United States v. Fowkes
49 F. 50
E.D. Pa.
1892
Check Treatment
Butler, District Judge.

The relator, having been arrested and bound over to court, charged with the commission of a crime in the state of Missouri, sued out a writ of habeas corpus ; and the district attorney, at the same time, applied for a warrant of removal. On return of the writ an indictment — found in Missouri — charging him with violation of section 10 of thе interstate commerce statute, was presented, in justification of the arrest and detention. In answer, his counsel represented ‍​​‌​‌‌‌​​‌‌​‌‌​‌​​‌​‌‌‌‌​‌​​‌‌​​​​‌​​​‌‌​​‌​‌‌​‌‍that the indictment was found without previous hearing, and that no hearing (except in form) has yet been allowed him; that no evidence can be producеd to support the charge; that he has never been within the state of Missouri; that he has no connection with any other railroad than that of thе Philadelphia & Reading Railroad Company, and that his connection with it when the indictment was found, and previously, conferred cm him no authority whatеver over the freight rates, or charges for transportation, and that he had never assumed or attempted to exercise such authority; that he was simply “freight claim agent” of the company, aftd that his duties as such consisted in passing upon claims — and certifying his conclusions— for compensation on account of erroneous exactions, in excess of established rates, and for loss of, or damage to, propеrty received by the company for transportation. In view of these representations the relator was permitted to introduce evidеnce in support of them. The testimony heard, (the truth of which is not questioned, as I understand,) fully supports the representations. The case was held over for several weeks, to allow the government to produce evidence in support of the charge. None, however, has beеn produced.

*52■It is urged, on behalf of the prosecution, that the indictment itself is ■sufficient to require the detention and transfer of the relator, and thаt the court should not inquire further. This must be regarded as an appeal to the ‍​​‌​‌‌‌​​‌‌​‌‌​‌​​‌​‌‌‌‌​‌​​‌‌​​​​‌​​​‌‌​​‌​‌‌​‌‍court’s discretion. There can be no doubt of its authority to make such inquiry. The case is before us, not simply on the motion for a warrant'of transfer, under section 1014 of the Revised Statutes, but Tinder the writ of habeas corpus; and in such cases thе court may treat an indictment as sufficient authority for holding the relator, or it may not, as the circumstances seem to require. Whenever there is cause to believe the detention improper, the court may, and should, inquire further. Under ordinary circumstances an indictment is treated as sufficient. Here, however, the circumstances are extraordinary. The indictment, as we have seen, was found at the instance of the prosеcuting officer, without previous commitment or binding over; and the relator has, consequently, never had opportunity to know anything of the circumstances out of which the alleged crime is supposed to arise, or the nature of the ■evidence by which it is to be proved; and it is propоsed to transfer him, under these circumstances, to a distant- state for trial — while the undisputed testimony before me seems, at least, to justify belief, not оnly that .he did not, but also that he could not, commit the offense charged in Missouri, or, indeed, elsewhere.

In view of the circumstances under which the indiсtment was' found, I do not regard it as entitled to any greater weight than a magistrate’s ■commitment after hearing. I doubt whether it is entitled to as much. The prаctice pursued in obtaining indictments where there has been no commitment or binding over (which is so well understood that I must take judicial notice of it,) is to prepare the bill on information furnished, and, without communicating with the court, present it to the grand jury — which has not been instructed respecting the сrime charged, and, presumably, is ignorant in many cases of its essential constituents. The .government claims a right to pursue this practice, ‍​​‌​‌‌‌​​‌‌​‌‌​‌​​‌​‌‌‌‌​‌​​‌‌​​​​‌​​​‌‌​​‌​‌‌​‌‍and I am not called upon to question it. When, however, indictments so obtained are presented as authority for imprisoning men, and transferring them to distant states to stand trial among strangers, the circumstances under which they are obtained must be considered in determining their value and effect. I think the jury’s finding in such cаses may be regarded as little more than matter of form* It is not improper to say, in passing, that the practice is, in my judgment, attended with serious dangеr to the rights • of individuals, inasmuch as it affords convenient opportunity for the perversion of criminal process to the advancement of private interests. The cases of In re Mohr, 73 Ala. 508; Jones v. Leonard, 50 Iowa, 106; and Wilcox v. Nolze, 34 Ohio St. 520, — exhibit glaring instances ox such perversion. In each it appears that the relator was arrested on an in- • dictment so procured, in a state distant from his home, charging the commission of crime there, without any evidence to justify the grand jury’s finding — the object of the proceeding in each case being, manifestly, the extortion of money. It is not improper to say further, that, during my *53experience several similar instances of the abuse of criminal process have come to my knowledge, and that, ‍​​‌​‌‌‌​​‌‌​‌‌​‌​​‌​‌‌‌‌​‌​​‌‌​​​​‌​​​‌‌​​‌​‌‌​‌‍in one of the judicial districts of this state, the сourt was called upon by rule to provide that no such bill should be laid before the grand jury without its special permission, accompanied by prima facie evidence to support the charge, or the assurance of the prosecuting officer that he had personally investigated the case, and ‍​​‌​‌‌‌​​‌‌​‌‌​‌​​‌​‌‌‌‌​‌​​‌‌​​​​‌​​​‌‌​​‌​‌‌​‌‍had such evidence to submit. The danger of abuse may be less in the federal courts; I do not know, however, that it is.

It was said, during the argument, that the practice referred to was, to some extent, departed from in procuring the indictment before me, but it was not said from personal knowledgе. Without regard, however, to the circumstances under which indictments are found, the courts will go behind them whenever it appears that the relatоr’s safely from unjust imprisonment requires it. The right to personal liberty is too important to bo overborne by anything short of evidence that it has been forfeited. Mere matters of form, and considerations based on notions of comity between courts, have no proper place in trials on habeas corpus. In the case of U. S. v. Rogers, 23 Fed. Rep. 658, and In re Buell, 3 Dill. 116, the court went behind the indictment to ascertain whether an offense had been committed within the jurisdiction where it was found, as therein charged, аnd numerous similar cases might be cited. In In re Mohr, supra; Hartman v. Aveline, 63 Ind. 344; Wilcox v. Nolze, supra; and Jones v. Leonard, supra, the court went behind .the governor’s hearing and warrant of extradition, and inquired wdiether there was evidence to show that the crime charged had been committed where the indictment (on which the warrant issued) was found, as it averred. The court will not, of coursе, hear the relator’s defense and try the case; it requires simply to be satisfied that there is evidence on which a jury may convict. In the casе before me there is no evidence whatever produced on which a jury could proceed, notwithstanding the fact that the circumstances shown call for its production if any exist.

The suggestion that the government would be subjected to inconvenience and expense in produсing evidence here, is entitled to no weight. The relator would he subjected to greater inconvenience and expense if held in custody, and transferred to Missouri to hear it. For these reasons the relator is discharged.