24 F. Cas. 1180 | S.D.N.Y. | 1868
This case comes before the court on a writ of habeas corpus, and a writ of certiorari, the habeas corpus being issued to the marshal of this district, directing him to bring up the prisoner, and the certiorari being issued to John A. Osborn, a commissioner of the circuit eourt of the United States for this district, to bring before the court the proceedings before him under which the prisoner was committed. It appears that, on the 23d of March, 186S, a warrant was issued by Mr. Osbom, as such commissioner, to the marshal of this district, against Joseph Bloom-gart, reciting that complaint on oath had been made, charging Bloomgart with having, on the 7th of December, 1867, in the district of Kentucky, knowingly, willfully, and felo-niously taken and converted to his own use, and embezzled, the sum of $12,275, the property of the United States, he being then an officer of the United States, and intrusted with the depositing and safe keeping of the
It appeared in evidence, before the commissioner, that a warrant was issued in Kentucky, on the 28th of March last, by a United States commissioner there, to the marshal of Kentucky, reciting that information upon oath had been given to him, that Bloomgart had committed an offence in the district of Kentucky, to wit, that he, being an officer of the United States, at the fractional currency •counter of the treasury department, in Louisville, and intrusted with the safe keeping of the public money of the United States, did, while intrusted with such charge, convert a large sum of the same to his own use, contrary to the statutes of the United States. Such warrant commanded the marshal to arrest him, and bring him before the commissioner.
An official letter of appointment from the treasury department, signed by the assistant •secretary of the treasury, was put in evidence before Commissioner v/sborn, showing that Bloomgart was appointed a clerk at the fractional currency counter of the treasury department in Louisville, on the 10th of October, 1866, by the direction and with the approbation of the secretary of the treasury. Under the decision of the supreme court in the case of U. S. v. Hartwell. 6 Wall. [73 U. S.] 385, this appointment constituted Bloom-jgart an officer of the United States. Where, with the sanction of the head of a department, a person is appointed an officer of the United States for the safe keeping of public money, such appointment constitutes him such officer, within the meaning of the constitution of the United States, and of the statutes of the United States in regard to officers charged with the safe keeping of the public money.
The only question now is, whether probable cause was shown for his commitment, — probable cause to show that he is guilty of the of-fence charged against him. In addition to the affidavit of Mr. Hervey, the evidence, and, it may be said, the only evidence on the subject, appears to be two papers, which are proved to be in the handwriting of Bloomgart himself, in which he enters with great particularity into the details and circumstances of the embezzlement, showing when it commenced, how it was carried on, and the purpose for which it was committed. They are both signed by Bloomgart, they are auto-graphic manuscripts, and, if they are to be believed, they clearly show that he has been guilty of the offence charged. His discharge is claimed on the ground, that, if he were on trial under an indictment before a jury, the same rule of law would apply to his case as to all other criminal cases — that the corpus de-licti, the fact that an offence was committed, the stealing of the government money, must be proved independently of the confession of the prisoner. People v. Hennessey, 15 Wend. 147. But, whatever the principle of law is, as regards a trial before a. jury, I have come to the conclusion, after a careful examination of the authorities, and looking at the case as if I myself were the examining and committing magistrate, that the principle invoked does not apply to the question of a commitment, and that this is a proper case in which to hold the prisoner for trial, and send him to Kentucky. I do this on the decision of the most learned and eminent judge, who has adorned the bench in this country — Chief Justice Marshall — and on the authority of the most important criminal case which the federal judiciary has ever had to deal with — the Case of Aaron Burr [Case No. 14,692a] — in which the evidence on which the prisoner was held for trial was identical with that in this case. As this is an important question, I have thought that the law should be carefully laid .down for the guidance of United States commissioners, because the doctrine urged in this case on the part of the prisoner is not sound, as respects the question of commitment.
In the Case of Burr, an application was made at Richmond, before the chief justice, sitting as a committing magistrate, and acling, so to speak, as .a United States commissioner, to commit Colonel Burr for trial, on two charges. One charge was, setting on foot and providing the means for an expedition against the territories of a nation at peace with the United States. The other charge was a charge of high treason. The sole evidence on which the
The evidence in the present case is quite-as full, to show that thei'e is probable cause for supposing the prisoner to be guilty of the charge, on this written confession. The confession is very circumstantial and detailed. It shows that he took the government money, and for what purpose he took it. I have no doubt that this is a proper case in which to hold the accused for trial. If the offence 'had been committed in .this district, the evidence would be sufficient to commit him to await the action of a grand jury. The only place where he can be tried is the district of Kentucky, where the offence was committed. The application to discharge the prisoner is refused, the writ of habeas corpus is vacated, and a warrant must be issued, under the thirty-third section of the act of September 24th, 1789 (1 Stat. 91), to the marshal of this district, to remove the prisoner to the district of Kentucky.