IN RE BURKHARD:r.
(District Oourt, E. D. Wisconsin. October 27, 1887.)
1. CRIMINAL PRACTICE-REMOVAL FROM: DISTRICT-REV. § 1014. Where a removal is sought, under section 1014, Rev. St., of an accused per· son from the district where he is found to the district where the alleged of· fense was committed. there should be a preliminary examination to establish the identity of the prisoner, and his probable guilt, before a warrant for his removal is issued by the judge. 2. SAME. In such a case, the judge is not required to decide absolutely the question of guilt or innocence; nor is he authorized to discharge the accused if there be some doubt of guilt. S. SAME. If identity is shown, and a case of probable guilt made, it is incumbent upon the judge to issue a warrant for the removal of the prisoner to the proper dis· trict,. where a jury may determine, upon all the evidence, the question of guilt or innocence.
(Syllabus by the Court.)
In the Matter of the Application for the removal of Richard Burkhardt
to the district of Minnesota on a criminal charge.
W. A. Walker, for the United States. W. a. WiUiarns, for accused.
DYER, J. On the fifteenth day of October the attorney for the United States presented to a uommissioner in this district a complaint, in writing, charging that on the fifth day of March, 1887, Richard Burkhardt wrongfully and unlawfully took from the post-office at Wells, in the state of Minnesota, a certain letter directed to one August Biederman, which had' been theretofore deposited in the post-office at Oshkosh, Wisconsin, addressed to said Biederman, and which contained a draft of the value of $100; and that the accused, having obtained possession of the letter, embezzled the same and its contents. A warrant was thereupon issued for the arrest of Burkhardt, and, being found in this district, he was arrested and brought before the commissioner to answer the charge against him. Before these proceedings were instituted, a warrant had been issued by a United States commissioner in the district of Minnesota for the arrest of the accused, but he was not found in that district. Upon being brought before the examining officer here, a preliminaryexamination was had, such as is usual in criminal cases; and, upon being satisfied of the identity of the prisoner, and of his having committed the offense charged, the commissioner held him to bail, and, in default of bail, the accused is in the custody of the marshal. Application is now made by the district attorney, under section 1014, Rev. St., for a warrant for the removal of the prisoner to Minnesota, where he may be· tried for the offense with which he is charged. The course of procedure pursued by the district attorney, preliminary to the present application, was correct. Section 1014 provides that "for any crime or offense against the United States, the offender may, by any
justice or judge of the United States, or by any commissioner of a circuit ('')urt to take bail, *. * * at the expense of the United be arrested and imprisoned or bailed, as the case may be, for trial before such court of the United States as by Jaw has cognizance of the offense. * * And where any offender or witness is committed in any district the offense is to be it shall be the:duty ofthe judge of the district where such offender or witness is seasonably to and of the marshal to execute, a warrant for his removal to the district where the trial is to be had." It is true that this section contains no provision for a preliminary examination ju such cases, but it does provide that the accused may be "artested and imprisoned or bailed.'> This is to be done agreeably to the usual mode of process against offenders in the state where he is found, as the seCltion further expressly provides; aria we know that, by the course of .ptactice in this state, an offet;lder is not imprisoned or held to. bail withunless he waives exout a previous examination into his probable amination. It is by this course of proceeding, also, that the identity in cases where of the prisoner is established; and it seems very clear the removal· oIlhe- accused is sought from the district where he is found to the district' in another state where the offense was committed, the act of congress was intended to require a preliminary examination· by the committing so that such magistrate, and the judge who may be applied to for a warrant of shall be satisfied of the identity oOhe prisoner, and of his prdbable guilt. Otherwise great injustice might·be done to an accused person. . The language of section 1014 leaves no doubt that the preliminary inquiry should be had in the district where the off(3nder is This statement of the practice in such cases, iabut a reiteratiQIl of the views expressed on the question by Mr. Justice MIl.LER and Judge LOVE, in 1 Woolw; C.C. 422-427. The priaoneds charged with an offense under section 5469, Rev. St. Objection is made to his removal to Minnesota, on the ground that the evidence adduced, before the commissioner dues not show the commission ofany offense: punishable under the section referred to. That secamong 'other thattion Any shall steal the mail, or steal or take from or out (If any mail !lr post-office, branch post-office, or other authorized depository for mail matter, any letter or packet; any person who shall take the mail, or any letter or packet therefrom, or from any poSt-office, branch post-office, or other authorized depository for mail matter,""":'with or without the consent of the person having custody thereof, and open,. embezzle, or destroy any such mail, letter, or package which shall contain any note. bond, draft, check, etc., '" . II< '" shall, although not employed in the postal service, be punishable," etc.
It from the testimony in the case, that Biederman had a box in the Wells post-office, and one Banse was in the habit of receiving his m.ail· through the by arrangement with Biederman. They living in the country, and the prisoner was at the time in the service.ofBanse; doing work on his farm. The accused called at
the post-office, and, as he was authorized to do, received certain mail addressed to Banse. The postmaster asked him if Biederman sent for his mail also, and he said, "Yes;" whereupon he took from the office Biederman's mail, in which was the letter in question. The testimony shows that he subsequently opened the letter, and, finding it contained a draft, he indorsed the draft in such manner as enabled him to negotiate it,. and, upon getting it cashed, appropriated the money. The expression, "take the mail. or any letter or packet therefrom, or from any post-office * * * with or without the consent of the person having custody thereof," contained in the second clause of section 5469, means a wrongful, an unlawful, taking. If the accused had authority to take, and with such authority did take, Biederman's mail from the and, having thus obtained the letter in question, subsequently opened it,and embezzled its contents, such embezzlement was not an offense against the United' States, though it would be against the state. To constitute the offense made punishable by the clause in section 5469 must referred to, the taking of the mail or of a letter from the be with criminal intent; not a taking by the authority of the person to whom the letter is addressed, although there is a subsequent embezzlement, nor a taking by mistake; or with an innocent intent. U. S. v. Pearce, 2 McLean, 14. "A letter, packet, or other thing valuable, having been committed to the post-office department for carriage and delivery, if once parted with by the postmaster to.a person authorized to receive it, from:that moment ceases alike to be under the control of the department, and the power and authority of the general government. The sanction by the federal courts of the contrary doctrine would be danger,ous in its tendency, and subversive ofreserved state authority. * * * When the functions of the department are exhausted by the proper delivery of mail matter, (once placed in its such mail matter is then beyond the reach and authority of any legislation of congress." U. S. v. Sander, 6 McLean, 598. See, also, U. S. v. Dri.9coU, 1.Low.303. The material question, then, is, in the matter under consideration, does the testimony show that the prisoner, without authority, and therefore wrongfully, took the letter addressed to Biederman from the postoffice? The postmaster testifies, as before stated, that he asked the accused, when he called for Banse's mail, if Biederman sent for his mail also, and the accused answered, "Yes;" and, as the two were getting their mail in the same box, he delivered the mail, which consisted of some newspapers and a letter, to the prisoner, supposing he had authority to receive it. Biederman and Banse had been accustomed, as neighboring farmers to get each other's mail when one went to town and the other did not. There is some testimony tendirig to show that there is a custom prevailing among farmers in the neighborhood for one going to the post-office for his own mail to get any mail that may be in the office for his neighbor; but the postmaster testified th,at he did not remember that he ever, before the occasion in question, delivered Biederman's mail to t,he accused. Biederman swears that the accused had no authority whatever from him to take his. mail from the post-office, and that, al-
though the prisoner had been for a short time in his employment before he entered the service of Banse, he had never been authorized by him to receive his mail at the post-office, and never in fact got his mail while he was in his service. Biederman also testifies that, on the day the letter was taken from the post-office, he met the accused on the road returning hoine, and asked him if he had his (Biederman's) mail. This is a circumstance which counsel for the accused claims points to the conclusion that Biederman expected the prisoner to bring his mail to him from the office; but Biederman says, further, that he did not expectthe accused to bring him his mail, but that as he met him coming from town, and saw newspapers in his pocket which evidently came from the post-office, he asked him if he had any mail for him. This is the substance of the testimony bearing on the vital point in the case. The accused' was not sworn, and did not give his version of the transaction. It may be that the alleged want of ailthority is not conclusively shown; that is, beyond all dOllbt. But I do not understand that the judge, who is called on in such a case to determine whether he will order a removal of the accused to the district where the alleged offense was committed, is required to decide absolutely the question of his gUilt or innocence, or is authorized to discharge him if there be some doubt ofguilt; although, undoubtedly, in a case where i! was clearly proven that the accused had not committed the offense charged, it would be the duty of the judge to order his discharge. ' If a case of probable guilt is made, then it is incumbent upon the judge to issue a warrant for the removal of the prisoner to the proper district, where a full investigation of all the facts and circumstances may be had, and where a jury may determine, upon all the evidence, the question of guilt or innocence. The identity of the prisoner, and his probable commission of an offense under section 5469, are here shown, and the case is therefore one in which a warrant of removal should issue. U. S. v. Parst:m8, 2 BIatchf.l04, was cited by counsel for the accused as an authority in support of his view that no offense was committed within the meaning ofsection 5469. The facts in that case were that a letter mailed in Boston reached the post-office in New York. It was taken by a letter-carrier for delivery, and was given by him to a person in the house of the defendant; the defendant not being present, and not participating in the delivery. That person subsequently, and at a different place, delivered the letter to the defendant, who opened it, and embezzled the ni.oney inclosed. The letter was not intended for the defendant, but for another person bearing the same name; and it did not come into the possession of the defendant within the view of the lettercarrier, or with his knowledge, or while he remained at the place where he left the letter. ' Upon this state of facts, it was held that the defendant was not liable to prosecution for the embezzlement of the contents of the letter, under the post-office act of the United States, for the reason that there was no wrongful intent on the part of the person who received the letter from the carrier. He supposed the letter belonged to the defendant; and afterwards delivered it to him at a different place, as being
EX PARTE WATERMAN.
rightfully his. So far as both the letter-carrier and the person to whom the letter was delivered were concerned, the delivery of the letter was innocent and rightful, and therefore all action and authority of the postoffice department in respect to the letter, terminated with its delivery to the third person. The inapplicability of this case in ita facts to the case under consideration, is apparent. A warrant will issue for the removal of the prisoner to the district of Minnesota.
(DiBt'1'ict Court, No D. Ndw York. November 9, 1887.)
ClUHt1U.L PRACTICE-SENTENCE-PLAOE OF STATES DISTRICT COURTS.
A woman, duly convicted in the district court of the Eastern district of New York, was sentenced to be imprisoned in the state prison at Auburn, but the warden refused to admit her, because he was not permitted by the laws of the state to receive female prisoners. The court thereupon, during the same session, but in the absence of the convict, made an order modifying the sentence by substituting the Erie County Penitentiary as the place of confinement. Held, on habea8 corPU8, that the criminal jurisdiction of the district courts being purely statutory, and it being apparent from the provisions of Rev. St. U. S. §§ 5541,5542, 5548, tit. 70, c. 9, relating to "prisoners and their treatment," that the designation of the place of imprisonment is no part of the judgment, such an order could be made in ab8entem. .
On Habeas Corpus. Tracy a. Becker, for petitioner. M. D. Wilber, U. S. Dist. Atty., contra. COXE, J. The petitioner, having been convicted in the United States district court for the Eastern district of New York, under section 5457 of the Revised Statutes, was, on the eleventh of October, 1886, sentenced to be imprisoned at hard labor in the state prison at Auburn for the term of three years. On the sixteenth of October, the marshal transported her to Auburn, but the warden of the prison, not being permitted by the laws of the state to receive females, refused to admit her. On the same day,-October 16th,-the court, during the same session, but in the absence of the defendant, made an order modifying the sentence by substituting the Erie County Penitentiary as the place of imprisonment. The simple question is, could the court lawfully make this order in abwntem? It cannot be denied that the authorities are unanimous in holding that, where the slightest corporal punishment is inflicted, the defendant must be present in court when the sentence is pronounced. Sanford v. People, 1 Park. Crim. R. 474, 477; Dougherty v. Com., 69 Pa. St. 286; State v. Hurlbut, 1 Root, 90; Son v. People, 12 Wend. 345; People v. WincheU,7 Cow. 525; Rex v·. Harris, 1 Ld. Raym. 267; Whart. Crim.
§§ 550, 912; 1 Chitf Crlln: Law, 695.
,<it 'Would seem, apply with equal force· to all subsequent modifications of
,the sentence proper, though apparently formal and unimportant. The ('tnolllentthe right to change the sentence at all, in the absence of the dec fendant" is conceded, the door is open to the admission of the most rad· ical and sweeping amendments, in direct violation of the humane principleuponwhich the rule in question rests. If, therefore, the court were now satisfied that this clearly recognized provision of the law had been violated, the case would be a plain one; but it is contended that the designation of the place of imprisonment is no part of the judgment. The criminal jurisdiction of the national courts being purely statutory, it is urged that the court has authority after sentence is pronounced, and in the absence of the defendant, to enter an order at any time during the term naming the prison where the sent.en,ce is to be executed; and, further, that the court may, in its discretion, make a general order to this effect, including all or any given number of prisoners sentenced at the term. Section 5541 of the Revised $tat1,ltes provides: '. "In every case where any person donvicted of any offense against the United States is sentenced to imprisonment for a period longer than one year, the 'court ,by which the sentence ig passed may O1'd,er the same to be executed in any state jail or penitentiary," etc. To the same effect are sections 5542 and 5548. By these provisions congress clearly recognizes '3 distinction between a sentence and an 01'det for the execution of the sentence. After the former has been passed, the order is made designating the prison, but the order is not necessarily a part of the judgment of the court. This construction is confirmed by an examination of section 5546, (amended 19 St. at Large, 88,) which permits the attorney general, in certain cases, to 9hange the place of imprisonment of any prisoner of the United States. If the law-makers had regarded the designation of the prison as apart of the solemn judgment of the court, it is hardly probable that they would have lodged with an executive officer the power, not only to change and modify that judgment, but to do this in the absence of the prisoner by a mere stroke of the pen. It is true that, in · this district, in every case where an infamous crime has been charged, the defendant's presence has been required at every step of the proceedings, but in other districts the practice adopted in this cause has been sanctioned by judges who have had long experience in administering the · criminallaw. The right to change the place of confinement in the absence of the prisoner has been asserted, and frequently exercised; sometimes upon the request of the prisoner himself, sometimes through the solicitation · of his relatives and friends, and sometimes from motives of public policy. There can be no reason founded upon principle why the prisoner should be present when the order effecting this change is signed. To require such presence would often be attended, not only with large and useless expense, as in the case at har, but with annoyance, inconven· ience, and delay, not only to the officers of the law, but to the prisoner
RAILWAY REGISTER:MANUF'G CO. v.THIRD AVE. RY. CO.
himself. This view of the law is further strengthened by a reference to the rule of the Southern district, which provides that "in all cases in Which persons convicted of offenses against the statutes of the United States shall be sentenced . tq irpprisonIl1ent, and the sentence shall not also specify that the partY.he keptat;h,ard labor, it shall be the duty of the marshal to 'cause such partyto in anyone of the prisqns within .the city and, county of New York which he may select for that purpose." 4 541.. court has the powerto make such an order before sentence, why not exercise the same right afterwards? If the place of imprisonmentlllay thus be fi.;::ed by an order of the court when the presence of' the prisoner is impossible, it follows that the order is not an essential part of the judgment,and his presence is not necessary when it is made 322; after. the sentence is pronQunced. See De Puy's (]ase, 3 Ben. Weed v. Pecple,31N. Y.46Q. .. .A case exactly in point has not been cited by counsel, or found by the court, and, in the absenoe of authority, the court should to release the prisoner upon a ground purely technical in' charaeinvolving, it would seem, no substantial right. If she had been brought back by the marshal from Auburn to Brooklyn, neither she nor her counsel would have been consulted, and the court was under no obligation to consult them, regarding the order which changed the place of .' imprisonment. It follows that the discharge must be refused.
RAILWAY REGISTER MANUF'G
THIRD AVE. Ry.
Co. and others.
(Oircuit Oourt, S. D. New York. October 15,1887.)
PATENTSlI'OR INVENTIONS-FARE REGISTERS-LIMITATION 011' CLAIM-INll'RINGEKENT.
Claims 1, 2, 4 and 5 of letters patent No. 2.06,565, of July SO, 1878. to Charles B. Harris, for an "improvement in fare registers," must. by reason of the limitation of the boundaries of the invention in the descriptIOn and in view of the prior state of the art as indicatedby the Morgan-Brown British patent of August 15, 1877, (Which sets forth three Italian fare registers and modIfications thereof, the invention of Joseph Mazari. of Italy.),be limited to the specific mechanical devices which constitute ,the novelty of the combination. These devices are the employment of a direction indicator so organized in relation to the registering mechanism. both trip and permanent, that it cannot be changed to indicate a different directioll of travel without first bringing the trip 'register to the starting point and so adapted to co-operate with the regIstering mechanism as. upon such change, to effect a transfer from the trip to t1),e permanent register of the record of fares collected. So limited, these are not infringed by a fare register in which the permanent register is not actuated by the act of resetting the trip register, but only when the trip regJster is making its original record, and in which there is no locking device to detain the direction indicatOr, so that it cannot be moved until the trip register is reset at zero.
Bill for injunction.