United States v. Horton

26 F. Cas. 375 | U.S. Circuit Court for the District of Eastern Missouri | 1873

DILLON, Circuit Judge.

The record shows that the principal cognizor was charged with an offense against the laws of the United States, and was arrested and taken before a commissioner for this district, who, upon his application, continued the time for the examination and hearing of the charge for the period of nineteen days, and thereupon ordered him to find bail in the sum of ,$500 to appear before the commissioner at his office on the day to which the adjournment was thus made.

The recognizance in suit was given in pursuance of this order. The principal failed to appear at the rime and place to which the hearing was adjourned, and his default was entered by the commissioner.

The substantial question presented for determination is whether the recognizance taken under these circumstances is binding upon the cognizors. It is settled that bonds of riiis character are valid only when taken in pursuance of law and the order of a competent court or officer. U. S. v. Goldstein’s Sureties [Case No. 15,226]; U. S. v. Rundlett [Id. 16,-208]. Whatever authority the commissioner has in respect to the arresting, imprisoning, or bailing of criminal offenders is conferred by statute, and must be exercised by him pursuant to its requirements. Congress has not seen fit to prescribe a uniform mode of its own in respect to preliminary proceedings against persons accused of a violation of its criminal enactments, but in the 33d section of the judiciary act. it provided that the procedure in such cases should he “agreeably to the usual mode of process against offenders in such state,” that is, in the state in which the offenders may be arrested and the proceedings had. To this section we must resort to ascertain the powers of commissioners in respect to the arrest, imprisonment, and bail of offenders against the laws of the United States. The meaning of this section was very carefully considered by Mr. Justice Curtis, in U. S. v. Rundlett, supra. This learned judge there says: “My opinion is that it was the intention of congress by these words, ‘agreeably to the usual mode of process against offenders in such state,’ to assimilate all proceedings for holding accused persons to answer before a court of the United States to proceedings had for similar purposes by the laws of the state where the proceedings should take place; and, as a necessary consequence, that the commissioners have power to order a recognizance to be given to appear before them in those states where justices of the peace, or other examining magistrates, acting under the laws of the state, have such power. The prisoner is not only to be arrested and imprisoned, but bailed, agreeably to the usual mode of process in the state.”

NOTE. As to the power of justices of the peace to adjourn examination and take a bond pending a continuance, see Potter v. Kingsbury, 4 Day. 98, 1809. This ease affirmed the power, “but the court,” says Woodruff, J„ in U. S. v. Case [Case No. 14,742], “refer the power solely to statute ” The only statute referred to by the court is one in these words: "No man shall be imprisoned if he will give sufficient security. bail, or mainprize, for his appearance,” etc. The case treats the justice as a court of inquiry, with the incidental power to adjourn for the purpose of enabling the public or the prisoner to obtain witnesses. But compare U. S. v. Case, supra, with which it seems difficult to reconcile it. As to the limited powers and jurisdiction of justices of the peace in Missouri: State v. Metzger, 26 Mo. 65; Williams v. Bower, Id. 601.

As the legislation now stands, a commissioner, as respects taking bail, has the same power as state magistrates and no greater. On this principle it has been recentiy held by Judge Woodruff, that in New York, where state magistrates have no power to take recognizances to appear before them at a subsequent day, United States commissioners have no such authority, and a bond conditioned for the appearance of the accused before the commissioner on a future day to which the proceeding was adjourned, was void. U. S. v. Case [Case No. 14,742], affirming the judgment of the district court. On the other hand, in those states where magistrates have by statute the power of adjournment, there a United States commissioner may let to bail pending the proceedings against the accused. U. S. v. Rundlett, supra.

By the statute of Missouri, “a magistrate may adjourn an examination of a prisoner pending before him, from time to time, as occasion requires, not exceeding ten days at one time.” Wag. St. p. 1075, § 88. In this case the commissioner adjourned the examination for nineteen days, and ordered the accused to find bail to appear before him at that time.. This was an order not only without authority of law, but contrary to law. He could not lawfully require the accused to find bail in pursuance of it; and a bond executed to avoid being imprisoned for the nineteen days, when the statute limits the period to ten days, is without any binding obligation. It is immaterial that in this instance the accused asked for the continuance. His consent could not confer jurisdiction or power to make the order; nor does it estop him or his i sureties to set up the invalidity of the recog- [ nizance executed to comply with it. Re- | versed.