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in order that it might be informed on that question in the event it concluded to consider the merits along with the question of the sufficiency of the pleas to the jurisdiction. We are satisfied that the defendants did not intend to waive the benefit of their qualified appearance at the time of filing the pleas to the jurisdiction.

We adjudge that the suit is of such a nature as to bring it within the jurisdiction of the circuit court for the eastern district, under the act of 1875. The judgment must, therefore, be reversed, and the cause remanded, that the plaintiff may proceed, as it may be advised, with the preparation of its case under the act of 1875. It is so ordered.

JAMES G. TINSLEY, Appt.,

V.

MORGAN TREAT, United States Marshal in and for the Eastern District of Virginia, et al.

Criminal law-removal to another Federal district-local practice not controlling.

1. The local practice under which one indicted for a crime is not entitled to a preliminary examination prior to the trial on the merits has no application to the proceedings under U. S. Rev. Stat. § 1014, U. S. Comp. Stat. 1901, p. 716, for the arrest and removal to another Federal district for

trial of a person there charged with an offense against the United States.

Criminal law-removal to another Federal

district-probable cause-indictment not conclusive.

2. Evidence tending to show that no offense, triable in the Federal district court to which the accused is sought to be removed pursuant to U. S. Rev. Stat. § 1014, has been committed by him in that district, cannot be excluded in the removal proceedings, on the theory that a certified copy of the indictment and proof of the identity of the party accused furnish conclusive evidence of probable cause.*

[No. 369.]

out prejudice to a renewal of the application to remove.

The facts are stated in the opinion.

Messrs. John J. Vertrees, John S. Miller, Henry A. M. Smith, James C. Bradford, Marcellus Green, and Garner Wynn Green for appellant.

Assistant Attorney General McReynolds and Solicitor General Hoyt for appellees.

Mr. Chief Justice Fuller delivered the opinion of the court:

In May, 1906, the grand jury in the United States circuit court for the middle district of Tennessee returned an indictment against thirty corporations, two partnerships, and twenty-five persons, as defendants. This indictment contained six counts. Generally speaking, the first, second, fourth, and fifth charged the defendants with violating 1 of the act of Congress approved July 2, 1890, entitled "An Act to Protect Trade and Commerce against Unlawful Restraints and Monopolies" [26 Stat. at L. 209, chap. 647, U. S. Comp. Stat. 1901, p. 3200], and the third and sixth counts charged them under § 5440 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 3676). In July, 1906, the government presented to the district judge of the eastern district of Virginia, at Richmond, a complaint made by Morgan Treat, United States Marshal, alleging that he believed James G. Tinsley stood indicted as aforesaid, and annexing a certified copy of the indictment as a part of the complaint, and praying that Tinsley might "be bailed, as the case may be, for trial before arrested and imprisoned and removed or

the said circuit court of the United States for the middle district of Tennessee, and further dealt with according to law." Tinsley was arrested and taken directly before the district judge, who acted as committing magistrate as well as the judge to order removal. In the proceedings before the district judge, Tinsley admitted that he was one of the defendants named in the indictment. The government relied on the certified copy of the indictment, and offered no evidence except that; and asked for an order to be made for Tinsley's commitment

Argued December 3, 4, 1906. Decided March and removal forthwith. 4, 1907.

PPEAL from the Circuit Court of the United States for the Eastern District of Virginia to review an order dismissing a writ of habeas corpus to inquire into an order of the district judge of that district, directing the removal to another Federal district for trial of a person there charged with an offense against the United States. Reversed and remanded with directions to discharge the appellant from custody with

The record of those proceedings states:

"And thereupon the defendant, J. G. Tinsley, offered himself as witness in his own behalf, and, being about to be sworn, the United States, by its counsel, thereupon objected to the witness being sworn or to any testimony being given in rebuttal of the indictment in these proceedings, on the ground that, the identity of the defendant being admitted, inasmuch as the indictment on its face charges offenses against the United States, committed and triable in the juris

*Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 510.

T

diction in which the defendant stands in- was issued, and he remained in custody dicted, no evidence is admissible here to im- pending its execution. No objection was peach the indictment, and the order of com- offered to the indictment at any time during mitment should be made without other the proceedings before the district judge. proof.

"The defendant's counsel thereupon of fered to prove by the defendant and other witnesses, then and there present, that the circuit court for the middle district of Tennessee had no jurisdiction over the person of said defendant touching the offenses charged in said indictment, in that defendant and said other witnesses would, if permitted, testify that defendant is, and has been for many years, a resident and citizen of the city of Richmond, state of Virginia, and that defendant never, at any time, or at any place in the state of Tennessee, at the times charged in the indictment, did or performed, or was party to, or engaged in, any act or thing in the said indictment charged as having been done and performed in any way whatsoever by this defendant in the said state of Tennessee; nor has defendant done, or performed, or been engaged in, or a party to, the same or any of them in any other place or places at any other time or times whatsoever.

"Thereupon counsel for the government
renewed its objections as aforesaid:

"After hearing counsel on both sides, the
court announced its conclusions as follows:
""The conclusion reached by the court
is that, in a proceeding for the arrest and
removal of persons charged with a violation
of the laws of the United States pursuant
to 1014 of the Revised Statutes of the
United States (U. S. Comp. Stat. 1901, p.
716), before a United States district judge,
sitting in the state of Virginia, in which
state there no longer exists the right of a
preliminary examination upon
upon a crime
charged prior to the trial upon the merits,
when said judge is called upon to act as
well in the matter of the apprehension of
such persons as in their removal to the
jurisdiction in which they have been in-
dicted, that upon the government's presen-
tation of a sufficient indictment, regularly
found by a grand jury in a court of the
United States, properly charging the com-
mission of an offense within the district in
which such indictment is found, coupled
with proof of the identity of the person
indicted, it is its duty to properly bail such
person for appearance before the court in
which he is indicted, or cause him to be re-
moved thereto.""

The district judge should not have allowed himself to be controlled by the statutes of Virginia. utes of Virginia. In that commonwealth it appears to have been formerly required that after indictment an examination should be had; but by subsequent legislation it was provided that where an indictment had been found, a capias should be issued for the arrest of the defendant, and no inquiry was to be made. But, when there was no indictment, a person arrested for an indictable offense must be taken before a magistrate for preliminary examination, and it was the magistrate's duty to inquire whether or not there was sufficient cause for charging the accused with the offense. Pollard's Anno. Code, Va. §§ 3955, 3969, 4003; Jones v. Com. 86 Va. 661, 10 S. E. 1005.

But, as hereinafter seen, the district judge, on application to remove, acts judicially, and that part of § 1014 of the Revised Statutes of the United States which says that the proceedings are to be conducted "agreeably to the usual mode of process against offenders in such state," has no relation to the inquiry on application for removal.

Application was then made to the circuit court for writs of habeas corpus and certiorari, which were granted and due returns made. The petition alleged that Tinsley was unlawfully restrained of his liberty by the marshal, under color of authority of the United States, by virtue of a warrant for removal, claimed to have been issued under § 1014, Revised Statutes. § 1014, Revised Statutes. It set forth in full the proceedings taken before the district judge and the rulings and orders made during the hearing. It was charged that, under and by virtue of clause 3, § 2, article 3, of the Constitution, and of the 6th Amendment, he was entitled to be tried, and could only be tried for any alleged offense against the United States in the state and district where the offenses charged in the indictment were committed; that the offenses specified in the indictment were not committed in the middle district of Tennessee; that none of the acts supposed to have been engaged in by petitioner were done within that district; that the indictment stated no offense and was insufficient and void. It was further alleged that the warrant of removal was in violation of § 2 of It was then ruled that the testimony of- article 3 of the Constitution and of the 6th fered was inadmissible, and the district Amendment; that the rulings of the disjudge ordered that the accused either give trict judge, in holding the certified copy bail or be held for removal. Tinsley de- of the indictment conclusive and in refusing clined to give bond, a warrant directing to permit the introduction of any evidence removal to the middle district of Tennessee on behalf of petitioner, deprived him of

At the hearing before the circuit court, in addition to the record of the proceedings before the district judge, an offer was made to prove by witnesses the facts set forth in the petition, but the court did not admit the same, because it was held that the certified copy of the indictment, with proof of the identity of the party accused, sufficiently established the existence of probable

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rights secured by the Constitution and by § | been indicted; but when he has been in1014, Revised Statutes; and that he was dicted in a district in another state than deprived of his liberty without due process the district of arrest, then, after the ofof law. fender has been committed, it becomes the duty of the district judge, on inquiry, to issue a warrant of removal. And it has been repeatedly held that in such cases the judge exercises something more than a mere ministerial function, involving no judicial discretion. He must look into the indictment to ascertain whether an offense against the United States is charged, find whether there was probable cause, and determine whether the court to which the accused is sought to be removed has jurisdiction of the same. "The liberty of the citizen, and his general right to be tried in a tribunal or forum of his domicil, imposes upon the judge the duty of considering and passing upon those questions." Mr. Justice Jackson, then Circuit Judge, Re Greene, 52 Fed. 106. In the language of Mr. Justice Brewer, delivering the opinion in Beavers v. Henkel, supra:

cause.

In other words, the indictment was in effect held to be conclusive. The circuit judge said, it is true, that probable cause must be shown in order to obtain a removal, but he held that inasmuch as the copy of the indictment alone was regarded as sufficient evidence of probable cause in Beavers v. Henkel, 194 U. S. 73, 48 L. ed. 882, 24 Sup. Ct. Rep. 605, it was sufficient in the present case. In that case, however, no evidence was introduced to overcome the prima facie case made by the indictment except that evidence was offered as to what passed in the grand jury room, and rejected on that ground, and not because it went to the merits.

"It may be conceded that no such removal should be summarily and arbitrarily made. There are risks and burdens attending it which ought not to be needlessly cast upon any individual. These may not be serious in a removal from New York to Brooklyn, but might be if the removal was from San

Section 1014 of the Revised Statutes reads Francisco to New York. And statutory as follows:

provisions must be interpreted in the light of all that may be done under them. We must never forget that in all controversies, civil or criminal, between the government and an individual, the latter is entitled to reasonable protection. Such seems to have been the purpose of Congress in enacting § 1014, Rev. Stat., which requires that the order of removal be issued by the judge of the district in which the defendant is arrested. In other words, the removal is made a judicial, rather than a mere ministerial, act."

"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 In Greene v. Henkel, 183 U. S. 249, 46 trial before such court of the United States L. ed. 177, 22 Sup. Ct. Rep. 218, Greene was as by law has cognizance of the offense. indicted in the district court of the United Copies of the process shall be returned as States for the southern district of Georgia. speedily as may be into the clerk's office of He was arrested and taken before a commissuch court, together with the recognizances sioner in the state of New York. The comof the witnesses for their appearance to missioner held that the certified copy of the testify in the case. And where any of-indictment was conclusive evidence of probfender or witness is committed in any dis-able cause, and refused to hear any evitrict other than that where the offense is dence on the part of the defendant; and to be tried, it shall be the duty of the judge thereupon application was made to the disof the district where such offender or wit-trict judge of the southern district of New ness 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."

Obviously the first part of this section provides for the arrest of any offender against the United States wherever found, and without reference to whether he has

York for an order of removal. That judge held that the commissioner should have heard evidence, and remanded the Evidence was then taken before the commissioner, and he decided that there was probable cause. Application was again made to the district judge for an order of removal, and he held that the evidence

We regard that question as specifically presented in the present case, and we hold that the indictment cannot be treated as conclusive under § 1014.

showed the existence of probable cause, and 1760, as well as Greene v. Henkel, supra, made the order accordingly. Greene there- that an indictment constituted prima facie upon presented his petition to the circuit | evidence of probable cause, but not that it court for a writ of habeas corpus, which was conclusive. was denied, and the case brought here on appeal. The evidence before the commissioner and before the district judge was not annexed to the petition nor brought up on certiorari, so that it formed no part of the record in the habeas corpus case. We held that, in the absence of the evidence, we must assume that the finding of probable cause was sustained.

This being so, we are of opinion that the evidence offered should have been admitted. It is contended that that evidence was immaterial, and, if admitted, could not have affected the decision of either the district or circuit judge. Of course, if the indictment were conclusive, any evidence might be said to be immaterial; but if the indictment were only prima facie, then evidence tending to show that no offense triable in the middle district of Tennessee had been committed by defendant in that district could not be regarded as immaterial.

The Constitution provides that "the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed" (article 3, § 2); and that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed" (Amendment 6); and, in order that anyone accused shall not be deprived of this constitutional right, the judge applied to to remove him from his domicil to a district in another state must find that there is probable cause for believing him to have committed the alleged offense, and in such other district. And in doing this his decision does not determine the question of guilt any more than his view that the indictment is enough for the purpose of removal definitely determines its validity.

But it was insisted that the offense was only that which was contained in the indictment, and, if the indictment were insufficient for any reason, that then no offense was charged upon which removal could be had. This court, however, ruled that the indictment did not preclude the government from giving evidence of a certain and definite character concerning the commission of the offense, and that the mere fact that there might be lacking in the indictment some averment of time or place or circumstance in order to render it free from technical defects would not prevent the removal if evidence were given on the hearing which supplied such defects and showed probable cause to believe the defendants guilty of the offense defectively stated in the indictment. Mr. Justice Peckham, in delivering the opinion, was careful to say that it was not held that where the indictment charged no offense against the United States or the evidence failed to show any, or, if it appeared that the offense charged was not committed or triable in the district to which the removal was sought, the judge would be justified in ordering the removal, because there would be no jurisdiction to commit or any to order the removal of the prisoner. "There must be some competent evidence to show that an offense has been com- Appellant was entitled to the judgment mitted over which the court in the other dis- of the district judge as to the existence of trict had jurisdiction, and that the defendant probable cause on the evidence that might is the individual named in the charge, and have been adduced, and even if the district that there is probable cause for believing him judge had thereupon determined that probguilty of the offense charged." On the able cause existed, and such determination facts of that case it was not found neces- could not be revised on habeas corpus, it is sary to express an opinion upon the ques- nevertheless true that we have no such tion whether the finding of an indictment decision here, and the order of removal canwas, in the proceeding under § 1014, con- not be sustained in its absence. clusive evidence of the existence of probable the exclusion of the evidence offered be cause for believing the defendant in the in-treated as mere error, inasmuch as the' ruldictment guilty of the charge set forth. Although it may be said that if the indictment were conclusive upon the accused, it would be conclusive upon the government also.

It was held in Beavers v. Henkel, supra, Benson v. Henkel, 198 U. S. 1, 49 L. ed. 919, 25 Sup. Ct. Rep. 569, Hyde v. Shine, 199 U. S. 62, 50 L. ed. 90, 25 Sup. Ct. Rep. 27 S. C.-28.

Nor can

ing involved the denial of a right secured by statute under the Constitution.

This conclusion is fatal to the order and warrant of removal and requires a reversal of the judgment below and the discharge of appellant.

Final order reversed and cause remanded with directions to discharge appellant from custody under the order and warrant of re

moval, without prejudice to a renewal of offense against the United States. Rethe application to remove.

Mr. Justice Harlan dissented.

Mr. Justice Moody took no part in the disposition of the case.

WILLIAM De C. KESSLER

V.

MORGAN TREAT, United States Marshal, et al. (No. 370.)

SAMUEL T. MORGAN

V.

MORGAN TREAT, etc. (No. 371.)

AUSTIN B. CARPENTER
V.

MORGAN TREAT, etc. (No. 372.)

FORTESQUE WHITTLE

V.

MORGAN TREAT, etc. (No. 373.

FRANK E. WILCOX
V.

MORGAN TREAT, etc. (No. 374.)

GEORGE BRADEN

V.

MORGAN TREAT, etc. (No. 375.)

FRANK S. ROYSTER
V.

MORGAN TREAT, etc. (No. 376.)
J. RICE SMITH

V.

MORGAN TREAT, etc. (No. 377.)

CHARLES F. BURROUGHS

V.

MORGAN TREAT, etc. (No. 378.)

CHARLES H. McDOWELL
V.

MORGAN TREAT, etc. (No. 379.)

These cases are governed by the decision in
Tinsley v. Treat, ante, p. 430.

[Nos. 370, 371, 372, 373, 374, 375, 376, 377, 378, 379.]

Argued December 3, 4, 1906. Decided March 4, 1907.

APPEALS from the Circuit Court of the United States for the Eastern District of Virginia to review orders dismissing writs of habeas corpus to inquire into orders of the district judge of that district, directing the removal to another Federal district for trial of persons there charged with an

versed and remanded with directions to discharge the appellants from custody without prejudice to a renewal of the applications to remove.

Messrs. John S. Miller, John J. Vertrees, Henry A. M. Smith, and James C. Bradford for appellants.

Mr. James P. Helm for appellant in No. 375.

Assistant Attorney General McReynolds and Solicitor General Hoyt for appellees.

Mr. Chief Justice Fuller: The same decrees will be entered in each of these cases as in the foregoing.

Mr. Justice Harlan dissented.

Mr. Justice Moody took no part.

BERTON O. WETMORE, Administrator of the Estate of Charles H. Wetmore, Deceased, to the use of JAHN F. MCKAY, Plff. in Err.,

V.

JAMES L. KARRICK.

Constitutional law-due process of lawnotice-rendering new judgment after the

term.

1. A court which, acting under the erroneous belief that no action had been taken in a cause within a year, renders a judgment of dismissal, cannot, consistently with due process of law, set aside such judgment after the term, or the rule day which, under the local practice, is equivalent to the end of the term, without motion or proceedings to vacate the judgment, and without notice, and proceed to render a personal judgment against the defendant.* Foreign judgments-action on-want of jurisdiction.

2. Want of jurisdiction to set aside a judgment after the term, and render, without notice, a new and different judgment, is available as a defense to an action on such judgment in a foreign jurisdiction, whatever remedy the local practice may afford a person against whom judgment is rendered in his absence and without his knowledge.t

[No. 144.] Argued January 9, 1907.

11, 1907.

Decided March

N ERROR to the Court of Appeals of the

District of Columbia to review a judgment which affirmed a judgment of the Supreme Court of that District, overruling a demurrer to a plea in an action on a foreign judgment. Affirmed.

*Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 668-670. tEd. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 1459-1469.

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