United States v. Yarborough

• Decision Date: 07 April 1903
• Citation: 122 F. 293
• Parties: UNITED STATES v. YARBOROUGH.
• Court: U.S. Court of Appeals — Fourth Circuit

122 F. 293

UNITED STATES v. YARBOROUGH.

United States District Court, W.D. Virginia.

April 7, 1903

McDOWELL District Judge.

On October 31, 1900, an indictment was returned in the United States District Court for the Eastern District of North Carolina, charging one J. L. Yarborough with certain violations of federal revenue statutes. On December 8, 1902 a bench warrant, addressed to the marshal of the Western District of Virginia, was issued by the aforesaid court. A certified copy of the indictment and the said warrant were sent to the marshal of this district.

It is supposed the accused may be found here. The marshal has requested the issue now of a combined bench warrant and order of removal. His letter to the district attorney of this district reads in part:

'Dear Sir: Heretofore when a certified copy of a capias and indictment has been received at this office for the arrest of a criminal indicted in another district, it has been the practice to send the indictment and capias to the deputy in the county where the defendant was supposed to be, and the deputy would then go before his commissioner who issued a warrant for the arrest of the defendant based upon the certified copy of the indictment. When the defendant was arrested, if unable to give bond for his appearance in the district where the offense was committed, he was lodged in jail and this office notified. An order of removal was then prepared, sent to the judge for his signature, and forwarded by the judge to the clerk of the court to be attested, and returned by the clerk to the marshal to be docketed, who then mailed the order of removal to the deputy for the transportation of the defendant to the district where he was to be tried. This is a very long and roundabout way, and causes unnecessary delay in transporting a defendant to another district. I find that in other districts they have the judge issue a combined bench warrant and order of removal immediately upon receipt of a certified copy of indictment. Upon such a writ a deputy can make an arrest and immediately transport a defendant without the necessity of appearing before a commissioner to have a warrant issued. If the defendant can give a bond, of course, he takes him before the commissioner for that purpose; but, if not, he can take his prisoner at once to the district where he is wanted, and there is no necessity to place him in jail awaiting an order of removal. In inclose you a combined bench warrant and order of removal as is issued in West Virginia for your inspection.'

The course suggested by the marshal is expeditious and economical, but I have no hesitation in declining to issue a warrant for removal in advance of the commitment of the accused. Aside from the fact that the great weight of authority is against such a course, there are many reasons for holding it an unwarranted practice. None of these need be now mentioned, other than the fact that section 1014, Rev.St. (U.S.Comp.St. 1901, p. 716), does not authorize a warrant for removal except where an offender (or witness) has been committed in a district other than that where the offense is to be tried.

Inasmuch as the practice as to such removals does not appear to be well settled in all respects, I am led to state my views of some of the questions which frequently arise for the benefit of the officers of the court in this district.

The Arrest.

Where a person found in this district is wanted for trial for an offense in another district, he may, and should, be arrested here upon a proper warrant, in the following cases: (1) Where an indictment has been found against him in such other district; (2) where on examining trial he has been held over by the committing magistrate in such other district to stand trial; (3) where a bench warrant has been issued for his arrest by a federal court of some other district; (4) where a verified complaint of an offense committed by such person in some other district has been made before a judge or committing magistrate in such other district; and (5) where such verified complaint is made before such officer in this district. Whether or not the marshal of this district can lawfully make an arrest on a warrant issued in another district has for many years been a disputed question, and is now unsettled, so far as I am advised. 2 Opp.Attys.Gen. 564; 11 Id. 127; In re Alexander, Fed.Cas.No. 162; U.S. v. Haskins, Fed.Cas.No. 15,322; Conklin's Treatise, pp. 620, 643; U.S. v. Pope, Fed.Cas.No. 16,069; In re Graves (D.C.) 29 F. 60.

At present it is not necessary that I should express an opinion on this point further than to say that it is a safer and better practice to have a warrant of arrest, issued by proper authority (judge, United States commissioner, or other magistrate enumerated in section 1014, Rev. St. (U.S.Comp.St. 1901, p. 716)), in this district, before undertaking to arrest the accused.

It is preferable that application for the warrant of arrest be made to the nearest United States commissioner. The fourth amendment to the federal constitution forbids the issue of a warrant of arrest 'but upon probable cause, supported by oath or affirmation. ' It has been held that a warrant may be issued by a magistrate on an affidavit made before some other magistrate, even out of the jurisdiction. Ex parte Bollman, 4 Cranch, 129, 2 L.Ed. 554; In re Kaine, Fed.Cas.No. 7,598; In re Metzger, Fed.Cas.No. 9,511.

The probable cause for the issue of the warrant of arrest is supplied by an indictment, or by a bench warrant, and may be supplied by a verified complaint made before a committing magistrate of some other jurisdiction, or by a record showing that such magistrate had previously held the accused over to stand trial.

Indictments are seldom made except on the sworn evidence of witnesses, and they are the presentments of the grand jurors made on oath. Hence the production of an indictment or certified copy thereof justifies the issue of the warrant of arrest by the commissioner without any further oath or affirmation. A record showing that the accused had been arrested on verified complaint, and held for trial by a committing magistrate of some other district, equally obviates the necessity for another oath before the commissioner here; as would also an original or authenticated copy of a bench warrant, or of the mere verified complaint made before a foreign commissioner or other committing magistrate.

Proceedings before the Commissioner.

While there are numerous officers given authority by section 1014 to hold the preliminary hearing of one arrested for removal to another district, it is preferable that, after the arrest, the accused should be taken before the nearest United States commissioner. In all cases the commissioner must first be reasonable satisfied as to the identity of the prisoner; and, if the prisoner denies that he is the person accused of the offense, opportunity should be allowed both sides for a full investigation of the question.

If the identify of the prisoner is not denied, or has been established, the commissioner should then (in a bailable case) fix the amount of bail to be taken for the appearance of the accused before the court or magistrate before whom he is to be tried. If the accused is charged with a nonbailable offense, or cannot give bail, or refuses to give it, the commissioner should commit him to await the action of the District Judge of this district (or possibly of any federal judge having jurisdiction in this district) as to awarding a warrant of removal.

Probable Cause.

The decided cases exhibit much diversity of opinion as to the powers and duties of commissioners, when holding these preliminary examinations, other than as to deciding the question of identity and as to taking bail. Much of this confusion might perhaps have been obviated by classifying the cases which may come before the commissioners. The right of the commissioner to require evidence of probably cause of guilt, for instance, would seem to depend on the character of the case before him.

(a) Previous Indictment. If the accused had been previously indicted in the district in which he is wanted, it seems to me that it would be supra dignitate for a commissioner (or it might be a justice of the peace) to examine anew the grounds on which a grand jury returned the indictment. Usually the accused has had an examining trial and been held over before his case is laid before a grand jury. And the indictment is a complaint, nearly always founded on the testimony of witnesses, made on the oaths of the grand jurors.

(b) Previous Preliminary Trial. If the papers laid before the commissioner here show that the accused has...