United States v. Ewing

• Decision Date: 11 May 1891
• Citation: 35 L.Ed. 388,140 U.S. 142,11 S.Ct. 743
• Parties: UNITED STATES v. EWING
• Court: U.S. Supreme Court

140 U.S. 142

11 S.Ct. 743

35 L.Ed. 388

UNITED STATES v. EWING.

May 11, 1891.

Asst. Atty. Gen. Cotton and John C. Chaney, for the United states.

George A. King, for appellee.

Mr. Justice BROWN, after stating the facts as above, delivered the opinion of the court.

The duties of commissioners of the circuit court are thus defined in section 1014 of the Revised Statutes: 'For any crime or offense against the United States, the offender may, by any justice or judge of the United States, or by any commissioner of a circuit court to take bail, or by any * * * justice of the peace or other magistrate, of any state where he may be found, and agreeably to the usual mode of process against offenders in such state, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense. Copies of the procees shall be returned as speedily as may be into the clerk's office of such court, together with the recognizance of the witnesses for their appearance to testify in the case.' As this section requires proceedings to be taken 'agreeably to the usual ode of process against offenders in such state,' it is proper to look at the law of the state in which the services in such case are rendered, to determine what is necessary had proper to be done, and inferentially for what services the commissioner is entitled to payment. U. S. v. Rundlett, 2 Curt. 41; U. S. v. Horton, 2 Dill. 94. We have held in U. S. v. Jones, 134 U. S. 483, 10 Sup. Ct. Rep. 615, that the approval of the commissioner's account by the circuit court of the United States is prima facie evidence of its correctness, and, in the absence of clear and unequivocal proof of mistake on the part of the court, should be conclusive, although the approval of such court is not a prerequisite to the institution of a suit in a court of claims, or, sinec the act of March 3, 1887, (24 St. 505,) in a circuit or district court, for the recovery of the amount claimed. U. S. v. Knox, 128 U. S. 230, 9 Sup. Ct. Rep. 63.

We proceed to the consideration of the several items involved in this case:

1. Items 1 and 2 were for temporary mittimuses, disallowed by the comptroller as unnecessary, upon the ground that 'the warrant of arrest is sufficient to hold defendant or commit until examination.' Rev. St. § 847, provides that the commissioner shall have 'for issuing any warrant * * * the same compensation as is allowed to clerks for like services;' and section 828 provides that clerks shall have $1 for this service. So far as these items are for mittimuses issued after the examination is concluded, to await the action of the grand jury, no question is made as to the propriety of their allowance; but it is claimed that, pending the examination, it is the duty of the marshal to keep the prisoner in his custody under his warrant of arrest, and that the mittimus is therefore unnecessary. It appears, however, that under the laws of Tennessee, upon the subject of criminal procedure, (section 5877,) the magistrate may, 'for good cause, adjourn the examination from time to time, without the consent of the defendant, not exceeding three days at any one time; and in such case, if the offense is not bailable, or if the defendant does not give the bail required, he shall be committed to jail in the meantime; or, if the offense is bailable, the defendant may give bail in such sum as the magistrate directs for his appearance for such further examination.' As there are no federal jails or other places of temporary confinement under control of the marshal, such commitments must be made to state jail, and it follows that a mittimus is proper if not necessary to authorize the keeper of such jail to detain the prisoner, as against a writ of habeas corpus from a state court. Said Mr. Justice STORY, speaking for this court in Randolph v. Donaldson, 9 Cranch, 76, 86; 'The keeper of a state jail is neither in fact nor in law the deputy of the marshal. He is not appointed by, nor removable at the will of, the marshal. When a prisoner is regularly committed to a state jail by the marshal, he is no longer in the custody of the marshal, nor controllable by him. The marshal has no authority to command or direct the keeper in respect to the nature of the imprisonment. * * * For certain purposes, and to certain intents, a state jail, lawfully used by the United States, may be deemed to be the jail of the United States, and that keeper to be keeper of the United States. But this would no more make the marshal liable for his acts than for the acts of any other officer of the United States whose appointment is altogether independent.' We do not wish to be understood as holding that a mittimus is necessary in all such cases to authorize the detention of the accused, especially if the keeper of the jail be, as is freguently the case, a deputy-marshal of the United States; but that it is within the discretion of the commissioner to issue such writ, if in his opinion the safe custody of the prisoner requires this precaution; and, if there be no abuse of such discretion, we do not feel at ibe rty to review his action. Stafford v. U. S., 25 Ct. Cl. 280. Nor do we consider a mittimus necessary every time a prisoner is taken out and returned to jail, pending his examination, since an order of the court or the district attorney, under the statute, would be a sufficient protection to the officer.

It is true that, by section 1030 of the Revised Statutes, 'no writ is necessary to bring into court any prisoner or person in custody, or for remanding him from the court into custody; but the same shall be done on the order of the court or district attorney, for which no fees shall be charged by the clerk or marshal.' This section relates, however, exclusively to the action of the clerk in entering the order of the court or district attorney, and to the action of the marshal in transferring the prisoner to and from his place of detention, and has no reference whatever to his custody by a state officer pending or following his examination.

No error is assigned by the attorney general upon the allowance of the third item.

2. Item 4 is 'for more than one acknowledgment for defendant's recognizances.' The exception to this item is well taken. Rev. St. § 828, allows a clerk, 'for taking an acknowledgment, twenty-five cents;' but the taking of such acknowledgment in a criminal case by the accused and his sureties is a single act, for which only one fee can be charged. Churchill v. U. S., 25 Ct. Cl. 1.

3. The exception to the fifth item, which is 'for all acknowledgments to defendants' recognizances,' is overruled. An acknowledgment is necessary to a judicial recognizance.

4. The allowance for drawing complaints, as 'for taking and certifying depositions to file,' is a proper charge. While the duty of a committing magistrate is to take complaints and issue warrants upon them, which may perhaps imply that they are written by the person making them, the general, if not the universal, practice is for the magistrate himself to put them in writing, and the Tennessee Code evidently contemplates this method of procedure in enacting as follows, (section 5845:) 'Upon information made to any magistrate of the commission of a public...