United States v. Tureaud

• Decision Date: 28 May 1884
• Citation: United States v. Tureaud, 20 F. 621 (E.D. La. 1884)
• Parties: UNITED STATES v. TUREAUD. (Several Cases.) [1]
• Court: U.S. District Court — Eastern District of Louisiana

20 F. 621

UNITED STATES v. TUREAUD. (Several Cases.) ^[1]

United States Circuit Court, E.D. Louisiana.

May 28, 1884

A. H Freeman, Asst. Atty. Gen., A. H. Leonard, and Francis T Nichols, U.S. Atty., for plaintiff.

John D Rouse, William Grant, and Joseph P. Hornor, for defendant.

BILLINGS J.

The question presented arises in prosecutions for the lowest grade of misdemeanors, but the determination affects the proceedings in all more misdemeanors or offenses lower than felonies.I asked, therefore, a fuller argument, in order that I might have all the aid possible in the consideration of the matter, so that, on the one hand, there might be no groundless restriction upon the executive department in its efforts to enforce criminal law, and, on the other hand, that no protection which the constitution had thrown around the citizen might be disregarded.

The affidavits, the sufficiency of which are to be determined, are identical, and are as follows:

'Geo. A. Dice, being duly sworn, says: All the statements and averments in the foregoing information are true, as he verily believes.

'GEO. A. DICE.

'Sworn to and subscribed before me this twentieth day of May, 1884.

'E. R. HUNT, U.S. Commissioner.'

The point, and the sole point, to be passed upon is whether this affidavit furnishes such a 'probable cause,' and is supported by such an oath, as is required by the fourth amendment to the constitution.It is true, it is an affidavit subjoined to and made the basis of an information.It is also true that under the usages of the government of Great Britain this information belongs to the class of formal accusations which could be made by the king in his courts without any evidence, and against all evidence.But the adoption of the fourth amendment affected all kinds and modes of prosecution for crimes or offenses; for there can be no legal pursuit of accused persons without apprehension.All prosecutions require warrants.An information, a suggestion of a criminal charge to a court, is a vain thing, unless it is followed by a capias.The procedure by information, therefore, after it was acted upon by this amendment lost its prerogative function or quality.It could not thereafter be the vehicle of preferring any arbitrary accusation-- not by the king, because we have in the department of criminal law no successor to him, so far as he represented a right to institute, if it pleased him, unsupported incriminations; nor by the district attorney, nor by any other officer of the United States; for the constitution has said, in effect, that in no way nor manner shall magistrates or courts issue warrants, except upon proofs, which are to be upon oath and make probable excuse.SeeState v. Mitchell, 1 Bay, 267, and 1 Op.Attys.Gen. 229, where Mr. Attorney General WIRT holds that even the president is controlled by this amendment.All arbitrary informations, all informations which spring into existence simply because the king and his attorney elected to present them, indeed all informations, except those supported by proof upon oath, which constitute probable cause, by this constitutional provision were expunged from permissible procedures, and the learning about informations was left valuable only as showing what proofs were considered adequate in cases where proofs had to be presented in order to have them acted upon by the judicial discretion or mind.

The master of the crown, whose duties with regard to informations to be sustained by proofs corresponded with the district attorneys' of the United States in the courts of the Union, was required to produce to the court'such legal evidence of the offense having been committed by the defendant as would warrant a grand jury in finding a true bill against the defendant, otherwise he will be left to his ordinary remedy by action or indictment. ' Cole, Crim. Inf. marginal paging 15, 54 vol.Law Library.This is the measure of proof which is held to be requisite by the courts of the United States under the fourth amendment.SeeEx parte Burford, 1 Cranch, C.C. 276.CRANCH, J., whose dissenting opinion was adopted by the supreme court, said: 'It (the warrant) ought to have stated the names of the persons on whose testimony it was granted, and the nature of the testimony, so that this court may know what kind of ill-fame it was, and whether the justices have exercised their discretion properly. ' When the case reached the supreme court, (3 Cranch, 453,)'the judges of that court were unanimously of opinion that the warrant of commitment was illegal for want of stating some good cause certain, supported by affidavit.'

The rule which must govern this court, and all magistrates who authorize arrests under the constitution of the United States, as to the...