In re Alexander

| D. Mass. | Jan 15, 1871

LOWELL, District Judge.

When an indictment has been found in one judicial district of the United States against a defendant not then within the jurisdiction, it has been much doubted whether the court in that district can issue 4its warrant to arrest the defendant wherever he may be found within the United States. The late CMef-Justice Taney, when attorney-general, gave it as Ms opinion that the power was possessed by the courts. 2 Op. Attys. Gen. 564. And this appears to be still the opinion of the office. 11 Op. Attys. Gen. 127. I am not aware of any decision of a court or judge upon the point, and it is not necessary to decide it now. That course not having 'been pursued, the next question is whether a copy of the indictment is sufficient evidence to authorize a committing magistrate out of the district to cause the accused person to be bailed for trial in tlie district in -which the indictment was found. The point taken by the defendant is, that he ought to be confronted with his witnesses before the magistrate, as well as at the final trial. The law of Massachusetts seems to require this, (Gen. St. c. 170, §§ 10, &e.,) and it is copied from Bey. St. c. 135. I have been unable to trace it further back than the Revised Statutes, and I am informed that the practice both here and in Maine is, and so far as is known, always has been, to receive affidavits and other written evidence in proper cases on these preliminary hearings before commissioners. Such a course was sanctioned by the supreme court of the United States in Bollman’s Case, 4 Crunch, [8 U. S.] 12S; and this decision was acted on and explained by Chief-Justice Marshall in Burr's Trial, pp. 11, 15, 97, (Case No. 11,092.] Judge Conkling, in his Treatise, p. G31, represents this to be the true practice, and it has been usually followed, I believe, in the several circuits, as appears by the following cases. In re Clark,. [Case No. 2,797;] U. S. v. Shepard, [Id. 16,273.] So, too, in extradition between the several states under the constitution and act of

congress, such evidence is admitted. The precise question undoubtedly is, what evidence was admitted in such cases in Massachusetts in 1789. U. S. v. Reid, 12 How. [53 U. S.] 361. But the law of Massachusetts may be presumed, in the absence of evidence to the contrary, to have been the same -with that of New York and Virginia, and with tne common law of England, of which the cases cited are evidence; and the practice conforms to this view. Although it has been usual both in England and America to examine witnesses before the committing magistrate in the presence of the accused, yet this has never been an essential prerequisite to holding an accused person for trial. He might always be arrested on the warrant of a coroner or of a court upon an ex parte examination before a coroner’s jury or a grand jury. The indictment in the district in which it is found is an ex parte proceeding, but since it is found upon oath, and after the examination of witnesses, it has a presumption of validity. Before the commissioner it is only a piece of evidence, to be sure, and may be met and controlled, but when it stands by itself, and uncontradicted, it seems to be enough according to our practice to authorize the warrant. "Warrant to issue.