United States v. Moore

• Decision Date: 03 August 1925
• Citation: 7 F.2d 734
• Parties: UNITED STATES v. MOORE et al.
• Court: U.S. District Court — Eastern District of Illinois

7 F.2d 734 (1925)

UNITED STATES v. MOORE et al.

District Court, E. D. Illinois.

August 3, 1925.

W. O. Potter, U. S. Atty., of Marion, Ill., L. T. Allen, Asst. U. S. Atty., of Danville, Ill., and Roger Shale and Russell Hardy, Sp. Assts. Atty. Gen., for the United States.

Wm. Acton and Walter T. Gunn, both of Danville, Ill., James Dyer, of Hoopeston, Ill., and Herbert Pope, Allen J. Carter, and Melvin M. Hawley, all of Chicago, Ill., for defendants.

LINDLEY, District Judge.

This is a removal proceeding. The defendants Willard and Moore reside within the Eastern District of Illinois, and the government seeks to remove them to the Northern District of Ohio, to stand trial upon an indictment returned in that district on March 27, 1924, charging them, together with 45 other persons and 47 corporations, with having engaged in a combination in restraint of interstate trade and commerce in malleable iron castings, in violation of section 1 of Act July 2, 1890 (26 Stat. 209), known as the Sherman Anti-Trust Act (Comp. St. § 8820).

The procedure to remove persons charged with violating the laws of the United States from districts in which they reside, or may be apprehended, to districts where indictments may be pending against them, is established by section 1014, R. S. U. S. (Comp. St. § 1674), which reads as follows: "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 chancellor, judge of a supreme or superior court, chief or first judge of common pleas, mayor of a city, 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 process shall be returned as speedily as may be into the clerk's office of such court, together with the recognizances of the witnesses for their appearance to testify in the case. And where any offender or witness is committed in any district other than that where the offense is to be tried, it shall be the duty of the judge of the district where such offender or witness is imprisoned, seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had."

This tribunal can decide only whether these defendants shall attend the court which is ultimately to pass upon the question of their guilt or innocence. It is sitting merely as a committing magistrate. There is not and cannot well be any uniform rule determining how far an examining magistrate should hear the witnesses produced by an accused person, but the proceeding is not a trial. The issue is confined to the single question of whether the evidence makes a prima facie case for the prosecution sufficient to make it necessary to hold the party for trial (Charlton v. Kelly, 229 U. S. 447, 461, 33 S. Ct. 945, 57 L. Ed. 1274, 46 L. R. A. N. S. 397), and not to determine whether the evidence is sufficient to justify a conviction (Collins v. Loisel, 259 U. S. 309, 315, 316, 317, 42 S. Ct. 469, 66 L. Ed. 956).

Furthermore, the sufficiency of the indictment is to be determined by the court in which it was found, and is not a matter of inquiry in removal proceedings. Beavers v. Henkel, 194 U. S. 73, 87, 24 S. Ct. 605, 48 L. Ed. 882. In other words, the committing magistrate cannot conclusively adjudge the indictment to be either good or bad, or pass finally upon the guilt or innocence of the accused. His decision discharging the prisoner neither annuls the indictment nor blots out the offense. The trial court alone has plenary jurisdiction over the cause, and consequently it alone has plenary power to pass upon the sufficiency of the indictment as the pleading which initiated and is the foundation of the prosecution. Morse v. United States, 45 S. Ct. 209, 69 L. Ed. 522, Feb. 2, 1925. "A judgment in a preliminary examination discharging an accused person for want of probable cause is not conclusive upon the question of his guilt or innocence and constitutes no bar to a subsequent trial in the court to which the indictment is returned. * * * A discharge for insufficient evidence will not preclude a second inquiry." Morse v. U. S., supra. All controverted questions of law and fact are for the trial court. Henry v. Henkel, 235 U. S. 219, 35 S. Ct. 54, 59 L. Ed. 203; Louie v. U. S., 254 U. S. 548, 41 S. Ct. 188, 65 L. Ed. 399; Rodman v. Pothier, 264 U. S. 399, 44 S. Ct. 360, 68 L. Ed. 759. Competent evidence to justify removal is not necessarily evidence competent to convict. Fernandez v. Phillips, 45 S. Ct. 541, 69 L. Ed. ___ (May 25, 1925). This court is not called upon to determine whether the offense charged has in fact been committed. Dumbra v. U. S., 45 S. Ct. 546, 69 L. Ed. ___ (May 25, 1925).

The grand jury of the Northern District of Ohio, under the Constitution and laws of the United States, found that there was probable cause and returned an indictment. Final trial can be had only in the same forum. But it has been repeatedly held that in such cases the committing magistrate exercises something more than a mere ministerial function, involving no judicial discretion. He must look into the indictment to ascertain whether an offense against the United States is charged, find whether there was probable cause, and determine whether the court to which the accused is sought to be removed has jurisdiction of the same. Tinsley v. Treat, 205 U. S. 20, 29, 27 S. Ct. 430, 51 L. Ed. 689.

Concerning this indictment, the court of original jurisdiction upon demurrer said: "The indictment is unexceptionable, both as to form and substance. It states adequately the venue of the crime charged as within the jurisdiction of this court. The crime is adequately alleged to be a continuing conspiracy, in which all of the corporate and individual defendants have been during the past five years and still are engaged, and is not, therefore, barred by the statute of limitations. The criminal participation of the individual defendants, as officers having the active management, direction, and control of the interstate trade and business of the corporate defendants engaged in the illegal combination or conspiracy, is sufficiently averred within the authorities and within the terms of section 14, Act Oct. 15, 1914, known as the Clayton Act (Comp. St. § 8835m). The elements of the crime are not only charged in the language of the statute, but the means whereby the combination or conspiracy is and has been formed and carried on, and the details thereof, adequate to identify the specific combination or conspiracy and to enable the defendants to prepare for trial and to protect them against a new prosecution in the event of acquittal or conviction, are likewise all set forth with particularity and definiteness. If the allegations of the indictment are proved, each and all of the defendants are guilty of a violation of section 1 of the Sherman Act." It follows that this court has nothing to say concerning the validity of the indictment. If the trial court was wrong in its determination, the courts of review will so declare, but it is beyond what this court believes to be a proper conception of its power to review that decision or declare it erroneous.

But the indictment is to be considered as competent evidence. Beavers v. Henkel, 194 U. S. 73, 24 S. Ct. 605, 48 L. Ed. 882, and other cases supra. The government submitted it upon such theory and rested. Certain evidence was then submitted by the defendants, and, in connection with its cross-examination of defendants' witnesses, the government submitted additional evidence. The defendants submitted evidence tending to prove that competition between...