Appeal from the District Court of the United States for the District of New Jersey.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
Twenty-eight persons were indicted in the District Court of the United States for the District of Maryland for conspiring to violate the National Prohibition Act in one way and another. Four of them, resident in New Jersey, resisted removal to Maryland for trial. At the hearing (under section 591 of Title 18 USCA, Rev. St. § 1014) all parties stood on the indictment, the only evidence introduced by anyone; the government urging the indictment as evidence of probable cause and the defendants claiming that it did not charge a crime and therefore denying that it was such evidence. On the issuance of a warrant of removal the four defendants filed in the District Court a petition for a writ of habeas corpus. From an order dismissing the writ and remanding them to custody they now appeal and assign error to the court in continuing the restraint of their liberty under a warrant of removal issued, they say, without proof of probable cause.
The law on the subject is settled and may be found in Tinsley v. Treat, 205 U.S. 20, 27 S. Ct. 430, 51 L. Ed. 689; Hughes v. Gault, 271 U.S. 142, 46 S. Ct. 459, 70 L. Ed. 875; Fetters, Marshal, v. United States ex rel. Cunningham, 283 U.S. 638, 51 S. Ct. 596, 75 L. Ed. 1321; Parker v. United States (C.C.A.) 3 F.2d 903; United States ex rel. Tassell v. Mathues, Marshal (C.C.A.) 11 F.2d 53; United States ex rel. Haim v. Mathues, Marshal (C.C.A.) 19 F.2d 22; Swan v. United States (C.C.A.) 23 F.2d 148; United States ex rel. Mayer v. Glass, Marshal (C.C.A.) 25 F.2d 941.
One of the essential proofs in removal proceedings is that of probable cause or cause for belief that the person accused is guilty of the offense for which his removal for trial is sought. It may be proved in several ways, Swan v. United States, supra, but the usual way is by proving the indictment which is itself evidence that there was probable cause for finding it. Tinsley v. Treat, supra. Such proof, however, is only prima facie. United States ex rel. Haim v. Mathues, Marshal, supra. But when, as here, the indictment is not attacked and overcome by countervailing evidence, it is, with the qualification presently to be stated, conclusive.
On an indictment with this evidential quality the committing magistrate must act, yet within limits. He has no power to try the accused even preliminarily; nor has he power to pass on the sufficiency of the indictment, or to resolve debateable questions as to its infirmities, whether of substance or form, or to decide doubtful questions of fact, for that is the function of the trial court. But to raise an evidential presumption of probable cause the indictment must charge a crime, for if no crime be charged, clearly no presumption of probable guilt can arise. And so on that ground the accused may, as here, attack the indictment and, if he succeed, the committing magistrate has power to refuse removal. Hence in this case, where the only evidence on either side is the indictment, the sole question is whether it charges a crime.
The three counts of the indictment charge, respectively, that the twenty-eight defendants did, between certain dates and at a named place, feloniously conspire to commit offenses against the United States, that is to say, unlawfully to possess liquor, unlawfully manufacture liquor, and unlawfully possess articles and substances designed for the manufacture of liquor, all in violation of the National Prohibition Act (27 USCA).
Thus for the counts are in usual form. The requirements of venue, presentment, time and place are unquestionably present. The charging parts state the crimes not only by pleading facts which bring them within the statute but by counting upon the statute itself.
The facts pleaded, though meager, state crimes defined by the Act and state them sufficiently to apprise the defendants for present purposes and to identify them for future use in a possible plea of former acquittal or conviction. The counts do not recite all facts necessary as evidence to prove the averments and of course they do not recite the facts necessary to connect the twenty-eight defendants with one another in the web of the conspiracy. Nor is this required so long as the counts state the essentials of the crimes and charge the defendants with their commission. If the statement is lacking in particulars which are necessary to the preparation of their defense the appellants can avail themselves of a motion for a bill of particulars or other appropriate motion with respect to the parts which they, or any of them, played in the conspiracy when they reach the jurisdiction in which the indictment was found.
The indictment thus for recited conforms to the requirements of a criminal pleading at common law. But the federal statute under which it was drafted (section 37 Criminal Code, section 88 of title 18 USCA) extends the common law crime of conspiracy to include at least one overt act in furtherance of the conspiracy and requires that at least one overt act shall be pleaded. Four were pleaded in each count of this indictment and were in substance that in order to effect the object of the conspiracy each of four defendants (other than the four appellants) did one of these several acts:
(a) Met a truck on a certain highway and piloted it to its destination in Baltimore.
(b) Drove a truck from an unknown point to premises in Baltimore known as The Old Wilson Distillery.
(c) Paid the freight on seventy-four drums containing a liquid called "Spray Disinfectant" shipped from Newark, ...