UNITED STATES V. COLLINS. 65

I find, therefore, that upon the facts admitted by the demurrer,the offense in this case does not constitute willful murder, because(1) apart from statute, such an offense has never been so treatedby the courts of the United States when the death was in a foreigncountry; (2) the only statute (originally that of 1825) under whichthe case can be brought, makes the case not murder, but a felony,following the ruling of Mr. Justice Washington that it could notbe called "murder," but might he adjudged a felony; (3) because thel'evisers evidently intended to continue this distinction, and delib-erately avoided calling the offense "murder," by carefully adopt-ing a phraseology and a grammatical construction which neces-sarily exclude it from the designation of murdElr in the first line{)f section 5329; and (4) because the third clause of section 4 of theact of 1825, and the third clause of section 5339 of the RevisedSt:;tutes, cannot constitute murder, except by narrowing theirscope through the insertion of a proviso that the death occur with-in a year and a day,-a limitation upon the act which I have noright to impose.The demurrer is, therefore, overruled, and the plea in abatement

sustained.

UNITED STATES v. COLLINS.(District Court, S. D. California. January 26, 1891.)

WARRANT OF 0'1 IXFORMATION A'1D BELIEF.Under the Penal Code of California, and, accordingly, by virtue of Rev.

St. § 1014, in the courts of the United States sitting in that state, a complaintmade to a committing magistrate, upon information and belief only, is in-sufficient to give such magistrate jurisdiction to issue a warrant of arrest forthe accused person, or to iSsue a subpoena for a witness.

On Demurrer to Indictment.George J. Denis, U. S. Atty.Walter D. Tupper, for defendant.

WELLBORN, District Judge. Defendant is charged with vio-lating section 5399 of the Revised Statutes of the United States.which, among other things, provides that every person who obstructsor impedes the due administration of justice in any court of theUnited States shall be punished by fine, etc. T'here are two countsin the indictment. The first count alleges substantially that on the13th day of November, 1896, and prior thereto, Dante R. Prince W3.Sa duly appointed and qualified commissioner of the circuit court ofthe United States in and for the Southern district of Oalifornia.at the city of Fresno, Oa1., within said district, and while actingin his official capacity, at the time and place aforesaid, one B. T.Alford appeared before him, the said commissioner, and by his writ-ten affidavit and complaint, upon information and belief, accusedone J. H. Terry of the crime of having deposited in the United Statespost office, at said city of Fresno, an obscene and lewd letter; thatthereupon said commissioner issued a warrant for the arrest of saidTerry, under which said Terry was arrested, and brought before said

79F.-6

66 79 FEDERAL REPORTER.

coIrtiliis'sioner on the 14th day of November, 1896, wh.en said commis-sionerfixea the 19th day of the s'aid month for conducting the exam-inationof said Terry on said charge; that at the time said com-plaint was filed, and at a..ll the times thereafter in said count men-tioned, the letter therein referred to was in the possession of thedefendant herein, John H. Collins, and after the filing of said com-plaint, and on the day that it was filed, said commissioner issued asubprena in said action against said Terry, directing said Collinsto appear before him on the s'aid 19th day of November, 1896, as awitness on the part of the United States, and also is,s:ued an order,in writing, directipg said Collins to deliver to Deputy United StatesMarshal B. T. Alford said letter, said order reciting that said let-ter was needed on the part of the United States in said actioD; thatsaid subprena and order were duly served upon said Collins on said14th day of November, 1896; but that S'aid Collins willfully and cor-ruptly refused to deliver said letter to said Alford or said commis-sioner. The second count is similar to the first, except that it char-ges the defendant with a willful and corrupt refusal to obey a sub-puma duces tecum, issued in the same action, and under the eamecircumstances, as were the subpama and order mentioned in thefirst count. A demurrer has been interposed to the indictment.on the ground that the alleged complaint filed before the commis-sioner, being upon information and belief, was, in contemplation oflaw, no complaint at all, and therefore the commissioner was with-out jurisdiction to issue the subprenas in question.Section 1014 of the Revised Statutes of the United States provides

that, for any crime against the United States, the offender may byanyone of certain officers., therein named, and agreeably to the usualmode of process against offenders in such state, be held for trialbefore suC!b. court of the United States as has cognizance of the of-fense. It has been repeatedly held' that it was the intention ofcongress, by this section, "to assimilate all the proceedings for hold-ing accused persons to answer, before a court of the United States,to the proceedings had for similar purposes by the laws of the statewhere the proceedings should take place." U. S. v. Rundlett, Fed.Cas. No. 16,208; U. S. v. Harden, 10 Fed. 803; U. S. v. Horton, Fed.Cas. No. 15,393. To determine, therefore, the question now beforethe court, reference must be had to the statutes and decisions of Cali-fornia.Under what circumstances, then, may a committing magistrate

in California subprena a witness? This question is answered bysection 1326 of the Penal Code of said state, the pertinent provisionsof which are as follows:"Sec. 1326. The process by which the attendance of a witness before a court

or magistrate is required is a subprena; it may be signed and issued by: (1) Amagistrate before whom a complaint is laid, for witnesses in the state, either onbehalf ot the people or of the defendant. * * *..The word. "complaint" is defined in section 806 of Baid Code, as

follows:"Sec. 800. The complaint Is the allegation in writing made to a court or ma:is-

trate that a person has been guilty of some designll.U!d offense."

UKITED STATES V. COLLINS. fl7

It will be observed that, according to this section, the allegationnecessary to constitute a complaint is not the mere statement ofan opinion, but the allegation of the fact "that a person has beenguilty of some designated offense." The word "complaint," as de-fined in said section, includes the accusation made before the commit-ting magistrate, and also the information filed by the district attor-ney in the trial court. The requirements of the law as to the infor-mation filed in the trial court are prescribed in section 809 of saidCode. Verification by affidavit is not among these requirements,for the reason, I take it, that a district attorney is presumed to beacting. when he presents an information, under the sanctions of hisofficial oath. The law, however, is different with reference to thecomplaint or accusation made before a committing magistrate, asappears from sections 811, 812, and 813, Pen. Code Oal., which are asfollows: ."Sec. 811. When an information is laid before a magistrate of the commis-

sion of a public offense, triable within the county, he must examine on oath theinformant or prosecutor, and any witnesses he may produce, and take their depo-sitions in writing, and reuse them to be subscribed by the parties making them."Sec. 812. The depoSlition must set forth the facts stated by the prosecutor and

his witnesses, tending to establish the commission of the offense and the guilt ofthe defendant."Sec. 813. If the magistrate is satisfied therefrom that the offense complained

of has been committed, and that there is reasonable ground to believe that thedefendant has committed it, he must issue a warrant of arrest,"In order, then, to authorize a magistrate, for the purposes of pre-

liminary examination, to issue a subpcena, there must be laid be-fore him a written complaint on oath, alleging that a person there-in named has been guilty of some designated offense. Does the in-dictment in the case at bar show such a complaint? I think not.The affidavit made by Alford before Commissioner Prince, beingupon infOl'lllation and belief, did not allege any material fact what-ever, but was simply the statement of affiant's opinion.Referring to an affidavit of this sort, the supreme court of Cal-

ifornia has said:"It ia obvious that this affidavit does not directly charge that petitioner has c"Om-

mitted any offense, and it would be a dangerous precedent to establish that anyman may be deprived of his liberty, and removed to another state, upon such anaccusation. The statement therein that affiant 'has reason to believe, and doesbeli€ve,' that petitioner embezzled or fraudulently converted to his own use theproperty mentioned, is not the statement of any fact, and for that reason the affi-davit is fatally defectJive. .. .. .. But the defect in the affidavit before us isnot a merely formal one. The objectJion to its sufficiency is substantial, and it isthat, in judgment of law, it does not make any charge at all," Ex parte Spears,88 Cal. 642, 26 Pac. 608.And e,en in the case of People v. Smith, 1 Cal. 11, cited by the

government, while, contrary to the later cases as hereinafter shown,it is held that it is too late for the defendant to object to the affida-vit, on which was issued the warrant for his arrest, after examina·tion and commitment, the court says:"It is claimed that tlle affidavit in pursuance of which the warrant was issued

is defective, because it is alleged to be upon information merely. If this were so,we should feel disposed to regard it as of but little value, for an affidavit whichstates no fact within the knowledge of the person making it can be of but littleweight in anr legal proceeding."

68 79· FEDERAL REPORTER.

That such an affidavit does not confer jurisdiction to issue awarrant of arrest has been expressly held by the supreme court ofCalifornia. Ex parte Dimmig, 74 Oal. 164, 15 Pac. 619. In thatcase the court, referring to the aforesaid sections 811, 812, and 813,says:"Uuder these provisions, a magistrate has no jurisdiction to issue a warrant

of arrest without some evidence tending to show the guilt of the Imrty named inthe warrant. The original information may be sulfident, though made only uponinformation and belief, if followed by the deposition of the complainant, or someother witness, stating facts tending to show the guilt of the party charged. Ofcourge, where there was some evidence upon which the magistrate acted, wewould not interfere. It may be also true that the original information might betreated as a depusition; and in such view, if it contained po,sitive evidence of1\acts tending to show guilt, it might be suflicient as a basis for the issuance of awarrant. But a mere affidavit in the form of an information, containing no evi-dence, and fullowed by no deposition stating any fact tending to show guilt, is in-sufficient to support a warrant. The liberty of a citizen eannot be violated uponthe mere expression of an opinion under oath that he is guilty of a crime."

It is, however, urged by the government, that, while an affidavitupon information and belief may not confer jurisdiction to issue a,,,arrant of arrest, it would confer jurisdiction to compel, by sub-pwnas, the attendance of witnesses before the magistrate, to en-able him to determine whether or not a warrant of arrest ought toissue. The authorities cited to support this contention are Peoplev. Smith, 1 Cal. 9, and People v. Staples, 91 Gal. 23, 27 Pac. 523.It seems to me, however, illogical to JLOld that a magistrate has ju-risdiction to compel the attendance of witnesses to enable him todetermine whether or not a person ought to be arrested for crime,and Jet is without jurisdiction to order the arrest. Moreover, thedoctrine of the two cases last cited, that the commitment authorizesthe filing of an information, and that it is too late after the com-mitment to raise an objection to the sufficiellcy of the affidavit onwhich the arrest was originallJ made, has been practically, if notin terms, overruled bJ the later cases of People v. Ohristian, 101Cal. 471,35 Pac. 1043. and People v. Howard, 111 Cal. 655, 44 Pac.342. I extract from the opinion in the latter case the following:"It remains to be determined whether the fact that the complaint. upon which a

defendant is arrested and committed states no o·ffense against him is so fatal tothe regularity of the proceeding as to require the informa tion based thereon, itselfsuilicient in form, to be set aside, upon the ground t.hat he has never been legallyheld to answer. Some of the earlier cases, arising under the provision of ourpresent constitution providing for progecutions by informatiun, seem to treat thecharacter or sufficiency o'! the complaint before the magistrate as largely an im-material or nonessential factor in determining the regularity of the proceedingfor a commitment (see People v. Velarde, 59 Cal. 457: People v. 'Vhee!er, 65 Cal.77, 2 Pac. 892; People v. Staples, tn Cal. 23, 27 Pac. 523); although none ofthose caSef3, we think, go to the extent of holding that the complaint need Dotstate an offense. But iu the recent case of People v. Christian,. 101 Cal. 471, B5Pac. 1043, where the Iatest expression of the court upon the subject is to be found,all the earlier caSef3 are fully reviewed, and the reasoning and conclusion in thatcase would Soeem to impart more dignity and importance to the oilice of th.atpleading in criminal prosecutions than theretofore accorded it. In that ca.se the'defendant was charged with an with a deadly weapon upon one GeorgeMagin, and was held to n,nswer therefor. The distrk-t attorney filed an informa-tion charging him with such an assault npon one George 'Massino.' It was heldthat the information must be set aside, the court, after stating the facts showingthat defendant had been brought before the magistrate to defend himself against

UNITED STATES V. COLT,TNS. 69

a charge of ass-aulting Magin, saying: 'Under those circumstances, and under acomplaint charging that offense, he could not be called upon to defend himseltfor assaulting one Massino, for there was no complaint on file upon which to basean examination of that character.' And, after reviewing the cases upon the sub-ject, it is said: 'It may be laid down as an unquestioned proposition that the dis-trict attorney has no authority to disregard the commitment, and cull from theevidence taken at the preliminary examination some real or imaginary offense notincluded in the complaint upon which the defpndant was charged and examined.* * * 'L'he district attorney is not only required to file the informatiou for someoffense included in the allegations of the complaint, but the magistrate likewiseonly has the power to commit for some offense included therein.' ..The court further says:"Thc j)rillciples to be deduced from this case are that the complaint lodged with

the magistrate constitutes the groundwork of the whole superstructur'e to be there-after built thereon, and draws the lines which must circumscribe the limits theprospcution can take. 'L'he defendant, in other words, may be competently in-formed against and tried for any offense charged in the comj)laint, or iucludedtherein, but beyond that limitation the prosecution cannot go. * * * From theseprinciples it would seem to follow as a necessary corollary that if the complaintis the measure of the people's rights in proceeding against a defendant in anycase, Such complaint must charge him with a pubHc offense. If the commitmentand information cannot go beyond the complaint. and the latter fails to state anycrime, the logic is irresistible that the defendant has not been legally held toanswer for an offense. And this must be true. It cannot be that it was evercontemplated, either by the framers of the constitution, or by the leglslature :pro-ceeding under that instrument, that a party can be arrested and put to the in-dignity and public shame of detention and examination upon a criminal charge,to say nothing of the inconvenience and pecuniary detriment incurred thereby,without a formal complaint, which charges, at least in substantial effect, someoffense known to the law; for, if the complajnt need not state an offense, it wouldsubserve no useful purpose, since a pleading which does not state a cause of ac-tion is, in legal contemplation, no pleading. That such was not the purpose orintent of the legislature is evident from section 806 of the Penal Code, which pro-vides that 'the complaint is the aJll'gation in writing, made to a court or magis-trate, that a person has been guilty of some designated offense.' "I have examined the federal decisions cited by the government,

but do not think they antagonize my views, as above indicated.In U. S. v. 'rinklepaugh, 2,s Fed. Oas. 193, the claim was not made

that the warrant in question was a nullity. This is shown by thefollowing extract from the opinion:"It is admitted by the counsel for the defendants that the warrant is a valid

warrant, so far as it respects the action of the marshal, 0-1' any persons acting nn-del' him, by his authority; and that he and they were not only authorized, butwere bound, to execute it."This language could hardly be applied to any process considered

absolutely null and void. If, in U. S. v. Martin, 17 Fed. 150, orU. S. v. Reese, 27 Fed. Cas. 746, which are the other federal deci-sions cited by the government, there be anything with which thisopinion apparently contliets, it is a sufficient answer to say that thedecisions of said cases did not depend upon California laws.The conclusion is to my mind irresistible that Alford's affidavit

or complaint before Commissioner being upon information.and belief, did not confer upon the latter jurisdiction to make theorder or issue the subprenas set forth in the indictment, and there-fore the demurrer thereto is sustained.

70 79 FEDERAL REPORTER.

In re BESHEARS.(District Court, S. D. Iowa. February 23, 1897.)

CRIMINAL TO A:'IOTHER DISTinCT FOlt TIUAL-NoTJOE.Upon an application to a district judge, under liev. St. § 1014, tor an order

for the removal of a prisoner in the custody of the marshal to another dis-trict for trial, the prisoner is entitled to notice, and, if he desires it, to bebrought before the judge for the purpose of presenting any objections hemay have to the making of the order.

On application of Frank P. Bradley, United States marshal,Southern district of Iowa, for warrant of removal to district of Kan-sas of John Canedy, alias James A. Beshears.

Upon February 19, 1897, J. J. Steadman, a commissioner ot the circuit courtin and for the Southern district of Iowa, upon information duly filed beforehim, charging John Canedy, alias James A. Beshears, with having committed inthe district of Kansas a violation of section 5392, Rev. St., issued his warrantfor arrest of said Canedy, alias Beshears. The marshal of said Southern dis-trict of Iowa thereupon arrested said defendant, and brought him before saidcommissioner. Upon the hearing under said information it appeared that an in-dictment against said Canedy, alias Beshl'ars, had been duly found in said dis-trIct of Kansas; wherefore, after due examination, said commissioner orderedsaid defendant to give his due bond in the sum of $1,000 for his appearance atthe next term of the district court at said district of Kansas, at Topeka, to an-swer said charge, and, in default thereof, that said defendant be committed tothe custody of said marshal, until discharged by dne process of law. Applica-tion having been made by said marshal to the district judge of the Southerndistrict of Iowa for a warrant of removal of said defendant to the district ofKansas, it appeared that said defl'ndant had neither notice nor knowledge of themaking of said application. Thereupon the warrant of removal was refuseduntil defendant had such notice, such refusal being announced as follows:

Mt. Pleasant, Iowa, Feb. 23, 1897.Frank P. Bradley, Esq., U. S. Marshal, Council Bluffs, Iowa.Dear Sir: Your letter of the 20th inst., containing papers with

reference to the case of John Canedy, alias James A. Beshears, athand. You inclose certified copy of indictment as presented bythe grand jury of the First division of the district of Kansrus, char-ging said Canedy, alias Beshears, with the crime of perjury, andalso certified copy of the record of J. J. Steadman, commissionerof the United States circuit court of this district, showing the ar-rest of the prisoner in this district, his examination before said com-missioner, and commitment for trial in said district of Kansas· forthe crime charged, and the fixing of baH at one thousand dollars.You further state that the prisoner is in your custody, and is unableto give said bail. You ask for an order, under section 1014, Rev.St., directing his removal to the district of Kansas. for trial, andadd: "I would have brought the prisoner before you, but the de-.partment intimated lately that that was an unnecessary expense."The practice in this district, without an exception, so far as I

have been able to understand, since the time of In re Bailey (1869)1 Woolw. 422, Fed. Cas. No. 730, has been to have the prisonerbrought before. the judge for such examination as may be found nee-

IN RE BESHEARS. 71

essary, before the application to remove ripens into the order of reo,moval. I have not found any decision directly upon the point hereraised. Nor, in my examination of the reports of the federal courts,have I found any case where the report of the case shows affirma-tively that the prisoner was not brought personally before the judgeto whom the application for removal was presented. In the state-ment of the facts, or in the reasoning of the judge, each opinionwhich I have examined seems to regard as a matter of course thepresence of the prisoner upon the hearing of the application for or-der of removal.The authority for the order of removal is section 1014, Rev. St.,

latter part of section. After providing the method by which of·fenders against the United States statutes may be arrested, impris-oned, or bailed for trial, the section provides:"And where any offender or witness is committed in any district other than

that where the offense is to be tried, it shall be the duty of the judge ot the dis-trict where such offender or witness is imprisoned, seasonably to issue, and ofthe marshal to execute, a warrant for his removal to the district where the trial isto be had."

May the order for removal be made upon ex parte hearing in theabsence of the prisoner, and upon the face of the papers from thecommitting magistrate, or should such order be made after theprisoner has had opportunity, if he desire, to contest the applica-tion therefor? I think it might well be assumed that the prisonermay, if he will, waive his personal appearance on the hearing orsuch application. Such Waiving would then justify the judge, ifno objections are presented, in assuming that the prisoner therebyconsented to the order for removal, in that he makes no resistancethereto. But here it is also assumed that the prisoner has noticeor knowledge of the making of the application. He could not fairlybe held to waive that of which he had neither notice nor knowledge.He is in cnstody, imprisoned. How can he acquire such notice orknowledge? Only by being brought personally before the judge,or being given opportunity for personally waiving his presence.Should he desire to present objections to the application, how is theopportunity afforded him, if it be determined whether the order of re-moval shall issue in his absence and without notice to him that theorder was about to be asked? Possibly this opportunity might beafforded him on a habeas corpus hearing, after the order of removalhad been made. But in a large number of cases-perhaps the largemajority-sufficient time does not elapse between the issuing of theorder by the judge and the execution by the marshal to permit theready issuing of the writ. As a general rule, the execution followsclose on the issuing of the order. Again, in many, if not in most,of these cases, the prisoner is thus arrested and imprisoned awayfrom his home and friends, and thus he has little opportunity tosue out the writ of habeas corpus. But, if he could readily sue outthe writ, why put him to such necessity, when, upon the hearing ofthe application, substantially the same field of resistance is openedto him as upon the hearing upon the writ? As the judges are nowsituated, since the establishment of the United States circuit court

72 79 FEDERAL REPORTER.

of appeals, such writ, especially in this circuit, must generally besued out before the district judge who issues the order of removal.Why thus ask the judge first to make whatever investigation he maydeem necessary before is,suing the order, and then to traverse thesame ground, though perhaps more thoroughly, in a hearing uponthe writ?One of the earliest cases which my examination of this matter

has brought to my attention is that of In re Bailey, 1 Woolw. 422,Fed. Oas. No. 730, which came before Justice Miller, in this cir·cuit, in 1869. In the course of his examination as to whether heshould issue an order of removal for the defendant to the Northerndistrict of Illinois, it appears he submitted the matter to DistrictJudge Love, of this district, and in his communication to Justice:MiIler, Judge Love uses this language:"I, however, without giving any opinion upon the general question, held, as I

have always done in cases of indictment, that the prisoner should be broughtbefore me in order that the fact of indentity might be inquired into. In this Iproceeded upon the idea that the finding in the other district, whether by indict-ment or otherwise, established nothing with regard to the identity of the prisoner.The marsh'al, in making the arrest, might mistake the man, and remove to a re-mote state an individual not charged with any offense whatever."While the case just cited does not bring directly in review the

question whether there ehould be a hearing before the district judgein the presence of the prisoner when the committing magistratewithin this district has, under section 1014, Rev. St., ordered theprisoner committed to await the order of removal, nevertheless thestatement of J,udge Love is very suggestive as to the practice uni·formly followed by him in this district.The case of In re Buell, 3 Dill. 116, l!"ed. Cas. No. 2,102, contains

some remarks of Circuit Judge Dillon which are pertinent to thegeneral subject of this inquiry. This case was decided in 1875.District Judge Treat had discharged, upon habeas corpus, Buell, whohad been ordered removed to the District of Oolumbia, under sec-tion 1014, Rev. St. The matter came before Circuit Judge Dillonupon appeal, who uses this language:"It is argued that the question of the sufficiency of the indictment is tor th"

court in which it was found, and not for the district judge on such application. Icannot agree to this proposition in the breadth claimed for it in the present case.This provision devolves upon a high judicial officer of the government a usefuland important duty. In a country of such vast extent as ours, it is no light mat-ter to arrest a supposed offender, and, on the mere order of an inferior magistrate.remove him hundreds, it may be thousands, of miles for trial. The law wiselyrequires th" previous sanction of the district judge to such removal. Mere tech-nical defenses to an indictment should not be regarded; but the districtwho should order the removal of a pri.soner, when the only probable cause reliedon or shown was an indictment, and that indictment failed to show any offenseagainst the laws of the United States, or showed the offense not committ€d ortr-iable in the distr-ict to which the removal is sought, would misconceive hisduty. and fail to protect the liberty of the citizen."In the case of In re Ellerbe, 13 Fed. 530, 532, Circuit Judge Mc-

Crary was called upon to hear a petition in habeas corpus. Thejudge of the district had ordered the removal of the prisoner fortrial to another state. In the course of his decision, Circuit JudgeMcOrary remarks:

IN BE BESHEARS. 73

"It It!! next Insisted on behalf of the petitioner that he Is entitled to a hearingbefore he can be sent out of the district, and that he has not had such a hearingas the law requires. It was, no doubt, the duty of the marshal of the Easterndistrict ()f Arkansas to apply to the judge of his district for an order for the ar-rest of the petitioner; and it was the duty ()f the district judge to enter intosuch investigation as was necessary to enable him to determine whether the pe-titioner should be sent out of the district to answer the charge against him.Precisely how far the district judge was authorized to go upon such a hearingit is not necessary in the present case to determine. Certain it is that he had theright to inquire into the question of the prisoner's identity. This would be neces-sary in any case, for the judgment of the court in another district, however con-·elusive UPO'll other questions, would establish nothing with regard to the identityof the prisoner."In the case of In re Corning, 51 Fed. 205, 206, Judge Ricks, of the

Northern district of Ohio, upon application for an order to remO'Vethe defendants, who had been indicted in the district ofsetts, uses this language:'The order of removal is not a mere ministerial act on the part of the district

judge, but is a judicial functio'll including the exercise of a judicial discretion UPOIlthe papers presented in support of the application."

In the case of In re Terrell, 51 Fed. 213, 214, Oircuit .Judge La-combe, on the hearing upon habeas eorpus, uses these words: ,. "It is not disputed by the district attorney that it is not only the right. but theduty, of the district court, before ordering removal, to look into the indicotment sofar as to be s-atisfied th'at an offense against the United States is charged, andthat it is such an offense as may lawfully be tried in the forum to which it isclaimed the accused should be removed; and the same right and duty arises uponhabeas corpus, whether the petitioner is held under a warrant issued by the dis-trict judge whose action is thus reviewed or under a warrant of the commissionerto await the action of the district judge. The later decisions of the circuit courtabundantly establil>h this position."

After citing various cases, Oircuit Judge Lacombe proceeds:"'1'here is good cause for holding that this power should be exercised liberally

whenever the judge before whom the questions are raised on application for awarrant (}f removal or on habeas oorpus is satisfied, from the faoe of the iridict·ment, that were such indictment before him for trial, and demurred to, he wouldquash it. This is a country of vast extent, and it would be a grave abuse o'f therights of the citizen if, when charged with alleged offenses, committed perhapsin some place he had never visited, he were removed to a district thousands ()fmiles from his home, to answer to an indictment fatally defective, on any meretheory of a comity which would require the sufficiency to be tested only in theparticular court in which it is pending."

In U. S. v. Brawner, 7 Fed. 86, 87, Judge Hammond was consider-ing an application for an order for removal under section 1014.In the course of his opinion, when considering the power of the dis-trict judge with reference to the order of removal, he remarks:"The very purpose of conferring the power is to secure the judicial sanction

of a supervisory judge for the action of the committing magistrate in so im-portant a rrintter as that of removing a citizen from one state or district to an-other for trial upon a criminal charge. If the warrant of removal is to be issuedmechanically, and as a mere ministerial act, there is no reason why the commit-ting magistrate should not have been reqnired to issue it at once upon neglector refusal to give bail. 'fhe necessary implication from the method of proeedureadopted by the statutes is that the judge of the district * * * must judiciallydetermine whether the pris,oner shall he taken to another district for trial, andthat may refuse his warrant where it appears that the removal shonld not bemade, or where he would adn,it the party to bail. Doubtless the action of thecommitting magistrate is prima facie sufficient as a basis for the warrant, but

74 79 FEDERAL REPORTER.

it is not conclusive. While the judge Elhould not unnecessarily require anotheror further preliminary examination, if it al}pear to him neeesilary that the bailshould be reduced, or that for any reason the prisoner shQuld again be heard inilefense, I have no doubt that it is his duty to pass fully upon the case, and de-termine for himself whether he should be further held or removed."

Other decisions might be quoted containing points pertinent tothe general features under consideration (D. S. v. White, 25 Fed.716; In re Wolf, 27 Fed. 606, 609; D. S. v. Rogers, 23 Fed. 658,661; In re Graves, 29 Fed. 60, 66; D. S. v. Horner, 44 Fed. 677), whosegeneral trend is with the extracts above quoted. All the casesrecognize not only the right, but the duty, of the district judge toexamine into the merits of the matter as presented to him to suchan extent as may be necessary to enable him to pass satisfactorilyupon the question, and determine intelligently whether the prisonershall be removed. If granting the application for removal couldbe considered a matter merely of course, no investigation would benecessary by the district judge; but he may not delegate his dutiesin this regard to the commissioner who has acted as an examiningmagistrate in the matter within his district. He must determineand act for himself in the line of his judicial duty. How can heknow whether the prisoner desires to present objections to the ap-plication, if his hearing be ex parte, and without notice to the pris-oner? While the matter of expense is not to be overlooked, never-theless expense is of secondary importance where the liberty of thecitizen is involved. In my judgment, the prisoner should have anopportunity to be heard in the matter of the application, if he sodesire. Possibly, the queSition of his identity may be regarded asconcluded for the purpose of removal by the decision of the commit-ting magistrate. See Horner v. D. S., 143 D. S. 207, 215, 12 Sup. Ct.407, 522. But, were this point conceded, the prisoner should be per-mitted to urge in person and by counsel whatever further objectionshe may desire to present with reference to the validity of the indict-ment, its sufficiency to place him upon trial, and whether he can betried thereupon for the crime therein charged in the district to whichhis removal is sought. Opportunity can be afforded him to presenthis objections to the application only by his being apprised that theapplication is to be presented. In the case named in your letter, aswell as in all other cases where, after commitment by a magistratein this district, an order for removal in thus sought, I desire thatyou shall notify the prisoner of the time when such application willbe presented to me, with a statement of his right to be present, andpresent objections thereto, if he so desire. If he shall waive ob-jections to the application, it may be presented without his presence.Let the waiver be in writing, signed by him, and presented with theapplication. Or you may serve such notification upon him, andyour return thereon may show the fact of such waiver, if it exists.But in any case where the prisoner shall object to his removal, andexpress his desire to present objections at the hearing, you are here-by authorized and directed to bring him personally before me withthe application for his removal. In all cases where no previous ex-amination has been made by a magistrate of this district, the pris-

GATES IRON WORKS V. KIMBELL &\ COBB STON. co. 75

oner should be brought personally before me with the applicationfor his removal. This may be considered by you as a standing or·der in the r-espects above noted.

Sincerely yours,JNO. S. WOOLSON, U. S. Diirtrict Judge.

UNITED STATES v. DUDLEY.(CIrcuit Court of Appeals, Second Circuit. February 23, 1891.)

CuSTOMS DUTIES-CLASSIFICATION-DRESSED LUMBER.Boards and planks ot uniform length, width, and thickness, planed and

matched tor splines, are not dutiable as "manufactures of wood," underparagraph 181, Act 1894, but are entitled to free entry 84 "dressed lumber."under paragraph 676. 74 Fed. 548, affirmed. .

Appeal from the Circuit Court of the United States for- the Districtof Vermont.This is an appeal from a decision ot the circuit court, district of Vermont,

reversing a decision of the board of general appraisers which affirmed a de-cision of the collector of customs classifying certain importations for dutyunder the tariff act of August 28, 1894. The articles imported were boards andplanks, each piece of a specified length, width, and thickness, planed on oneside, and matched or grooved for splines. The collector classified some of theImportations under paragraph 181, as "manufactures of wood not speciallyprovided for," and others under section 8, as "articles manufactured in whole orIn part, not provided tor in this act." The importers claimed that their im-portations were free tram duty, under paragraph 676, 8.8 "lumber, dressed."John H. Senter and Edward B. Whitney, for appellant.J. P. Tucker and C. A. Prouty, for appellee.Befor-e LACOMBE and SHIPMAN, Circuit Judges.

PER CURIAM. Inasmuch as the judges who hear-d this appealare divided in opinion, the decision of the cir-cuit court is affirmed.

=GATES IRON WORKS v. KIMBELL &; COBB STONE 00.

(Circuit Oourt, N. D. Illinois. March 8, 1897.)PATENTB-INVENTION-INFRINGEMENT-STONE CRUSHERS.

The Gates patent, No. 259,681, for an improvement In stone and orecrushers, whereby, instead of the ball and socket bearing of the prior art,there Is used a conical crusher-head, fItting into a cylindrical bearing sothat the pressure is along a line of some length, Instead of upon apoint, covers a useful and patentable Invention, and Is Infringed by a orusherhaving a cylindrical crusher-head and a conical bearing to receive the same.

This was a suit in equity by the Gates Iron Works commencedagainst the Kimball & Cobb Stone Company for alleged infringementof a patent relating to stone crushers. Frazer & Chalmers wereafterwards substituted as party defendant.Abner & Str-ong, for complainant. .Bond, Adams, Pickard & Jackson, for defendant.