United States v. Rogers

• Decision Date: 27 April 1885
• Parties: UNITED STATES v. ROGERS.
• Court: U.S. District Court — Western District of Arkansas

23 F. 658

UNITED STATES v. ROGERS.

United States District Court, W.D. Arkansas.

April 27, 1885

The petitioner for habeas corpus in this case was, on the eleventh of September, 1884, at a term of the United States district court of Kansas, begun and held at Wichita, indicted for the crime of arson, in the Indian Territory. Said indictment, in effect, alleges that the crime was committed in that part of the Indian Territory lying north of the canadian river and east of Texas and the 100th meridian, not set apart and occupied by the Cherokees, Creeks, and Seminole Indian tribes; and that the same was committed within the exclusive jurisdiction of the United States district court for the district of Kansas. A certified copy of the indictment was sent to the marshal of the Western district of Arkansas, with the request that he obtain a warrant of removal, and bring petitioner before the district court of the United States for the district of Kansas, sitting at Wichita. The marshal of this district on the fifteenth day of December, 1884, applied to the judge of this court for a warrant for the arrest of the petitioner. The same was issued. The petitioner was, on the thirtieth of December 1884, arrested on said warrant, and by the marshal of this district brought before the judge of this court, when the district attorney of this district applied to the judge for a warrant of removal; and simultaneous with such application the petitioner filed his petition for a writ of habeas corpus, in which he prayed that he might be discharged from arrest, for the reason that the alleged crime for which he is indicted was not committed in that section of the Indian country over which the district court of Kansas has jurisdiction, but that the same, if any offense against the laws of the United States, was committed in that part of the Indian country lying north of the Canadian river, and west of Taxas and the 100th meridian, set apart and occupied by the Cherokees, for which they hold a patent, which evidences their title obtained from the United States. Said patent is dated December 32, 1838. In other words, that the court in which the indictment was found, had no jurisdiction over the place where the crime was committed, and consequently the indictment could not be lawfully found by the grand jury, and that the court would not have the right to try the same; that no trial can be lawfully had of the alleged crime in the district court of Kansas, and that, therefore, the petitioner cannot be lawfully removed to said district for trial; that consequently the warrant for his arrest should not have been issued by the judge of this court; and that now he is restrained of his liberty in violation of the constitution and laws of the United States. Other reasons are set up by the petitioner in his response to the return of the marshal to the writ of habeas corpus, but they not being necessary to a decision of the case, it is not deemed important to set them out.

Barnes & Mellette for petitioner.

W. H. H. Clayton, U.S. Dist. Atty., for the United States.

PARKER J.

This case is before me on the application of District Attorney Clayton for a warrant for the removal of petitioner to the district of Kansas, as well as upon the writ of habeas corpus, issued upon application of petitioner. Section 1014 of the Revised Statutes of the United States, among other things, provides that 'for any crime or offense against the United States the offender may, by any justice or judge 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 when 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. ' If it be true that the district court of Kansas has no jurisdiction to try the offense alleged to have been committed by petitioner, this court had no right to issue the warrant for his arrest; and although said warrant is regular on its face, yet it would be without authority of law, as such warrant was issued solely with a view to his removal to the district court of Kansas sitting at Wichita. If that is not a court where a trial can be had for the alleged offense of arson, and not the court which has cognizance of the offense, the petitioner cannot be held under this warrant.

The question presents itself under the statute of removal, how far the judge of the district can or may go in his inquiry into the case, before he takes action in the shape of ordering the removal of a person charged with crime in a district other than the one where he may be arrested. In U.S. v. Brawner, 7 F. 86, In re James, 18 F. 854, and In re Buell, 3 Dill. 116, it was, in effect, held that in acting on a motion for a 'warrant of removal' the judge is performing a judicial function, and in the performance of such function, he may look into the proceedings of the commissioner, or the court in which the indictment was found, for the purpose of enabling him to properly determine questions pertaining to the removal, and grant or refuse the order accordingly. If the party has been indicted, can the judge go behind that indictment to inquire into the jurisdiction? The very question that he is called on to investigate and pass on in a proceeding for removal is where the offense is to be tried. What court has jurisdiction of it? Where the trial is to be had. Now, is he precluded from doing this by an indictment? The statute is very broad. He must inquire where the trial is to be had. He must send the party to the district where the offense is to be tried; to the court which has jurisdiction, where the trial is to be had. The judge of the district must judicially determine whether the prisoner shall be taken to another district for trial, and that he may refuse his warrant when it appears that the removal should not be made, or when he should admit the party to bail. The judge is to determine for himself whether the party charged should be held or removed. U.S. v. Brawner, 7 F. 86; Conkl. Treat. (4th Ed.) 582; Murray, U.S. Courts, 29; Re Buell, 3 Dill. 116, at p. 120; U.S. v. Jacobi, 14 Int.Rev.Rec. 45; U.S. v. Pape, 24 Int.Rev.Rec. 29; U.S. v. Volz, 14 Blatchf. 15; U.S. v. Haskins, 3 Sawy. 262; Re Alexander, 1 Low. 530; U.S. v. Shepard, 1 Abb. 431; Re Doig, 4 F. 193; and cases cited in these opinions.

In some of these cases there was a writ of habeas corpus, and in some, the original examination was before the district judge, and in one the question arose in the district to which the removal was made on motion to quash the indictment.

Judge HAMMOND, in U.S. v. Brawner, says:

'In none of these cases does it seem to have been treated as a matter of much importance by what form of procedure the action of the judge is invoked, and in none is it denied that he may determine for himself whether the removal is proper.'

In the discretion of the judge he may take the indictment as prima facia evidence of jurisdiction; but suppose the party, when an application for removal is made, objects to the removal on the ground that the court to which he is sought to be removed, has no jurisdiction to try him, he certainly has the right to, in this way, raise the question of jurisdiction. Jurisdiction can be raised at any stage of a criminal proceeding. It is never presumed, but must always be proved; and it is never waived by a defendant. If this principle be correct, it follows that the party who is charged with a crime, and arrested in one district to be removed for trial to another, can raise the question, as an objection to his removal, that he cannot be tried in that other, or that the trial cannot be had there for want of jurisdiction in the court either over the person, the subject-matter, or the place where the crime was committed. There is no question in my mind of the right of a person accused to raise the question of jurisdiction on the hearing of an application for removal, without invoking the aid of the writ of habeas corpus. In re James, 18 F. 853; U.S. v. Brawner, 7 F. 86. And when said question is raised it becomes the duty of the judge of the district to investigate the case so far at least as to ascertain if the court to which the accused is asked to be removed, is the one where the trial can be had. Under the statute the judge of the district is invested with plenary power to grant or refuse the warrant of removal, and he is but exercising sound judicial discretion when he looks into the question of jurisdiction. It must be remembered that this case is before me both on an application for removal of petitioner and on habeas corpus, and if there could be any question about the right of the judge to look to the question of jurisdiction on an application for a warrant of removal, there can be none as to his right to do so when the case is brought before him by habeas corpus. In re Buell, 3 Dill. 116; U.S. v. Brawner, 7 F. 86.

But it is objected by counsel that the case cannot be heard on habeas corpus, as the warrant for the arrest of Rogers was legal; that the officer held him legally by virtue of such writ, and he being in legal custody, he cannot be discharged by this writ at this stage of the case. If he had been arrested on a warrant of a commissioner, and committed to await a warrant of removal, the action of the commissioner could be inquired into by habeas corpus, or without it on the application for removal. U.S. v. Brawner, 7 F. 86; In re Buell, 3 Dill. 116. The petitioner is in the...