UNITED STATES EX REL. RUTZ V. LEVY, 268 U. S. 390 (1925)

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U.S. Supreme Court

United States ex Rel. Rutz v. Levy, 268 U.S. 390 (1925)

United States ex Rel. Rutz v. Levy

Nos. 935, 936, 937, 938

Submitted April 13, 1925

Decided May 25, 1925

268 U.S. 390


An order made by a United States Commissioner, after hearing, in a removal proceeding (R.S. 1014), discharging the defendant for want of probable cause, may be persuasive, but it is not controlling upon a like application made later in the same district to the district judge. P. 268 U. S. 393.

3 F.2d 816 affirmed.

Appeals from judgments of the district court quashing writs of habeas corpus. chanrobles.com-red

Page 268 U. S. 392

MR. JUSTICE SUTHERLAND delivered the opinion of the Court.

The appellants in these several appeals were indicted in the Federal District Court for the Northern District of Ohio, along with other persons and a number of corporations, chanrobles.com-red

Page 268 U. S. 393

for a violation of the Sherman Act. Proceedings were brought under § 1014, R.S., before a United States commissioner to remove them from Illinois to the trial district in Ohio. After a hearing, the commissioner ordered their discharge for want of probable cause. Subsequently, similar proceedings were instituted before a federal district judge of the Illinois District, and appellants were taken into custody by the United States marshal upon a warrant issued by the district judge. Thereupon, in advance of a hearing, they sued out writs of habeas corpus in the court below seeking to be discharged upon the ground that the proceedings before the district judge were without authority of law and in violation of their constitutional and statutory rights. The specific ground relied upon was that their discharge by the commissioner for want of probable cause after a hearing was an adjudication upon that question, and a bar to a second proceeding. The court below held otherwise, and entered orders quashing the writs. 3 F.2d 816. The government has moved this Court to dismiss the appeals or affirm the judgments for lack of substance, and on the ground that the appeals were taken solely for delay. The motion to affirm must be sustained.

Under state law, it has uniformly been held that the discharge of an accused person upon a preliminary examination for want of probable cause constitutes no bar to a subsequent preliminary examination before another magistrate. Such an examination is not a trial in any sense, and does not operate to put the defendant in jeopardy. Marston v. Jenness, 11 N.H. 156, 161, 162; Nicholson v. The State ex rel. Collins, 72 Ala. 176, 178; Ex parte Crawlin, 92 Ala. 101; Ex parte Fenton, 77 Cal. 183; State v. Jones, 16 Kan. 608, 610; In re Garst, 10 Neb. 78, 81; In re Oxley and Mulvaney, 38 Nev. 379, 383. The same rule applies in extradition proceedings. In re Kelly, 26 F.8d 2; Collins v. Loisel, 262 U. S. 426, chanrobles.com-red

Page 268 U. S. 384

262 U. S. 429. "The functions of the commissioner and the court in removal proceedings under § 1014 are of like character and exercised with like effect." Morse v. United States, 267 U. S. 80. The utmost that can be said is that the decision of a commissioner favorable to the accused is persuasive, and may be sufficient to justify like action upon a second application; but it is not controlling. Undoubtedly, care should be exercised by the magistrate to whom a subsequent application for removal is made to see that the accused is not oppressed by repeated and unwarranted petitions for removal. United States v. Haas, 167 F.2d 1, 212, and see generally Salinger v. Loisel, 265 U. S. 224, 265 U. S. 230-232. There is nothing to suggest that the judge to whom the second application was made here will fail in that respect.

Judgments affirmed.


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