19 F.2d 22 | 3rd Cir. | 1927
The single question on this appeal arose under section 1014 of the Revised Statutes (Comp. St. § 1674) and concerns the validity of an order for the arrest of Albert Haim, the appellant, in the district of his residence and his removal to a district in which he had been in-dieted.
The appellant, residing in the Eastern District of Pennsylvania, was indicted with many others by a grand jury in the North
The facts in this ease raise no new question of law. Judges in this circuit have reviewed the law of the statute. United States v. Beiner (D. C.) 275 F. 704; United States ex rel. Tassell v. Mathues (C. C. A.) 11 F.(2d) 53; and the Supreme Court in Tinsley v. Treat, 205 U. S. 20, 27 S. Ct. 430, 51 L. Ed. 689, reviewed the law as stated in previous decisions; and in Hughes v. Gault, 271 U. S. 142, 46 S. Ct. 459, 70 L. Ed. 875, it discussed and restated the law of the Tinsley Case. This is the latest authoritative pronouncement on the subject and we think it rules the case at bar in all its aspects. The law of that ease and of other cases there approved, in so far as pertinent to this one, is substantially as follows:
One accused of crime by indictment in a distant district, though liable to trial where-ever indicted, cannot be arbitrarily and summarily removed from the district of his residence, but is entitled to a preliminary hearing. Such preliminary hearing is not a preliminary trial. It is had before a committing magistrate, who may be a judge, commissioner, mayor of a city, or justice of the peace, and it is only such as will bring out the probable cause of the charge and make certain the identity of the defendant. These are the two things that must be established before the accused can be lawfully removed. In such a hearing the function of the magistrate is not ministerial but is judicial in the limited sense indicated. He must pass on the question of identity — an issue purely of fact — and also on that of probable cause. The indictment is itself evidence that there was probable cause for finding it. Of this, however, the indictment is not conclusive. Tinsley v. Treat, 205 U. S. 20, 32, 27 S. Ct. 430, 51 L. Ed. 689; its evidential effect is only prima facie. Hence the accused may attack it as not charging a crime and therefore as, not showing probable cause.
We have not been persuaded the indictment in this ease is faulty in that respect. But the accused may further rebut the government’s prima facie case by evidence, the exact nature of which in any given instance we, of course, do not undertake to prescribe. In the case at bar, however, the appellant’s main attack on the government’s prima facie ease was by his own evidence denying his guilt and the evidence of others proving his good reputation. His denial of guilt was nothing nlore than a plea of not guilty and evidence of reputation did not aid it. The question whether he is guilty still remains and that question is triable not by a magistrate at a preliminary hearing but only by a jury at final trial. Collins v. Loisel, 259 U. S. 309, 314, 315, 42 S. Ct. 469, 66 L. Ed. 956; Hughes v. Gault, supra. A preliminary hearing is afforded the accused to ascertain the probable cause of the charge made against him as justification for an order for his arrest and removal, not to determine his guilt or innocence, and the law intends that “if probable cause is shown on.the government’s side [the magistrate] is not to set it aside because on the other evidence he believes the defendant innocent.” Hughes v. Gault, supra. In other words, the only issue before the magistrate (after that of identity) is probable cause; the rest is for a jury. This, we understand, is the construction which the Supreme Court has given R. S. § 1014, in Hughes v. Gault, supra, where, as here, the accused denied his guilt and resisted removal on that evidence as rebutting the probable cause implicit in an indictment validly charging a crime.
The order denying the petition for writ of habeas corpus and remanding the relator to the custody of the United States Marshal for removal to the Eastern Division of the Northern District of Ohio is affirmed.