WHITTEN V. TOMLINSON, 160 U. S. 231 (1895)

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U.S. Supreme Court

Whitten v. Tomlinson, 160 U.S. 231 (1895)

Whitten v. Tomlinson

No. 619

Argued November 20, 1895

Decided December 16, 1895

160 U.S. 231


Under section 753 of the Revised Statutes, the courts of the United States have power to grant writs of habeas corpus for the purpose of inquiring into the cause of restraint of liberty of any person in jail, in custody under the authority of a state, in violation of the Constitution, or of a law or treaty of the United States, but, except in cases of peculiar urgency, will not discharge the prisoner in advance of a final determination of his case in the courts of the state, and even after such final chanrobles.com-red

Page 160 U. S. 232

determination in those courts, will generally leave the petitioner to his remedy by writ of error from this Court.

In a petition for a writ of habeas corpus, verified by oath, as required by Rev.Stat. section 754, only distinct and unambiguous allegations of fact, not denied by the return nor controlled by other evidence, can be assumed to be admitted.

A warrant of extradition of the Governor of a state issued upon the requisition of the governor of another state, accompanied by a copy of an indictment, is prima facie evidence, at least, that the accused had been indicted and was a fugitive from justice, and, when the court in which the indictment was found had jurisdiction of the offense, is sufficient to make it the duty of the courts of the United States to decline interposition by writ of habeas corpus and to leave the question of the lawfulness of the detention of the prisoner, in the state in which he was indicted, to be inquired into and determined, in the first instance, by the courts of the state.

A prisoner in custody under authority of a state will not be discharged by a court of the United States by writ of habeas corpus because an indictment against him lacked the words "a true bill," or was found by the grand jury by mistake or misconception, or because a mittimus issued by a justice of the peace, under a statute of the state, upon application of a surety on a recognizance, and affidavit that the principal intended to abscond, does not conform to that statute.

This was a petition, filed March 26, 1895, in the Circuit Court of the United States for the District of Connecticut, and addressed to the Honorable William K. Townsend, the District Judge, as a judge of the circuit court, for a writ of habeas corpus to the Sheriff of the County of New Haven, in the State of Connecticut. The petition was signed by the petitioner, and verified by his oath, and was as follows:

"The petition of George E. Whitten respectfully shows to your honor that he is now a prisoner confined in the custody of Charles A. Tomlinson, Sheriff of the County of New Haven, in the county jail in the City of New Haven, in said county, for a supposed criminal offense, to-wit, a crime of murder in the second degree."

"Your petitioner also shows that such confinement is by virtue of a warrant, a copy whereof is in the possession of said sheriff, and your petitioner avers that, to the best of his knowledge, he is not committed or detained by virtue of any process of law known to the courts of the United States or

Page 160 U. S. 233

the several states, but he is now detained in violation of the Constitution of the United States in violation of the laws of the United States and in violation of the Constitution and laws of the State of Connecticut, and that he is not held in confinement by virtue of any final judgment or decree of any competent court or tribunal of criminal jurisdiction or by virtue of any process issued upon such judgment or decree, but is held without due process of law."

"And your petitioner further says that, at the time of his arrest and for a long time prior thereto, he was a citizen of Massachusetts, and was extradited from Massachusetts for said alleged crime in January, 1895, and he says that he is advised by his counsel, William H. Baker, residing at Boston, and so believes, that his said imprisonment is illegal, and that said illegality consisted in this, to-wit:"

"That in August and September, 1893, this petitioner was tried before the local court sitting within and for the County of New Haven, State of Connecticut, upon a charge of murder in the second degree, being the same alleged charge for which he was extradited, and was after a full hearing thereof discharged from said court."

"That thereafterwards, this petitioner remained in the City of New Haven, State of Connecticut, for a long time -- during at least two sessions of the grand jury -- and then removed to Newton, in the Commonwealth of Massachusetts, sometime early in the year 1894."

"That he was in January, 1895, while such citizen of Massachusetts, arrested and extradited from the State of Massachusetts upon a warrant issued by the Governor of Massachusetts on demand and application of the Governor of Connecticut, alleging that an indictment had been found by the grand jury against him of murder within and for the County of New Haven, being the same charge on which he was tried as above. This petitioner was taken to the said City of New Haven by virtue thereof."

"This petitioner avers that no indictment was ever found against him by any grand jury sitting at any time within the State of Connecticut, nor no indictment as and for a true bill

Page 160 U. S. 234

ever was presented by any grand jury in said State of Connecticut against him, which he is ready to verify and prove, and any pretended indictment was found by mistake or misconception and was not their true verdict or finding."

"Further, you petitioner says that he was not at the time of this extradition as aforesaid a fugitive from justice from said State of Connecticut."

"Wherefore you petitioner prays a writ of habeas corpus to the end that he may be discharged from custody, and be allowed to depart safely from out the State of Connecticut to the Commonwealth of Massachusetts without interference in any way by the state authorities of the State of Connecticut, without reference to said charge made against him."

On March 27th, a writ of habeas corpus was issued accordingly by the district judge, returnable forthwith at a special term of the circuit court.

On March 28th, the sheriff made his return to the writ, stating, as the cause of the petitioner's detention and imprisonment, that he was committed to the jail by virtue of the following mittimus:

"To the Sheriff of New Haven County, His Deputy, or Any Proper Officer or Indifferent Person, Greeting:"

"Whereas Lucius B. Hinman, of New Haven, Conn., did on the 17th day of January, 1895, enter into a recognizance in the sum of five thousand dollars for the appearance of George E. Whitten, of the Town of Newton, State of Massachusetts, before the superior court to be holden at New Haven, within and for the County of New Haven, on the first Tuesday of January, 1895, and the said Lucius B. Hinman now believes that said George E. Whitten intends to abscond, and having produced the evidence that he is surety as aforesaid for the said George E. Whitten, and hath applied to me for a mittimus, and hath made oath before me that the statements in his said application are true:"

"These are therefore by authority of the State of Connecticut, to command you that you forthwith arrest the said George E. Whitten, and him commit to the jail of said New Haven

Page 160 U. S. 235

County, and the keeper of said jail is hereby ordered to receive the said George E. Whitten, and him safely keep within said jail, until he be discharged by due order of law. Hereof fail not, but due service and return make."

"Dated at New Haven, this 26th day of March, A.D. 1895."

"John S. Fowler, Justice of the Peace"

The petitioner moved to quash the return, as insufficient to justify his detention.

The circuit court, upon a hearing, denied the motion, and discharged the writ of habeas corpus, without prejudice to the right of the petitioner to renew the motion, and filed an opinion by the district judge (67 F.2d 0), in which the grounds of decision were stated as follows:

"The writ was issued, and the sheriff brought the petitioner into this court, and made return as to the cause of his detention and imprisonment, that he was committed to jail by virtue of a mittimus in the form provided for by statute, duly issued by a justice of the peace on the application of the bondsman, upon oath that the petitioner intended to abscond. A hearing was had upon a motion to quash the return."

"The petitioner was arrested in Massachusetts, and brought into this state, under a warrant issued by the Governor of Massachusetts upon the requisition of the Governor of Connecticut, accompanied by a certified copy of the indictment charging the crime, and an affidavit that the petitioner was a fugitive from justice."

"It is claimed in support of the petition that the indictment was procured by mistake, and that the prisoner was not in fact a fugitive from justice. These claims are denied by the attorney for the state. In view of the conclusions reached, it is not necessary to pass upon these questions of fact. It may be assumed, in the disposition of this motion, that all the allegations in the petition are true."

"Counsel for the petitioner claims that he can prove, in the first place, that the indictment is invalid or void by reason of some mistake on the part of the grand jury. But the effect of

Page 160 U. S. 236

an inquiry into this question, assuming such evidence to be admissible and true, would be to call upon the federal court to examine into the proceedings under which said indictment was obtained, and to determine collaterally its sufficiency under the laws of this state."

"It is further claimed that the petitioner was not a fugitive from justice, and that, inasmuch as extradition proceedings are based upon the statutes of the United States, the question whether he was in fact such fugitive is a federal question, which it is the duty of this Court to decide. But it is not denied that the demand made upon the executive authority of the asylum state, and his action thereon, were proper in form, and it will not be assumed in advance that he has surrendered the petitioner upon insufficient evidence."

"I do not mean to be understood as denying the right to this prisoner at an appropriate time to introduce evidence that he was not a fugitive from justice, or that the evidence before the Governor of Massachusetts was insufficient to authorize his action, nor do I intend at this time to pass upon the merits of this or any other questions presented, nor to intimate what disposition might be made of these claims in case they were brought before this Court after final action in the state court. All that is now decided is that it must be assumed in advance that the petitioner may obtain all the protection to which he may be entitled in the courts of this state."

"In view of the principle of right and law underlying the forbearance which the federal and state courts exercise towards each other in order to avoid conflict, I should not be justified in passing upon such questions in advance of the proceedings in the state courts."

On April 25th, the petitioner filed in the circuit court an appeal, reciting the petition, the return, and the motion to quash the return, and concluding as follows:

"The said Circuit Court of the United States for the District of Connecticut, on the 28th day of March, 1895, made final ruling, and decreed that, upon the face of the petition, without hearing any evidence to sustain the petition [and

Page 160 U. S. 237

denying the petitioner the right to introduce any evidence to sustain said petition or tending to sustain it, which the plaintiff duly offered], the writ should be discharged, and that the motion to quash said return be denied, and it was afterwards so decreed and ordered."

"Wherefore this petitioner appeals from the whole of said decree of said circuit court, and the petition, return, motion to quash, decree, writ, and all other papers forming a record of said cause may be sent to the Supreme Court of the United States without delay, together with this appeal, and moves that the said supreme court will proceed to hear the said cause anew, and that the said decree of the said circuit court be reversed, and for such further order and decree to be made as will to the Supreme Court of the United States seem just and right. The petition for the writ of habeas corpus, the writ of habeas corpus, the return of the sheriff, the motion to quash, and the decree of the court are hereby made a part of this appeal."

On the same day, that appeal was allowed by the district judge.

On May 8th, the petitioner filed a paper purporting to amend his appeal by inserting the words above printed in brackets, and with this paper filed the following letter, addressed to his counsel by the district judge:

"United States Courts, Judges' Chambers, New Haven, May 4, 1895. William H. Baker, Esq., 39 Court Street, Boston, Mass."

"Dear Sir: Continuous court engagements night and day for two days have prevented an earlier reply to your letter of April 29th. I had supposed that the record contained a statement of the fact that the court declined to hear the evidence, and, if not, I am willing that the statement of said fact should be inserted in the record, provided it can be properly done at this time."

"Yours, truly,"

"William K. Townsend"

The record transmitted to this Court set forth the matters chanrobles.com-red

Page 160 U. S. 238

above stated; but showed no further order amending the record, or allowing the amendment of the appeal.


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