16 F.2d 776 | 5th Cir. | 1927
This is an appeal from an order discharging a writ of habeas corpus sued out by the appellant and granting a petition for an order for his removal to the Southern district of California, to answer an indictment found in that district which charged that he, for the purpose of executing an alleged scheme to defraud, unlawfully, willfully, and feloniously caused to be delivered in that district by mail described letters according to the direction thereon, which letters the accused had placed and caused to be placed in the United States post office at Fort Worth, Tex.
The order is complained of on the grounds: (1) That appellant was not subject to be indicted in the Southern district of California and tried there for the crime charged in the indictment; and (2) that as appellant resides at Fort Worth, Tex., and his uncontradicted testimony showed that he is financially unable to procure the attendance in California of witnesses residing in Texas and Arkansas, whose testimony is necessary to his defense, the order for his removal to California for trial there was violative of his rights under the Fifth Amendment to the Constitution of the United States.
A charge under section 215 of the Criminal Code (Comp. St. § 10385) of knowingly causing a letter to be delivered by mail according to the direction thereon for the purpose of executing an alleged scheme to defraud may be made and tried in the district of the delivery, as well as that óf the deposit of the letter. Salinger v. Loisel, 265 U. S. 224, 44 S. Ct. 519, 68 L. Ed. 989. It follows that the first-mentioned ground on which the order appealed from is challenged is not a tenable one.
Neither the Fifth Amendment nor any other provision of the Constitution' entitles one to be tried for a criminal offense in the district where he resides. Under section 42 of the Judicial Code (Comp. St. § 1024) a criminal offense begun in one district and completed in another is cognizable in either, and the statute (R. S. § 1014 [Comp. St. § 1674]), providing for the removal of the accused from the district where he is to the district where the offense is to be tried, leaves the court no room to make an exception where Congress has made none, though the accused is subjected to the hardship of being taken from his home, rather than the victims of the crime charged being taken from theirs. Haas v. Henkel, 216 U. S. 462, 473, 30 S. Ct. 249, 54 L. Ed. 569, 17 Ann. Cas. 1112; Hyde v. United States, 225 U. S. 347, 363, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614; Hyde v. Shine, 199 U. S. 62, 25 S. Ct. 760, 50 L. Ed. 90.
Where a criminal offense is cognizable in more than one district, it is not a function of a court to select the district in which the charge is to be made and prosecuted, and it is not an oppression in law, nor a deprivation of due process of law, for the prosecuting officials to select a district other than that of the accused’s residence, though that district might have been selected. Haas v. Henkel, supra. Were tfip government attempting to prosecute in both places, a question might arise as to whether it should be required to elect between them; but that question is not presented, as there was no attempt to prosecute the appellant in more than one place. Salinger v. Loisel, supra.
The order appealed from is affirmed.