26 F. Cas. 984 | U.S. Circuit Court for the District of Southern New York | 1860
The petitioner is a non-resident of this district, and had, when he was arrested, just returned from a voyage to England, after an absence of several months. The indictments against Lloyd charge a series of frauds committed by him against the revenue laws, by the falsification <5f invoices, and by other criminal acts accompanying the importation of goods to this port from foreign countries, to a large amount, and continued for a considerable period of time. Marlor was, during a portion, if not the whole of the time, a confidential clerk of Lloyd, and it was upon his disclosures that the prosecutions were chiefly founded. He was employed by the United States attorney and the officers of the customs, in collecting and arranging original invoices and letters of Lloyd’s, and having them prepared to be used, with his own testimony,' as evidence on the trial of Lloyd. Whilst in that confidential relation to the public officers, he was entrusted with some of those documents, and had free access to many other highly important ones. Under these circumstances, he suddenly left the country and went abroad. On his departure, many of those papers and vouchers were found to be missing from the places where they were deposited whilst he had the means of access to them at his pleasure. The district attorney imputed this surreptitious abstraction to Marlor, and prayed that he might be put under stringent securities, so as to assure his personal appearance in court, and also the production of the lost vouchers. Marlor admitted that some of the papers had been entrusted to him, but asserted that he delivered back to the district attorney’s office all which he ever had in his charge. On those facts, the judge ordered the witness to give securities for his appearance in court, in the sum of $5,000, and, neither that nor any other sum being offered by him, he was committed to the custody of the marshal, the judge remarking, that if the witness produced the missing vouchers, the amount of the surety, which was designed also to ensure his presence in obedience to a subpcena duces tecum, should the government elect to issue one, would be materially diminished.
On the present application, the representation of facts made when the witness was first arrested, is substantially repeated by the assistants having charge of the district attorney’s office, wPh the farther statement, that the witness has never returned to that office the papers and vouchers before alleged to have been clandestinely withdrawn therefrom. The witness now also files his own deposition, asserting positively that he never abstracted any papers, and has none of them in his possession or control now; that he did not leave the country clandestinely, but went abroad publicly, on family and private business, with the intention of returning here speedily; that he has a family, and is a permanent resident and householder in Providence, Rhode Island, and has been so for thirteen years; that he is engaged there in business as a jeweller, and in a manufacturing establishment, and likewise in constructing a patented discovery, in which he has a personal interest; and that he has returned from his visit abroad, to abide in Providence permanently. He likewise asserts that he is in a very critical state of health, and is eonfined in jail under circumstances of great bodily exposure and suffering from bad accommodations, and from the want of indispensable medical attendance, and of the care of his family, in his debility and sickness. No testimony is offered, on either side, showing the -pecuniary condition or responsibility of the witness.
This case illustrates some of the manifold hardships and inequities to which witnesses are liable, under the authority and administration of the laws which subject them, in criminal cases, to be imprisoned in close confinement, at the discretion, in a good measure, of public prosecutors, to await a summons into
The case in hand brings to notice some ot the bitter privations which the enforcement of this power of imprisoning witnesses may naturally inflict upon them, when they are helpless of all relief. The petitioner had just landed in this city from a foreign voyage, and was her" united with his wife and only child, who had come, according to his deposition, from the’r home in Providence, to meet him on his arrival, and was, when arrested as a witness, about to depart with them to their home. He is evidently painfully enfeebled in health, from t severe and dangerous malady, and requires medical attendance and careful attention and diet. He has been, for many
Under thes" circumstances. I shall order the petitioner to be discharged from imprisonment on his executing his own recognizance in $1,000 penalty, to appear and testify in court on the trial of the indictments, when notified to do so on the part of the United States, at any time during the term.