United States v. Dana

• Decision Date: 24 June 1895
• Citation: 68 F. 886
• Parties: In re DANA et al. v. DANA et al. UNITED STATES
• Court: U.S. District Court — Southern District of New York

68 F. 886

In re DANA et al.

UNITED STATES v. DANA et al.

United States District Court, S.D. New York.

June 24, 1895

The complaint before the commissioner was made by the United States attorney for this district, in a brief affidavit which did not itself charge any offense, but alleged, upon information and belief, the finding of the indictment, as above stated, and that the defendant was in this district. Attached were an authenticated copy of the indictment, and a copy of the bench warrant issued thereon by the chief justice of the court, directing the marshal of the District of Columbia to arrest the defendants if found in that District.

The indictment contained three counts. The first stated that the Sun Printing & Publishing Association was a New York corporation, engaged at the city of New York, in the business of printing and publishing The Sun newspaper daily; that Mr Dana was its editor, and as such, composed, and procured for publication in The Sun, the editorial articles that appeared in the daily issues thereof; that the defendant Laffan was the manager of the paper, who had charge and superintendence of the printing, publication, and sale thereof; and that as such manager Laffan published and sold, and caused to be sold the issues of the paper in the city of New York, and at other places in the United States, among them, at the city of Washington; and that 300 copies of The Sun were regularly sent to Washington, and were sold by said Laffan as such manager for circulation there, as Mr. Dana well knew; that Mr. Dana, so being editor, and Mr. Laffan, manager, of The Sun, did, at the city of New York, on the 22d of February 1895, maliciously write and publish, and cause and procure to be written and published in The Sun, in the form of an editorial article, the libelous matter complained of entitled 'The Work of Rascals'; and on the same day maliciously and unlawfully sent and caused to be sent to the city of Washington, for circulation there, 300 copies thereof, containing the libelous matter referred to; and did then and there on February 22, 1895, at the District of Columbia, unlawfully publish, and cause to be published, the libelous matter in the editorial article above referred to.

Two other counts in the indictment are of the same purport substantially, except that they make no reference to the publication of The Sun in New York, or to any acts of the defendants in New York; but aver that the defendants on the 22d day of February, 1895, did, at the said District of Columbia, write and publish, and cause and procure to be written and published a certain other libel, in the same words as stated in the first count. Mr. Dana, on notice of the proceedings, appeared before the commissioner. His identity was proved; and also that he was not in Washington, but in New York, during all the period alleged in the indictment, and had nothing to do with the sale or circulation of the paper; he denied the existence of probable cause, the sufficiency of the papers presented to the commissioner, and offered evidence to show want of probable cause, which was excluded, the commissioner ruling that only the question of identity was before him. The question of removal was elaborately argued before the district judge orally, and upon briefs afterwards submitted.

Wallace Macfarlane, U.S. Dist. Atty., and Max J. Kohler, Asst. U.S. Dist. Atty., for the United States.

Elihu Root, Franklin Bartlett, and Jere Wilson, for defendants.

BROWN District Judge (after stating the facts).

The indictment charges that the alleged libel was published both in New York and in Washington. But the facts stated in the indictment, and the slight evidence taken before the commissioner, are sufficient to show that whatever Mr. Dana had to do with the publication of The Sun of February 22d, containing the alleged libelous matter, was done in New York. Upon this ground it is contended by his counsel that he cannot be removed to Washington for trial, under the provisions of the United States constitution, which require the trial of offenders to be had in the state and district where the offense shall have been committed. The law of libel, however, authorizes an indictment where the libelous matter has been circulated through the defendant's instrumentality or procurement, and the common-law authorities justify the contention of the prosecution, that if the accused, within one jurisdiction has set agencies in motion for the purpose of procuring the circulation of the libelous matter in another jurisdiction, the offense is committed by him in the latter jurisdiction, though he was not physically present there.

Whether the requirement of the constitution that the trial shall be had where the offense is committed, is to be construed according to the technical common-law rule existing at the time the constitution was adopted, or in the more popular sense of the word 'committed,' and with reference only to the place where the defendant's own acts were done, is a mooted question, which I do not find it necessary to decide. Some very pertinent remarks on this point adverse to the contention of the prosecution, are to be found in the opinion rendered by Justice James, in the case of U.S. v. Guiteau, 1 Mackay, 544, 545, and also by Justice Hagner, in the same case (pages 553, 554), both of whom express the opinion that the constitutional provision is to be interpreted on grounds 'independent of the common law,' and with reference only to the 'place where the manifest act of the defendant was done'-- 'where his active agency was employed'-- and that it 'forbids trial in a district where the ultimate consequence of his act happened, but where he does not act.'

The language of courts, however, is to be considered with reference to the facts of the case in hand; and in that case the mortal blow was delivered in the District of Columbia, though the death resulting from it occurred afterwards in New Jersey. Such cases are distinguished from those in which the defendant's acts are direct and continuous, as when a pistol ball is fired across the boundary line of two jurisdictions; in that case, the blow is deemed given and the offense committed where the ball strikes, though the offender was across the line and in another jurisdiction. U.S. v. Davis, 2 Sumn. 482, Fed. Cas. No. 14,932. And so in libel, it is said, the injurious blow is delivered at the place where the circulation or publication is brought about intentionally through the defendant's procurement. If the circulation in a foreign jurisdiction arises only through the independent acts of others, without any active privity or intentional procurement of the defendant, no doubt can arise; as, for instance, in the case of a sale by the publishers of papers at the principal place of publication to a newsdealer in the ordinary course of trade, by whom the papers are forwarded to other jurisdictions in the ordinary course of his business. In such a case the remarks of Judge Cooley would certainly be pertinent:

'The actual offense, if any,' he says, 'was committed in New York. But a technical publication also took place in Washington by the sale of papers there. * * * It would be a singular result of a revolution where one of the grievances complained of was the assertion of a right to send parties abroad for trial, if it should be found that an editor may be seized anywhere in the Union and transported by a federal officer to every territory into which his paper may find its way, to be tried in each in succession, for offenses which consisted in a single act, not actually committed in any of them' Const. Lim. *320, note.

As the facts bearing upon this point appear very imperfectly, through the slight testimony admitted by the commissioner, it will not be useful to consider it further here, though it has an important connection with the sufficiency of the indictment; and in that relation it will be referred to hereafter. It is also unnecessary, as a careful examination of the case in other aspects satisfies me that the application for removal should be denied, (1) because of the insufficiency of this indictment as a basis for removal proceedings under the practice required by section 1014; and (2) because the offense charged, resting wholly on the common law of Maryland, continued in force there by the acts of congress, does not belong to the class of 'offenses against the United States' contemplated by section 33 of the judiciary act, or by section 1014 of the Revised Statutes, upon which this application is based.

(1) Procedure: The Indictment as Evidence:

The commitment was made, and removal is asked, upon no evidence of criminality, or of probable cause, except a copy of the indictment found in the District of Columbia. Its reception as evidence of criminality was objected to. The objection was overruled, and the finding of the indictment was treated as so far conclusive on the question of probable cause, as to leave nothing for the commissioner, as a committing magistrate, to determine, except the identity of the defendant. Evidence offered by the defendant to disprove probable cause was accordingly rejected. On the question of criminality, no witnesses were called for the prosecution and none was allowed for the defendant. It is claimed by the prosecution that the long practice of this district warrants that course. No reported decision of my predecessors on this point has been cited, and I know of none; nor has the point been before presented to me for decision. As applications for removal upon indictments found in other districts are becoming frequent, correct practice in regard to them is so important that I am constrained to give it careful attention. If the practice pursued in this case is ...