The appellant, Charles F. Hemans, was convicted by jury verdict in the United States District Court for the Eastern District of Michigan and was sentenced to pay a fine of $1,000 and to be imprisoned for four years for violation of Section 408e, Title 18, of the United States Code Annotated. This section provides: “It shall be unlawful for any person to move or travel in interstate or foreign commerce from any State, Territory, or possession of the United States, or the District of Columbia, with intent either (1) to avoid prosecution, or custody or confinement after conviction for murder, kidnapping, burglary, robbery, mayhem, rape, assault with a dangerous weapon, or extortion accompanied by *230 threats of violence, or attempt to commit any of the foregoing, under the laws of the place from which he flees; or (2) to avoid giving testimony in any criminal proceedings in such place in which the commission of a felony is charged. Any person who violates the provision of this section shall, upon conviction thereof, be punished by a fine of not more than $5,000 or by imprisonment for not longer than five years, or by both such fine and imprisonment. Violations of this section may be prosecuted only in the Federal judicial district in which the original crime was alleged to have been committed or in which the person was held in custody or confinement.” May 18, 1934, c, 302, 48 Stat. 782, as amended Aug. 2, 1946, c. 735, 60 Stat. 789.
The indictment upon which the verdict of guilty was found charged that appellant travelled in interstate commerce on or about August 28, 1946, from Ingham County Michigan, in the Eastern District of Michigan, to Washington, D. G, “with intent to avoid giving testimony in a criminal proceeding [State of Michigan v. Simon D. Den Uyl, et al.] then pending in the Circuit Court for the County of Ingham, State of Michigan, wherein the commission of a felony is charged.” The indictment charged, further, that, in the criminal proceeding, a preliminary examination had been set to commence on September 10, 1946; and that Hemans “well knew that he was wanted as a witness at the said preliminary examination.”
At the outset, a brief exposition of the unique Michigan law providing for a one-man grand jury would seem essential to a clear understanding of this case.
Section 17217 of the Compiled Laws of Michigan for 1929 [Michigan Statutes Annotated, Section 28.943] empowers, within his discretion, any justice of the peace, police judge, or judge of a court of record — who upon the filing of any complaint, even upon information and belief, shall have probable cause to suspect that any crime, offense, misdemeanor or violation of a city ordinance shall have been committed within his jurisdiction — to summon any person able to give material evidence respecting such offense and to compel him to testify “concerning any violation of law about which he may be questioned.” The section requires the judge, or justice of the peace, to summon the witness upon the application of the prosecuting attorney, or city attorney; and the proceedings to summon the witness and to compel him to testify shall, as far as possible, be the same as those to summon witnesses and compel their attendance and testimony in other criminal proceedings.
The ensuing section of the Compiled Laws for 1929, No. 17218 [Michigan Statutes Annotated, section 28.944] provides in its first sentence: “If upon such inquiry the justice or judge shall be satisfied that any offense has been committed and that there is probable cause to suspect any person or persons to be guilty thereof, he may cause the apprehension of such person or persons by proper process and, upon the return of such process served or executed, the justice or judge shall proceed with the case, matter or proceeding in like manner as upon formal complaint.”
The record discloses that Judge Louis E. Coash, a Circuit Judge for Ingham County, took over the duties of one-man grand jury for that county around October 1, 1945, at which time there was pending before his predecessor, Judge Carr, an investigation relating to certain banking legislation. Judge Coash testified that matters pertaining to the particular banking legislation were presented to him as grand juror; and that Hemans appeared before him as a witness several times, being granted immunity by him as one-man grand jury. A grand jury subpoena was issued and served on Hemans, on April 25, 1946, directing him to appear before Judge Coash as a one-man grand jury “from day to day, and at such other times as the Court may order,” to testify in a certain cause “entitled in the matter of the complaint of Herbert J. Rushton, Attorney General for the State of Michigan, for a judicial investigation concerning certain criminal offenses.”
■ On July 20, 1946, Judge Coash, describing himself as “Circuit Judge acting under Sections 17217 and 17218 Compiled Laws of the State of Michigan for the year 1929 and acts amendatory thereto,” signed and *231 issued a warrant from the Circuit Court of Ingham County, directed to the Sheriff of that county, any member of the Michigan State Police, and to all police officers in Michigan. This warrant recited that there appeared probable cause to suspect that between January 1, 1941, and March 1, 1944, twenty-eight named individuals, including appellant, unlawfully conspired among themselves and with other unknown persons to obstruct the due course of legislation and wilfully and corruptly to affect and influence the action of the Legislature of Michigan and certain members of its Senate and House of Representatives, the Governor of Michigan, and the Assistant Attorney General assigned to act as his legal adviser, in the consideration of any action upon certain proposed and pending legislation, namely Senate Bill No. One of the 61st Michigan Legislature, Regular Session of 1941, amending existing laws relating to financial institutions and banking, “and divers other measures and bills then and there pending in and before said Legislature, the Senate, and the House of Representatives and Governor of the State of Michigan, and which by law might be brought before the said Assistant Attorney General in his public capacity.”
The warrant charged probable cause to suspect the named conspirators of offering, tendering, promising, giving and receiving bribes, money and other things of value among themselves and by the unlawful, corrupt and felonious, employment of Assistant Attorney General Byron L. Ballard, as attorney and agent for themselves and for the Michigan National Bank, to aid and assist in defeating the proposed banking legislation by representations, opinions, statements and arguments unfavorable thereto, to the Michigan Legislature, its committees and members, and to the Governor of the state.
The warrant specified by name eight of the conspirators as members of the State Senate, thirteen as members of the State House of Representatives, one as the Assistant Attorney General assigned as legal advisor to the Governor, and seven, including appellant Hemans and the Assistant Attorney General, as givers or promisers of bribes to members of the Senate and House of Representatives of Michigan for the unlawful purpose of influencing their adverse action upon the proposed legislation.
In conclusion, the warrant charged that each and all of the named conspirators “did corruptly, dishonestly, fraudulently, illegally, and feloniously engage and participate in said conspiracy and confederate as aforesaid in violation of the public interest of the people of the State of Michigan, to the jeopardy of the public peace, safety, dignity, and welfare of said State, and the people thereof.” The warrant ordered the arrest of twenty-four of the twenty-eight named conspirators. Appellant Hemans was one of the four conspirators not ordered to be arrested.
Judge Coash testified that at all times Hemans had stated that “he would not testify unless he had to,” but that he would always add: “If I have to, boys, I will be there, with all the gestures and grease paint.” The Judge had, on July 17, 1946’, granted him immunity from prosecution. The judicial witness stated that he had not told Hemans that if he did not appear and testify before Circuit Judge O’Hara, who had been assigned to conduct the preliminary examination to ascertain whether there was probable cause to hold the defendants for trial, Hemans’ immunity would be revoked.
The preliminary examination had been set originally for August 1, 1946, but was twice continued and was begun on September 10, 1946. Admittedly, appellant was under a continuing subpoena as a witness before the one-man grand jury (Judge Coash), but was not served with a subpoena to appear as a witness before Circuit Judge O’Hara, sitting as examining magistrate. He could not be subpoenaed, because he was not within the jurisdiction of the court.
Although appellant did not testify at his trial, he made an effort, through his attorney’s cross-examination of the Government’s witnesses, to prove that his motive in leaving Michigan was to put through his resignation from the United States Army, in which he held a commission as Major. The jury was fully justified from the evidence in not believing that this was *232 his motive. On August 20, 1946, Hemans went to the office of Colonel Rhu Taylor, Judge Advocate, U. S. A., in Chicago, and stated that he desired to submit his resignation. At the time, the status of Hemans was inactive. The Judge Advocate found from his files that a Board proceeding was pending against appellant, who was informed that this fact would have to be recited should his resignation be submitted through Headquarters. Hemans responded that he did not desire to submit a resignation that way; that he was “going on to Washington, anyway,” and would contact “Judge Patterson” [meaning the Secretary of War] concerning his resignation. Appellant was aware that it was not necessary for him to go to Washington in connection with his proposed resignation, but that it could have been presented and duly acted upon through the regular channels. Colonel Taylor’s testimony established this fact. It is apparent from the record that appellant was eager to resign from the Army, so that he could not be ordered back to Michigan.
Richard B. Foster, special prosecutor for the Ingham County Grand Jury, testified that he and Charles Cummins, assistant prosecutor, went from Lansing, Michigan, to Washington, D. C., and after some difficulty located Hemans at the Ambassador Hotel. The Michigan officials informed him that they had flown to Washington, had an extra seat in the plane, and wanted him to return with them to Lansing to testify at the hearing to be held a few days later. Hemans told them that he was “not going back.” He said, according to the witness: “I am clear of the Army now, and they can’t send me back.” He gave as his reasons that he had previously testified in other cases, that he had been abused and ridiculed for doing so, and was not going back to testify against his friends. Hemans told them further that, having become “rather miserable” about his previous testimony, he had one day carried a .32 revolver and a bottle of whiskey into the woods without definitely deciding what he would do. His wife had found him and, after a discussion of the situation with her, he had decided to fly to the upper peninsula of Michigan to consult an attorney, Seymour Person. He had asked that attorney whether the State of Michigan could revoke the immunity granted him and make him a defendant, and whether the State could compel his removal from the District of Columbia. His attorney had assured him that his immunity could not be revoked, and that he could not be removed.
The witness, Foster, testified further that, before leaving Michigan, appellant had repeatedly declared that he did not intend to testify against his friends, unless compelled to do so; but that, when interviewed in Washington, Hemans had changed his position and definitely declared that he did not intend to return and be a witness at the hearing. After returning to Michigan from Washington, the prosecuting attorney telephoned Hemans on the day before the hearing, urging him to change his mind and return to Michigan. Appellant again stated positively that he “wasn’t coming back to Michigan,” to which the prosecuting attorney replied: “Well, if you don’t come back voluntarily, we will have to bring you back.” Hemans responded: “All right, go ahead.” The testimony of the attorney that appellant stated in Washington that he would not return to Michigan as a witness and appear at the preliminary examination on September 10th was corroborated by Assistant Prosecuting Attorney Cummins.
From the evidence in the case, the jury was well warranted in believing that, in leaving Michigan, Hemans left with the deliberate intention to avoid testifying in the criminal proceeding then pending in the Circuit Court for Ingham County.
(1) Appellant contends that the trial court committed reversible error in instructing the jury that the criminal proceeding described in the indictment charged the commission of a felony within the purview of Title 18, section 408e (2), United States Code Annotated, and in refusing a special instruction to the contrary, requested by appellant. The portion of the charge of which appellant complains reads as follows: “You must also find, as another element in this offense, and be satisfied beyond a reasonable doubt, that there was a criminal proceeding pending in the State of Michigan, in which the commission *233 of a felony was charged, and that the defendant well knew that he was wanted as a witness therein. On that point it becomes my duty to charge you, and I do charge you, that on August 25, 1946, there was a criminal proceeding pending in the State of Michigan, which proceeding meets the description of the one described in the indictment, and I charge you further that in such proceeding the commission of a felony is charged.”
It was, of course, the function of the judge to charge the jury as to whether or not the criminal proceeding pending in Michigan charged a felony within the meaning of section 408e of Title 18 United States Code Annotated. The interpretation of the federal statute in its applicability to the state-court proceeding was a question of law for the court and not an issue of fact for the jury. In our judgment, the court charged the jury correctly.
By statute, it is a felony in Michigan to give or offer a bribe to a public officer with intent to influence his official action. Comp.Laws Supp.1940, § 17115-117, Michigan Statutes Annotated, section 28.-312. The statute was enacted “to preserve the integrity of official action in cases where the right of an official to vote, or to decide by his opinion, or exercise his judgment in any manner upon any question, cause or proceeding, is given his office by law.” People v. Romanski,
It has also been made a felony by Michigan statute for any executive, legislative, or judicial officer to accept a bribe. Comp. Laws Supp.1940, § 17115-118, Michigan Statutes Annotated, section 28.313. The Michigan Supreme Court has held that bribery is not a joint offense of the giver and receiver, inasmuch as the two statutes create separate offenses, defined in separate paragraphs with separate penalties imposed, “personal, not joint, corrupt intent” being an element of each offense. People v. Frye,
There is no Michigan statute covering conspiracy generally; nor is there any Michigan statute denouncing a conspiracy to bribe public officials. Before enactment of the statute to which we shall presently refer, the Supreme Court of Michigan said: “We look to the common law for definitions and principles in our criminal jurisprudence, but, unless the statute provides a penalty, acts criminal at the common law are not crimes in this state.” In re Lam-brecht,
In affirming convictions for conspiracy, the Supreme Court of Michigan said, in the later case of People v. Tenerowicz,
That the Michigan proceeding involved in the instant case charged the commission of a felony under Michigan law is made plain by Comp.Laws Supp. 1940, § 17115-505, section 28.773 of Michigan Statutes Annotated, which provides: “Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is ex pressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than five [5] years or by a fine of not more than two thousand five hundred [2,500] dollars.” Mr. Justice Butzel, writing the unanimous opinion of the Supreme Court of Michigan in People v. Causley,
Appellant places much emphasis upon the opinion of the Third Circuit Court of Appeals in United States v. Brandenburg,
We fail to see how appellant derives any comfort from Jerome v. United States,
(2) Appellant stresses an opinion of a member of this court, written when United States District Judge, in United States v. Hagan, D.C., W.D.Ky.,
It is important to observe that in the instant case the warrant charges that the twenty-eight conspirators, including appellant, combined and confederated wilfully, unlawfully and corruptly to affect and influence the action of the Legislature of Michigan, the Assistant Attorney General of that state assigned to act as the Govern- or’s legal advisor, and the Governor, in 'their consideration and action upon proposed legislative measures. Bribery was only a part of the scheme concocted by the conspirators to defeat the proposed legislation. We think, therefore, that the case falls within the principles applied in United States v. Glasser, 7 Cir.,
In the Mantón case, supra, in upholding the validity of the indictment and affirming the conviction of the defendant, Mr. Justice Sutherland asserted that the indictment charged “a conspiracy to obstruct justice and defraud the United States, the scheme *235 of resorting to bribery being averred only to be a way of consummating a conspiracy and which, like the use of a gun to effect a conspiracy to murder, is purely ancillary to the substantive offense.”
In the Glasser case, supra [
Mr. Justice Holmes made the following observation in United States v. Holte,
In People v. McGarry,
In another Michigan case affirming a conviction for bribery, the State Supreme Court held admissible evidence of a conspiracy between defendant and others to obtain a contract for concrete construction for a Detroit housing project by the aid of the defendant’s vote as a member of the City Council. People v. Ewald,
(3) Appellant insists that his motion for a judgment of acquittal should have been granted by the trial court for the alleged reason that “there was no criminal proceeding pending in the Circuit Court for Ingham County or charged in the indictment.” His argument is that proceedings before a one-man grand jury and before an examining magistrate in Michigan are not “prosecutions or proceedings for crimes.”
The pertinent Michigan statutes have been set forth in the early part of this opinion. The function of the one-man grand jury as constituted in Michigan is to determine whether there is probable cause to suspect that any crime, offense, misdemeanor, or violation of a city ordinance has been committed within the jurisdiction of the judge or justice acting as a one-man grand jury. That official is vested with power to subpoena witnesses, compel their attendance and take their testimony, and to punish for contempt. When the inquiry satisfies the judge or justice that any offense has been committed and that there is probable cause to suspect any person or persons as guilty of such offense, he may cause the apprehension of such person, or persons, and proceed with “the case, matter or proceeding in like manner as upon formal complaint.”
This was the procedure followed by Circuit Judge Coash, who complied with *236 the statute and issued the warrant which has been heretofore described. As we have stated, this warrant, in our opinion, charged the commission of a felony by the twenty-eight individuals named in it. Judge Coash, however, having granted immunity to appellant, did not order him arrested.
We think the position of appellant, that there was no criminal proceeding pending in the Circuit Court of Ingham County, is not buttressed by the authorities which he cites. People v. Ewald,
We find nothing whatever in People v. Ewald, supra; in People v. Robinson,
The expressions of the Supreme Court in Cobbledick v. United States,
The Supreme Court of Michigan quoted the above language and stated, in reference to the “one-man grand jury,” that the statutes of Michigan serve the same purpose as the constitutional provisions in regard to grand juries in other jurisdictions; that they do not impose nonjudicial duties upon the judiciary; and are in strict conformity with the State Constitution. In re Slattery, 1945,
In Beal v. Missouri Pac. R. Co.,
(4) The appellant argues that even if there were pending in the Michigan courts a “criminal proceeding”, he was not lawfully convicted for avoiding testimony therein, inasmuch as he could not be required to incriminate himself. He denies that he was granted immunity; and says that, even if he had been, the grant has been violated by the State of Michigan. He makes, through his attorneys, a violent and, on this record, an unjustifiable attack upon Judge Coash.
Judge Coash testified positively that he granted immunity to Hemans, but that the order of immunity, dated July 17, 1946, was not placed in the Circuit Court Journal until September 10, 1946, although it was filed in the Clerk’s office on July 17, 1946; that the order was immediately returned to his office and kept in his file cabinet under lock and key until recorded in the Circuit Court Journal on September 10, 1946; that he thus had the order continuously in his possession from July 17 to September 10; that the original order granting immunity did not state the answers of Hemans, so, on September 20, a corrected order was filed “in which the answers were stated to the questions of immunity” ; and that the corrected order of September 20 incorporated the original order. He is positive that the time when Hemans was granted immunity was in the grand jury session of July 17, 1946. The warrant, which has been discussed, was issued on July 20, 1946, three days after Judge Coash says he granted appellant immunity.
The language in the main brief of attorneys for appellant that “it taxes the credulity of man to believe the explanation of Judge Coash” concerning the immunity order, and that “this Grand Juror, himself a Judge, chose to disobey and disregard the terms of said Michigan statute” [Comp. Laws Mich.1929, § 17220, section 28.946, Michigan Statutes Annotated], is unwarranted and offensive overstatement which this court rebukes. The insult to the judge is emphasized by the contemptuous manner in which, in their reply brief, appellants repeatedly refer to him as “Coash,” deliberately ignoring his official title, and making, among other slurring comments: “We do not say that the few papers found were planted there by Coash or the state prosecuting attorney. All we say is that they readily could have been.” It is highly improper, also, for the offending attorneys to adjure this court “to weigh most carefully the testimony of the Clerk of the Circuit Court of Ingham County and the cited statutes of the State of Michigan before accepting the testimony of one of these one-man grand jurors concerning a witness who had the intestinal fortitude to talk to him as he admitted appellant had done.”
The record shows that Judge Coash undoubtedly granted immunity to appellant in such manner that the latter could never be prosecuted for any criminal acts of his own which he may have admitted in his testimony before the grand jury. Where immunity accorded a witness is sufficient, he is required to answer even though his answers are self-incriminating. In re Watson,
(5) We need not pause long to reject the invalid argument of appellant that the federal statute which he violated inflicts cruel and unusual punishment in contravention of the Eighth Amendment to the Constitution of the United States. Historically viewed, the Eighth Amendment was adopted to prevent inhuman, barbarous, or torturous punishment, though long-term imprisonment could be so disproportionate to the offense as to fall within the inhibition. We think it clear that the statutory provision for a maximum term of five years’ imprisonment for fleeing a state to *238 avoid giving testimony in a felony cas'e, and thus obstructing justice, cannot reasonably be classified as cruel and unusual punishment within a constitutional or any other sense.
Attorneys for appellant assert that the sentence imposed upon him is a “vindictive sentence.” They charge that the United States District Judge “spoke as if personally outraged at the failure of appellant to testify in the state court,” and that' his remarks in imposing sentence and in denying bond reveal that “the appeal to prejudice had some influence on him and that the very severe sentence imposed resulted in part because the appellant had refused to testify in the state case after he had been brought back to Michigan under this indictment.” These strictures upon Judge Levin are wholly unjustified. The entire record shows conclusively that he presided fairly and impartially throughout the trial; displayed no emotion or feeling; and that he was calm, dignified and just when imposing reasonable punishment for a grave infraction of a federal criminal statute. Even if our own views were ■ — -which they are not — that the sentence imposed by Judge Levin was too severe, it would not fall within our province to set aside or correct the sentence, or to grant a new trial of the case. As early as Ex parte Watkins,
7
Pet. 568,
This court repeats what it said in Bogy v. United States, 6 Cir.,
(6) Appellant attacks the constitutionality of the section of the United States Criminal Code which he violated Title 18, U.S.C.A. section 408e. He says that the power of the United States Government under the commerce clause of the constitution over persons is limited by the privileges and immunities clause and the extradition clause of article IV of the constitution. He urges that the entire statute is an obvious attempt to supplant the extradition . process provided for in article IV, section 2, of the Constitution of the United States and the statutes enacted pursuant thereto. He argues that a citizen has a constitutional right to pass freely from one state to another; and that there is no constitutional authority “to make it a crime for a person to move in interstate travel to avoid testifying in a' criminal proceeding pending in a State Court in which he is named as a co-defendant”, there being “no subject of commerce involved.” He charges that the federal statute is so indefinite and uncertain as to conflict with the due process clause of the Fifth Amendment to the Constitution of the United States. He asserts further that the statute in question, as interpreted by the trial court, “constitutes delegation of legislative power of the United States to make Federal crimes to the States, their subdivisions, and to their law enforcement officers in violation of the Constitution of the United States”; and that “among other consequences of holding this Federal statute to be constitutional would be the Balkanization of the 48 States, territories and possessions.”
Appellant’s attorneys top off an unsound argument with the following criticism of United States Senators, improperly made in a brief to the United States Circuit Court of Appeals: “The appellant contends in this case that the courts should refuse to give effect to Title 18, section 408 e (2), U.S.Code Annotated, which became law through the stubbornness of two Sen *239 ators [Senator Vandenburg of Michigan and Senator Copeland of New York], neither of whom was a lawyer.”
The general purpose of the Fugitive Felon Act was to aid the enforcement of state laws and to reach and bring to the bar of justice a roving class of criminals. As is well known, under the interstate commerce clause of the federal constitution Congress has been able lawfully to provide punishment for the theft of goods shipped in interstate commerce; for the transportation in interstate commerce of stolen automobiles [Dyer Act, 18 U.S.C.A. § 408], women for the purposes of prostitution [Mann Act, 18 U.S.C.A. § 397 et seq.], stolen property, money and securities; and for numerous other criminal acts.
In upholding the constitutionality of the Mann Act, the Supreme Court held that, although women are not articles of merchandise, their transportation in interstate commerce for immoral purposes could be prohibited by an Act of Congress. Hoke v. United States,
Judge Hamilton, at the time of his death a member of this court, was required when United States District Judge for the Western District of Kentucky to pass upon the constitutionality of section 408e, Title 18, of the United States Code Annotated. United States v. Miller, D.C.,
The constitutionality of the statute in controversy was also upheld in Simmons v. Zerbst, D.C.,N.D.Ga.,
(7) Turning now to a discussion of the principal authorities upon which appellant relies in his attack upon the constitutionality of the Act, we find that he is not supported by United States v. Wheeler,
United States v. L. Cohen Grocery Co.,
In our judgment, no error inheres in any portion of the trial judge’s clear and accurate charge, or in his denial of any specific instructions requested by appellant. All correct propositions of law presented in the rejected requests were covered correctly in the general charge. Those propositions not included were either superfluous or incorrect statements of law.
The judgment of conviction and sentence is affirmed.