100 F. 295 | E.D. Wis. | 1900
The inquiry upon this hearing is twofold: First, upon the writs of habeas corpus on behalf of the defendant; and, second, upon the application of the United States for a warrant for the removal of the defendant to the district of Alaska for trial. However restricted to jurisdictional questions under the writ, it is clear that the inquiry as to the grounds for issuing the warrant of removal is not thus limited. U. S. v. Towkes, 3 U. S. App. 247; 3 C. C. A. 394, 53 Fed. 13; Price v. McCarthy, 32 C. C. A. 162, 89 Fed. 84; In re Burldiard (opinion of Judge Dyer in this court) 33
1. The complaint is made by the United States attorney, upon information and belief alone, and neither refers to an indictment, nor states the means of information or grounds of belief. However the general rule may be in respect of complaints so made by private persons, I doubt its application to one made by such officer in the discharge of his duty as prosecuting officer for the government, and the complaint is not deemed insufficient in that regard.
2. The questions whether the inquiry before the commissioner extends beyond the introduction of the indictment and the identity of the defendant, and whether there is sufficient proof of identity, are not jurisdictional, for determination under the writ of habeas corpus, and, on the other hand, their solution is not required to determine whether a warrant of removal should issue. I have no doubt of the authority of the district judge, on the latter application, to probe the grounds of the charge, and ascertain the existence of probable cause; and the duty is manifest to do so in this case, before entering an order to send the defendant to distant Alaska for trial. The rule applicable in such cases is well' stated in the decisions of the circuit court of appeals in the Second and Third circuits, above cited, and will be adopted here whenever the circumstances call for investigation beyond the indictment. Horner Cases, 143 U. S. 207, 570, 12 Sup. Ct. 407, 522, 36 L. Ed. 126, 266, In re Luis Oteiza y Cortes, 136 U. S. 330, 10 Sup. Ct. 1031, 34 L. Ed. 4G4, and Stevens v. Fuller, 136 U. S. 468, 10 Sup. Ct. 94, 34 L. Ed. 461, are cited by the commissioner and in the brief of the district attorney as restricting the examination before the commissioner to the facts of indictment and identity, but I do not so understand either decision. Each of these cases arose upon habeas corpus, and discusses only the jurisdictional questions thus arising, and no rule is declared or intimated to govern the preliminary examinations for an order of removal. Undoubtedly, the indictment is presumptive of probable cause, if an offense within the statute is clearly stated, and, in that view, may be accepted in many cases as sufficient; but it is not conclusive, and, if so treated for all purposes of the examination, the just provisions in that behalf are of no practical value. In the application for removal, at least, if doubt is raised in any material aspect of the charge,- the indictment must be supported by proof aliunde, and in the present case necessary ingredients to constitute the offense are so placed in doubt that no removal can be ordered without such proof.
3. The concluding question is one of vital importance, and not free from difficulty, namely, whether the indictment states an offense either triable in the district court of Alaska or exclusively within that jurisdiction, and the former question, at least, is clearly
The indictment is furthermore insufficient in its statement of the ingredients of the offense, as the basis for an order of removal. For a charge of embezzlement the utmost particularity is required in the indictment. Moore v. U. S., 160 U. S. 268, 274, 16 Sup. Ct. 294, 40 L. Ed. 422. No ground appears for locating the embezzlement in Alaska. The corporation alleged to have been defrauded is located in West Virginia, and it is not even stated that it was engaged in business in Alaska. The petition states that the office of the company and its officers and directors are all in Chicago. If the defendant was treasurer of the company (which he denies and offers to disprove), and temporarily in Alaska with funds of the company for investment, under special circumstances only could embezzlement be there consummated by him. No such circumstances are specified in the indictment, but it alleges only the conclusion of the pleader that he there and then embezzled and converted to his own use the money of the corporation. Whether the indictment may be sufficient to sustain a conviction for larceny,