IN BE FOX
22 Atl. Rep. 275. The law upon this Bubjectis well stated in 13 Amer. & Eng. Ene. Law, 353: "Words which merely impute a criminal intention, not yet put into action, are not actionable. Guilty thoughts are not a crime. But as Soon as any step is taken to carry out such intention, as soon as any overt act is done, an attempt to commit a crime has been made; and every attempt to commit an indictable offe!1se is, at common law, a misdemeanor, and in itself indictaan attempt is therefore clearly actionable." ble. To impute The case of HCS8 v. Spark8, 44 Kan. 465, 24 Pac. Rep. 979, relied upon by plaintiff, is not in any respect in opposition to the views I have expressed. It was essentially different in its facts from this case. There the words spoken directly charged that the person alluded to was a blackmailer,-"What are you doing with that nine-dollar blackmail here?" And the innuendo set forth the meaning in clear, direct, and posilive terms, "meaning thereby that the said plaintiff had committed the offense of extortion of money from a person or persons by threats of accusation or exposure, or opposition in the public prints, and that she was a common bla'ckmailer and extortioner," Taking the innuendo in connection with the words charged, the court very properly held that the language imputed an offense punishable under the laws of that state. I do not deem it necessary, in deciding upon the demurrer, to discuss or review the other questions argned by counsel as to the meaning of the other words used by the defendant. It is evident that, with the meaning which the plaintiff placed upon the words which we have considered, the other portions of the language used do not import a charge of any punishable offense. The demurrer is sustained.
In re Fox.
(Dfstrict Oourt, N. D. Oalifornia. July 8, 1899.)
HA.BEAS CORPUS-JURISDICTION .OF STATE
Where a person, under bail to answer an indictment In a federal court, is 8ol'o rested on state process for a crime all;aiust the state, his confinement thereunder is not in violation of any law o.f the United States, and he is not entitled, as a matter of personal right, or at I,he instance of his sureties, to be released on lutbellS CorPlJR, and placed in the custody of the marshal. If the federal authorities do not insist upon the prior jurisdiction of the federal court, the accused and his sureties have no right to complain. U. S. v. French., 1 Gall. 1, followed. III 1'6 Neagle, 89 Fed. Rep. 81l3, distinguished. . . ,
On Haheas Corpus. Prisoner remanded. GarroU Cook, for petitioner. John A. HOlfmer, Asst. Dist. Atty., for reslJondent. MORROW, District Judge. Mortimer Fox was, on the 13th day of December, 1891, indicted by the grand jury of this court lor otfensesagainst
theposW 1a'lfl!iir:Tl;Ie ,nrat'cQuntof the indictment is based upon sec:tion 3892 of the Revised Statutes of the United States, and charges the accused withthlil otfenseof tt,tking a letter, which had been in a post office of th/il United States, before said letter had been delh'ered to the person to whom it had been directed, with the design to obstruct the correspondence of said person. The second count is based upon section 5470 of the Revised Statutes, and charges the accused with the offense of receiving a check and order for the payment of monE'Y stolen from the mail. These crimes are charged to have been committed in the city and county of San Francisco on the 7th day ofSeptember, 189l. The accused was arrested at Omaha, Neb., and, by the order of the' United States district judge of that district, he was removed to thiR district. He was arraigned in this court March 11, 1892, when his attorney interposed a demurrer to the indictment.. The demurrer was sustained as to the first count,and overruled as to the second count. The accused was thereupon, on the 29th day of April, 1892, adnlitted to bail in the sum of $1,500, and released from custody. It was provided in the 'bail bond, .among other things, that he should app'ear in court on the 9th day of May, 1892, and afterwards, whenever 'or wherever he might be required to answer the said incHchnent; On the 9th day of May, 1892, the attorney for the accused appeared in.-court, and,representirigthat his client had been arrested and imprisoned by the stli:teautmorities, moved for a bench warrant to issue to apprehendaIid bring the accused into this court. The warrant was issued and placed in the hands of the marshal, who, on May 12, 1892, made return that the party was in the custody of the state authorities, and that, he was unable to serve the writ. Thereupon the attorney for the accused sued out this writ of habeas corpus. It appears that, immediately after the accused gave bail and was released from the custody of the United States marshal, he was arrested and imprisoned by the police of the city and county of San Francisco, upon warrants charging him with crimes, under the laws of .the state of California; and, while so in prison, he was again arrested upon a warrant, issued out of the police court of the city of Oakland, in the county of Alameda, in this state, and was thereupon taken to the city prison of Oakland, where he has since been confined. The petition for the writ of habeas corpus alleges is imprisoned, detained, confined, and restrained of his libertybi the chief of P9lice()f Oakland, and that the said. imprisonc9nfinement, and restraint are illegal, and that the illegality thereof consists in the fact that the said Fox was, prior to the said detention by the said chief of police, and is now, under indictment in this court, and in the'custody of this court; that a bench warrant has been issued out of this court for the arrest of said Fox on said indictment, but, by reason of the detention aforesaid,the bondsmen of' said Fox on said indictment'aT:e unable to produce and surrender said into the actual custody of this court, and said detention is contrary to of,thErt,Tnited States, and against the jurisdiction of this court. .To. the 'Yrit of habea8 C9rpU8 the of police' of Oakland has made
return that he holds the defendant, Mortimer Fox, in his custody on a charge of felony, viz., forgery, alleged to been committed on the 14th day of October, 1891, and also by virtue of a warrant of arrest issued out of the police court of the city of Oakland) on a complaint duly sworn to by C. R. Yates, charging the defendant, Mortimer Fox) with the crime of forgery. A copy of the complaint and warrant is annexed to the return, from which it I1ppears that the defendant is charged with having committed the crime of forgery on the 14th day of October, 1891, at the city of Ogkland, in this state, in forging an indorsement on a certain check or order for payment of money, with intent to defraud the Oakland Bank of Savings. The police court of Oakland has jurisdiction to examine this case, and commit and hold the accused to bail for trial in the proper court. The only question is as to the extent of the jurisdiction that court has acquired over the person of the defendant to detain him in prison to answer the charge preferred against him in that court, while he is under bail to appear and answel' an indictment in court. The object sought to be accomplished by the writ of habea8 CorpU8 in this case is therefore to take the defendant out of the custody of the state authorities. and place him in the custody of the United States marshal of this district. to respond to the indictment in this court. This application comes from the accused, but his attorney claims also to represent the sureties on the bail bond, who, it is said, desire to surrender the accused, under the provisions of section 1018 of the Revised Statutes, as 'follows: "Any charged with a criminal offense, and admitted to bail. may. ir:. vacation, .be arrested by his hail. and delivered to the marshal or his deputy, before any judge or other officer havin!!" power to commit for such offense; and, at the request of such bail, the jUdge or other officer shall recommit the party so arrested to the custody of the marshal, and indorse on the recognizance, or certified copy thereof, the discharge and exoneratur of such bail; and the party so committed shall. therefrom be held in custody until disof law." charged by due The power to award the writ of habeas corpus by the courts of the United States is found in the following provisions of the Revised Statutes: "Sec. 751. The supreme court, and the circuit and district courts, shall have pow·er to issue writs of habeas corpu8. "Sec. 752. The several justices and judges of the said courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpos6,of an inquiry in.to the cause of restraint of liberty. "Sec. 753. The writ of habeas corpus shall inno case extend to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States, Or is committed for trial before some court thereof; or is in custody for an ll.ct'done or omitted in pursuance of a law of the United States, or of an ot'der, process, or decree of a court or judge thereof; or is in custody in violation of ,the constitutioD, or of a law ,or treaty of the United States; or, being a subjec.t or ,citizen of a foreign state. and domiciled therein. is in custody for·an act done or omitted under any alleged right. title, authority, priVilege, protection,' or exemption claimed under the commission or order or sanction of any foreign state. or under color thet'eof, the validity and effect whereof de-
pend upon thelawtOf natlbl1Bj'Or nnles$1t lsneoossary to· bring theprlsonel into court tllsu,t.!.rJ'. It:)'.,:,'; It isurgedthat l although Fox is in jail l he is in custody in violation of a law of. the United StatEls, and, under the provisions of section 753 of the Revised, 'Statutes, just cited, the writ of habeas corpus issued by this court extends to him. It is not contended, however" that his imprisonment is in violation of any statute, law of the United States, but it is claimed" in effect, that his imprisornnent by the state court is in violation of the law of procedure which gives this court authority to exercise its jurisdiction undisturbed. In Taylot'v. TainWr, 16 Wall. 466-370, the supreme court declared the doctrine that"Where a !ltate court and a CO(lrt oUhe UnitPd States may each take jurisdiction. the tribunal. which tirstgetB it holds it to:tbe f'xclusion of the other. until itB,duty Isf\llly performed and the jurisdiction invoked is exhausted. and this ,rUle applit'sa1il\e in both.civil andcriminatpases. It is. IlIdeed. a prihciple of universal jlu'lBprudence that, wbere jurisdiction has aUached to person or thilIll, it is. thel'e is'some provision ,to the contrary, exclusive in effect until it has wrought its function;" .' 'But how and by whorp, this question of jurisdiction be raised? J;J;ns the i,vhose have brought him within the of two juriscli'ctions, the right to select the one to will first respond? When the questions involved in this case were argued by counsel repreSenting the accul;led and his sUft-ties on one side, and opposed by counsel representing the state authorities on the othet,the United Eltates was in court, but made no suggestion that the United States desired the presence of the accused in this cO,urt hi advimce..Of the hearing in the cOlirt. There is therefore no a9tuiU, ,prest<nt conflh;t Qf judicial action, except such as the accused and his'sureties seek to create byibe present proceedings. In, Mackin v. People, 8 N. E.Rep. 178,180, this qnestion of jurisdio-: tion, in a somewhat different form, was considered by the supreme court of Illinois.. ,Mackin had been tried .and convicted in the circuit court ofCook co)mty" 111., and iwpris'med in the state penHentiary at Joliet, while on bail tinder an indIctment pending in the United States district ,court. for the northern district of, Illinois.. His sureties petitioned the supreme court of the state for a writ of hqbeas coryn18. that, jurisdictionhtwi1)g attached to thElperson of said.. Mackin first in the United ·States courts, itwusexclusivein effect, until it had wrought its function, and then, and not untiltheo, could the criminalcollrt of Cook county llc9uire jurisdiction. to arrest and try, convIct :linUsentence, birQ. on found against him in said court· J,raY.e!:" ,of the. ptlti Maqkin be discharg;ed or surrendered Jtohl,$: ,tIle .. . ill .0(, the petitioner. that alth'oughMlIckin '''''''I'ersQnI1JJy'preMnt iOOO11,rt dUi.ng> thetrJslof. the cause, altho'lgh thete cootrolofbi"c pei'Son; still that,the :fact tbathe had been previ. l)!JsJy:arrested. and hadl>revionsly in the United at"telJ.jlirc.uit (diIlLdct) court, rendered that/presence. as to him'and aa to the
IN RE. FOX.
conviction which followed, a .fraud upon the law and a ;oullity, 80 that, in construction of law, there was.no of the person. We are not able to coincide in this view. Wecobcede the position, established by the numer· ous authorities that are referred to in the petition, that, where It party mits offenses against .two arlnore juriSdictions, jurisdiction first obtaining custody oQf the defendant is entitled to proceed and try him. That, however, is a more of comity, :and in order to avoid unseeming strife between conflicting jurisdictions, thalJ:l1s aloatter of right to the qefendant. we do .not that a defeud.au whoIs gUilty o.f . crime l;1as a constitutioDlu, ....t. statutory, or,common·law j"ight absolutely to be tried for one offense before he is tried for another offense.· If, tn this case,·the sheriff of Cook county had undertaken to have taken Mackin from the pm'session of the United States marshal. and the was submitted. whether he could do so or not.l1'lquestionably it would. have been held that the mllrshal WaS entitled to his I'ossessiyu until after Unitlld States court had disposed of the Calle against him. We, recognize tile position taken inthe argument of counsel. also, th.at for many Pllrposes the defendant who is out I>n bail is regarded as prison,-that is to say, under the control of his \)Qndsis 0llly constructive, and not universa\. We cou Id not consent to it to 1,le the law that if a party had committed some pptty OffE;lnSll agaihstthe revenue laws of the United and enters. into a recognizance of a few hundred dollars for his appearance at a subsequent term, and is out or some ottJer very serious crime, on bail,.and thereafter had comI/litted m that he c0l:!ld not be arrested for the charge of murder ,which he had committed until after he had chosen to enter his appearance in ,the federal court, Or his bondsmen had chosen to take and surrender him to that court, and it had trif'dhim and convicted him, and eXl'cuted its sentence upon him; and the position, contended for w()uld lead, in our estimation, to that consequence. Whell. a party commits acrimeagaitlilt the la w, so fal' as he is concerned, and so far as those who have previously been his bondsmen are concerned,he is liable to be arrested, and required to give bail, if it be bailable. and, if not, to be imprisoned for the commission of that crime, in order that be mayan· SWer for it. The comity just recognized as existing between the courts for different claims on parties is never to be exercised so·as to operate to the release of offenders against thelaw upon mere technicalities." Whether a petition was presented to the United States district court for the purpose of obtaining the judgment of that court upon the question ·of its jurisdiction over the person of the defendant does not appear, but it is evident that there was no real conflict between the two courts, and that the opinion of the supreme court of Illinois was accepted as a correct statement of a pIoper qualification of the rule of comity that should obtain between thetwoj.urisdictions in such a case. The decision of the United States circuit court for this circuit in Re Neagle, 14 Sawy. 232, 39 Fed. Rep. 833, has been cited as declaring principles of law applicable to this case, but the facts in that case were very different. Neagle was 9. deputy United States marshal, specially commissioned and instructed by the United States marshal to accompany Mr.JusticeFllilLD and protect him from threatened violence. In;the execution of thisdQtyNeagle shot and. killed Judge Terry. Neagle ;",as thereupon arrested by:an officer ofthe state, and imprisoned in the cpunty jail of San Joaquin county. In the petition to the circuit court among other things, that for a writ of habea8 corpus, it was
Neagle arrested ana confined in prison for an act done by him in the of his duty. It thereupon devolved upon the court to inquire whether he was "in custody for an act done or omitted in pursuanpeofalllw of the United States." Upon that inquiry the court held . exclusive province of the judiciary of the United !uttim,ately and exclusively determine any, question of right, civilior criminal, arising, under the laws of the United States." Another the right of the petitioner tohave his casj:lheard and and upon that point the court obBerved:'.;' ", "What' I\!rethe of as toha,ving his case heard and dis· posed :ofifitbe::cpurts of thesovereigllty whose servant he is, and whose laws he wail employed in executing? If he has a right to be heard in this OOUl't; hear, him. willing qr unWilling. There is no alternative. , WhetlulHhewl'it should issue in this case was not a question of expediency,: and 'Whether the petitioner shall be discharged or remanded is not aquestibnlof )'l'Olicy or comity,' as suggested in so'me quarters. It' is a question of personal 'right and petsonalliberty. arising under the constitution and 'tbe laws of the United States. which the coul'tcaunoti'lgnore."
Theseandi:5th:er like observations. inthesame line of argument, Were in that case, but it would be a strained and unto app1y tl;l.em to the facts in the case at bar, where no claini macfe that" the, accl.J.sed is'" in custody for an act done or .omitted in pursuance ,of a law of the United States." Weare, however, not without light from the national judiciary on the very question urider: discussion. III the, case of' U. S. v French, 1 Gall. 1, an information had !Jean filed intb.e United States circuit court for the district of New HainpShire against, the defendant for a violation of the embargo act of Jaouary 9, 1809. He was arrested,andgave bail, with sureties, for his ap.pearance to answer the information. He was afterwards arrested, and confined ill ijail,on: mesne civil process, under authority of the state of New Hampshire. His sureties thereupon moved in the United States circuit court for a writ of habeas corpus to bring up the body of the defendant to surrender him in ,court in discharge of the bail. The court, in denying the motion, said: "We have no al1thority in this case to issue a habeas corpus. The authority given by the jUdicial act df1789, c.20.§14, is confined to cases where the party1sin icustody nnder color of process, under the authority of the UiQited States"o,t:is committed, 'for trial before some court of the United States, or is necessary to be brought into court to testify. It does not extend to, cases where the process is frolll a state court, and the object is to surrender of bail;;' the party in The counsel then moved to discharge the sureties from their recogniZUJ:lce, on the,ground that, as it had become impossible to bring the defendant into court without any default 6n ihis or their part, they ought lIot, to be 'sufferers. This, m(jtion was, also 'denied, the court remarking:
IN RE FOX.
"There is no sufficient grbund tor the application. There Is no physical ,or legal impossibility of producing the defendant. The cases cited may be good law, but they proceed on the principlp. that, by operation of law, the defendant had been discharged of the process, or had been placed beyond the reach of the bail. Nor can it be said that the defendant has been guilty in the present case of no default. His very confinement may have been the resuIt· of his own negligence or wrong. The circumstances of the case may furnish reasons for a respite of the recognizance to the next term, and a continuance of the information. How can the court foresee that, at anotheI' term, the defendant will be in civil confim'ment? If the bail were now discharged, and the defendant should Ultimately be released from his imprisonment, we have no means to prevent his escape from punishment under the act of congress." In Ex parte Robinson, 6 McLean, 355, 363, Judge McLEAN, in commenting upon the practice adopted in the United States courts to follow the established construction of the local laws as declared by the courts of the states, cited the following cases, as indicating the extent to which United States courts have gone in deferring to the jurisdiction and authority of the state courts. He said: "Some years ago an individual was indicted for a capital offense in the circuit court of the United States, in which the most learned and able jUdge SxoRY,presided. The same individual was in prison under state process for debt, or some petty offense. The district attorney for the United States moved the court to issue a habeas corpus to bring the defendant before the cOllrt, but the learned judge held he had no power to issue the writ for that purpose. A year or two ago a case similar in prinCiple occurred in the circuit court ot the United States for Ohio. and that court held it had no power to take the defendant from the state jurisdiction." Since these last decisions were rendered, the law providing for the writ of habeas COTpUB in the United Stat.es courts has been enlarged by legi.slative amendment, and amplified by judicial construction, but not, it is believed, in such terms as to give to a defendant, who is charged with having violated both the national and state laws, the right to select the jurisdiction in which he will first be tried. Moreover, it may be said, in this case, as was said by the supreme court in the case of Ex parte RoyaU, 117 U. S. 241, 250, 6 Sup. Ct. Rep. 734, that "it is not alleged, and does not appear, that the accused is unable to give security for his appearance in the state court, or that reasonable bail has been dellied him, or that his trial will be unnecessarily delayed." When the United States attorney desires the presence of the defendant in this court, the latter may be able to respond in person, or, if he still be detained .iIi prison, he may be surrendered to the United States marshal by the' state authorities upon notice that the defendant is required in this court to answer the indictment. If, at that stage of the proceedany actual conflict of jurisdiction arises, it will be time enough then to considlilr :what action should be tak.en to .secure a proper Elnforcement of the law, bearing in mind the declaration the supremeconrt of the United States in Covell v. Heyman, 111 n. S. 176, 182,4 Sup. Ct. Rep. 355, "that the forbearance which courts of co-ordinate jurisdiction, administered under a single system, exercise towards each other, v.51F.no.7-28
..·.; 18 .a:'(Pt.in.CiP1.(;]. .
j ; ' .,
'.·. with '.p.e. th·li'.psi rlO..i.bigher.· sa.nction . .. . : .. .·tbe state
ty··., cIt 'lellves nothing to
is a prin-
,The, writ wiij::be discharged, and
'Fox reIWanlted W"thecustody of 'the chief of police- of ·Oakland.
L BABBASI lBiuEVW1U'l'.r.· , .,; . · The hab4ll!R CQrP't,tB" tho,1mha:w.r.it qf issue as a matter of courSejil.tl1f.rlocfer Rev: st; '§1M;it'may'be refused if, upon the showing made by the ,peti.tlbllJ,at &ppearll:. thM:,tb8'ptitltioner,if brought. in.to·court, would be. remanded.· , . 9. SAlIIE-JURISDIOTION-ERRORS. . . ,A. wnt>;of,OOl>fraoIj 'CD1lPU8 ilIiPin/it, 'bel illed as a substitilte, f0r ,a writ of error, for Of re¥ieWing of OCC'.lrring at a ol'!m, tnal trll\l, but. being in tllenature of a. collateralattack upon the Judgment, Is llmited to [tbe'<inquii-y"whether.: the ffi'ld court 'has 1toted'witltout jurlsdiotion, or has exceeded lits jUl'isdloition, $()·u:to rencler the
'.;SAlII....STiTE;AND FEDlIlRAL,COOBTIl.' '
9n a a; writ of hQ,b61'l8:WI:'PI'fJi to release a.prisoner convi9teji by j;lj.e Judge has a discretIon whether the prisoner ll,'lit. 1:.6 his writ of errQr ili tM highest state '01' whether the oourt will proceed [determine WhetMt' he Is restrained of h1s liberty In vio'. lation of the oonstitution
Ji. fedm;al:.olropit. courthas:uo' jurisdiction to review on 1tabeaBcor?m8 a j\l.dg"ment of qOr\viction by a stll>te oqurt in a criminal cllose, ,Upoll the ground that o,ne of , 'the jurors,'before the triaJ.;b,M exp)'essed tho opinion tbat'tbe prisoner 'was guilty, trial aju.ror hilfl privately conversed with other persons about s1,1ch matters pel,g within the jurisdiction 'of the and appellate 'cojlrtli of the state. . "
&,SAME:-lfl$oomroCT 01' JUlt\'J
SAlIIE-GR9UNDS OF REVIEW-DISQqALIFIOATION OF JURORS.
a mur4er,tl'lal in a sta,teJcoutt ,thll·faot that having the oase nnder' cohsljleration, went' in,. a bC?dy. to an ·. and places· tliere; did not termltlllte theIr official character, 'or dIssolve theIr relation to the tljem todlltermibe libe,oalle, anA, if their aotlon explanation to the trial court, no ground lot intel"letence by a'federal court'by writ of habeas CO?'P¥8., :, .' : . " .: . judge issue' a Mbtas corpttllafterhearing atohambersl Carper v. Fitzgerald, 7 Sup. Ct. &1>'-825. 121 U. B. 87. ' "'", .'
. The p roV.1&.iOn.Of the. fede.ral G0.rilJt.·tU.·t.i.Q.n tha.t. "hi'.8.11 o. . . I prQseon.ti.ons the accused shp.l.l the right. W a "paedy tnal by ,Il Jury of the state alid ,distriot wliereln the crime shall 1:\&ve"been ooin.mitted, h etc.· judicial powers granted to the Unlt&4 States, aIidhas nO applioation to 'the powers eJi1er· cised ,:. . .;. ': ', . ' .
LAw-LnUTATloN ·ON. FEDERAL POWER-SPEEDY TRIAL; ETo.
At"CharilberlJ,l '. in,behllll of it; 'Clay df'h.abe'ti.8,ctJrPus: Demed.'::"':" . '"
1I)0tion for anltoPPlllltl·was di,allowed on thel grouM' that the. proceedbIgs were at ohambers, upon the authority of Carper 121U. S. ,87.· 7 Sup. Ct. Rep, 82/;, ., , . ,