285 F. 738 | 5th Cir. | 1923
Appellant was arrested and brought before the District Judge upon a warrant under section 1014 of the Revised Statutes (Comp. St. § 1674), to secure his removal to the Eastern district of New York, where he was under indictment. The warrant was issued by the District Judge, and testimony was taken before him tending to prove the identity of the accused, and the indictment was filed in evidence. After the hearing, the judge dismissed a writ of habeas corpus and remanded the prisoner for trial in New York. Thi§ appeal is from the order dismissing the writ of habeas corpus.
A few days prior to the issuance of the warrant on which the hearing was had, a similar warrant had been issued, returnable before the District Judge at Jacksonville. Upon appellant being arrested, however, he was ta.ken before a commissioner at Miami, and gave bond for his appearance for preliminary hearing at that place. It was for the purpose of securing appellant’s appearance before the judge himself that the second warrant was issued.
The warrant,.upon which the hearing was had by the District Judge, was based upon an affidavit made on information and belief. This affidavit alleges that the indictment was in affiant’s possession, but it is not affirmadvely shown that the indictment was before the District Judge at the time he issued the warrant. Upon this state of facts it is contended that the affidavit was defective, and that the District Judge erred in basing the warrant of arrest upon it.
Appellant submitted to the hearing, and therefore the court had jurisdiction, even though it be conceded that the preliminary proceedings were irregular (Crosland v. Dyson [C. C. A.] 280 Fed. 105), and the application for writ of habeas corpus came too late (Kaizo v. Henry, 211 U. S. 146, 29 Sup. Ct. 41, 53 L. Ed. 125). The trial court having jurisdiction, the identity of the accused became a matter of fact for its determination, and cannot be reviewed on habeas corpus. Horn-
The judgment is affirmed.