66 F. 937 | S.D. Ill. | 1895
(after stating the facts). It will be observed that these several disallowances may be divided into separate classes, as follows: Class 1. For serving mandates of commissioners to produce before them convicts applying for discharge under section 3042, Rev. St, $180. Class 2. For discharging poor convicts, under section 1042, when ordered by the commissioner after the hearing provided for by that section, $47. Class 3. For attendance upon commissioners, on hearing, in cases of poor convicts, under section 1042, Rev. St., $102. Class 4. For mileage from Springfield to Chester, on mandates issued by the court at Springfield upon the warden of the penitentiary at Chester, Ill., ro produce poor convicts applying for discharge under section 1042, Rev. St., $78.90. Class 5. For travel, with bench warrants, from Cairo to Springfield, for expenses to arrest on such bench warrants, and for serving said warrants, $47.98. Class 6. For mileage from Spring-field to Danville to attend a hearing of a defendant before a commissioner, such hearing having been postponed from a previous date, when the marshal was present, $(5.72. Class 7. For mileage and transportation of prisoners from Cairo to Springfield via East St. Louis, 122 miles, instead of via Centralia, 116 miles, §25.76. Classes 1, 2, and 3 will be considered together.
Under section 1042, Rev. St., "when a convict has been imprisoned thirty days solely for non-payment of a fine or costs, he may make application in writing to any commissioner in the district where he is imprisoned, setting forth his inability to pay such fine, or cost, and after notice to the district attorney, who may appear, offer evidence, and be heard, the commissioner shall proceed to hear and determine the matter.” If upon such heaving it shall appear to the commissioner that the convict: is unable to pay the tine, or fine and cost, and has no property exceeding $20 in value, except such as is exempt by law, lie administers the oath to him, as prescribed in that section, and the convict shall then he discharged, and the commissioner gives to the jailer or keeper of the jail a certificate setting forth the facts. While this section does not, in direct terms, pro vide that the poor convict shall he brought before tbe commissioner, yet it manifestly contemplates a, hearing before the commissioner, at which the district attorney may be present, and of which he must-be notified. Certainly, it cannot be contended that such hearing-should be had in the absence of the petitioner. An oath is also to be administered by tbe commissioner to (he convict. The word "oath” implies an oral swearing before the commissioner. How is the convict to get from his prison to the commissioner for a hearing and oath, except: by means of a writ, from the commissioner, directed to some one to bring the prisoner before him? And to whom, except the marshal, is the commissioner tó direct: his writ? From the moment when sentence is pronounced against him until the moment when the commissioner announces his discharge of the convict, he is, in contemplation of law, in the custody of the mar
Item 4, for mileage on writs of commissioner for production of prisoners under section 1042, seems to be proper. The writs were issued at Springfield, and the marshal traveled with them from Springfield to Chester for the purpose of there obtaining United States prisoners who were confined in the penitentiary, bringing them before the commissioner, at Springfield, who had issued the writ. Section 829, Rev. St., provides a fee of 6 cents a mile for going, only, to serve any warrant, etc., or other writ. These mandates of the commissioner are clearly within the designation “other writ”; the proof shows the travel was actually made, as claimed, on such writs; and the marshal is therefore entitled to the amount of this item, $78.96.
Item 5. These claims, we have seen, are for service of bench warrants, $6; expenses endeavoring to arrest, $3.10; and mileage from Cairo to Springfield, with said warrants, $38.88, — for three prisoners who were already in jail in Springfield, on commitment by United States commissioner for offenses against the United States, for which- offenses they were subsequently indicted at Cairo, in the same district. When these bench warrants issued, the defendants were then actually in the custody of the United States at Springfield, and they were wanted in court at Cairo to plead to the indictments returned against them there. Had the indictments been returned into the court at Springfield, where the prisoners
Glass 6. This item of $6.72 for mileage from Springfield to Dan-ville to attend an adjourned hearing before a commissioner seems to have been disallowed on the theory that the marshal ivas entitled to only one mileage, for travel, to the place where a hearing is had before a commissioner, no difference how many times ii. may be actually necessary for the marshal to make the travel, by reason of continuances granted by the commissioner. The commissioner did grant a continuance of some days to the defendant when he was first brought before him. This the commissioner had a right to do, it being presumed that proper- cause was shown by the defendant. This made it necessary either for the marshal to remain there during the period of continuance, to the neglect of his other duties, or to return to his home and office at Springfield. But he must be present at the hearing to take charge of the prisoner at the conclusion, if necessary, and to be there he must again make the travel from Springfield to Danville. He did so, and is clearly entitled to the mileage for it, $6.72.