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fender may be punished in the latter dis- | applied to such reports, but such objections trict, although it may be that he could also must be remitted for determination to the be punished in the former. A large number court in which the indictment was found. of authorities are collated by Mr. Justice In other words, the order of arrest and comGray in the opinion, and the case is treated mitment may be made, although the comas covered by $ 731 (U. S. Comp. Stat. 1901, missioner be of opinion that the indictment, 585), providing that, when an offense is be in a particular vital to the prosecution of gun in one district and completed in anoth-the offense, and which cannot be supplied by er it shall be deemed to have been commit other proof, is fatally defective, and the acted in either, and be tried in either, as cused is charged with no offense against the though it had been wholly committed there laws of the United States. In our opinion, in. In addition to this, however, it is con- the commissioner, when the case is thus preceded that some of the offenses charged in sented, must pass upon the sufficiency of the the various counts were committed in Wash- | indictment. It is his duty to decide whethington.
er an offense is charged with a view to makThere was no error in the action of the ing or withholding the order of arrest, court below, and its judgment is affirmed. which when made, becomes the basis of an
order of removal of a citizen to the place of Mr. Justice Day, concurring:
trial, which may be many miles distant. Mr. Justice White, Mr. Justice Peck- from his home. Such order is proper only ham, Mr. Justice McKenna, and the writ. in cases wherein probable cause has been er agree in the conclusion just announced, shown to believe the accused guilty of an ofand, in the main, with the reasoning of the fense cognizable by the laws of the United opinion. But we are unable to concur in the States in the proceeding pending against view that, where the commissioner may be him, and for which he is to answer at the of opinion that the indictment charges no place of indictment. offense against the laws of the United States, and there is no other proof of probable cause before him, the order of arrest
(198 U. S. 77)
GEORGE W. BEAVERS, Appt., may be made, remitting to the court where the indictment was found all questions of the sufficiency of the indictment. We agreeCHARLES J. HAUBERT, United States that, upon the hearing before the commis
Marshal, etc. (No. 354.) sioner, the indictment is prima facie to be taken as good, and that no technical objec- GEORGE W. BEAVERS, Appt., tion should prevail against it; its ultimate sufficiency being matter for determination CHARLES J. HAUBERT, United States of the court wherein it was returned against
Marshal, etc. (No. 355.) the accused, subject to review in the appellate courts. Greene v. Henkel, 183 U. S. Criminal law-removal to another Federal 249, 46 L. ed. 179, 22 Sup. Ct. Rep. 218.
district for trial-effect of pending ino But the order of removal involves judicial,
dictment in district from which the rerather than mere ministerial, action, and
moval is sought-right to speedy trialmust be issued by the judge of the district
probable cause. when the case made warrants it. § 1014, Rev. Stat.; Beavers v. Henkel, 194 U. S. 73-1. The prosecution of proceedings to remove to 83, 48 L. cd. 882–886, 24 Sup. Ct. Rep. 605. another Federal district for trial a person And, whether found in the indictment, or as there charged with an offense against the the result of other testimony, the order to United States is not an unlawful interference remove the accused can only be issued upon
with the jurisdiction of the Federal circuit a showing of probable cause. Greene V.
court in whose custody the accused was then
held to await the trial of indictments pending Henkel, 183 U. S. 249, 46 L. ed. 179, 22 Sup.
against him in that court, where such proceed. Ct. Rep. 218.
ings were had with the consent of that court, In this case the argument chiefly relied 2. Constitutional rights of the accused to a upon against the right to issue the order of speedy trial of the indictments pending
against him in a Federal circuit court are arrest, and subsequently of removal, rested
not violated by the prosecution, with the con. upon the alleged insufficiency of the indict
sent of that court, of proceedings to remove ment to charge any offense within the terms
the accused to another Federal district for of the statute, because the reports which it the trial of an indictment there found against was alleged the accused had been bribed to him. reveal were not then on file, and might 3. Evidence of probable cause, in proceedings to never be filed in the department. It is said
remove a person to another Federal district
for trial, afforded by an indictment charging that the commissioner was not required to
him with an offense against the United States, determine for himself whether the statute
is not rebutted, even if subject to rebuttal,
where the rebuttal testimony is negative and proceedings instituted against him on the for the most part confined to general state indictment of July 25, 1903. A warrant of ments, and the accused claims his privilege, removal was issued by the district judge of under the state practice, of exemption from cross-examination.
the southern district of New York, and sub
sequently an order was entered by the cir[Nos. 354, 355.]
cuit court, directing appellant to surrender
himself to the United States marshal for Argued February 23, 1905. Decided April said district, and in pursuance thereof the 17, 1905.
appellant did so, and entered into a recogni. A
PPEAL from the District Court of the zance before one of the district judges for
United States for the Eastern District said district in the penal sum of $10,000 for of New York to review an order remanding his appearance in the circuit court for the to the custody of the United States marshal eastern district at the next regular term. the petitioner in habeas corpus proceedings, said court, in pursuance of the notice from
On the 1st of June, 1904, he appeared in order for his removal to another Federal | the United States district attorney, for the district for trial. Affirmed. Also an
purpose of pleading to the indictments. On A
PPEAL from the Circuit Court of the the 7th of June, a continuance having
United States for the Eastern District been granted, he moved to quash the indictof New York to review an order dismissing ment on affidavits and other papers propera writ of habeas corpus arising out of the ly served on the district attorney. On the same proceedings. Affirmed.
8th he appeared before the circuit court,
"prepared to move upon and plead to the Statement by Mr. Justice McKenna: said indictments." Thereupon the district
These cases were submitted together. No. attorney refused to proceed further with 354 is an appeal from an order and judg- the indictments, but stated his intention to ment of the district court of the eastern dis-institute proceedings for the removal of aptrict of New York, in habeas corpus, re- pellant to the District of Columbia, under manding to the custody of appellee. No the indictments found against him there. 355 is an appeal from an order of the Unit. The court thereupon continued the proceeded States circuit court for the same district, ings until the 13th of June, 1904, from time dismissing a writ of habeas corpus arising to time thereafter, until the date of the peout of the same proceedings as No. 354.tition herein, and enlarged him from day The same questions of law are presented, to day upon his recognizance, which is still and we need not further distinguish the in full force. On the 8th of June, 1904, he
was arrested upon the warrant now in quesThe arrest from which appellant prayed tion. The indictments have not been to be discharged was made upon a commit- quashed or nolle prossed, and the appellant ment and warrant in proceedings to remove is ready to plead thereto if the motions subhim to the District of Columbia, to be tried mitted in respect thereto be overruled. upon an indictment there found against him. The petitioner alleges that the only eviHe attacks the commitment and warrant as dence adduced by the government was a cernot being due process of law, in that the tified copy of the indictment, which, it is alcommissioner who issued them had no juris-leged, constituted no proof, but was incomdiction to entertain proceedings against petent and inadmissible because it failed to him, or to require bail, or in default thereof state facts sufficient to constitute a crime, to commit him to await the order of the dis- and because it appeared from the testimony trict judge, because indictments were pend of the witnesses on whose testimony it was ing against him in the circuit court of the found and who were called before the comUnited States for the eastern district of missioner that there was no probable cause New York. The contention is that while to believe he was guilty of any offense the indictments were so pending he could against the United States, and whatever not be removed to another jurisdiction. strength the indictment possessed was re
The facts are as follows: On the 16th of butted by such evidence. July, 1903, two indictments were found against appellant in the eastern district of Messrs. William M. Seabury and BankNew York, charging him with violations of son T. Morgan for appellant. $$ 1781 and 1782 of the Revised Statutes of Assistant Attorney General Purdy for the United States (U. S. Comp. Stat. 1901, appellee. p. 1212), and on the 25th of July, 1903, another indictment was found against him in Mr. Justice McKenna, after stating the the same district for the violation of § 1781. facts as above, delivered the opinion of the
On the 3d of September, 1903, a bench court: warrant was issued on the indictments and It will be observed that indictments were
found against appellant in the eastern dis- | the state whence he is removed can no trict of New York. He was then living in longer require his appearance before her trithe city of New York, which is in the south- bunals, and all obligations which she has ern district. He was removed from the lat- taken to secure that result thereupon at ter, by removal proceedings, to the former once, ipso facto, lose their binding effect.” for trial, and, having been called upon to This case establishes that the sovereignty plead to the indictments, he made certain where jurisdiction first attaches may yield motions in respect thereto. The district at- it, and that the implied custody of a defendtorney, however, announced an intention not ant by his sureties cannot prevent. They to proceed further with the prosecution, and may, however, claim exemption from furannounced further that he intended to pros- ther liability to produce him. ecute proceedings to remove appellant to the There is nothing in Re Johnson, 167 U. S. District of Columbia for trial. This was 120, 42 L. ed. 103, 17 Sup. Ct. Rep. 735, done, and with the consent of the court. It which militates against this view. Indeed, is stated in Judge Thomas's opinion that the that it is the right of the court or sovcircuit court “deferred the hearing of the ereignty to insist upon or waive its jurismotions pending the hearing before the com- diction is there decided. Page 126, L. ed. missioner, for the purpose of allowing the page 105, Sup. Ct. Rep. page 737. In Coswarrant to be served upon the defendant grove v. Winney [174 U. S. 64, 43 L. ed. (petitioner), and to permit the proceed - 897, 19 Sup. Ct. Rep. 598), Cosgrove was ings to continue before the commissioner.” brought into this country from Canada
The appellant contends, nevertheless, that under a treaty which confined action the commissioner had no power to issue war against him to the very offense for which he rants, and relies on two propositions: was surrendered, until he should have an
(1) The proceedings were void because opportunity of returning. His subsequent they were an unlawful interference with the arrest for a nonextraditable offense was jurisdiction of the circuit court for the held to be a violation of the process under eastern district of New York, in the custody which he was brought into
ht into the United of which he was.
States, and therefore illegal. (2) The proceedings were a violation of The circuit court, as we have seen in the appellant's constitutional rights to a speedy case at bar, consented to the removal of the trial by jury upon such indictments. appellant, and we are not called upon to de.
(1) In support of the first proposition is cide whether the government had the right urged the principle “that where jurisdiction of election, without such consent, to prohas attached to person or thing, it is-un-ceed in New York or the District of Co
— less there is some provision to the contrary lumbia. -exclusive in effect until it has wrought its (2) Undoubtedly a defendant is entitled to function.” Taylor v. Taintor, 16 Wall. 366, a speedy trial and by a jury of the district 370, 21 L. ed. 287, 290. But this is prima- where it is alleged the offense was. com
, rily the right of the court or sovereignty, mitted. This is the injunction of the and has its most striking examples in cases Constitution, but suppose he is charged with of extradition. The cited case shows that more than one crime, to which does the whatever right a party may have is not a right attach? He may be guilty of none constitutional right. The question in the of them, he may be guilty of all. He can. case was the effect on the bail of a defend- not be tried for all at the same time, and ant given to a state of the action of its gov- his rights must be considered with regard to ernor sending him out of the state under ex- the practical administration of justice. tradition proceedings. It was held that his To what offense does the right of the debail was exonerated. The court said: "It fendant attach? To that which was first is the settled law of this class of cases that charged, or to that which was first comthe bail will be exonerated where the permitted? Or may the degree of the crimes
? . formance of the condition is rendered im- be considered? Appellant seems to contend possible by the act of God, the act of the ob- that the right attaches and becomes fixed ligee, or the act of the law.” And the act to the first accusation, and, whatever be the of the governor of a state yielding to the re- demands of public justice, they must wait. quisition of the governor of another state We do not think the right is so unqualified was decided to be the act of the law. It and absolute. If it is of that character, it was further said: “In such cases the gov- determines the order of trial of indictments
“ ernor acts in his official character, and rep- in the same court. Counsel would not so resents the sovereignty of the state in giv- contend at the oral argument, but such ing efficacy to the Constitution of the United manifestly is the consequence. It must be States and the law of Congress. If he re- remembered that the right is a constifuse there is no means of compulsion. But tutional one, and, if it has any application if he act, and the fugitive is surrendered,' to the order of trials of different indictments, it must relate to the time of trial, | Towers and Beavers in October, 1900, renot to the place of trial. The place of trial lating to Beavers's official conduct with redepends upon other considerations. It must gard to the Elliott & Hatch Book Typebe in the district where the crime was com- writer Company. mitted. There is no other injunction or Flint was the assistant treasurer and condition, and it cannot be complicated by the assistant secretary of the company from rights having no connection with it. The February, 1901, to March, 1903. He testiright of a speedy trial is necessarily rel-fied that during the year 1901 the corporaative. It is consistent with delays and tion, so far as the books and accounts depends upon circumstances. It secures showed, paid no money to Beavers for any rights to a defendant. It does not preclude purpose whatever, and that he had no the rights of public justice. It cannot be knowledge that would lead him to believe claimed for one offense and prevent arrest that such money was paid. He further for other offenses; and removal proceedings testified that if any money of the corporaare but process for arrest,-means of bring-tion had been paid for the purpose of seing a defendant to trial. And this leads to curing the contract of the government it the other contentions of appellant.
would necessarily have come under his Upon the hearing before the commissioner notice. Also, that he had no knowledge of the government introduced in evidence a money being paid by Towers to Beavers, nor copy of the indictment and proof of the had he knowledge of money having been identity of appellant. The latter called authorized by the corporation to be paid, witnesses, and made a statement in his own either directly or indirectly, to Beavers, behalf, and contends that he rebutted every either $350, or any sum, on July 11, 1901, material allegation of the indictment, and or any other time, and if such payment had that the finding of the commissioner gave been authorized he would have known it. to the indictment the effect of conclusive He further testified that the sales to the proof.
Postoffice Department were to Mr. Gensler, Two questions are involved, -whether ap- and the method adopted was that the mapellant may rebut the indictment, and chines were charged to Gensler as being whether he has done so. If the latter be outright purchases by him at $140 each. answered in the negative,—and we think it The machines returned were credited to his must be,-no reply need be given to the account.
account. A few sales were charged directother.
ly against the Postmaster General, with There is no question made of the suf- the understanding that they were to be paid ficiency of the indictment. It certainly for at $200 and charged to Gensler at $140. charges a crime. It charges that Beavers He also testified that while he was assistwas superintendent of the division of
division of ant treasurer he had no knowledge of the salaries and allowances in the office of the payment of money to Gensler, or of auFirst Assistant Postmaster General, and thority given Gensler to pay money to that he entered into a corrupt agreement Towers for Beavers, for the purpose of inwith W. Scott Towers, an agent of the fluencing Beavers's official action in regard Elliott & Hatch Book Typewriter Com
Book Typewriter Com- to the sale of the Elliott & Hatch Book pany, whereby Towers promised to pay to Typewriter, or that Beavers ever received Beavers the sum of $25 out of each $200 anything of value from the company for paid to said company for book typewriters, such purpose; and that if such payment and that Beavers received from Towers, in had been made he believed he would have pursuance of the agreement, a draft for the known it. sum of $350. The agreement was made and Howard W. Jacobs was bookkeeper and the draft given for the purpose of influencashier of the corporation; Schley became cing Beavers's official judgment and action. secretary and treasurer in 1899. Both these The only testimony that is material to witnesses testified as to knowledge of the notice was delivered by Henry J. Gensler, affairs of the corporation, the trades made Charles Flint, Howard W. Jacobs, and E. by it, and sales in Washington of machines, H. Schley.
and the business, and that they had no Gensler testified that up to June, 1900, he knowledge of the payment by the corporawas an agent of the Elliott & Hatch Book tion or any of its officers or agents to BeaTypewriter Company, and such had vers, or to Towers for Beavers, substantialcharge of all the trade in the locality of the ly as Flint. The witnesses also testified District of Columbia. After that time his that the Elliott & Hatch machines were the son had such charge. It may be inferred best of the book typewriters, and their usual that he had some knowledge of his son's price was $200. business and was familiar with sales made
ade Beavers was sworn for the purpose, as during the year 1900. He testified that he expressed by his counsel, "of permitting the had no knowledge of any agreement with 'accused to make a statement in his own
behalf.” In answer to questions of his | ing the letter of the testimony when counsel he testified that he was the person weighed with the indictment, it does not reaccused, and the person against whom three move all reasonable grounds of presumpindictments had been found in the eastern tion of the commission of the offense. The district of New York, charged with viola degree of proof is not that necessary upon tions of $$ 1781 and 1782 of the Revised the trial of the offense, and a certain latiStatutes of the United States. That it was tude of judgment must be allowed the comnot at his instance the Elliott & Hatch missioner. We cannot say that such latitypewriter was placed in the Postoffice De- tude was exceeded.
exceeded. The testimony was partment; it was placed there under the negative, and, for the most part, confined direction of the First Assistant Postmaster to general statements, and Beavers resisted General. It was the rule of the Depart-cross-examination and the test of the ment, in making the allowance for the type-circumstances which might thereby have writer, to act under the instructions of that been elicited. But granting that he could, officer, and he so acted. Under a like rule under the New York Code, offer himself, to be he acted in the purchase of the machines, sworn, and deliver a statement under the and he further testified that he entered into directions of questions by counsel, and be no agreement with Towers whereby he was exempt from cross-examination, nevertheto receive $25 for each typewriter there less the deficiencies of his statement may after purchased by the Postoffice Depart- be urged against him. It cannot be said, ment. He admitted he received a draft | therefore, that the commissioner's finding from Towers, but it was in the nature of a of probable cause was not justified. loan, as he remembered it; also that he re- The contention that the District of Coceived many drafts from Towers, who was a lumbia is not a district of the United man of considerable influence with the banks States within the meaning of § 1014 of the of Washington, and frequently obtained Revised Statutes (U. S. Comp. Stat. 1901, drafts for him (Beavers) and had notes dis- p. 716), authorizing the removal of accounted for him. This practice ran through cused persons from one district to another, their entire acquaintance. There was not, is disposed of by Benson v. Henkel, 198 U. he further testified, on or about July 11, S. 1, 25 Sup. Ct. Rep. 569, 49 L. ed. — 1901, any matter relating to the Elliott & The orders of the Circuit Court and the Hatch Book typewriter pending before him. District Court dismissing the writs of
Counsel for government attempted to habeas corpus are affirmed. cross-examine Beavers, to which the latter's counsel objected. The commissioner
(198 U. S. 95) ruled against the objection, and counsel
HIRAM REMINGTON, piff. in Err., directed Beavers not to
V. objection to cross-examination was based upon the ground that Beavers took the CENTRAL PACIFIC RAILROAD COM
PANY. stand merely for the purpose of making a statement in answer to the charge made against him, and to explain the facts Appeal--direct review of circuit court judg
ment-removal of causes—time for filing alleged, in accordance with § 196 of the New York Code of Criminal Procedure, and, it
petition—estoppel-sufficiency of petition
- presentation and filing-service of procwas urged, that that section, or any other section which governed the proceedings, did
ess on foreign corporation, res judicata. not contemplate cross-examination. And
1. The jurisdiction of the court below as a Fed. counsel further observed that as the indict
eral court was so involved as to sustain a diment, which was the basis of the proceed- rect review, in the Supreme Court of the ings, was not the only one found against
United States, of a Federal circuit court Beavers "for that reason it would be ex
judgment dismissing an action which had
been removed from the state court, where the tremely unwise to allow him to enter into
ground of the judgment was lack of a valid any rambling cross-examination.”
service of process on the defendant, and the The commissioner committed the appel- plaintiff had moved to remand the cause. lant in default of bail, finding that there 2. A petition for the removal of a cause from was probably cause that the offenses charged
a state court to a Federal circuit court is not
too late, although defendant may be in dehad been committed. The finding was af
fault in the state court for failure to answer firined by the district court in the proceed- in time, if such petition is filed as soon as the ings for habeas corpus.
cause becomes a removable one. We think the finding was justified; in 3. Defendant is not estopped to insist upon other words, the proof afforded by the in- its right to remove a cause from a state court dictment was not overcome; and this is all
to a Federal circuit court because, on the day
after the right of removal was made to apthat it is necessary to now decide. Regard
pear, its motion to stay proceedings pending 25 S. C.-37.
an appeal from an order denying a motion