United States v. Greene

• Decision Date: 09 March 1906
• Citation: 146 F. 796
• Parties: UNITED STATES v. GREENE et al.
• Court: U.S. District Court — Southern District of Georgia

146 F. 796

UNITED STATES v. GREENE et al.

United States District Court, S.D. Georgia, Eastern Division.

March 9, 1906

Marion Erwin, U.S. Atty., Alexander Akerman, Asst. U.S. Atty., and Samuel B. Adams and Thomas F. Barr, Sp. Assts. to U.S. Atty.

Peter W. Meldrim and William W. Osborne, for defendants.

SPEER District Judge.

The government offers the testimony of four witnesses who are now dead. These witnesses were R. F. Westcott, W. H. Venable, C H. Van Deventer, and Thomas J. Agnew. They all died during that period in which the accused had absented themselves from the jurisdiction of this court, and while the government was resorting to judicial proceedings in order to secure their return from Canada or other distant jurisdiction to which they had repaired. Had the case been brought to trial at the time when it was originally assigned, all of these witnesses were in life and all might have testified in person. In point of fact, all had testified before John A. Shields, United States commissioner, in the case pending in the Southern District of New York wherein the government sought to secure the return of the prisoners from that judicial district to this district, where the indictments were pending. We are left in no doubt as to that subject.

In the first place, the record of the proceedings before Commissioner Shields makes it indisputable that, not only the prisoners on trial were present, but that they were confronted with the witnesses against them, including these witnesses now dead, and had the most unusual opportunity, not only for the cross-examination of these witnesses, but to introduce evidence in reply to their testimony and any other evidence which might tend to show that there was no probable cause of their guilt and that they ought not to be removed to this district for trial. In addition, this has been judicially ascertained by the District Court of the Southern District of New York. This holding was, in effect, affirmed by the Circuit Judge of that district and was completely and in express terms affirmed by the Supreme Court of the United States on appeal from the decision of the Circuit Judge. Greene v. Henkel, 183 U.S. 249, 22 Sup.Ct. 218, 46 L.Ed 177.

For a clear understanding of these facts we have but to look to the statement of the case made by the Supreme Court itself. Adopting the declaration of the District Judge as its own that court recites:

'The commitment by the commissioner and his finding of probable cause have been made after an extremely full hearing of all the evidence offered on both sides. No evidence reasonably pertinent has been rejected.'

Not only, as appears from the record now before the court, was the fullest cross-examination had, but objections that irrelevant and incompetent testimony was offered by the government were made and considered by the commissioner, overruled by him, his judgment was not disapproved by the District Judge, and was affirmed by the Supreme Court itself. The District Judge further stated that:

'As respects the finding of probable cause, I have carefully considered the very extended briefs and arguments of counsel, and have examined the voluminous evidence with a view to ascertain whether there was competent evidence before the commissioner sufficient in itself to sustain his finding of probable cause.'

And said the Supreme Court in its opinion (183 U.S. 258, 22 Sup.Ct. 222, 46 L.Ed. 177):

'On subsequent hearings before the commissioner, evidence pro and con as to probable cause was given, and also as to the drawing of the grand jury, and that officer decided that 'after full and fair examination touching the charges in the annexed warrant named it appears from the testimony offered that there is probable cause to believe the defendants guilty of the charges therein contained.' And he thereupon for the second time committed the defendants to the marshal's custody to await a warrant of removal to be signed by the District Judge. When the application for the warrant of removal was made to that judge, he held that a proper case was made out and signed the order for removal.'

In defining the action of the District Judge in affirming the conclusions of the commissioner, the Supreme Court, Mr. Justice Peckham delivering the opinion, remarks:

'When the judge refers to the testimony taken before the commissioner, although he does in terms say that he expresses no opinion upon the merits, yet he states that upon the evidence before him it is a proper case to be submitted to a jury for trial. That is, in effect, a finding of probable cause.'

Nor was there, as insisted by defendants' counsel, any holding of the Supreme Court in this case that, because the indictment from the Southern District of Georgia was produced, the sole question before the commissioner was one of the identity of the prisoners. On the contrary, it is, indeed, interesting to observe that the Supreme Court at that time withheld any declaration as to the conclusiveness of an indictment as evidence of probable cause. It remarked (183 U.S. 260, 22 Sup.Ct. 223, 46 L.Ed. 177):

'It is not a condition precedent to taking action under section 1014 of the Revised Statutes (U.S. Comp. St. 1901, p. 716, which provides for the removal from one federal judicial district to another of persons accused of crime) that an indictment for the offense should have been found.' It states that:

'In this case there was a sworn charge-- in other words, a preliminary affidavit-- prima facie showing the commission of an offense against the United States, cognizable by the District Court of the United States for the Southern District of Georgia. To substantiate the charge, a certified copy of an indictment found in the Georgia Court was produced, and in addition evidence was given before the commissioner which, as he found, showed probable cause for believing that the defendants were guilty of the offense charged in his warrant.'

Subsequently, in Benson's Case, 198 U.S. 1, 25 Sup.Ct. 569, 49 L.Ed. 950, the Supreme Court of the United States amply sustained the views of this court, expressed when these prisoners were permitted for months to resist in New York the process of this court. There the Supreme Court declares that it is scarcely seemly for a committing magistrate to examine closely into the validity of an indictment found in a federal court of another district. In conclusion the court analogizes the proceeding to an adjudication which obtains in case of international extradition, and adds:

'There must be some competent evidence to show that an offense has been committed over which the court in the other district had jurisdiction and that the defendant is the individual named in the charge, and that there is probable cause for believing him guilty of the offense charged.'

It follows, then, from this recitation, that the judicial character of the action of the commissioner cannot be questioned. Where there is accusation, arrest, submission of evidence for the prosecution, submission of evidence for the defense, examination, cross-examination, and effective judgment rendered, the proceeding is judicial. A United States commissioner is indeed a judicial officer. In Benson's Case, 198 U.S. 11, 25 Sup.Ct. 569, 49 L.Ed. 950, the court stated that his functions are practically those of an examining magistrate in an ordinary criminal case. He is appointed by court and is commissioned with certain judicial powers. Section 627 of the Revised Statutes (U.S. Comp. St. 1901, p. 499) provides:

'Each Circuit Court may appoint, in different parts of the district for which it is held, so many

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