United States v. Morse

• Decision Date: 25 February 1923
• Citation: 287 F. 906
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES v. MORSE.

287 F. 906

UNITED STATES v. MORSE.

United States District Court, D. Connecticut.

February 25, 1923

Edward L. Smith, of Hartford, Conn., for the United States.

Nash Rockwood, of New York City, and Carl Foster, of Bridgeport Conn., for defendant.

THOMAS District Judge.

This matter is before the court on a writ of habeas corpus resisting the removal of the defendant from the district of Connecticut to the Southern district of New York. The defendant was apprehended in the state of Connecticut, where he resides, and taken before a United States commissioner upon a complaint verified by the United States attorney for this district, charging him with a violation of section 37 of the Penal Code (Comp. St. Sec. 10201). Attached to the complaint, or information, which was upon information and belief only, was a certified copy of an indictment returned against the defendant and 23 others by a grand jury in the Southern district of New York in April, 1922, accusing them of conspiring to use the mails to defraud.

Removal of the defendant from Connecticut to the Southern district of New York for trial was sought in the proceedings before the commissioner. At the preliminary hearing, after motions to dismiss had been made and denied, the government offered in evidence a certified copy of the indictment, together with testimony identifying the defendant, and thereupon rested its case without further proof. The defendant then moved for dismissal, alleging that the indictment was fundamentally defective, and that the local Connecticut practice had not been followed, as required by section 1412 of the Federal Code (R.S. Sec. 1014 (Comp. St. Sec. 1674)). This motion was denied, and the defendant presented oral and documentary evidence to the commissioner to rebut the presumption of probable cause, which testimony was taken at great length. At its conclusion the commissioner denied further motions to dismiss and reserved decision, subsequently finding that there was probable cause to believe the defendant guilty of the crime charged, and committing him for removal to the custody of the marshal. Applications for writs of habeas corpus and certiorari were made and granted in behalf of the defendant, who was admitted to bail pending decision.

The marshal has made return to the writ of habeas corpus, alleging that he is holding the defendant pursuant to the order of commitment of the commissioner, and the commissioner has made return to this court of all of his proceedings including the evidence taken before him. The defendant has demurred to the returns of the marshal and commissioner, averring an entire lack of jurisdiction in the proceedings and an absence of probable cause.

Prior to the argument upon the return of the writs of habeas corpus and certiorari, the United States attorney made an oral request for an order for the removal of the defendant to the Southern District of New York, and by consent of counsel, with the approval of the court, all motions were argued and will be considered and decided together.

The practice upon applications of this character is governed by section 1412 of the Federal Code (R.S. Sec. 1014), which reads, so far as is here applicable:

'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. * * * 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.'

At the very outset it is urged for the defendant that the proceedings before the commissioner were not conducted 'agreeably to the usual mode of process against offenders,' in criminal cases in the state of Connecticut, in that (a) the accused was not confronted with the witnesses against him; (b) that the counsel for the government was himself a witness for the complainant in testifying to the identification of the defendant; and (c) that counsel in his summation to the commissioner improperly commented upon the fact that the defendant had not taken the stand as a witness in his own behalf. In support of these contentions reference is made to State v. Ferrone, 96 Conn. 160, 113 A. 452; State v. Ferrone, 97 Conn. 258, 116 A. 336; Nanos et al. v. Harrison, 97 Conn. 529, 117 A. 803; section 6634, General Statutes of Conn.

That the local state practice is to be followed in removal proceedings before a United States commissioner under R.S. Sec. 1014, quoted supra, is established by numerous decisions. In U.S. v. Ruroede (D.C.) 220 F. 210, the court sustained a writ of habeas corpus and discharged the defendant, because the preliminary removal proceedings before the commissioner did not conform to the practice established in New York by the Code of Criminal Procedure for proceedings before a magistrate, and cited in support of the conclusion reached U.S. v. Greene (D.C.) 100 F. 941, where the court, by Judge Addison Brown, following the opinion of Mr. Justice Curtis of the Supreme Court of the United States in U.S. v. Rundlett, 2 Curt. 41, Fed. Cas. No. 16,208, held that it was the effect of section 1014 to assimilate all proceedings for holding accused prisoners to answer before a court of the United States to proceedings had for similar purposes by laws of the state where the proceedings might take place. In Hastings v. Murchie, 219 F. 83, 134 C.C.A. 1, a similar rule was invoked in Massachusetts, and a recent decision in point is U.S. v. Maresca (D.C.) 266 F. 713, at page 721.

In Safford v. U.S., 252 F. 471, 164 C.C.A. 655, Judge Ward, speaking for the Circuit Court of Appeals for this circuit, said (252 F. 473, 164 C.C.A. 657):

'The defendant contends that the language 'agreeably to the usual mode of process against offenders in such states' means only 'the process itself, such as warrants, commitments, etc., as distinguished from procedure, which may embrace hearings.' We think it means procedure, and the Code of Criminal Procedure of the state of New York (sections 188-220) provides for just such examinations. United States v. Dunbar, 83 F. 151, 27 C.C.A. 488; Cohen v. United States, 214 F. 23, 130 C.C.A. 417; United States v. Greene (D.C.) 100 F. 941.'

We have in Connecticut no Code of Criminal Procedure, but follow the common law. The defendant offered in evidence and proved by a former judge of the city court of Bridgeport, who had acted as such for 12 years, and a former city attorney in the same court, who had been such for about 15 years, that the procedure in Connecticut called for more than the information and identification on a plea of not guilty before the state established a prima facie case. It was conclusively shown that the state must produce witnesses to make out its prima facie case, and that the court would review all of the evidence offered, whether it was offered by the state or the defendant, to determine whether there was sufficient evidence to justify the finding of the existence of probable cause to hold the accused for the superior court. It further appeared that, if the state offers in evidence the information, and proves the identity of the accused, and then rests, offering no oral testimony, the defendant is entitled to a discharge.

While attaching substantial importance to these contentions, they are, nevertheless, overshadowed by the more vital contentions of the nonexistence of jurisdiction and probable cause, upon the affirmative determination of which must ultimately rest the government's right of removal.

The indictment was prima facie evidence of the existence of probable cause, but that it was not conclusive is decided in Hastings v. Murchie, 219 F. 83, at page 88, 134 C.C.A. 1; Beavers v. Henkel, 194 U.S. 73, 24 Sup.Ct. 605, 48 L.Ed. 882; U.S. v. Yount (D.C.) 267 F. 861; Tinsley v. Treat, 205 U.S. 20, 27 Sup.Ct. 430, 51 L.Ed. 689; Gayon v. McCarthy, 252 U.S. 171, 173, 40 Sup.Ct. 244, 64 L.Ed. 513. In Beavers v. Henkel, Mr. Justice Brewer said (194 U.S.on page 85, 24 Sup.Ct. 607, 48 L.Ed. 882):

'It is sufficient for this case to decide, as we do, that the indictment is prima facie evidence of the existence of probable cause. This is not in conflict with the views expressed by this court in Greene v. Henkel, 183 U.S. 249.'

In the Yount Case, supra, Judge Thomson said (267 Fed.at page 862):

'The Supreme Court has mapped out with clearness the procedure under section 1014 of the Revised Statutes (Comp. St. Sec. 1674), where it is sought to remove a defendant from the district where arrested to that where the offense is triable. It is distinctly ruled that, while the indictment constitutes prima facie evidence of probable cause, it is not conclusive, and evidence may be offered by the defendant tending to show that no offense triable in the district to which removal is sought has been committed; that in such a proceeding the function of the judge is not ministerial, but judicial.'

If the indictment does not charge the commission of a penal offense under the laws of the United States, then all jurisdiction to commit the defendant for removal is at an end....