in order that it might be informed on that out prejudice to a renewal of the appliquestion in the event it concluded to con- cation to remove. sider the merits along with the question of The facts are stated in the opinion. the sufficiency of the pleas to the jurisdic- Messrs. John J. Vertrees, John S. Miller, tion.

We are satisfied that the defendants Henry A. M. Smith, James C. Bradford, did not intend to waive the benefit of their Marcellus Green, and Garner Wynn Green qualified appearance at the time of filing for appellant. the pleas to the jurisdiction.

Assistant Attorney General McReynolds We adjudge that the suit is of such a na- and Solicitor General Hoyt for appellees. ture as to bring it within the jurisdiction of the circuit court for the eastern dis- Mr. Chief Justice Fuller delivered the trict, under the act of 1875. The judgment opinion of the court: must, therefore, be reversed, and the cause In May, 1906, the grand jury in the Unitremanded, that the plaintiff may proceed, ed States circuit court for the middle disas it may be advised, with the preparation trict of Tennessee returned an indictment of its case under the act of 1875.

against thirty corporations, two partnerIt is so ordered.

ships, and twenty-five persons, as defendants. This indictment contained six counts. Generally speaking, the first, second, fourth, and fifth charged the defendants with vio

lating § 1 of the act of Congress approved SAMES G. TINSLEY, Appt.,

July 2, 1890, entitled “An Act to Protect v.

Trade and Commerce against Unlawful ReMORGAN TREAT, United States Marshal straints and Monopolies” [26 Stat. at L. 209,

in and for the Eastern District of Vir- chap. 647, U. S. Comp. Stat. 1901, p. 3200], ginia, et al.

and the third and sixth counts charged them Criminal law-removal to another Federal under g 5440 of the Revised Statutes (U. district—local practice not controlling.

S. Comp. Stat. 1901, p. 3676). In July, 1906, 1. The local practice under which one the government presented to the district indicted for a crime is not entitled to a judge of the eastern district of Virginia, at preliminary examination prior to the trial Richmond, a complaint made by Morgan on the merits has no application to the pro- Treat, United States Marshal, alleging that ceedings under U. S. Rev. Stat. § 1014, U. he believed James G. Tinsley stood indicted S. Comp. Stat. 1901, p. 716, for the arrest as aforesaid, and annexing a certified copy and removal to another Federal district for trial of a person there charged with an of- of the indictment as a part of the comfense against the United States.

plaint, and praying that Tinsley might "be Criminal law-removal to another Federal

arrested and imprisoned and removed or district-probable cause-indictment not bailed, as the case may be, for trial before conclusive.

the said circuit court of the United States 2. Evidence tending to show that no for the middle district of Tennessee, and offense, triable in the Federal district court further dealt with according to law.” Tinsto which the accused is sought to be re- ley was arrested and taken directly before moved pursuant to U. S. Rev. Stat. § 1014, the district judge, who acted as committing has been committed by him in that dis, magistrate as well as the judge to order retrict, cannot be excluded in the removal moval. In the proceedings before the disproceedings, on the theory that a certified copy of the indictment and proof of the trict judge, Tinsley admitted that he was identity of the party accused furnish con one of the defendants named in the indict. clusive evidence of probable cause.*

ment. The government relied on the certi

fied copy of the indictment, and offered no [No. 369.]

evidence except that; and asked for an or

der to be made for Tinsley's commitment Argued December 3, 4, 1906. Decided March and removal forthwith. 4, 1907.

The record of those proceedings states:

“And thereupon the defendant, J. G. Ting. A

United States for the Eastern District behalf, and, being about to be sworn, the of Virginia to review an order dismissing a United States, by its counsel, thereupon obwrit of habeas corpus to inquire into an jected to the witness being sworn or to any order of the district judge of that district, testimony being given in rebuttal of the indirecting the removal to another Federal dictment in these proceedings, on the ground district for trial of a person there charged that, the identity of the defendant being with an offense against the United States. admitted, inasmuch as the indictment on its Reversed and remanded with directions to face charges offenses against the United discharge the appellant from custody with States, committed and triable in the juris

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

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 district judge should not have al“The defendant's counsel thereupon of lowed himself to be controlled by the stat. fered to prove by the defendant and other utes of Virginia. In that commonwealth witnesses, then and there present, that the it appears to have been formerly required circuit court for the middle district of Ten- that after indictment an examination should nessee had no jurisdiction over the person be had; but by subsequent legislation it of said defendant touching the

the offenses was provided that where an indictment had charged in said indictment, in that defend- been found, a capias should be issued for ant and said other witnesses would, if per- the arrest of the defendant, and no inquiry mitted, testify that defendant is, and has was to be made. But, when there was no been for many years, a resident and citizen indictment, a person arrested for an indictaof the city of Richmond, state of Virginia, ble offense must be taken before a magisand that defendant never, at any time, or trate for preliminary examination, and it at any place in the state of Tennessee, at was the magistrate's duty to inquire wheththe times charged in the indictment, did or er or not there was sufficient cause for performed, or was party to, or engaged in, charging the accused with the offense. Pol- . any act or thing in the said indictment lard's Anno. Code, Va. $8 3955, 3969, 4003; charged as having been done and performed Jones v. Com. 86 Va. 661, 10 S. E. 1005. in any way whatsoever by this defendant But, as hereinafter seen, the district in the said state of Tennessee; nor has de- judge, on application to remove, acts judifendant done, or performed, or been en cially, and that part of $ 1014 of the Regaged in, or a party to, the same or any vised Statutes of the United States which of them in any other place or places at any says that the proceedings are to be conother time or times whatsoever.

ducted "agreeably to the usual mode of “Thereupon counsel for the government process against offenders in such state," has renewed its objections as aforesaid: no relation to the inquiry on application for

“After hearing counsel on both sides, the removal. court announced its conclusions as follows:

Application was then made to the circuit “ 'The conclusion reached by the court court for writs of habeas corpus and ceris that, in a proceeding for the arrest and tiorari, which were granted and due returns removal of persons charged with a violation made. . The petition alleged that Tinsley of the laws of the United States pursuant was unlawfully restrained of his liberty by to $ 1014 of the Revised Statutes of the the marshal, under color of authority of the United States (U. S. Comp. Stat. 1901, p. United States, by virtue of a warrant for 716), before a United States district judge, removal, claimed to have been issued under sitting in the state of Virginia, in which $ 1014, Revised Statutes. It set forth in state there no longer exists the right of a full the proceedings taken before the dispreliminary examination upon crime trict judge and the rulings and orders made charged prior to the trial upon the merits, during the hearing. It was charged that, when said judge is called upon to act as under and by virtue of clause 3, § 2, artiwell in the matter of the apprehension of cle 3, of the Constitution, and of the 6th such persons as in their removal to the Amendment, he was entitled to be tried, jurisdiction in which they have been in and could only be tried for any alleged ofdicted, that upon the government's presen- fense against the United States in the state tation of a sufficient indictment, regularly and district where the offenses charged in found by a grand jury in a court of the the indictment were committed; that the United States, properly charging the com- offenses specified in the indictment were not mission of an offense within the district in committed in the middle district of Tenneswhich such indictment is found, coupled see; that none of the acts supposed to have with proof of the identity of the person been engaged in by petitioner were done indicted, it is its duty to properly bail such within that district; that the indictment person for appearance before the court in stated no offense and was insufficient and which he is indicted, or cause him to be re-void. It was further alleged that the warmoved thereto.'»

rant 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 dis- . judge ordered that the accused either givetrict 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 I on behalf of petitioner, deprived him of

а.

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 At the hearing before the circuit court, in duty of the district judge, on inquiry, to isaddition to the record of the proceedings be sue a warrant of removal. And it has been fore the district judge, an offer was made repeatedly held that in such cases the judge to prove by witnesses the facts set forth in exercises something more than a mere minthe petition, but the court did not admit isterial function, involving no judicial disthe same, because it was held that the cer- cretion. He must look into the indictment tified copy of the indictment, with proof of to ascertain whether an offense against the the identity of the party accused, sufficient. United States is charged, find whether there ly established the existence of probable was probable cause, and determine whether cause.

the court to which the accused is sought to In other words, the indictment was in ef- be removed has jurisdiction of the same. fect held to be conclusive. The circuit "The liberty of the citizen, and his general judge said, it is true, that probable cause right to be tried in a tribunal or forum of must be shown in order to obtain a removal, his domicil, imposes upon the judge the but he held that inasmuch as the copy of duty of considering and passing upon those the indictment alone was regarded as suf- questions.” Mr. Justice Jackson, then Cirficient evidence of probable cause in Bea- cuit Judge, Re Greene, 52 Fed. 106. In the vers v. Henkel, 194 U. S. 73, 48 L. ed. 882, language of Mr. Justice Brewer, delivering 24 Sup. Ct. Rep. 605, it was sufficient in the the opinion in Beavers v. Henkel, supra: present case. In that case, however, no evi- "It may be conceded that no such removal dence was introduced to overcome the pri- should be summarily and arbitrarily made. ma facie case made by the indictment ex- | There are risks and burdens attending it cept that evidence was offered as to what which ought not to be needlessly cast upon passed in the grand jury room, and rejected any individual. These may not be serious . on that ground, and not because it went to in a removal from New York to Brooklyn, the merits.

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 “For any crime or offense against the of all that may be done under them. We United States, the offender may, by any must never forget that in all controversies, justice or judge of the United States, or by civil or criminal, between the government any commissioner of a circuit court to take and an individual, the latter is entitled to bail, or by any chancellor, judge of a su reasonable protection. Such seems to have preme or superior court, chief or first judge been the purpose of Congress in enacting of common pleas, mayor of a city, justice $ 1014, Rev. Stat., which requires that the of the peace, or other magistrate, of any order of removal be issued by the judge of state where he may be found, and agree the district in which the defendant is arably to the usual mode of process against rested. In other words, the removal is made offenders in such state, and at the expense a judicial, rather than a mere ministerial, of the United States, be arrested and im- act." prisoned, 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 York for an order of removal. That judge of the marshal to execute, a warrant for held that the commissioner should have his removal to the district where the trial is heard evidence, and remanded the case. to be had.”

Evidence was then taken before the comObviously the first part of this section missioner, and he decided that there was provides for the arrest of any offender probable

Application was again against the United States wherever found, made to the district judge for an order of and without reference to whether he has removal, and he held that the evidence

showed the existence of probable cause, and 760, 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 We regard that question as specifically appeal. The evidence before the commis- presented in the present case, and we hold sioner and before the district judge was not that the indictment cannot be treated as annexed to the petition nor brought up on conclusive under $ 1014. certiorari, so that it formed no part of the This being so, we are of opinion that the record in the habeas corpus case. We held evidence offered should have been admitted. that, in the absence of the evidence, we It is contended that that evidence was immust assume that the finding of probable material, and, if admitted, could not have cause was sustained.

affected the decision of either the district But it was insisted that the offense was or circuit judge. Of course, if the indictonly that which was contained in the in- ment were conclusive, any evidence might dictment, and, if the indictment were in-be said to be immaterial; but if the indictsufficient for any reason, that then no of- ment were only prima facie, then evidence fense was charged upon which removal could tending to show that no offense triable in be had. This court, however, ruled that the the middle district of Tennessee had been indictment did not preclude the government committed by defendant in that district from giving evidence of a certain and defi- could not be regarded as immaterial. nite character concerning the commission of The Constitution provides that “the trial the offense, and that the mere fact that of all crimes, except in cases of impeachthere might be lacking in the indictment ment, shall be by jury; and such trial shall some averment of time or place or circum- be held in the state where the said crimes stance in order to render it free from tech- shall have been committed” (article 3, § 2); nical defects would not prevent the removal and that "in all criminal prosecutions, the if evidence were given on the hearing which accused shall enjoy the right to a speedy supplied such defects and showed probable and public trial by an impartial jury of the cause to believe the defendants guilty of state and district wherein the crime shall the offense defectively stated in the indict- have been committed” (Amendment 6); and, ment. Mr. Justice Peckham, in delivering in order that anyone accused shall not be the opinion, was careful to say that it was deprived of this constitutional right, the not held that where the indictment charged judge applied to to remove him from his no offense against the United States or the domicil to a district in another state must evidence failed to show any, or, if it ap- find that there is probable cause for believpeared that the offense charged was not ing him to have committed the alleged of. committed or triable in the district to which fense, and in such other district. And in the removal was sought, the judge would doing this his decision does not determine be justified in ordering the removal, be- the question of guilt any more than his cause there would be no jurisdiction to com- view that the indictment is enough for the mit or any to order the removal of the pris- purpose of removal definitely determines its

“There must be some competent evi- validity. dence 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.

Nor can 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. ing involved the denial of a right secured Although it may be said that if the in- by statute under the Constitution. dictment were conclusive upon the accused,

This conclusion is fatal to the order and it would be conclusive upon the government warrant of removal and requires a reversal also.

of the judgment below and the discharge of It was held in Beavers v. Henkel, supra, appellant. Benson v. Henkel, 198 U. S. 1, 49 L. ed. Final order reversed and cause remanded 919, 25 Sup. Ct. Rep. 569, Hyde v. Shine, with directions to discharge appellant from 199 U. S. 62, 50 L. ed. 90, 25 Sup. Ct. Rep. custody under the order and warrant of removal, without prejudice to a renewal of offense against the United States. Re

1 the application to remove.

versed and remanded with directions to dis

charge the appellants from custody without Mr. Justice Harlan dissented.

prejudice to a renewal of the applications

to remove. Mr. Justice Moody took no part in the Messrs. John S. Miller, John J. Vertrees, disposition of the case.

Henry A. M. Smith, and James C. Bradford for appellants.

Mr. James P. Helm for appellant in No.

375. WILLIAM De C. KESSLER

Assistant Attorney General McReynolds

and Solicitor General Hoyt for appellees. MORGAN TREAT, United States Marshal, et al. (No. 370.)

Mr. Chief Justice Fuller: The same de.

crees will be entered in each of these cases SAMUEL T. MORGAN

as in the foregoing. MORGAN TREAT, etc. (No. 371.)

Mr. Justice Harlan dissented.
AUSTIN B. CARPENTER

Mr. Justice Moody took no part.
MORGAN TREAT, etc. (No. 372.)

V.

V.

FORTESQUE WHITTLE

V.
MORGAN TREAT, etc. (No. 373.

FRANK E. WILCOX

V.
MORGAN TREAT, etc. (No. 374.)

BERTON O. WETMORE, Administrator of

the Estate of Charles H. Wetmore, De-
ceased, to the use of JAHN F. McKAY,
Plff. in Err.,

V.
JAMES L. KARRICK.

V.

V.

V.

GEORGE BRADEN

Constitutional law-due process of lawV.

notice-rendering new judgment after the MORGAN TREAT, etc. (No. 375.)

term.

1. A court which, acting under the erFRANK S. ROYSTER

roneous belief that no action had been

taken in a cause within a year, renders a MORGAN TREAT, etc. (No. 376.) judgment of dismissal, cannot, consistently

with due process of law, set aside such judgJ. RICE SMITH

ment after the term, or the rule day which, V.

under the local practice, is equivalent to MORGAN TREAT, etc. (No. 377.)

the end of the term, without motion or pro

ceedings to vacate the judgment, and withCHARLES F. BURROUGHS

out notice, and proceed to render a personal

judgment against the defendant.* MORGAN TREAT, etc. (No. 378.)

Foreign judgments-action on-want of

jurisdiction. CHARLES H. MCDOWELL

2. Want of jurisdiction to set aside a judgment after the term, and render, with

out notice, a new and different judgment, is MORGAN TREAT, etc. (No. 379.) available as a defense to an action on such

judgment in a foreign jurisdiction, whatThese cases are governed by the decision in ever remedy the local practice may afford a Tinsley v. Treat, ante, p. 430.

person against whom judgment is rendered

in his absence and without his knowledge.t [Nos. 370, 371, 372, 373, 374, 375, 376, 377, 378, 379.]

[No. 144.] Argued December 3, 4, 1906. Decided March 4, 1907.

Argued January 9, 1907. Decided March

11, 1907. APPEALS from the Circuit Court of the

United States for the Eastern District of IND ERROR to the Court of Appeals of the Virginia to

District of to writs of habeas corpus to inquire into orders ment which affirmed a judgment of the of the district judge of that district, direct- Supreme Court of that District, overruling ing the removal to another Federal district a demurrer to a plea in an action on a for trial of persons there charged with an foreign judgment. Affirmed.