United States v. Johnston

• Decision Date: 12 September 1923
• Docket Number: 7483.
• Parties: UNITED STATES v. JOHNSTON. Ex parte JOHNSTON.
• Court: U.S. District Court — Western District of Washington

292 F. 491

UNITED STATES v. JOHNSTON.

Ex parte JOHNSTON.

No. 7483.

United States District Court, W.D. Washington, Northern Division.

September 12, 1923

August 30, 1923, the defendant prayed: (a) A writ of habeas corpus to the end that he be discharged from illegal restraint and unlawful arrest by E.B. Benn, United States marshal; (b) A writ of certiorari directing the United States commissioner to certify a full and complete copy of the record in a removal proceeding directed against the defendant. An order was accordingly issued and the marshal directed to show cause why the petitioner was detained. On the same day the United States attorney filed a petition praying an order of removal of the defendant Johnston for trial to the district of Idaho Northern division, upon the record in removal, which is duly certified by the commissioner.

The marshal's return shows that, pursuant to the indictment returned by the grand jury in the district of Idaho, Northern division, the defendant was arrested and held for removal. Hearing was had before the commissioner, the commissioner found probable cause and held the defendant for removal. The defendant objects to the petition for removal of the district attorney, and to removal, and the United States attorney demurs to the sufficiency of the petition in the habeas corpus proceeding. The entire matter is now considered.

Upon the hearing before the commissioner, the government introduced the indictment, to which the defendant objected on the ground that it is insufficient in law, and does not state an offense against the United States. It also introduced testimony of identity of defendant.

The indictment charges, in substance, that September 10, 1922, at a point near Kellogg, Idaho, the defendant received and had in his possession $2,000, in United States currency, which had been on the 28th day of March, 1922, at Kellogg, Idaho stolen by one Edward J. Ricks, from a mail pouch, which had been dispatched from Spokane and Wallace railway post office train No. 22, etc., and that the defendant at the time knew that the money had been stolen.

Witness Jessen, produced by the government, testified that he drove the defendant from Spokane to Wallace on the 8th of September; that they went there for the purpose of looking for some stolen bonds, a reward having been offered by some party for their recovery; that they examined and searched at a place described by him, and returned through Kellogg on the 10th day of the month. He further testified on cross-examination that he was with the defendant all of the time on the trip; that at no time did the defendant communicate with any one upon the trip; that no one gave to the defendant any money, or any package of any kind which could contain money; that no person put any package or any money of any kind or character into the automobile they were driving; that they found no money; that no one saw the defendant at Wallace, Idaho, where they stopped during the nights they were absent; that they occupied adjoining rooms at the hotel; that they were together until they respectively retired; and that the only purpose of their going to Idaho was the purpose of finding the stolen bonds, amounting to $8,000, and obtaining the reward of 10 per cent. which was offered. It appears in the record that the defendant had at a prior time been attorney for Hicks, the person charged with robbing the mails, but had been discharged prior to this time. There is no testimony before the court that the defendant received any money, or that he had any money of any kind or character, and the government witness Jessen negatives the probability of receiving any money.

The government submits the issue solely upon the presumption created by the indictment, and identity of the defendant. The defendant claims the presumption is overcome by the testimony of the government's own witness. The defendant also contends that the indictment is fatally defective, in that it fails to describe the currency which it is claimed was received by the defendant as stolen from the mails. The government contends the indictment is sufficient, and, if not, that that is a matter for judicial determination by the court in which the indictment was returned.

Judson Falknor, of Seattle, Wash., for petitioner.

Thomas P. Revelle, U.S. Atty., and Chas. Moriarty, Asst. U.S. Atty., both of Seattle, Wash.

NETERER, District Judge (after stating the facts as above).

It is settled by the Supreme Court that the order of removal is a judicial act, and that the prima facie case made by the indictment and proof of identity may be overcome by testimony, that the burden to overcome such prima facie case is on the defendant, and that a defendant is entitled to the judgment of the court from which removal is sought as to the existence of probable cause upon the testimony presented. Tinsley v. Treat, 205 U.S. 20, 27 Sup.Ct. 430, 51 L.Ed. 689; U.S. v. Morse (D.C.) 287 F. 906. In Tinsley v. Treat, supra, the court quoted Justice Brewer in Beavers v. Henkel, 194 U.S. 73, 24 Sup.Ct. 605, 48 L.Ed. 822:

'It may be conceded that no such removal should be summarily and arbitrarily made. There are risks and burdens attending it which ought not to be needlessly cast upon any individual. * * * We must never forget that in all controversies, civil or criminal, between the government and an individual, the latter is entitled to reasonable protection. * * * In other words, the removal is made a judicial rather than a mere ministerial act.'

Probable cause means more than opportunity to commit crime, or presence in a particular place. It must be more than surmise or suspicion. There must be some tangible fact or incident which will support a judicial act, something which invokes discrimination of judicial discretion. The facts and circumstances before the court must be such as to warrant a man of prudence and caution in believing that the defendant is guilty. Stacy v. Emery, 97 U.S. 642, 24 L.Ed. 1035. And when there is, as here, an utter absence of fact, or circumstances of degree which invokes a discriminating discretion-- and it affirmatively appears from the record in this case that no act of the defendant, or any relation to the offense charged attached to the defendant, even though this proof is negative, coming from an intimate source, as in this case, from a witness produced by the government, and upon its face having the ring of truthfulness-- a court may well hesitate before concluding that the prima facie case has not been overcome.

Upon the objection to the sufficiency of the indictment, the court likewise exercises more than a judicial discretion. As stated in Tinsley v. Treat, supra:

'He (the judge) must look into the indictment to ascertain whether an offense against the United States is charged.'

Numerous cases have been cited by the government, which it is contended hold that the sufficiency of the indictment must be left to the court to which it was returned. These cases, however (Munsey v. Clough, 196 U.S. 369, 25 Sup.Ct. 282, 49 L.Ed. 515; Hogan v. O'Neill, 255 U.S. 52, 41 Sup.Ct. 222, 65 L.Ed. 497; Pearce v. Texas, 155 U.S. 311, 15 Sup.Ct. 116, 39 L.Ed. 164) are cases where one state sought to extradite a defendant from another state, and it was contended in the United States court that the indictment was insufficient under the law of the indicting state, and the court held that, a state statute or procedure being involved, it could well be left with the state court to construe its statute and procedure. In the instant case a federal statute and federal procedure are involved.

In Haas v. Henkel, 216 U.S. 480, 30 Sup.Ct. 249, 54 L.Ed. 569, 17 Ann.Cas. 1112, no contrary proof was presented. The defendant relied solely upon the fact that another indictment had been returned in the district of New York from which it was sought to remove the defendant, and the court held that the two indictments could pend at the same time,...