Summary
In Hawkins v. U.S., 5 F.2d 564, and Meehan v. U.S., 11 F.2d 847, we have recently considered and applied the controlling rules in such a situation.
Summary of this case from Jeffries v. LillardOpinion
Nos. 4371, 4392.
May 11, 1925.
Appeal from the District Court of the United States for the Western Division of the Southern District of Ohio; Smith Hickenlooper, Judge.
In Error to the District Court of the United States for the Western Division of the Southern District of Ohio; Smith Hickenlooper, Judge.
Morton S. Hawkins was indicted with others for using mails to defraud, and conspiracy to violate Pen. Code, § 215. On his failure to appear for trial, he was arrested on capias, and petitioned for habeas corpus. The District Court for the Southern District of Ohio ordered his removal to the district of Indiana, and in the same order dismissed the writ of habeas corpus, and he appeals, and brings error. Order affirmed.
Fred W. Warner, of Marion, Ohio (Fred L. Carhart, of Marion, Ohio, on the brief), for appellant.
Homer Elliott, Sp. Asst. Atty. Gen. (Haveth E. Mau, of Cincinnati, Ohio, on the brief), for appellees.
Before DENISON, DONAHUE, and KNAPPEN, Circuit Judges.
On March 10, 1924, Morton S. Hawkins and 18 others were jointly indicted in the District of Indiana upon charges of using the mails to promote fraudulent schemes (Penal Code, § 215 [Comp. St. § 10385]), as well as a charge of conspiracy (Penal Code, § 37 [section 10201]) to violate section 215 of the Penal Code. On January 24, 1925, the District Court below granted the application of the United States attorney for appellant's removal from Ohio — where he had been arrested upon warrant by a commissioner for the Southern District of Ohio — to the Indiana court to answer the indictment referred to (unless the required bond for his appearance should be given); and by the same order dismissed the writ of habeas corpus, brought to obtain discharge from the custody of the marshal. No. 4371 is an appeal to and No. 4392 is a writ of error from this court to review the order of January 24, 1925, made by the District Court for the Southern District of Ohio. Applications for allowance of appeal and for writ of error were made on the same day.
Appellant complains that before both the commissioner and the District Court below, he was not permitted to show want of probable cause for the issuing of the warrant challenging the sufficiency and lawfulness of the indictment as competent evidence, and asserts that he was not given reasonable time to produce witnesses and to enable him to have the presence and services of his attorney.
On March 31, 1924, Hawkins had appeared in the District Court for the District of Indiana — presumably having been duly arrested — and there moved to quash the indictment, which motion was overruled.
He thereupon filed demurrer to the indictment, which also was overruled; he was thereupon arraigned and pleaded not guilty. On October 1, 1924, he filed a motion for a bill of particulars, which was denied. Having failed to appear for trial, his appearance bond was forfeited and capias issued for his arrest. On trial later had in the District Court for the District of Indiana under the indictments in question, fourteen of the joint defendants were convicted (two others being acquitted), and on January 10, 1925, sentences were pronounced upon those convicted, several of whom, at least, have taken writs of error from the United States Circuit Court of Appeals for the Seventh Circuit for a review.
Upon the hearing before the District Court below, which resulted in the order here under review, appellant's identity was not only affirmatively established, but was not denied by appellant, who admitted that he was a resident of Portland, Ind., until September, 1923. Thirteen of the fifteen overt acts charged in the conspiracy count are in terms laid previous to that date, and in each of the counts charging fraudulent use of the mails, such mailing is charged at dates prior to September, 1923.
Appellant gave some testimony before the commissioner regarding his own personal and family history, but was not permitted to answer seven questions manifestly addressed to the meritorious question of his guilt or innocence of the charges in the indictment.
We think appellant has no cause to complain of the order of the District Court below. The jurisdiction of the court in which the indictment was found is not, on this record, open to question here. Normally the decision of that question would be for the Indiana court. Rodman v. Pothier, 264 U.S. 399, 402, 403, 44 S. Ct. 360, 68 L. Ed. 759. The indictment itself established prima facie the existence of probable cause. Beavers v. Henkel, 194 U.S. 73, 84, 85, 87, 24 S. Ct. 605, 48 L. Ed. 882; and while the question of probable cause is not thereby concluded, Tinsley v. Treat, 205 U.S. 20, 29, et seq., 27 S. Ct. 430, 51 L. Ed. 689, and the District Judge might hear other competent evidence rebutting the prima facie showing made by the indictment, it was not open to appellant upon the case made, and under the situation here presented, to try out before the commissioner or the District Judge the meritorious question of appellant's guilt or innocence. Hyde v. Shine, 199 U.S. 62, 84, 25 S. Ct. 760, 50 L. Ed. 90; Henry v. Henkel, 235 U.S. 219, 228, et seq., 35 S. Ct. 54, 59 L. Ed. 203; Price v. Henkel, 216 U.S. 488, 492, 30 S. Ct. 257, 54 L. Ed. 581; Greene v. Henkel, 183 U.S. 249, 259, et seq., 22 S. Ct. 218, 46 L. Ed. 177. There was ample evidence to justify the order of removal and the discharge of the writ of habeas corpus.
Nor do we think reversible error was committed in the refusal of continuance. Ordinarily questions of that nature are addressed to the sound discretion of the court which will not be overturned in the absence of abuse thereof which we think does not appear. It was fairly open to inference that appellant was seeking unnecessary delay. If there were otherwise merit in the proposition that the testimony before the commissioner should be taken anew and not certified up, the merit disappeared when the District Judge took before himself the testimony of appellant. Nor do we think appellant has any reason to complain of the refusal to continue the hearing until certain witnesses for whom appellant filed præcipe could be produced. Not only was there no showing that the attendance of the witnesses could and would be procured, or that the necessary steps had been taken to obtain their depositions, but there was no disclosure of the nature of the testimony sought to be obtained from the witnesses, and thus nothing to show that the testimony would be competent or material. The application was, to say the least, addressed to the sound discretion of the judge.
From what we have said regarding the nature of the hearing, it follows that the District Judge was justified in refusing to permit the witness Doughty to testify that he was a stockholder and an investor in one of the companies and a large investor in another of the companies, fraudulent transactions in whose stocks were charged in the indictment, and that one of those companies has been a prosperous institution, has earned more than the necessary 8 per cent. dividend, and has paid its dividends out of its earnings. However material this testimony might be upon the trial under the indictment, it would not reasonably tend to overcome the prima facie showing of probable cause.
This cause came on for expedited hearing in this court upon the appeal in No. 4371. During the hearing it appeared that the writ of error in No. 4392 had been taken out and the record therein printed — embracing, previous to the petition for writ of error, only the application for warrant of removal, the entry of January 24, 1925, dismissing writ of habeas corpus and granting application for warrant of removal, plus an assignment of errors. In the absence of bill of exceptions or testimony otherwise, no case for review is presented by that writ and record. The questions involved therein seem, however, to be fully covered by the briefs and arguments in 4371, the record in which case includes testimony and bill of exceptions fairly applicable to a record in No. 4392. The entry of January 24, 1925, appears also in the record in No. 4371; the appeal in which case is broad enough, in terms, to include the warrant for removal as well as the habeas corpus order. Counsel have suggested no reason for separate or further hearing in No. 4392, which, indeed, could have no office unless considered as part of the record in No. 4371. We have accordingly so treated it.
For the reasons stated in this opinion, the order of January 24, 1925, is affirmed in its entirety; that is to say, both as regards the order and warrant for removal and as to the dismissal of writ of habeas corpus.