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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 be punished in the former. A large number of authorities are collated by Mr. Justice Gray in the opinion, and the case is treated as covered by § 731 (U. S. Comp. Stat. 1901, 585), providing that, when an offense is begun in one district and completed in another it shall be deemed to have been committed in either, and be tried in either, as though it had been wholly committed therein. In addition to this, however, it is conceded that some of the offenses charged in the various counts were committed in Washington.
There was no error in the action of the court below, and its judgment is affirmed.
Mr. Justice Day, concurring:
must be remitted for determination to the court in which the indictment was found. In other words, the order of arrest and commitment may be made, although the commissioner be of opinion that the indictment, in a particular vital to the prosecution of the offense, and which cannot be supplied by other proof, is fatally defective, and the accused is charged with no offense against the laws of the United States. In our opinion, the commissioner, when the case is thus presented, must pass upon the sufficiency of the indictment. It is his duty to decide whether an offense is charged with a view to making or withholding the order of arrest, which when made, becomes the basis of an order of removal of a citizen to the place of trial, which may be many miles distant from his home. Such order is proper only in cases wherein probable cause has been. shown to believe the accused guilty of an offense cognizable by the laws of the United States in the proceeding pending against him, and for which he is to answer at the place of indictment.
(198 U. S. 77)
GEORGE W. BEAVERS, Appt.,
CHARLES J. HAUBERT, United States
Mr. Justice White, Mr. Justice Peckham, Mr. Justice McKenna, and the writer agree in the conclusion just announced, and, in the main, with the reasoning of the opinion. But we are unable to concur in the view that, where the commissioner may be of opinion that the indictment charges no offense against the laws of the United States, and there is no other proof of probable cause before him, the order of arrest may be made, remitting to the court where the indictment was found all questions of the sufficiency of the indictment. We agree that, upon the hearing before the commissioner, the indictment is prima facie to be taken as good, and that no technical objection should prevail against it; its ultimate sufficiency being matter for determination of the court wherein it was returned against the accused, subject to review in the appellate courts. Greene v. Henkel, 183 U. S. 249, 46 L. ed. 179, 22 Sup. Ct. Rep. 218. But the order of removal involves judicial, rather than mere ministerial, action, and must be issued by the judge of the district when the case made warrants it. § 1014, Rev. Stat.; Beavers v. Henkel, 194 U. S. 73-1. 83, 48 L. cd. 882-886, 24 Sup. Ct. Rep. 605. And, whether found in the indictment, or as the result of other testimony, the order to remove the accused can only be issued upon a showing of probable cause. Greene v. Henkel, 183 U. S. 249, 46 L. ed. 179, 22 Sup. Ct. Rep. 218.
In this case the argument chiefly relied upon against the right to issue the order of arrest, and subsequently of removal, rested upon the alleged insufficiency of the indictment to charge any offense within the terms. of the statute, because the reports which it was alleged the accused had been bribed to reveal were not then on file, and might never be filed in the department. It is said that the commissioner was not required to determine for himself whether the statute
GEORGE W. BEAVERS, Appt.,
CHARLES J. HAUBERT, United States
Criminal law-removal to another Federal
The prosecution of proceedings to remove to another Federal district for trial a person there charged with an offense against the United States is not an unlawful interference with the jurisdiction of the Federal circuit court in whose custody the accused was then held to await the trial of indictments pending against him in that court, where such proceedings were had with the consent of that court. 2. Constitutional rights of the accused to a speedy trial of the indictments pending against him in a Federal circuit court are not violated by the prosecution, with the consent of that court, of proceedings to remove the accused to another Federal district for the trial of an indictment there found against him.
Evidence of probable cause, in proceedings to remove a person to another Federal district for trial, afforded by an indictment charging him with an offense against the United States, is not rebutted, even if subject to rebuttal,
where the rebuttal testimony is negative and for the most part confined to general statements, and the accused claims his privilege, under the state practice, of exemption from cross-examination.
[Nos. 354, 355.]
proceedings instituted against him on the indictment of July 25, 1903. A warrant of removal was issued by the district judge of the southern district of New York, and subsequently an order was entered by the circuit 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
Statement by Mr. Justice McKenna: These cases were submitted together. No. 354 is an appeal from an order and judgment of the district court of the eastern district of New York, in habeas corpus, remanding to the custody of appellee. No 355 is an appeal from an order of the United States circuit court for the same district, dismissing a writ of habeas corpus arising out of the same proceedings as No. 354. The same questions of law are presented, and we need not further distinguish the
appellant did so, and entered into a recognizance before one of the district judges for said district in the penal sum of $10,000 for his appearance in the circuit court for the eastern district at the next regular term. said court, in pursuance of the notice from On the 1st of June, 1904, he appeared in the United States district attorney, for the purpose of pleading to the indictments. On the 7th of June, a continuance having been granted, he moved to quash the indictment on affidavits and other papers properly served on the district attorney. On the 8th he appeared before the circuit court, "prepared to move upon and plead to the said indictments." Thereupon the district attorney refused to proceed further with the indictments, but stated his intention to institute proceedings for the removal of appellant to the District of Columbia, under the indictments found against him there. The court thereupon continued the proceedings until the 13th of June, 1904, from time to time thereafter, until the date of the petition herein, and enlarged him from day to day upon his recognizance, which is still in full force. On the 8th of June, 1904, he was arrested upon the warrant now in question. The indictments have not been quashed or nolle prossed, and the appellant is ready to plead thereto if the motions submitted in respect thereto be overruled.
The petitioner alleges that the only evidence adduced by the government was a certified copy of the indictment, which, it is al
The arrest from which appellant prayed to be discharged was made upon a commitment and warrant in proceedings to remove him to the District of Columbia, to be tried upon an indictment there found against him. He attacks the commitment and warrant as not being due process of law, in that the commissioner who issued them had no juris-leged, constituted no proof, but was incomdiction to entertain proceedings against him, or to require bail, or in default thereof to commit him to await the order of the district judge, because indictments were pending against him in the circuit court of the United States for the eastern district of New York. The contention is that while the indictments were so pending he could not be removed to another jurisdiction.
The facts are as follows: On the 16th of July, 1903, two indictments were found against appellant in the eastern district of New York, charging him with violations of §§ 1781 and 1782 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 1212), and on the 25th of July, 1903, another indictment was found against him in the same district for the violation of § 1781.
On the 3d of September, 1903, a bench warrant was issued on the indictments and
petent and inadmissible because it failed to state facts sufficient to constitute a crime, and because it appeared from the testimony of the witnesses on whose testimony it was found and who were called before the commissioner that there was no probable cause to believe he was guilty of any offense against the United States, and whatever strength the indictment possessed was rebutted by such evidence.
Messrs. William M. Seabury and Bankson T. Morgan for appellant. Assistant Attorney General Purdy for appellee.
Mr. Justice McKenna, after stating the facts as above, delivered the opinion of the court:
It will be observed that indictments were
longer require his appearance before her tribunals, and all obligations which she has taken to secure that result thereupon at once, ipso facto, lose their binding effect."
This case establishes that the sovereignty where jurisdiction first attaches may yield it, and that the implied custody of a defendant by his sureties cannot prevent. They may, however, claim exemption from further liability to produce him.
found against appellant in the eastern dis- | the state whence he is removed can no trict of New York. He was then living in the city of New York, which is in the southern district. He was removed from the latter, by removal proceedings, to the former for trial, and, having been called upon to plead to the indictments, he made certain motions in respect thereto. The district attorney, however, announced an intention not to proceed further with the prosecution, and announced further that he intended to prosecute proceedings to remove appellant to the District of Columbia for trial. This was done, and with the consent of the court. It is stated in Judge Thomas's opinion that the circuit court "deferred the hearing of the motions pending the hearing before the commissioner, for the purpose of allowing the warrant to be served upon the defendant (petitioner), and to permit the proceedings to continue before the commissioner." The appellant contends, nevertheless, that the commissioner had no power to issue warrants, and relies on two propositions:
(1) The proceedings were void because they were an unlawful interference with the jurisdiction of the circuit court for the eastern district of New York, in the custody of which he was.
(2) The proceedings were a violation of appellant's constitutional rights to a speedy trial by jury upon such indictments.
(1) In support of the first proposition is urged the principle "that where jurisdiction has attached to person or thing, it is-unless there is some provision to the contrary -exclusive in effect until it has wrought its function." Taylor v. Taintor, 16 Wall. 366, 370, 21 L. ed. 287, 290. But this is primarily the right of the court or sovereignty, and has its most striking examples in cases of extradition. The cited case shows that whatever right a party may have is not a constitutional right. The question in the case was the effect on the bail of a defendant given to a state of the action of its governor sending him out of the state under extradition proceedings. It was held that his bail was exonerated. The court said: "It is the settled law of this class of cases that the bail will be exonerated where the performance of the condition is rendered impossible by the act of God, the act of the obligee, or the act of the law." And the act And the act of the governor of a state yielding to the requisition of the governor of another state was decided to be the act of the law. It was further said: "In such cases the governor acts in his official character, and represents the sovereignty of the state in giving efficacy to the Constitution of the United States and the law of Congress. If he refuse there is no means of compulsion. But if he act, and the fugitive is surrendered,
There is nothing in Re Johnson, 167 U. S. 120, 42 L. ed. 103, 17 Sup. Ct. Rep. 735, which militates against this view. Indeed, that it is the right of the court or ereignty to insist upon or waive its jurisdiction is there decided. Page 126, L. ed. page 105, Sup. Ct. Rep. page 737. In Cosgrove v. Winney [174 U. S. 64, 43 L. ed. 897, 19 Sup. Ct. Rep. 598], Cosgrove was brought into this country from Canada under a treaty which confined action against him to the very offense for which he was surrendered, until he should have an opportunity of returning. His subsequent arrest for a nonextraditable offense was held to be a violation of the process under which he was brought into the United States, and therefore illegal.
The circuit court, as we have seen in the case at bar, consented to the removal of the appellant, and we are not called upon to decide whether the government had the right of election, without such consent, to proceed in New York or the District of Columbia.
(2) Undoubtedly a defendant is entitled to a speedy trial and by a jury of the district where it is alleged the offense was committed. This is the injunction of the Constitution, but suppose he is charged with more than one crime, to which does the right attach? He may be guilty of none of them, he may be guilty of all. He cannot be tried for all at the same time, and his rights must be considered with regard to the practical administration of justice. To what offense does the right of the defendant attach? "It fendant attach? To that which was first charged, or to that which was first committed? Or may the degree of the crimes. be considered? Appellant seems to contend that the right attaches and becomes fixed to the first accusation, and, whatever be the demands of public justice, they must wait. We do not think the right is so unqualified and absolute. If it is of that character, it determines the order of trial of indictments in the same court. in the same court. Counsel would not so contend at the oral argument, but such manifestly is the consequence. It must be remembered that the right is a constitutional one, and, if it has any application to the order of trials of different indict
ments, 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 condition, and it cannot be complicated by rights having no connection with it. The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice. It cannot be claimed for one offense and prevent arrest for other offenses; and removal proceedings are but process for arrest,-means of bringing a defendant to trial. And this leads to the other contentions of appellant.
Upon the hearing before the commissioner the government introduced in evidence a copy of the indictment and proof of the identity of appellant. The latter called witnesses, and made a statement in his own behalf, and contends that he rebutted every material allegation of the indictment, and that the finding of the commissioner gave to the indictment the effect of conclusive proof.
Two questions are involved,-whether appellant may rebut the indictment, and whether he has done so. If the latter be answered in the negative, and we think it must be, no reply need be given to the other.
There is no question made of the sufficiency of the indictment. It certainly charges a crime. It charges that Beavers was superintendent of the division of salaries and allowances in the office of the First Assistant Postmaster General, and that he entered into a corrupt agreement with W. Scott Towers, an agent of the Elliott & Hatch Book Typewriter Company, whereby Towers promised to pay to Beavers the sum of $25 out of each $200 paid to said company for book typewriters, and that Beavers received from Towers, in pursuance of the agreement, a draft for the sum of $350. The agreement was made and the draft given for the purpose of influencing Beavers's official judgment and action. The only testimony that is material to notice was delivered by Henry J. Gensler, Charles Flint, Howard W. Jacobs, and E. H. Schley.
Gensler testified that up to June, 1900, he was an agent of the Elliott & Hatch Book Typewriter Company, and as such had charge of all the trade in the locality of the District of Columbia. After that time his son had such charge. It may be inferred that he had some knowledge of his son's business and was familiar with sales made during the year 1900. He testified that he had no knowledge of any agreement with
Flint was the assistant treasurer and the assistant secretary of the company from February, 1901, to March, 1903. He testified that during the year 1901 the corporation, so far as the books and accounts showed, paid no money to Beavers for any purpose whatever, and that he had no knowledge that would lead him to believe that such money was paid. He further testified that if any money of the corporation had been paid for the purpose of securing the contract of the government it would necessarily have come under his notice. Also, that he had no knowledge of money being paid by Towers to Beavers, nor had he knowledge of money having been authorized by the corporation to be paid, either directly or indirectly, to Beavers, either $350, or any sum, on July 11, 1901, or any other time, and if such payment had been authorized he would have known it. He further testified that the sales to the Postoffice Department were to Mr. Gensler, and the method adopted was that the machines were charged to Gensler as being outright purchases by him at $140 each. The machines returned were credited to his account. A few sales were charged directly against the Postmaster General, with the understanding that they were to be paid for at $200 and charged to Gensler at $140. He also testified that while he was assistant treasurer he had no knowledge of the payment of money to Gensler, or of authority given Gensler to pay money to Towers for Beavers, for the purpose of influencing Beavers's official action in regard to the sale of the Elliott & Hatch Book Typewriter, or that Beavers ever received anything of value from the company for such purpose; and that if such payment had been made he believed he would have known it.
Howard W. Jacobs was bookkeeper and cashier of the corporation; Schley became secretary and treasurer in 1899. Both these witnesses testified as to knowledge of the affairs of the corporation, the trades made by it, and sales in Washington of machines, and the business, and that they had no knowledge of the payment by the corporation or any of its officers or agents to Beavers, or to Towers for Beavers, substantially as Flint. The witnesses also testified that the Elliott & Hatch machines were the best of the book typewriters, and their usual price was $200.
Beavers was sworn for the purpose, as expressed by his counsel, "of permitting the accused to make a statement in his own
ing the letter of the testimony when
behalf." In answer to questions of his counsel he testified that he was the person accused, and the person against whom three indictments had been found in the eastern district of New York, charged with violations of §§ 1781 and 1782 of the Revised Statutes of the United States. That it was not at his instance the Elliott & Hatch typewriter was placed in the Postoffice Department; it was placed there under the direction of the First Assistant Postmaster General. It was the rule of the Department, in making the allowance for the typewriter, to act under the instructions of that officer, and he so acted. Under a like rule he acted in the purchase of the machines, and he further testified that he entered into no agreement with Towers whereby he was to receive $25 for each typewriter thereafter purchased by the Postoffice Department. He admitted he received a draft draft from Towers, but it was in the nature of a loan, as he remembered it; also that he received many drafts from Towers, who was a man of considerable influence with the banks of Washington, and frequently obtained drafts for him (Beavers) and had notes discounted for him. This practice ran through their entire acquaintance. There was not, he further testified, on or about July 11, 1901, any matter relating to the Elliott & Hatch Book typewriter pending before him. Counsel for government attempted to cross-examine Beavers, to which the latter's counsel objected. The commissioner ruled against the objection, and counsel directed Beavers not to answer. The objection to cross-examination was based upon the ground that Beavers took the CENTRAL PACIFIC RAILROAD COM
stand merely for the purpose of making a statement in answer to the charge made against him, and to explain the facts alleged, in accordance with § 196 of the New York Code of Criminal Procedure, and, it was urged, that that section, or any other section which governed the proceedings, did not contemplate cross-examination. And counsel further observed that as the indictment, which was the basis of the proceedings, was not the only one found against Beavers "for that reason it would be extremely unwise to allow him to enter into any rambling cross-examination."
The commissioner committed the appellant in default of bail, finding that there was probably cause that the offenses charged had been committed. The finding was affirined by the district court in the proceedings for habeas corpus.
We think the finding was justified; in other words, the proof afforded by the indictment was not overcome; and this is all that it is necessary to now decide. Regard25 S. C.-37.
The contention that the District of Columbia is not is not a district of the United States within the meaning of § 1014 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 716), authorizing the removal of accused persons from one district to another, is disposed of by Benson v. Henkel, 198 U. S. 1, 25 Sup. Ct. Rep. 569, 49 L. ed. -.
The orders of the Circuit Court and the District Court dismissing the writs of habeas corpus are affirmed.
(198 U. S. 95) HIRAM REMINGTON, Piff. in Err.,
Appeal-direct review of circuit court judgment-removal of causes-time for filing petition estoppel-sufficiency of petition -presentation and filing-service of process on foreign corporation-res judicata.
1. The jurisdiction of the court below as a Federal court was so involved as to sustain a direct review, in the Supreme Court of the United States, of a Federal circuit court judgment dismissing an action which had been removed from the state court, where the ground of the judgment was lack of a valid service of process on the defendant, and the plaintiff had moved to remand the cause.
A petition for the removal of a cause from
a state court to a Federal circuit court is not too late, although defendant may be in default in the state court for failure to answer in time, if such petition is filed as soon as the cause becomes a removable one.
Defendant is not estopped to insist upon its right to remove a cause from a state court to a Federal circuit court because, on the day after the right of removal was made to appear, its motion to stay proceedings pending an appeal from an order denying a motion