United States v. Collins

• Decision Date: 26 January 1897
• Citation: 79 F. 65
• Parties: UNITED STATES v. COLLINS.
• Court: U.S. District Court — Southern District of California

79 F. 65

UNITED STATES v. COLLINS.

United States District Court, S.D. California.

January 26, 1897

George J. Denis, U.S. Atty.

Walter D. Tupper, for defendant.

WELLBORN District Judge.

Defendant is charged with violating section 5399 of the Revised Statutes of the United States, which, among other things provides that every person who obstructs or impedes the due administration of justice in any court of the United States shall be punished by fine, etc. There are two counts in the indictment. The first count alleges substantially that on the 13th day of November, 1896, and prior thereto, Dante R Prince was a duly appointed and qualified commissioner of the circuit court of the United States in and for the Southern district of California, at the city of Fresno, Cal., within said district, and while acting in his official capacity, at the time and place aforesaid, one B. T. Alford appeared before him, the said commissioner, and by his written affidavit and complaint, upon information and belief, accused one J. H. Terry of the crime of having deposited in the United States post office, at said city of Fresno, an obscene and lewd letter; that thereupon said commissioner issued a warrant for the arrest of said Terry, under which said Terry was arrested, and brought before said commissioner on the 14th day of November, 1896, when said commissioner fixed the 19th day of the said month for conducting the examination of said Terry on said charge; that at the time said complaint was filed, and at all the times thereafter in said count mentioned, the letter therein referred to was in the possession of the defendant herein John H. Collins, and after the filing of said complaint, and on the day that it was filed, said commissioner issued a subpoena in said action against said Terry, directing said Collins to appear before him on the said 19th day of November, 1896, as a witness on the part of the United States, and also issued an order, in writing, directing said Collins to deliver to Deputy United States Marshal B. T. Alford said letter, said order reciting that said letter was needed on the part of the United States in said action; that said subpoena and order were duly served upon said Collins on said 14th day of November, 1896; but that said Collins willfully and corruptly refused to deliver said letter to said Alford or said commissioner. The second count is similar to the first, except that it charges the defendant with a willful and corrupt refusal to obey a subpoena duces tecum, issued in the same action, and under the same circumstances, as were the subpoena and order mentioned in the first count. A demurrer has been interposed to the indictment, on the ground that the alleged complaint filed before the commissioner, being upon information and belief, was, in contemplation of law, no complaint at all, and therefore the commissioner was without jurisdiction to issue the subpoenas in question.

Section 1014 of the Revised Statutes of the United States provides that, for any crime against the United States, the offender may by any one of certain officers, therein named, and agreeably to the usual mode of process against offenders in such state, be held for trial before such court of the United States as has cognizance of the offense. It has been repeatedly held that it was the intention of congress, by this section, 'to assimilate all the proceedings for holding accused persons to answer, before a court of the United States, to the proceedings had for similar purposes by the laws of the state where the proceedings should take place. ' U.S. v. Rundlett, Fed Cas. No. 16,208; U.S. v. Harden, 10 F. 803; U.S. v. Horton, Fed. Cas. No. 15,393. To determine, therefore, the question now before the court, reference must be had to the statutes and decisions of California.

Under what circumstances, then, may a committing magistrate in California subpoena a witness? This question is answered by section 1326 of the Penal Code of said state, the pertinent provisions of which are as follows:

'Sec. 1326. The process by which the attendance of a witness before a court or magistrate is required is a subpoena; it may be signed and issued by: (1) A. magistrate before whom a complaint is laid, for witnesses in the state, either on behalf of the people or of the defendant. * * * '

The word 'complaint' is defined in section 806 of said Code, as follows:

'Sec. 806. The complaint is the allegation in writing to a court or magistrate that a person has been guilty of some designated offense.' It will be observed that, according to this section, the allegation necessary to constitute a complaint is not the mere statement of an opinion, but the allegation of the fact 'that a person has been guilty of some designated offense. ' The word 'complaint,' as defined in said section, includes the accusation made before the committing magistrate, and also the information filed by the district attorney in the trial court. The requirements of the law as to the information filed in the trial court are prescribed in section 809 of said Code. Verification by affidavit is not among these requirements, for the reason, I take it, that a district attorney is presumed to be acting, when he presents an information, under the sanctions of his official oath. The law, however, is different with reference to the complaint of accusation made before a committing magistrate, as appears from sections 811, 812, and 813, Pen. Code Cal., which are as follows:

'Sec. 811. When an information is laid before a magistrate of the commission of a public offense, triable within the county, he must examine on oath the informant or prosecutor, and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them.

Sec. 812. The deposition must set forth the facts stated by the prosecutor and his witnesses, tending to establish the commission of the offense and the guilt of the defendant.

'Sec. 813. If the magistrate is satisfied therefrom that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, he must issue a warrant of arrest.'

In order, then, to authorize a magistrate, for the purposes of preliminary examination, to issue a subpoena, there must be laid before him a written complaint on oath, alleging that a person therein named has been guilty of some designated offense. Does the indictment in the case at bar show such a complaint? I think not. The affidavit made by Alford before Commissioner Prince, being upon information and belief, did not allege any material fact whatever, but was simply the statement of affiant's opinion.

Referring to an affidavit of this sort, the supreme court of California has said:

'It is obvious that this affidavit does not directly charge that petitioner has committed any offense, and it would be a dangerous precedent to establish that any man may be deprived of his liberty, and removed to another state, upon such an accusation. The statement therein that affiant 'has reason to believe, and does believe,' that petitioner embezzled or fraudulently converted to his own use the property mentioned, is not the statement of any fact, and for that reason the affidavit is fatally defective. * * * But the defect in

...