then the indictment has been found. This fact makes it necessary that I assume for present purposes that the defendants are probably guilty. I understand that some part of the money has been recovered, but not enough of it to make the bail unduly high, even if high enough. I have no hesitation in overruling the motion to hold, or to have held, a preliminary examination for the purpose of again fixing the penalty of the bail bonds.

(B) The Motion for a Preliminary Examination.

(1) The first question is whether or not defendants, who have been regularly indicted at the instance of the United States attorney without a previous preliminary examination, have an absolute right to such an examination, if applied for in advance of the trial by jury. It is not contended that any statute applicable to this case gives such right to the defendants. As a matter of common law, the only authority that I know of in support of the defendants' position is the following from Hughes' Fed. Proc. (1st Ed.) p. 29: "The preliminary examination is a valuable right, and the prisoner can have it, either on prosecutions instituted by complaint or indictment."

The only decision cited as supporting this sweeping statement is U. S. v. Farrington (D. C.) 5 F. 343. In the Farrington Case there was no motion before the court to order a preliminary examination after an indictment. What was before the court was a motion to quash two indictments which had been irregularly and improperly obtained.

In Goldsby v. U. S., 160 U. S. 70, 73, 16 S. Ct. 216, 218 (40 L. Ed. 343) on writ of error from a conviction for murder, it is said: "The contention at bar that, because there had been no preliminary examination of the accused, he was thereby deprived of his constitutional guarantee to be confronted by the witnesses, by mere statement demonstrates its error."

It may be possible that the reason for the foregoing statement was the thought that the defendant, by failing to move for a preliminary examination after indictment and before trial, had waived his right to such examination. And yet it seems improbable that Chief Justice White, in the case of a plaintiff in error under conviction of murder, would have so expressed himself as to leave the impression that the alleged right had never existed, if the reason for the ruling was that a right which had existed had been waived.

In U. S. v. Fuers, Fed. Cas. No. 15174, in U. S. v. Ronzone, Fed. Cas. No. 16192, and in Roth v. U. S. (C. C. A.) 294 F. 475, 478, the objection was presented by motion to quash. In U. S. v. Kerr (D. C.) 159 F. 185, the objection was made by motions for arrest and for new trial. In each case the ruling was against the defendant, and in no one of these cases is there any indication that the ruling was based on waiver.

In the Kerr Case (D. C.) 159 F. 185, 186, it is said: "Whatever may be said concerning the power of a grand jury in the Pennsylvania courts to find an indictment, where the accused has not had a previous hearing before a magistrate, it is clear that no such hearing is necessary in the federal courts. No doubt a prosecution before these tribunals is ordinarily begun in much the same way as in the criminal courts of the state. Information is laid before a commissioner, who hears the government's case and thereupon either discharges the accused or holds him to answer; but this preliminary examination is not essential, as the federal authorities abundantly show. If the grand jury sees proper to act upon evidence that is brought to their attention, they may bring in a suitable indictment, although the charge is made for the first time by their finding, and although the accused has had no preliminary hearing."

In the Roth Case (C. C. A.) 294 F. 475, 478, it is said: "Defendant was first arrested on warrant issued by a United States commissioner; defendant thereupon demanding a preliminary examination and giving bond for appearance thereon. Before the date to which the commissioner's proceeding was adjourned, the indictment here was found by the grand jury, without preliminary action by or hearing before a commissioner. We think the court rightly overruled defendant's motion to quash the indictment because of the facts stated. Defendant could not be held for trial without indictment by grand jury, which had the right to consider the alleged offense and make presentment thereon, notwithstanding the pendency of proceedings before a commissioner, and even if other indictments were pending for the same cause, or even if an indictment had previously been refused."

In U. S. v. Kilpatrick (D. C. N. C.) 16 F. 765, 770, 771, on a motion to quash an indictment, it is said: "The district attorney, according to the usual practice, may, on his official responsibility, send a bill to a grand jury without a prior arrest and binding over; but he should exercise this power cautiously, and never so act unless convinced that the exigencies of the occasion or the general public good demand it. If he has any doubts as to the propriety of such action he should consult the court."

See, also, U. S. v. Morgan, 222 U. S. 274, 282, 32 S. Ct. 81, 82 (56 L. Ed. 198), holding grand jurors to be "the chosen instruments of the law to protect the citizen against unfounded prosecutions."

The case of U. S. v. Wuerstle (D. C.) 13 F.(2d) 952, 953, is not in point. The proceeding was before an indictment had been found or an information filed. The language of the court is a repetition of the words of the Act of August 18, 1894 (28 Stats. 416, U. S. Comp. Stats. § 1678 18 USCA § 595) which relates to the duty of the federal arresting officer on making an arrest.

In Dobie, Fed. Proc. p. 63, it is said: "After indictment, it seems fairly clear that there is no right to such a preliminary hearing. The formalities and safeguards surrounding the action of the grand jury seem to afford, in themselves, sufficient guaranties to constitute due process and to satisfy the early constitutional amendments."

In 12 Standard Ency. of Procedure, 90, it is said: "The general rule is that a preliminary examination and commitment prior to the finding of an indictment is unnecessary, unless specially required by statute or the practice of the particular jurisdiction."

In 16 C. J., 315, it is said: "As a general rule, no preliminary examination of accused is...