the stldpe'andetringency of the rule to which we have referred. With. out pursuing the subject further, it will suffice to :say that the order refusing the writ was clearly right,and is hereby affirmed.
,(DiBtrlc' Court, E. D. PenflByZVania. 'January 5, 1899.'
I, 0II.,M1N4J,o LAW-REMOVAL 011' PRIson. !J'O, ANOTHER I)IIITRICT-EVIDENOL
wbich doea' not form the subject-matter ot a detense. but' merely tends that tbe indictment had been Irregularly foundy or that the offense cbarged have thll prisoner, will be,heard in his, behalf in prowar.x:antot under B,ev. St. S 1014. "
ON a.UIlIlA,S CORPUS.'
'. :'Where a prisoner bas'been arrested on ,a warrant founiled on an indictment found bY afecleral,grand in which he did not :t'esjde ,and was not found, whijlb presumably had not been instro6ted by the court all to theconstltuents of the crime;ebarged, and ,wbeuithere been no prevloullarrell1i\ hearing, or binding OVl,Ir, the court of the distriot in \Vh,loh the &rl'est is made will dlsoharge the 011 habeas corpua. , __ "_'_, '" "
by FrankW. Fowkes, relator, and motion ro court fot warrant 'onemoval, under section 1014, Rev. St:, commissioner's return 93, of' 1891', ,of'a prisonercommitte<!' hya commissioner on a warrant issued undel'l/-n by the fe'deralgraild'juryof the eastern diVision of the :eastern district of Missouri; for offense against the interstate commei'cWact, (Act 'Congo Feb. 4; 1887,) as amended March 2, 1889. Theindietment charged that the Wabash, the New York, Chicago & St. Lo\tlsitheCentralofNew Jertley;the Philadelphia & Reading, and the Delaivate, La:*awanna & WesterilRailroads, each being a corpora.. tiou, lI'cotrlinon and engaged' the transportation of property wholly;p,y r,a¥foad; u?det an a East St. 1.0UIS to PhIladelphIa; that they had estabhshed a Jomt'tarItf of rates' forcontitluous carriage, and filed a copy thereof with the interstatecqmmerce Mmrnission,for lOcOll1otive 'brakes"of 38l'cents per cwt. j and that pertain nanietl persons, acting: far the several railroads,-among them,.allidFrankW. Fowkes, for the Philadelphia & Reading Railroad, -willfully charged, et'c·. , ,ilrtd caused' to be charged, etc., a less compensation than the joint tariff rate,s (3B' cents pet,owt.) to the ·American Company for carrying locomotive brakes from East St. Louis to Philadelphia over their J,'ahroads. 'The second count of the indictment charged that said charge' of lesf! than tariff rates was willfully permitted, by means, of a rebate allowed by said officials.' , The indictment had been l.found merely on presentation'by district attorney, and without arl'est or binding ovel:. The allowed to 'testify , and deposed that be was never in the state of Missouri; that his busihess was only to
'. . \ ' 'I .
i Reported by Mark Wilks Collet, Esq.,
of the :Philadelphia bar.
UNITED STATES t1. FOWKES.
adjust claims for overchargesjthat he had, ,no authority to make rates; but acknowledged that claims for overcharges of freight would come before him, and that he would sign vouchers for rebates for overcharl1;es, but stated he had no memory of the transaction charged. Further testimony of the prisoner and another developed that the prisoner had no authority to allow any drawback which would the freight less than the through tariff rates, though he could sign a "voucher," which bind his railroad for the repayment of excessive rates, which was done by signing a "line voucher," which was signed in turn by an official of each road forming the through line, aud authorized the initial road. to repay the shipper the excess, charging each of the other roada with ita quota. Prisoner discharged. John R. Read, U. S. Atty. ThoI. Han, for relator. The judge, before the warrant ot removal II Bsked, may go bl'hlnd the Indictment. U. 8. v. Rogers, 23 Fed. Rep. 658; In re Wulf,27 Fed. Rep. 606. And some cases ruled there m\1st be other evidellce than this indictment. U. 8. v, ·Harttn, 17 Fed. Rep.lilO; In re Burkhardt, 33 J.<'ed. Hep.25. Where the indictment shows an impossible offense, it will not be followed. U. 8. v. Pope, 24 Int. Rev. R. 2!lO. The prisoner CRn prodllceevideDce on his own behalf; In re Buell, S Dill. 116; In 1'e Mohr, 73 Ala. 508.
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 habeascurpus; and the district attorney, at the same time, applied for a warrant of removal. On return of the writ an indictment..,.-iound in Missouri-charging him with violation ofsection 10 of the interstate:commerce statute, ;was presented. in justification of the arrest and. detention. In answer, his counsel represented the indictment was found without hearing, and that no hearing (except in form) has yet been allowed him; that no can be produced to support the charge; that he has never been within the.state of Missouri; that he has no connection with anY9ther railroad than that of the Philadelphia & Reading Railroad Company, lind that his connection with it when the indictment was found. fIDd previously t conterred on him no authority whatever over the freight rates, or charges for transportation, and that he bad never assumed, or attempted to exercise such autbority; that he was simply ":freight .claim agent" of the com,pany, and that his duties as such consisted in passing upon claims-,-and certifyil1g his conclusions!orcomlJensationon account of erroneous exactions, in excess of established rates, and for loss of; or damage tot property received by the for transportation. In view of these.representations the relll-tor was pernlitted to intfou uce evidence in support of them. Thetestimony hearll. (the truth of,whichis not questioned; as I understaiul,) /lUPportstberepresentationa.The case was held overfor several to allow the government to produce evidence in BUll!Jon 9f Lhecluuge: .
It is urged, on behitlf of the prosecution, that the indictment itself is sufficient to require the detention and transfer of the relator, and that the court ahouldnot inquire further. 'rhis must be regarded as an appeal to the court's discretion. There can be 110 doubt of its authority to make sucb' inquiry. The case is before us, not simply on the motion for a warrlllltof transfer, under section 1014 of Revised Statutes, but under the writ of habeas cOrptt8; and in such cases the 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 as we have seen, was found at the instance oftheprosec1lting officer, with. out previous commitment or binding over; and the rell'l-tor has, consequently. ne\<er ha,d opportunity to know anything of the circumstances of which the alleged crime is supposed to arise, or the nature of the is to be proved; and it is proposed to transfer him, utider these circumstances, to a dista11t stati3£or trial-while theundisputed ,tes#Olony before me Seems. at least, to justify. belief, not qnly that he did not, but also that he could not; commit the in Missouri, or, indeed. elsewhere. . .. ..... . . In view of the circumstances under which the indictment was found, I do not as entitled to any greater weight than .8,' magistrate's commitment hearing. I doubt whether it is entitled to The practice 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,}isto prepare the bill on information furnished, and, withouf'communicating with the court, present it to the· grand jury-whichhainot been instructed respecting the crime charged, andi presumably,'isignora11t in many cases of its essential constituents. The government claims aright to pursue this practice, andIamnot called upon to question it. When, however, indictments so obtained are pre:. sented as authority for imprisoning men, and transferring them to distant states to stall'dtrial among strangers, the circumstances under which they are obtained must be considered in determining their value :md effect. I think thejtiry's finding in such cases may be regarded as little more than matter of form. It is not improper to say, in passing, that the l)ractice is, in my judgment, attended with serious danger 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 orIn re Mohr, 73 Ala. 508; Jones v. Leonard,50 Iowa, 106j and Wilcox No1Jze, 34 Ohio St. 520,-exhibit glaring instances or such perversion. In each it appears that the relator was arrested on an dictment a state distant from his home, charging the commission of crime there, ·without any evidence to justify the grand jury's fihding.......the objedoftheproceeding in each case being,manifestly; the extortion of money. It is not improper to say further, that, during my
UNITED STATES .".FOWKES.
experience several similar instances of the abuse of criminal process have come to my knowledge,and that, in :one of the j,,!dicial districts of this state, the court was cnlled upon by rule to provide that no such bill should be laid before the grand jury without its special permission, ac(Jom panied 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 prat:tlce referred to was, to some extent, departed from in procuring the indictment before me, but it was not said from personal knowledge. Without regard, however, to the circumstances under which indictments are found, the courts will go behind them whenever it appears that the relator's safety from unjust imprisonment requires it. Theright to personalliberty is too important to. be overb.orne by anything short of evidence that it has been forfeited. i Mere matters ofform;' 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 Inre Buell, 3 Dill.l16" the court went behind the indictment to ascertain whether an offensl3 had committed within the jurisdiction where it was fourid,as therein and numerous similar cases might be cited. In In re Mohr, supru; Hartman v. Aveline, 63 Ind. 344; Wilcox v. Nolze, 8upra; a.nd Jcmes v.' Leonard, 8upra, the court went behind the governor's hearing and warrent of extradition, and inquired whether there was evidence to show, that the crime charged had been c.ommitted where the indictment (on which the warrant issued) was found, as it averred. The court wiHnot, of course, 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 case before me there is no evidence whatever produced on which a jury could proceed, notwithstanding the facttMt the circumstances shown call for its production if any exist. , The suggestion that the government would be subjected to inconvenience and expense in evidence here, i&entitled to no weight. The relator would be subjected to greater inconvenience and expense if held in custody, and transfei'red tQ Missouri to hear it. For these J30DS the relator is discharged.
FEDERAL REPORTER I
"Q'NITED STA'l'ES 'D. BEDGOOD.J
(Dl.atrt.ct OWn, So D · ..AZabama. July 28, 1891.)
L Puw,IO IN "FINAL" PROOF· . Under Rev. St. 52262, the proof required of a pre-emptitmist is original, anll he cannot be convicted of perjury on indictment alleging iperjury in making "final" proof. .' . ' ; B. PJiillJURY7WIlA'I' CONS'1.'ITUTES. " . . . ' Perjury consists of a false' oath to a material point, administered by one baving the legal authority, in' a proceeding valid and ,regular ill, law. 8. PROBATJii JUDGE-AtlTHORITYTO ADMINISTER OATH. , In Alabamatbe probate judge 18 not the clerk of the Ilrobate court, and he is the .principal jUdge and· not thEl' Clerk of the court of county commissioners, (Code Ala. ,.,;1886, *5 789, 11m, 819, 82.7;) and so innelthe,r ('. .pacity is he clerk of a court of record, , authorized to administer the oath in pre-emption cases, within the purview of Rev. 2262, as amended June 9, 11l8O. f, STATUTES,-REPEll OJ' EARLIER ST.tTUTES. ' "Wh.en a portion ,of an earlier statute Is incorporated in the Revised Statutes, the remamder of the enactment not 80 embraced is repealed; 5. CSJ1,IBs-REPEll OJ' AOT JW.ROJI 8, 1867. . . ' , The lWt of March 8,1857, C11oSt. at Large, p.2Il0,) as to crimes, Is repealed by the Statutes. BabCOCk v. U.· S., 84 Fed., Rep. 878, distil,lguished. 6. Pn-BMPTION-RuLES OJ' BlI:oRETUtY OJ' INTlauoR. ' The seoretary interior, and not thE! commissioner oUhe generalland.oftloe, is authorized to designate tl:.e in relation to pre-emption entries. Rev. Bt.
EVJDJtlOlCB-J'UDIOJAL NOTIOE-REGULATIONS OJ'LAND-OJ'l'iCB.
of the land.oftloe, Whether prescribed by secretary: of the interior or by the commissioner, are not knOWn judicially, and must be pleaded.
S;' LAND-OPPIOIC REIHlLA.TJONs-NO'1' LAW.
Congl'llss cannot confer powllr on the secretary of the interior or the commissioner of the They may prescribe rules and regulations ,'1"1' the better transaction of'buslne811, butcllnnot make a rule which shall have the force of Jaw, and whose be punishedKs a cJ'ime.
9. PICRlliRY-PRIC-EMPTION OJ' LANDS, . , , .' The statutes as to pre-empttonelltries p,.escribe that false oaths, knowingly and wllltullymade,1n cases arising !under the land-oftloe rules, constitute perjury.
,The materiality of the matter I!>worn to must appear in the indictment for perjury. Buch matters as are not required bi law ar,e,n:ot material ';
' .· .'
At Law. Prosecution of'Frances F.O:Oedgoodfor'perjury. murrer to the indictment; 'Demurrer sustained.: ,: . indictment was in theiJol1owing' words:
"Thl"granl! jurors of the United States of Rnd sworn within and for the southern district of AlaLama, in the name and by the authority of United !::ltates of America, upon their oaths do find and present that }'olllces F. Bedgood, whose other lIame to tllis grand jury is unknown. late of the district aforesaid. heretofore, to-wit, on or about the thirDecember, A. D. eighteen hundred and eighty-nine, and before tieth day the finding of this indictment. and within the said southern district of Alabama, in giVing her testimony and making &nal proof of Iwr pre-emption entry No. 1,397, for the south-eai:lt qlIarter of section ten, in township 1wo north, of rauge nine east, in Escambia counLy, within saill southern district of Alabama, was duly sworn by, and took his corporal oath Lefore, N. R. LEIGI1, judge and ex officiO clerk of the probate court of said county, (he, t.he said N. R. LEIGH, judge and ex ojficio clerk as aforesaid, then and there
Reported by Peter J. Hamilton, Esq., ot the Mobile bar.