The grand jury in the United States District Court for the District of Massachusetts on June 4, 1948, indicted Conley for violation of the Fugitive Felon Act, 48 Stat. 782, as amended by 60 Stat. 789, 18 U.S.C.A. § 408e [now § 1073]. Presentment was made on the charge that “Conley of Amarillo, in the District of Texas * * * did travel in interstate commerce from * * * Massachusetts to * * * Texas, with intent to avoid prosecution for assault with a dangerous weapon upon one Bertha LaCroix, an offense against the laws of the Commonwealth of Massachusetts”. [See this Court’s Criminal No. 18074.]
Thereafter, the United States District. Court for the Northern District of Texas issued a warrant of removal requiring Conley to appear before this Court to stand trial on the indictment. Simultaneously,, that Court admitted Conley to bail for appearance in this District. See Federal Rules of Criminal Procedure, Rules 40(b) (3) and 46, 18 U.S.C.A.
Conley alleges that the Attorney General of the Commonwealth of Massachusetts and the District Attorney for the-County of Plymouth, Massachusetts in connection with an indictment already returned by a Massachusetts state grand jury charging Conley with violation of the Massachusetts statute respecting assault and battery with a dangerous weapon, Mass.G.L.. (Ter.Ed.) c. 265, § 15A, will seek to arrest and try him in the state court either upon. Conley’s “entering the Commonwealth” or after Conley’s acquittal in this Court.
Although this Court itself suggested to Conley’s counsel that he file the independent suit in equity, now known as C.A. No. 7901, I am persuaded that that suit must be dismissed for lack of jurisdiction. The jurisdiction of federal district courts is, of course, statutory. And there seems to be no statute applicable to this case. Even the diversity jurisdiction provisions of 28 U.S.C.A. § 1332 are of no avail since $3,000 is not involved.
There is no similar jurisdictional difficulty with respect to a writ of protection. Admittedly this Court has jurisdiction to hear the trial of defendant on the indictment returned by the grand jury in what is known as Cr. 18074. And having jurisdiction of the criminal case this Court may issue “writs necessary or appropriate in aid of” that jurisdiction “agreeable to the usages and principles of law.” 28 U.S.C.A. § 1651(a). Such auxiliary writs of protection have frequently been issued by this Court [see Benesch v. Foss, D.C.D.Mass.,
This brings us to inquire what are the usages and principles of law with respect to protecting defendants in criminal cases. When a defendant is compelled to enter a state to answer a charge of violation of federal law, is he entitled to protection from arrest on a charge of another crime committed prior to his entry? A satisfactory answer to that question can be given only by considering it against a broad background.
Except in situations covered by statutes and treaties — to which I shall refer later — the general rule is that a party or witness does not have either before or during or after his attendance at any judicial proceeding a personal privilege to avoid service or arrest in connection with any other judicial proceeding. Such privilege as exists belongs not to the individual but to the court. Lamb v. Schmitt,
It is sometimes said that the rationale of the privilege is to encourage voluntary attendance of suitors and litigants who might stay away if they feared service of process in other litigation. But while that may be a good reason, it is historically an inaccurate one. The privilege was first granted in England and America to those who came involuntarily in response to subpoenas. See Judge Learned Hand in Dwelle v. Allen, D.C.S.D.N.Y.,
It is sometimes said that the rationale of the privilege is to prevent an interruption or embarrassment of the judicial proceedings. But there are two reasons why this-explanation will not stand. The service of process to attend a second trial neither interrupts or embarrasses the first trial' unless the dates of the two proceedings conflict. Moreover, if the purpose of the privilege were to avoid interruption of the first proceeding, then the protection would not extend, as it sometimes does, to the party or witness during his return from court to his home. Cf. Chanler v. Sherman, supra.
Perhaps the best that we can say is that historically the courts, without minutely examining each individual case to see whether a person’s attendance was voluntary or whether a particular process issued by another court caused embarrassment, but in order to “conduce to obedience” to compulsory process, see L. Hand, D. J. in
The extent to which protection is available to a witness in criminal cases is much more debatable. Several rules are possible: for example, (1) like the civil witness, the criminal witness, whether voluntary or involuntary, might be exempt from civil process [Dwelle v. Allen, D.C.S.D.N.Y.,
With regard to defendants in criminal cases, the point which has been most frequently raised is whether • a non-resident criminal defendant appearing voluntarily or involuntarily is subject to civil process. The authorities are collected in 22 L.R.A., N.S., 992;
Regardless of the appropriate rule for the protection of criminal defendants against civil process, I am clear that a defendant in a criminal case is not ordinarily entitled to protection against the service of process in another criminal case. (Except in extradition cases, to which I shall refer later,) no authority according such protection has been cited to, or found by me. Whether a person comes into the state voluntarily, or on bail, or in custody to answer one criminal charge, he ought to be subject to service of process on charges of other crimes committed before or after his entry. The overriding public policy is to require him to answer and stand trial for every duly presented accusation of violation of law. Cf. Mahon v. Justice,
The conclusion which I have reached is in accord with In re Little,
There remains one point to be noticed. In the discussion so far I have treated this as though it were an ordinary case where a person was being required to come from Texas to Massachusetts to stand trial for violation of one of the usual federal criminal statutes. But in fact this is an a fortiori case, for Conley is required to come here to stand trial for violation of the Fugitive Felon Act and the service he fears is in connection with the very state charge from which it is claimed he is a fugitive. The terms of that statute no less than its legislative history reveal that its purpose was to supplement ineffective interstate rendition proceeding. See United States v. Brandenburg, 3 Cir., 144
The petition for a writ of protection is denied on its merits, and the complaint seeking an injunction is dismissed for lack of jurisdiction.