Brief for the Respondent in Opposition — Fetters v. United States Ex Rel. Cunningham

_ WALTER C. FETTERS, United States 3 tor the

"ae e District of Pennsylvania,

cae Petitioner,

. ö

THE UNITED STATES OF AMERICA EX REL.

ee: W. nne

"Respondent.

St

Sure ne Brief Against 8 8 Writ

of Certiorari to the United States Circuit .

_ Court of Appeals for the Third Circuit. aoe

4

lim ee

Supplemental Statement .... e eis 3

Senate Resolution 1955 1

Section 102 Revised Statutes ste ska BO MPEP .

Counts of Indictment J ¾ ͤ 1

Petition for Reargunmnent atin aio

abl Orie aoe wesc 1

„ Counter - Statement of Questions Presented ...... 1 . WT

01) Jurisdiction of Remanding Court 7

(2) Prima facie of Indictment’ Overcome N 9 1

a (3) Pertinency of e 3

Argument Say oF ear ple ie eS

Distinction ‘between Indictment as : Pleading and

„ a8 Evidence 4242435» 8

Petitioner’ s Erroneous Contention age wah nie Me

: Conclusion of Court Below „

I. Indictment Prima Facie But Not Canal.

| sive of Probable: Cause .

Citations: ay ie

U. S. v. Glass (928)? Fed. (2d) 941. 11

Swan v. U. S. (1928) 23 Fed. (2d) 148. 12

Pierce v. Creecy ( ) 210 U. S. 387. 12

Morse v. U. S. (1924) 267 U. S. 81. 12, 14

Henry vs. Henkel (1914). 235 U. S. 219. 16

Benson v. Henkel (1904) 198 U. S. 11 . 18

Rodman v. Pothier (1923 264 U. S. 399 19

U. S. ex rel. = v. Hecht 9 11

vy?

pe a INDEX (Continued). N

i . Page

ei Indictment May be Overcome By Its Own |

Terms es Not Charging é Orime 22

Citations:

Haim v: Mathues (1927) 19 Fed. (24) 22 22˙

U. S. ex rel. Tassell v. Mathues. (1926)

+

„ AMD BB ice ks cos s ences. 22

: 85 Tinsley v. Treat (1906) 205 U. S. 20 2

ee Morse v. U. S., supra 1 24

ö — Pierce v. Creecy, V 24

* Beavers v. Henkel (1903) 194 U. S. 76. 25

i : Henry v. Henkel, supra 24

Greene v. Henkel (1901) 163 U. 8. 261. 25

Petitioner s Cases Distinguished .......... 25

Hyde v. Shine (1904) 199 U. S. . 20,

Horner v. U. S. (1891) 143 U. S. 470. . 25

45 Hughes v. Gault (1925) 271 U. 8. 142. 25.

III. Questions Propounded Are Not Pert:

TFF oh ask ake „

Of Law for the Court 30.

SPS OE PROUR 6 oo ie Sec ose ces peice

Pertinency Decided Only by Circuit

Court of Appeals 323 32

Questions Not Pertinent . 36

CC

Supreme Court of the United States

\ ;

October Term, 1930. No.

WALTER C. FETTERS, United States Marshal for the’

Eastern District of Pennsylvania, =e

scant By Petitioner,

eh a QD vptoenn aie e

THE UNITED STATES OF AMERICA EX REL.

: THOMAS W.CUNNINGHAM, - ~~

ee ~ Respondent. : nee

RESPONDENT'S BRE AGAINST ALLOWANCE OF °

“WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF. APPEALS FOR

4

| THE THIRD CIR@DIT. —

SUPPLEMENTAL STATEMENT.

The statement made in the petition should be supple-

ie mented by the essential facts stated in the opinion filed by

Buffington, C. J., in the Cireuit Court of Appeals in the =.

former habeas corpus proceeding, which was made a part i

of the return in the instant proceedings (R. 103); since as

concluded by Judge Dickinson in the District Court .

104, 106), that opinion determines the law of the ease ang

made necessary respondent's discharge in the instant pro- 1

ceedings, which by him was ordered (R. 107). That opinion

states (33 F (2d) 261): : 1 8

* 5

| On May 18 1926 a primary election was i held i in

Pennsylvania & and William S. Vare received the Re-

publican nomination as a candidate for the United

States Senate. At the general election held on Novem-

ber 2, 1926, he was elected United. States Senator.

Thereafter a petition was presented to the Senate cong

testing his election on the ground that fraudulenf and

Mia on practices were used in connection therewith.

On May 19, 1926, the Senate of the United States

resolution 195 created a committee of five members 1.

and authorized and instructed it,

‘To investigate what moneys, emoluments, re-

wards, or things of value, including agreements or un-

derstandings of support for appointment or eléction

to office have been promised, contributed, made or ex-

pended, or shall hereafter be promised, contributed,

expended or made by. any person, firm, corporation,

or committee,’ oyganization, or association, to influence

the nomination‘ “Of any person as a candidate of any

political party or organization for membership i in the

United States Senate or to contribute to or promote

the election of any person as a member of the United

States Senate at the general election to be held in

November, 1926. Said eommittee shall report the names

of the persons, firms, or corporations, or committees,

organizations, or associations that have made or shall,

hereafter make such promises, subscriptions, advance--

ments; or payments and the amount by them severally.

oontributed or promised as aforesaid; including’ the

105 perfo of said agroements, ener with all facts

in relatio thereto . 2

thereof may administer oaths to witnesses. Every

person who, having been summoned as a witness. by =

authority of said committee-wilfully makes default, or

8 aN 5 f . .

of the e ‘or any member f

of expenditure of said sums or the method of

*

Pear

‘ eal

/

G

who, having appeared, refused: to answ-er any aonb 2 f N

pertinent to the investigation herétotore authorized,

shall be held to the penalties provided by Section 102

of the Revised Statutes of the United States.

Every person who having ‘been summoned as a

. ‘witness by the authority of either House of Congress,

to give testimony or to produce papers upon any mat-

ter under i inquiry before either House, or any commit-

tee of either House of Congress, willfully makes de-

fault, or who, having appeared, refuses to answer any

question pertinent to the question ‘under inquiry, shall

be deemed guilty of a misdemeanor, punishable by a

fine of not more than one thousand dollars nor less than

one hundred dollars, and imprisonment in a common

jail for not less n one month nor more than twelve

Bo months. 7

Pursuant to the recdintibil, the 0 held a

5 1 5 Wann at Washington in the District of Columbia, on

February 21, 1927, at which the relator appeared in

obedience to a summons of the committee but refused: . .

to answer certain questions asked by the committee on

the ground that they related to his personal business

and were not pertinent 1 to the investigation authorized.

by the Senate.

: The relator was thereafter on April 20, 1928, in- “ae a

dicted by a grand jury in the Supreme Court of the...

District of Columbia, for refusing to answer the ques-":

tions, which related to his contribution of $50,000 to

Mr. Thomas F. Watson, chairman of the City Commit.

tee of Philadelphia, for use - in the Primary eleetion, 5

in which William S. Vare was nominated. Fs

The indictment contains six nae The questions

and answers follow: - eke

ae ie

8

„Mr. Cunningham: I Landed money to re.

F. Watson $25,000 on the 10th day et Ae ae

t money

‘The Chairman: Where did-you get ;

Mr. Cunningham: I got that money out of my own

private funds. 8 ö

The Chairman: How is tha! !

Mr. Cunningham: Out of my own private funds.

Mr. Chairman: Your own private moneys; 5

Mr. Cunningham: Yes, sir; my own money, my

own money,

The Chairman: How long. had it been your o

money? :

Mr. Golder at that time stated an objection, which

appears in the record. 5 a

The question was repedted as follows ( ——

The Chairman: How long had it been your own °

di money?

Mr. Ounninglihm: 1 . to answer that ques-

tion, Senator, as a personal l It is my en

private business. 15 | ; a3

} | 5 ns Conn.

5 The nenen Where did vei out this $25,000,

| you-say you gave to Mr. “Watson?

Mr. Cunningham : T refuse to: answer that oe |

i re 1 —— that is personal.” sa

5

6

Tam Couwr.

“The Chairman: ‘Where were “you pecan the 2

$25,000 before you gave it to Mr. Watson?

Mr. Cunningham: That is another ‘personal quer 6

tion, Senter. Train to ee it”.

e

*

E

Fochrn Count. 1

he- Chairman: Dideyon have it in your

when you gave it to him before you gave it to him? 5

Mr. Cunningham: Yes, sir. 55

N Mr. Chairman: WherA did. you get it from to put

in your pocket! e Me

Mr. Cunningham: That is a personal question, and

I decline to answer it. 4

|

Jats 8 Firn · Couxx. 1 6

ö e i a : Mr. Cunningham, how long had

vou had this monèy in your possession ? N

Mr. Cunnifigham: That is another personal ques-

tion, and I decline to answer it. It was my own money,

and I do not think I should tell the public where I kept

it and how I gt it, or anything else about it.“

. 7 1

r!⸗rrx Copxr. 1

„The Chairman: Was this money which you re-

fer to as the $25,000 that you gave to Watson, savings

F S

from your salary ? a 3 |

Mr. Cunningham; That is another personal ques- ne

tion. I cannot answer that.. 4

bn an affidavit of S. Busha, a warrant was issued

and the relätor was arrested and brought before Judge

© Dickinson who appears to have sat in three proceed- .

ings: 1. Committing magistrate, 2. Motion for war-

rant of removal, and 3. Hearing upon writ of habeas

As above stated, the writ or habeas corpus was

. dismissed, the warrant for removal was allowed and the

relator was remanded to the custody of the United 1

* .

States Marshal for removal to the District. of con

An appeal was faken and the question before

2

N 1

whether or eit 1 ede cause of the ‘felator’ 8 guilt i is

sufficient to justify his-removal e 955 . = . 4

a The Circuit Court ok Appeals in an opinion by Buffing. 2

ton, C. J., with Davis, C. J., concurring and Woolley, C. J,

_ dissenting, reversed Judge Dickinson’s judgment on. the

ground that prima facie evidenge of probable cause which

the indietmefit established is overcome: by its own terms in

failing to charge a. erime, because the questions pro- 5

pounded were not pertinent (33 F (2d) 2619. N 3

188 After the decision of the Supreme ‘Court of the United 8.

States in Barry VB: ‘Cunningham (1929) 279 U. S. 597, a

‘petition for rearguifient was filed, which, ayerred that the

decision of the Ciréait Court of Appeals was at Variafice .

with the Wobei of his Court i in rao case bud the cases

e A ee Ne 1p

5 . f)

Oe Rodman \ vs. . Pothier (1923), 264 , 8. 399 | 5 8

5 Morse vs. United States (1924), 267 U. S. 83, and

27 Henry vs. Henkel 1914), 235 Ue 8. 219.

5 i rehearing, the Circuit Court of peel in its opin-

. i ion Which is printed at the end of this me marked =, ated 3

B dix „A“ said. 6 55

„„ af “We adhere to our previous opinion, and in doing

so, we do not, in our view, disregard the holdings of

e Supreme Oourt.“ The final judgment was then

%, entered with instruetions to discharge the. relator.“

8 Petition for writ of certiorari and tion of abate-

went, because of failure to substitute, within the statutory —

Via 8 the successor of the marshal who had gone out of

office, were filed in this-court; which on Oétober 27th, 1930,

* granted the writ, vacated the judgments of the courts below

and remanded the cause to the District Court with diree-

: ‘tions to dismiss proceedings as abated. Mathues vs.

. States Ex rel. N (1930), 282 U. S. 123.

„ ͤè

aN

8 7 ren 3 himeelf to ‘deters, the United 6

States Marshal in office, filed his new petition for writ of

_ habeas corpus (R. 3-5) to which a return was filed 5 Ste

101) and traversed (R. 102):

It was stipylated by counsel that tlie 3 e+e.

shall be determined upon the petition, the writ, the return

and traverse to the return, ene the former

8 habeas corpus proceeding.

Judge Diekinson concluded that „the sia of the case |

* * * is what the Cireuit Court of Appeals has declared it

to be’’ U. S. ex rel. Cunningham vs. Mathues, 33 (2d) F. R.

261, on December 23rd, 1930, entered an order ee

the respondent (R. 107).

On the same date an appeal to the Cireuit Court of

Appeals (R. 110) was allowed and docketed. as of March

5 Term, 1931, No. 4543, with no further proceedings taken

Except the filing of the — of record therein.

UNTER-STATEMENT OF QUESTIONS

PRESENTED. 8

REMOVAL’ — ee eee

PR Fact, Nor Conciustve—J URISDICTION —

OF ‘ReManpine Court—PERriNnENcr.’

(1) -

its determination of the inquiry of probable cause, or has

the court of trial exclusive een, to determine the ex-

N -istence of a crime,

4M y ;

„ Where all the proofs constituting the erime charged ;

are contained i in the indiotment, may the . facie evi-

5 a 5 :

On writ of habeas corpus in BEES proceedings n may

the remanding court consider the indictment as prima facie:

but not conclusive evidence of the existence of a crime in 7

dence of probable cause established by the indictment be

overcome by its own ‘counts if without doubt ~ de not

change a crime.

*

hie 1

Are the questions propounded, which respondent's

refusal to answer constitutes the crime charged under Sec-

tion 102 R. S. ‘‘pertinent’’ to the investigation authorized

7 asec Resolution 195 of the 69th Congress.

: | ARGUMEN T. f

* Section. 1014 of the Revised Statutes (U. S. C. Title

18, Sec. 591) makes the fact of probable cause of (1) the

i existence of a crime and (2) the guilt and (3) identity of

the accused, the inquiry in removal proceedings.

The existence of a crime or the guilt of the accused .

prima facie may be established at the hearing of a petition

for habeas corpus by introducing in evidence the indictment

or by other e without the production of the indictment.

Dicliesion Selmeen Indictment As A Pleading And

As a Fact Evidential Of Probable Cause.

The distinction is clear between an Mtictment as a

"pleading in a ‘eriminal case and as a fact evidential of

ae probable cause under a habeas corpus in removal propeed-

ings. A

f The thread of differentiation . by this court

in Pierce vs. Creecy (1907) 210 U. S. 397, and. repeated

and applied in Rodman vs. Pothier (1923), 264 U. @ 399;

Henry vs. Henkel (1914), 235 U. S. 219 and ae E 5

ugh

United States (1924), 267 U. S. 83, and which runs th

all the reported’ cases considered by, either the District

| oem

\

\.

‘Courts or the Cireuit . of: rhe i of me United :

5

49

9

States, is that in removal proceedings the court of asylum

will not pass upon the sufficiency of the indictment as a

formal pleading, but may consider the indictment as a fact

With other facts in the proofs as evidential of the existence

of a crime in its determination of the controlling inquiry

of probable cause. The reason for this is evident, for un-

less the trial court is given plenary jurisdiction to deter-

mine the sufficiency of its pleadings, e. g. the indictment, tùbe

writ of habeas corpus could be made the substitute for a

writ of error; and unless the remanding court may weigh °'

the offense as charged in the indictment with all the other

proofs, all the facts evidential of probable cause, or its lack,

will not have been considered, and the most essential or per-

suasive’ consideration in reaching a conclusion will have

been ignored, viz., the existence of a crime. e

In the instant proceedings the sufficieney of the indict-

ment is not challenged as a formal pleading, but is attacked

as a fact in the proofs evidential of the existence of a crime

in the determination of the controlling inquiry of probable

cause and this because its counts do not show the existence

of a crime:

1 3 Petitioner’s Error.

It is the confounding of the indictment as a formal

pleading with its use as a fact in the proofs which leads

paragraph; pg. 10, of his argument, that since the indict-

petitioner to the erroneous contention contained in. the last

ment sets forth the questions of disputed pertinency and

alleges them to be. pertinent“, the indictment is conclusive

of probable cause and gives to the trial court exclusive and

sole jurisdiction for the determination of that fact. .

Conclusion of Circuit Court of Appeals.

The Cireuit Court of Appeals, following the distinction

as announced and repeatedly applied by this court held the

"Indictment was not conclusive but prima facie evidence only

*

Z

10

of probable cause, concluded „ that the prima histo evidence

Which the indictment established is overcome by its

own terms in failing to charge a crime’’ because the pro-

pounded questions are. not pertinent, and ordered the dis-

charge of the respondent.

It is then petitioner’s contention that the ending 2

court is Without jurisdiction to det e existence of a

crime and that even though the indietment clearly and

without doubt failed to disclose the existence of a crime,

nevertheless the accused must be held in custody and re-

manded to the trial court for oe determination of _ Aa |

evident fact.

It is submitted that this i is oppressive e ee

of criminal law without reason, which this court has always

‘condemned. The contention (1) fails to observe the pur-

Pose of the hearing which Section 1014 of the U. S. Revised

‘Statutes gives the accused and emasculates the statute since .

it says trial court must decide existence of crime though

there is doubt neither as to statutory definition of

crime or- acts alleged, (2) ignores the distinetion be- 8

tween prima facie and conelusive use of the indictment as

proof of probable cause, (3) disregards ‘the necessity of

finding probable cause, (4) ignores the existence of a crime

as the most, essential element in the finding of probable ©

cause and (5) disregards the legal conclusions. of this court

that the question of pertinency i is one of law and that the

burden of proving permet is on e

. Respondent os argument against petitioner’s contention

And in support of the conclusion and final order of the court

below, may be stated and will be developed. 4 in athe order =

e f f et

(1), The indictment i is prima facie. but 501 r

evidence of probable cause of either . existence 5 a crime

1 e |

* 2 7 1}

| 02 The indictment as prima facie. 8 of ee

me a cause may be overcome by its own terms der not ö

charging a crime. 1 5 . .

2 —— amr Seer ©

— —

5 (3) The indietment does ‘not , charge a crime because

the questions propounded as set forth in its counts are not

8 e to the e authorized by the Senate.

R INDICTMENTS PRIMA ach BUT NOT

CONCLUSIVE EVIDENCE OF PROBABLE CAUSE

OF EITHER THE EXISTENCE OF A CRIME OR

GUILT OF THE ACCUSED.

) Few Circuit Courts of Appeal of the United States

have so frequently and recently examined the law relating

to probable cause in removal N as the three

judges who decided this case.

In United States v. Glass (1998), 25 Fed.. (2nd) 941,

Judge Woolley writing the opinion of the Court, with the 8

same members sitting, said:

FR — — — aE

„The law on removal was correctly vtuted by the

learned trial Judge and was recently reviewed by this aE

Court in United States vs. Mathnes, 19 Fed. (2d.) 2

and Swan v. United States, 23 Fed. (2d. ) 148 with oe

36 tended citation of supporting authorities.“

He then: stated that in ‘dPdedision of that ease he

would ‘‘pursue the discussion solely on fie ar a ae we

have before stated as follows:“

“The indictment i is introduced in e e un- ae

der Section.1014, R. S. (18 USCA, See. 591), not to

establish the appellant's guilt, but only as evidence to

show that there was cause to believe his guilt ase

5 enough to ant his removal for ißt „

Bei The indictment’ is itself evidence that there was

probable cause for finding it. Of this, however, the

indictment is not ronclusive * its evidential effect

is only prima facie.’’ — : :

Hence the accused may attack it as not charging

a crime and therefore as not showing probable cause.

: The ‘above propositions are stated on-the authority of.

Pierce v. Crèeecy (1907), 210 U. S. 387, and Morse v. United

States (1924), 267 U. S. 81.

In Swan vs. United Slates (1928), 23 Fed. (2d.) 148,

Judge Woolley points out the distinction above adverted ee 0

in the language following: i

“The requisite probable cause in removal cases

may be proved by the indictment as evidence, or by

other evidence without the production of the indict-.

ment, or, indeed, in advance of the indictment. * * *

When it. is sought to be proved by the mdictment, the

instrument is prima facie evidence which may be over-

come by its own terms when they fail to set forth a

crime. Yet no matter how inartificially it may be

drafted, the Commissioner or Judge at a removal hear-

ing has authority to pass upon its effect only in respect

to its proof of probable cause. He has no au-

thority to determine the validity of the indictment when

offered only as evidence. That is the function of the

trial Court.“ i

In Pierce v. Creecy, supra, the distinction betel the

two methods of attack or uses of the indietment in removal

proceedings, is said though narrow, is ne by Mr. Jus-

‘tice Moody: „ .

«The counsel tor the 6 peutioner disclaim the pur-

| pose of attacking the indictment as a criminal plead- |

ing, appreciating correctly that the —_ here is not

a ee

whether the indictment is good enough, over reasonable

challenge, to bring the accused to the bar for trial.

Counsel concede that they cannot successfully attack

the indictment except by showing that it does not

charge à crime. The distinction between these two .

: nar of attack, though l is clear.

— —

He seis Pointe out that the one 00 primary! in iuixy:

, is not the sufficiency of the indictment as a pleading, but,

on the contrary, whether the acts set forth i in the indictment ©

charge a crime, saying:

Before aati further, it is ; walks to set forth

all the objections to the indictment made by counsel, -

in order to see whether, if any one of them is well

founded, it shows that there was no charge of erime

against the petitioner. For if all criticisms of the in-

dictment should be approved, and they leave untouched

in the pleading enough to show that the petitioner was

charged with crime in the broad and practical sense in

which those words ought to be understood, the condi-

tion prescribed by the Constitution has been per-

formed.“

8 After considering the separate exceptions, and point-

ing out that they all present ‘‘a mixed eaten of law and

fact,’’ he concludes that:

„All the other 1 are 3 to a de BA

murrer o or a motion to quash or. in arrest of judgment.

They are attacks upon the ne as a cximinal

pleading.’ # | |

The language following is "particularly —_ 5

the instant case, for he findsthat:

„The indietment, whether good or bad, as a plead-

ing, unmistakably | describes ~~ e xs) the crime

AS ssf faber swearing.”

es oe |

m Morse v. United States (1924), 267 U. 8. 61, the :

essential facts are stated as follows: 5

5 eis “ Appellants, under indictment in “i. District of

\ . Columbia, while passing through New York on Febru-

ary 6, 1923, on their way to Washington for trial, were

arrested and taken from the train by a United States

Marshal upon bench warrants issued on Federal indict-

ments found in New York, charging them with fraud-

„ .. ulent uses of the mails. Previously, their removal to

Bae New York from | Connecticut and Massachusetts, respect-.

\ . ively, for trial under these indictments, had been sought ~

\ under Sec. 1014, Rev. Stat. (Com. Stat., Sec. 1674, 2

Fed. Stat. Anno. 2d ed., p. 654). The br of Harry

F. Morse from Connecticut had been granted by the

\ Commissioner, but, upon habeas’ corpus proceedings,

be had been discharged from custody by the Connecti-

out Federal District Court for want of probable cause,

5 5 principally on the ground that the New_York indict-

ment was insufficient to charge a criniinal offense (287

Fed. 907), although the. e Vork court g previously :

e

After a hearing at which the indictments were offered

in evidenes, together with other proofs, the writs were dis-

missed and Mr. Justice Sutherland states the Besen reason

e support of error, in the following language: s a

It 16 urged that the decision of the ‘Federal Dist-.

ane riet Court in Connecticut, discharging Harry F. Morse,

Was Yes adjudicata and conclusively determined (1)

that the New York bench warrant was illegally issued,

and therefore, cbuld not be ‘made the basis for the s

Sequent arrest in New York; and @y that the indict-

ü nent was fatally defective.’ : UNE

a This Court? 8 answer to the ond ee sinker clear N

ad the rn for the learned J ustice pone out that „

. Proceeds upon a complete misconception of the

„purpose for which the indictment is produced and con-

°*‘Sidered in removal proceedings, and the authoritative

- effect of the ruling of the Commissioner and the Court

on habeas corpus in receipt thereof. The inquiry in

such proceedings is whether there is probable cause to

believe the prisoner guilty and justify his removal for

„ eie . jobsite eee 3

He then says: N „

The indictment was before the Commissioner

Simply as evidence for the purpose of establishing our

tending to establish the commission of an offense; and

the Commissioner had authority to pass upon its effeet

: in that aspect only „„ ith

He then conclides that neither the Commissioner nor the

Court had authority to determine the sufficiency of the ~ :

indictment as a pleading, and quotes the following ex--

cerpt from Mr. Justice Moody, in Pierce v. Creecy (1907),

supra: te FF

“The only safe rule is to abandon entirely the

standard to which the indictment must conform, judged

as a criminal pleading, and consider only whether it

shows satisfactorily that the fugitive has been, in fact,

however inartificially, charged with crime in the ‘State

from which he has fled.” . aA Se *

on In short, in Morse v. United States, supra, it was con- mee

) that the discharge of an accused in removal pro.

tended (a

„„ „

“In other en the Commissioner, or the Court,

in review on habeas corpus, for lack of power cannot

conclusively adjudge the indictment, qua indictment,

to be either good or r bad, or pass sro upon the guilt

or tmnocence of the One

Henry v. Henkel (1914), 235 U. 8. 219, does ‘ik modify

either the law or practice as uniformly announced and ap-

_ plied by this Court. Mr. Justice Lamar, howéver, in the

Henry case, emphasizes the fact that where under all the

' ” proofs a doubt exists as to whether the acts charged i in the

indictment or proved at the hearing disclose a crime, the,

removal Court should refuse the writ and remand the i issue

to the decision of the trial court. :

The facts of Henry v. Henkel and of the natant case,

are similar in so far as the indictment grew out of the

refusal to answer questions before a legislative body. They

differ, however in essential particulars. The He case

‘suggested that the questions asked were neither relevant

nor proper, and stressed the unconstitutionality of the Act

which required the giving of information which was dis-

honorable for the witness to disclose. Counsel i in.that case

255 urged that the unconstitutionality of the statute was 80

clear as to warrant the femoval Court in so. deciding as a

‘matter of jurisdiction. This Court was of different opinion,

and expressing doubt as to its constitutionality, remanded

i the issue to the trial Court for final decision.

That case did not decide the issue raised é in the instant

; petition, namely, should the removal Court decide as matter

0 law, that no crime is charged where the acts alleged in

tze indictment or proved at the hearing, clearly and with- -

cut doubt, negative as matter both of fact and law, the ex-

: eee eee charged.

Mr. Justice Lamar, on page 225, after referring to the |

r e

| fact that the scope of inquiry under the resolution of the

House of Representatives ‘a the activities of national

fin neiers,”” says: Bea

0.

—

s

That the witness ‘was asked to give the Sas

those composing the New York syndicate but 3

to have the right under the Constitution to decline to

answer the question, saying, also, that he did not

want to disclose the names of the participants in the

New York syndicate, although hé tinderstood it to be

the wish of the subcommittee that he should, for the

reason that he would consider it dishonorable 30 reyeal

the names of his customers unless compelled t6 do

a 999 * ys

80. a a —

— . * 4 .

He then states, on page 227, that the defe dad

‘that, “in view of the provisions of the 4th jaiéndment to

the Constitution, neither House can com a citizen to dis-

‘close his private affairs as a basis for legislation.“

‘They therefore contend that the papers show on

their face that there was no jurisdiction to issue the

warrant on which he was held, and that Henry should

not be subjected to, the hardship of being removed to

the District of Columbia to stand trial upon an indict- ~

ment which affirmatively shows that no crime has been

committed.“

. |

He then discusses the law, and. concludes that the

kacts of the Henry case are not within the rule announced

in the cases relied upon by*the petitioner, saying, on page

229: . 1 ; cei 157

5 . Manifestly, this is true as to disputed questions

ok fact, and it is equally so as to disputed matters of

lau, whether they relate to the sufficiency of the in-

dictment or the validity of the statute on which the

charge is based. These and all other controverted

matters of law, and fact are for the determination

: of the trial Co „ . 5 3

5

He then reviews the cases in support of his conelu-. |

; 5 5

19 * t

*

7 Be:

Lion, om is careful to add the principle, 3 in d language which 5

oe particularly tere to. the instant case, saying, on

page 230.

„The- cases cited do not of course, lead to ie

conclusion that a citizen can be held in éustody..or re- a8

moved for trial where. there was no provision of the

- common law or statute ‘making. an Offense of the acts

charged. In such case the committing Court would

‘have no jurisdiction, the prisoner would be in eustédy .

Without warrant of law, and therefore entitled to his

discharge. Greege v. Henkel, 183 U. S. 261,.46 L. ed.

é 189, 22 Sup. Ct. N 218.“ a

g In the suoceeding sentence, he then sets forth the rule

that a statute should, by the removal Court, be declared

unconstitutional only ‘“‘wh-u plainly and palpably void.

eS will then be observed that) the Henry case recog-

nizes the practice and announces the rule herein contended - -

for by respondent, who suggests the only. inquiry in this 4

case is whether the proofs of the instant proceeding so ee:

clearly disclose that the acts charged in the indictment and

proved at the trial, do not constitute any crime as to jus-

» tify the removal Court in so deciding as matter of undis-

puted law or fact.

ot Benson v. Henkel (1904), 198 U. 8 p. 11, is ses an

„authority in ‘accord with Pierce v. Creecy, supra; and

Morse v. U. S., supra. After stating the general rule on

page 10, „That the legal: sufficiency of the indictment is

only to be determined by the Court in which it is found,“

Mr, J ustice Brown. says:

«OF course this Tule * its u Tt ‘the

iqdletment were a mere information 7 obviously, 2 i

ene upon inspection, set forth no crime ainst the. United

States, or a wholly different crime from that alleged 5

as .the, besis for W or if such. Ss lis a

>

*

0

charged to have been committed in another district

from that to which the extradiction is sought, the

Commissioner could not properly gonsider it as

ground for removal. In such cases resort must be

had to other evidence of probable cause.”

? ie 1 i = x 5 ; : °

: 5 ; : ; 8 5 8 * : =e 5 =

0 5 a 5 5 8 ‘ RR d

* 9

om - . st

‘ 2

On the necessity of the indictment setting forth auch

acts as will charge a crime, the learned Justice says:

While the principle laid down in some of the

earlier cases in this Court, that an indictment ‘upon a

"statute is ordinarily sufficient if framed in the lan- 8

guage of the statutes has been somewhat qualified in

later cases, the rule still holds good that where the

statute contains every element of the offense, and an

indictment is offered in evidence before 8 5

tion Commission as proof of probable: cause, it is

sufficient if framed in the language of the statute with | -

the ordinary averments of time and place, and with

such a deseription of the fraud, ifsthat be the basis of

the indictment, as will apprise an ‘intelligent man of

the nature of the tccusation, notwithstanding’ that

such indictment may be open to motion to quash or

motion in arrest of judgment in the court in which it

was originally found. An extradition Commissioner

is not presumed to be acquainted with the niceties

of criminal pleading. His functions are practically

the same as those of an examining pagistrate in an

ordinary criminal case, and if the complaint upon

which he acts or the indictment. offered in support

thereof contains the necessary elements of the offense,

it is sufficient, although a more critical examination peor

may shew that’ the statute does not completely cover | |

+. Rodman os. Pothier, (1923), 264 U. 8. 399, does

not question, but on thé comtrary distinctly announces the

* g

Pe

20

.

law as stated and applied by the Court below. The ques-

tion involved in the Redman-Pothier case was whether or

not the prima facie of probable cause established by the

indictment was overcome by the other facts introduced by

the relator. This question depended on whether or not

the alleged crime was within the exclusive jurisdiction of

the United States, and this in turn on the question whether ae

the United States had acquired title to the land embraced

within a certain reservation. The District Court was of

opinion that, p. 402: i

The defendant has failed to overcome the |

prima facie case made by the indictment and that the

—

evidence fails to show the want of probable cause.

Mr. Justice MeReynolds then points out, p. 402 that:

8 “The Cireuit Court of Appeals (291 Fed. 311)

was ‘of the opinion that no other conclusion can be

drawn from the. evidence than that, at the time the

crime charged in the indictment was committed, the

‘United States had acquired no title in the land em-

braced within Camp Lewis Military Reservation.’

5 being so there is an absolute want of prob-

Fer

to the erime charged.

; He then gives this Court’s concl -the contrary, ©

e the principal question of . jurisdiction

and collateral question of title to the land involved c

-_.. sideration of many facts and seriously conbrovertek ques-

tions of lau, saying on page 402:

We think there was enough to peed probable ;

cause, and that the judgment of the district court is

correct. Whether the locus of the alleged crime was

within the exclusjve jurisdiction of the United States :

for the removal of the appellant to answer

demands consideration. of many facts and seriously

controverted questions of law. As heretofore often

pointed out, these matters must be determined by the

court where the indictment was found.”

At the bottom of page 402, the opinion closes. with 5

the statement: that it is because of the presence of dis-

. puted questions of fact and controverted matters of law;

that these questions were remanded to the trial court. „

3 ‘‘Manifestly, this is true as to disputed questions |

of fact, and it is equally. so as to disputed matters of

law, whether they relate to the sufficiency of the in-

dictment or the validity of the statute on which the

charge is based.. These and all other controverted 115

matters of law and fact are for the determination of

the trial court.“ i

The following late case decided by the U. S. Circuit

Court of Appeals for Second Circuit, is called to the at-

tention of this Court as in accord with che law as by it

announced and applied: od

Dunited States ex rel. Brody v. Hecht (1926), 11 Fed.

Rep. 2nd Ser, 128, wherein the habeas corpus was sustain-

ed on the ground that the indictment and other facts in

evidence not being in dispute clearly established that no

erime was charged in the indictment. 5 5

Circuit Judge Rodgers tersely states the rule as fol-

lows, p. 134: Pan Faris Sa are gee

et must also be admitted that in a removal pro-

ceeding, in which there are disputed questions of fact

or disputed matters of law, such controverted.matters ps

of law or fact must be left for the determination 8

the court where the indictment was found, and cannot

be decided by the court in which the removal proceed-

ing is heard. It is, however, an entirely diff er-

S

i

Eg, ‘ 8 8 8 8 . ; : .

1 * Fr : : j . : ak -

ent matter where in such a proceeding there are 8

dis put ed questions of fact or of law, and it clearly ap-

pears that the offense charged in the indictment was

not committed in the district in which the indictment “a

was found. As : 3

3 a TL.

THE INDICTMENT AS PRIMA FACIE. EVI.

_ DENCE OF PROBABLE CAUSE MAY BE OVER.

COME BY ITS OWN TERMS BECAUSE NOT CHARG-

ING A CRIME. _

. It was on the guthority of Tinsley v. Treat (1906),

205 U. S. 20, that His Honor, Judge Wooley, reached the

conclusion in U. S. ex rel. Haim v. Mathues (1927), 19

Fed. Reporter (2d) 22, that the accused may attack the-

* indictment as not charging a crime, and in Swan v. United

States, supra, that when probable cause “ is sought to be

proved by the indictment, the instrument is prima facie

evidence which may be overcome by its. own terms when

they fail to set forth a crime.”

In U. S. ex rel: Tassell vs. Mathues ( 10260. ul Fed.

R. (2nd), 53, Judge Davis says: :

1 2 If the indictment clearly fails to charge a crime,

it is bad, and a defendant should not be removed to a

district to answer the crime — which 25 has not

been charged. 75 i

. In Tinsley v. Treat (1906), 205: v. 8. 20, in an opinion 5

by Mr. Chief Justice Fuller, this Court said:

et was held in Beavers v. Henkel, 194 U. S. 73;

Benson v. Henkel, 198 U. S. 1; Hyde v. Shrine, 199

U. 8. 62, as well as Greene v. Henkel, supra, that 2 3

. -indictment ‘constituted prima facie evidence of prob- .

able cause, but not that it was arts.

*

We regard that question as specifically presented

in the present case and we hold that the indictment

- eannot be treated as conclusive under Section 1014.

This being so, we are of opinion that the evidence

offered should have been admitted. It is contended _

that that evidence was immaterial, and, if admitted,

could not have affected the decision of either the Dis-

‘trict or Circuit Judge. Of course if the indictment —

Were conclusive, any evidence might be said to be im-

material, but if the indictment were only prima facie,

then evidence tending to show that no offense triable .

in the Middle District of Tennessee had been com-

mitted by defendant ig that district could not be re-

garded as immaterial. _ Wome re

The Constitution provides that ‘The trial of all

crimes, except in cases of impeachment, shall be by

jury and such trial shall be held in the State where

the said crimes shall have been committed’ (Article

III, Section 2); and that ‘In all criminal prosecutions,

the accused shall enjoy the right to a speedy and pub-

lic trial, by an impartial jury of the State and Dis-

triet wherein the crime shall have been committed’

(Amendment VI); and in order that any one accused

: shall not be deprived of this constitutional right, the

Judge applied to to remove him from his domicile to a

district in another State must find that there is prob-

able. oause for believing him to have committed the al-

leged offense and. in such other district. And in doing

this his decision does not determine the question of

guilt any more than his view that the indictment is

enough for the purpose of removal definitely deter-

mines its validity. : ee i

___ Appellant was entitled to the judgment of the

District Judge as to the existence of probable cause

on the evidence that might have been adduced, and

5 8 if the District Judge had thereupon determined |

VVV

that probable cause existed, and, such determination

could not be revised on habeas corpus, it is neverthe-

less true that we have no such decision here, and the

order of removal cannot be sustained in its absence.

Nor can the exclusion of the evidence offered be.

treated as meré error, inasmuch as the ruling involv-

ed the denial of a right secured by statute under the

Constitution.

This conclusion i is fatal to the. order aia warrant -

of removal and requires a reversal of the judgment

below and the discharge of appellant. 5

th Mode vs. United States, supra, Mr. Justice Suth-

erland stated that the indictment was before the commis-

sioner as evidence only for the purpose of establishing or

tending to establish the commission of. a crime.

In Pierce v. Crecy, supra, Mr. J ustice reed —

out that in that case,

„The only condition Which it is insisted i is absent

is the charge of a erime, The only evidence of a

charge of crime is the indictment, and the contention

to be examined is that the n en, is imsuf ficient

: proof that a 1 has been mde. a

He wen points out the distinction e n

the indictment as a criminal pleading, and as a fact in the

proofs evidential of probable ee, saying that i

a % Oounsel conceded that they cannot successfuily

a attack the indietment except: by ree that it does

not Petes a crime. 225

ae eX Henry v. . Henkel, supra, a Justice 3 con-

cedes the right of an accused to attack the indictment as

not a OAKS a crime, in the ere language:

he cases cited do not, of course, lead to the

conclusion that à citizen can be held in custody or re. :

moved for trial where there was no provision of the

common law or statute making an offense of the acts

charged. In such cases the committing Court would oe

have no jurisdiction, the prisoner would be in custody

- without warrant of law, and therefore entitled to his

discharge. Green v. Henkel, 183 U. 8. 261, 46 L.

ed, 189, 22 Sup. Ct. Rep. 218.“ ie whee

“Beavers v. Henkel (1903), 194 U. S. 76, cites the

case Green v. Henkel, 183 U. S. 249, and recognizes the

practice permitted both before the Commissioner and tnhe

removal Court on habegs‘corpus of the accused's rights

to introduce evidence on the question of probable cause

in rebuttal of the prima facie proof of the indietment. 0

In Greene v. Henkel (1901), 183 U. S. 261, the accused

was permitted to attack the indictment: as not charging :

a crime; but this court held on other evidence ‘Being intro-

duced that probable cause was shown,

Every case referred to by petitioner with the excep-

tion of Hyde v. Shine (1904), 199 U. S. 62; Horner vs.

Vnited States (1891), 143 U. S. 570; and Hughes v. Gault

(1925), 271 U, S. 142, herein has been analyzed; and it is

submitted none of thé cases sustain his contention, but are

authorities for the proposition that the remanding court

may discharge the accused if the indictment does not =

charge a crime or all the evidence does not show probable

cause that a crime exists. 1 Wis Satie.

Hyde vs. Shine, supra, is in accord with the law as

“stated by the Cireuit Court. of ‘Appeals on the authority

ok Pierce: vs. Creecy, supra; Rodman vs. Pothier, supra ,

and Morse vs. ‘United States, supra. Mr. Justice Brown

on page 84 says: Meee

een the Federal courts, however, it is well 1 0 a

that upon habeas corpus ‘ins court will not weisti the

evidence, although if there is an entire lack of evt-

‘ dence to support the accusation the court may order

dis discharge. In this case, however, the production

9 of the indictment made at least a prima facie case

against.the accused, and if the commissioner received

evidence on his behalf it was for him to sy whether

upon the whole ee there was proof of cand

able cause.’ tone ee * re

*

: The dissenting 8 by Mr. Justice Peckham con

eurred in by Justices White and McKenna, says, page 86:

„The indietment constitutes prima facie evidence

of probable cause, but evidence may be given to re-

but it.“ a

The h J ustice further. says on page 87:

„The right is none the less, when the want of

: probable cause rests upon conclusive evidence of. the

absence of the defendants ftom the district at the

3 time when the indictment alleges the conspiracy was

__ formed in such district. If defendants were not then

there, they could not be guilty of the rime charged. in

8 the indictment. 7 ae. |

The dissenting a closes: with the following

sentence:

5 “The enforcement of the criminal law should not a

be made oppressive in such cases, and, therefore, ven

b it appears there was no probable cause to found the

indictment upon, the order af removal en be Es ;

fund. e

ae 15 . vs. United States, supra, ‘the accused was

N not — on a wurrant Arber e found, but was

55 arrested on n compli | on oath of a post office inspector —

before a United Sta commissioner. ‘On habeas corpus

it was contended that the circular set forth in the com-

plaint is not included in\the prohibition of Sec. 3894, of

the Revised Statutes ‘(against lottery) and that the ac-

cused committed no offense by depositing the circular in

the mail. The Circuit Court dismissed the petition and

an appeal or writ of error was ken direct to this court

under Section 5 of the Act of M h 3, 1891, because the

* constitutionality. of the Statute was drawn in question.

f This court in an opinion. * Mr. * ustice Blatehford,

on page 577, said:

„But we are of opinion that that b questten ought

not to be reviewed by us on this appeal. The point

raised is that the Austrian bond scheme was not a

lottery. That is a question properly triable by the .

court in which an indictment may be found’ against

Horner. He is now held to await the action, of a

grand jury.“ His case is in the regular course of erim-

inal adjudication. It is not proper for this court on

this appeal, nor was it proper for the Circuit Court,

on the writ of habeas corpus, to determine the ques-

tion as to whether the scheme Was a lottery.“

In Hughes vs. Gault, supra, the indictment was aa bela

sufficient and the accused see gee Mr. J ustice Holmes 5

on page 151 says: ;

„We do not regard thie. attack upon e indiet-

ment as needing discussion.. It has been upheld by a

number of district courts and by the circuit court of «.

Paar for the sixth circuit as sufficient for removal ae

5 The question ‘din 1 was whether or ait the .

. refusal of the e to admit evidence of inno-

25

8

cence was deprivation of a constitutional in contradictine-

tion to a statutory. right under the constitution.

Mr. Justice Holmes after pointing out on page 149

that the Constitution does not require any preliminary

hearing before a person charged with a crime against the

United States is brought into the court nen en

é of the charge, then points out

„ Tinsley v. Treat, 205 U. S. 20, 33, 51 L. otk 689,

695, 27 Supp. Ct. Rep. 430, the conclusion is not that

the appellant by being denied the right to present

any evidence was deprived of his, rights under the

Constitution, but that he was denied ‘a: night secured

by statute under the enen 5

It dues be pointed out that i in this case, Mr. Justice

Brandeis in his dissent was of opinion that :

; ‘by refusing to hear and to consider evidence intro-

‘duced or offered which ‘bore upon the existence of

probable cage, the commissioner * deprived the

d petitioner of hi liberty without due process of law

in violation of the 5th e because he was

a denied a fair hearing. ie

: Reference here . be ade to 1 J sae =

| Woolley’ 8 conception of the law as stated by this court in

Hughes vs. Gault, supra: In United States vs: Mathues.

| (1927 19. Fed. Rep. (2nd) 23, after referring to this

ng the latest authoritative announcement on the

eye he says The law of that case atid of other cases.

there approved is substantially as follows:

„„ „One acoused of crime by indictment i ina , distant 5

district, though liable to trial wherever indicted, can-

not be arbitrarily and summarily removed from the

Veer of his ee niin is entitled to a sca i

.

ary n Such preliminary . is not a pre-

liminary trial. It is had before a committing magis-

trate, who may be a judge, commissioner, mayor of a

city, or justice of the peace, and it is only. such, as

will bring out the probable cause of the charge and

make certain the identity of the defendant. These : are. :

5 the two things that must be established before the

accused can be lawfully removed. In such a hearing

the function of the magistrate is not ministerial but .

is judicial in the limited sense indicated. He must

\

„

N

pass on the question of identity an issue purely of —

fact and also on that of probable cause. The indict-

ment is itself evidence that there was probable cause

kor finding it. Of this, however, the indictment is not

conclusive. Tinsley v. Treat, 205 U. S. 20, 32, 27 *

Ct. 430, 51 L. Ed. 689; its evidential. effect: is only

prima facie. Henge the accused may ‘attack it as not

charging a crime and therefore as not showing prob- |

able cause.“ ö J7JÄÜ (

; ‘THE QUESTIONS: _PROPOUNDED. AS Sf ECR

IN THE COUNTS OF THE INDICTMENT ARE NOT:

_ PERTINENT TO THE INVESTIGATION AUTHOR.

IZED BY THE SENATE.

: The ultimate contention of petitioner is that the perti-

nency of the questions propounded should have been left

to the determination of the trial court and this because E

. fhe remanding court is without jurisdiction in the pr

_ises, This contention ignores the conclusion of this 1

court, that the question of pertineney is one of law and

not of fact and that the burden of pester. pertinency is on n

5 the e

: 9 = re

Qurstion ar PnIxnxOr 1s or Law ron THE Court.

~ Petitioner would seem to suggest that because there

is some question of fact, the determination of pertinency

should be remanded to the trial court.

This court in Sinclair vs. United States (1928) 279 U.

S. 263, in an opinion by Mr. Justice Butler, held in ana-

* to relevancy and materiality that the question of

pertinency arising under Section 102 of the Revised 5

Statutes was of law for the court; and what fe “partion.”

SE SE RNR ae,

8 That it would be. . and contrary to

well-established principles to leave the determination

of such u matter to a jury. 7 N

In this case it has always been the doltention of the

respondent that the question of pertinency was one of law

for the oourt and not one of fact for the jury; and that the

pertinency of the questions being free of doubt, it is clear

as matter of law that no crime was charged in the indict ;

ment. 8

Petitioner i in the e for rehearing suggests ‘that

the Sinclair case also presents reasons why your Honor-

able Court may be disposed to consider the propriety or

granting a reargument'. The Sinclair case did not de-

cide, as petitioner would’ lowe this court to believe, that in-

removal proceedings the trial court must, and the court of

asylum may not decide this question. No question of re-

‘moval on habeas corpus proceedings arose. The qvestion

there was raised by counsel taking the position that the

question of pertineney was one of fact for the jury in

contradietinetion to one of law for the Court; and this

5 Court in anslogy to questions af relevancy held that ae

W was a e of law.

+

31

.. Justice Butler, on page 299, says:

: The reasons for holding ead and material-

ity to be questions of law in cases such as those above

referred to apply with equal force to the determina-

tion of ency. arising under Sec. 102. The matter.

for d rmination in this ease was whether the facts

called for by the question, were so related to the sub-

jects covered by the Senate’s resolutions that such

facts reasonably could be said to be ‘pertinent to the

question under inquiry. It. would be i incongruous and

contrary to well-established principles to leave the

determination of such a matter to a jury. 6

Belas or Pnoor or Perrivexcy. .

. Sinelair vs. United: States also settled another i impor-

tant and controverted question which arose at the first

and second arguments of the instant case, and that is the

party on whom rests thé burden of showing the pertinency .

of the questions. His Honor Circuit Judge Buffington

held in United States vs. Barry (1928) 29 Fed. (2nd) 817, .

that the burden rested on the Government, saying on page

821,

But a ruling on the admissibility of M080 is

not made on surmises. It is based on the ground that

the burden of showing the relevancy’ of any testi-

de eee

Sive it.“

Mr. r matter

of law that in criminal prosecution inder Section 102 of

the Revised Statutes the burden rests on the United

States to plead and show that the questions pertained to “a

some matter under investigation. He says on page 296:

“Appellant earnestly maintains that the question

was not shown to be pertinent to any inquiry the com-

2.

*

mittee was authorized to make. The United States

suggests that the presumption of regularity is sufii-

cient without proof. But, withont determining whether

that presumption is applicable to such a matter, it is

enough to say that the stronger presumption of inno-

cence attended the accused at the trial. It was there-

fore incumbent upon the United States to plead and

show that the question pertained to some matter 3

der investigation.

eee ee

The pertinency of the questions propounded has come

to the attention of the District. Court Barry v. United

States ex rel. Cunningham, 25 F. (2d) 733, the Circuit

- Court of Appeals in an opinion filed May 17, 1929, United

States ex rel. Cunningham v. Matheus and this court.

Barry v. United States ex rel. Cunningham (1928) 279

U. S. 597, in this removal proceeding and in the collateral

senate warrant of arrest proceeding ‘in United States ex

rel. Cunningham Appellant vs. Barry of United States

Senate et al. (1928) 29 Fed. (2nd) 817. The Ciregit Court

of Appeals, howeyer, is the only court. that has expressly

passed upon as. matter of law, the perce. of the

propounded questions. .

In United States vs. W supra, in an el = i

Judge Buffington, the Circuit Court of Appeals held. that

the questions were not pertinent, and in the instant case

in the opinion filed by the same Judge, said: :

dude entire evidence constituting. the alleged

crime with which the relator is charged is contained

in the’ indictment. It consists in the refusal to an-

tirely to the primary election. If the questions were

pertinent to the investigation authorized by the 3

eee probable cise das been established, but if

0 33

they were not pertinent, it bas not pine established.

We recently considered the pertinency of these very

-' questions in the case of United States ex rel, Cun-

ningham v. Barry, 29 Fed. (2d) (817) and there said:.

After full consideration, we are of opinion

no facts, reasons, or grounds have been shown or

now appear which make pertinent the inquiry in-

to how Cunningham made the money which he

admits he contributed. That a situation might

arise where the facts would show. such questions

were pertinent goes without saying, but under

: _. the present situation and no such facts appear- |

e ing, we hold Cunningham was justified in de-

clining to answer the questions asked him, and

that this warrant, whose only foundation is al.

leged contempt for refusal to so answer, has no

support in law. Accordingly we hold the court

below was in error, and the record will be re-

e een eee soe.

titioner. ”’ | veh

: The opinion of the Circuit Court of Abele in the

Barry case is reported in 29 Fed. (2nd) 817, and the opin-

ions of that Court after the first argument and reargument

‘are found respectively on page 261, ed (2d) and Ap-

_ pendix ‘‘A”’ of this brief. Peers

Dodge, Digktdweettir Ute opinion Meshirging: tee weit, ae

ee ere ee “es

said on page) E) cen

or Meg ee ur 8 Ie 5

tions asked is hot one by which we should determine

the other question of whether this defendant should

55 ↄ any eer beth occa my asi

-@pinion upon the question of pertinency further than

the statement of the broad proposition that be de-

2 : = N 34

eline to Tule that no substantive offence i is + charged i in

this indietpent. 7 g

—

Beer ‘Petitioner in, the Matheus case in a petition fi for a

writ of certiorari page 6 says:

„The pertinency of the 5 affirmatively

appears from as transcript of respondent's ‘testi- |

a 2 8 |

and the inference might frise as contended for by peti-

tioner on reargument, as therein stated, since this tes-

timony was recited in the opinion of this court in Baur

vs. United States ex rel. Cunningham (1928) 279 U. 8.

597, that this court had passed on the pertinency of the N

questions propounded. This court, because unnecessary

in express terms refused to pass on oe perenne of the

questions.

. Mr. Justice Sutherland in Barry vs. U nited States: e

f 1 Cunningham, supra, after pointing out that the Cir-

0 euit Court of Appeals had held

„That the information sought to be elicited and =

which Cunningham refused to give was not pertinent

to the inquiry authorized to be made by the Commit-

tee and that Cunningham was justified in declining to

answer the questions in respeet thereo * . in

support of its conclusion of error:

We must accept this unequivocal language as ex-

pressing the purpose of the Senate to elicit testimony

in response to questions to be ‘propounded at the bar

of the Senate, and the question whether the informa-

tion sought to be elicited from Cunningham by the

committee was pertinent to the inquiry which the com-

i mittee had heen directed to make may be 125 aside as

immaterial.“ 2 .

é 2 ae

: e 38.

The opinion then concludes :

et is not necessary to determine whether the i in-

— formation sought was pertinent to the inquiry before

the committee, the scope of which was fixed by the .

provisions. of the Senate resolution. But it mighnßt

well have been pertinent in an inquiry conducted by

the Senate itself, exereising the full, original and un-

qualified power: conferred by the Constitution. 33

Circuit J dak Buffington 3 in the opinion of the Circuit

Court of Appeals, after reargument, in determining that

the Barry case did not rule the instant habeas sab pro-

- ceeding says:

„The indictment in the 3 3 * * * con-

cerns solely what had already taken place before a

committee of the Senate. When Cunningham refused

to answer the questions propounded by that commit- N

tee, his crime * * was complete and for that. com-

pleted crime he Was jndicted. As his entire acts

were set forth in the indictment, the court, on the ap-

plication. for removal, was required to determine

_ whether probable cause was shown * * * we held the

Jack of probable cause was shown in that the inquiry

made of Cunningham was not pertinent. because no

power had been conferred by the Senate on ie: com-

mittee to make such inquiry.

» * the ease of Barry v. Cunningham, supra, as

held by the Supreme Court, concerned what took place

afterwards, namely, the action of the Senate in at-

taching anningham and bringing him before it?

_ ‘to answer such questions pertinent to the matter

under inquiry as the Senate may propound,’ * * *-

lt will thus be seen that so far as questions to Cun-

ningham are concerned the indictment in the present

case concerned e soe asked and refused

to i answered, while the Barry case concerned ques-

sie to: be asked 4 in the future. ee :

t is then evident that the Cirenit Court of Ap- !

tions, and that no opinion of any judge or court ques-

a the correctness of the conclusion reached by that

-court as to their non-pertinency.

It i is suggested that the opinion of J udge Dickinson

pe Is alhne has passed on the pertineney 2 the ques-

uld seem to indicate 1] that the questions were not perti-

pi, It may also be argued that if either Judge Dick-

inson or Judge Woolley had been. of opinion that any:

of the questions were pertinent, intimation could and

probably would have been given to that effect. It may

also be suggested that if this court had been of opinion

that the questions were pertinent when asked by the com-

mittee, there would have been no necessity for the

distinction as made by Justice Sutherland in the Barry

case, and with propriety and logically this court could

*

have finally decided that the questions were pertinent

when propounded within the limitations imposed on the

‘ferred by tue Constitution.

—— Her —

It is deemed sufficient in considering the Wehe of

committee as well as when asked by the Senate itself e.

ercising the full, original and unqualified power con-

pertineney only to advert to the scope of the investigation

and to the manner in which the ee by the witness 8

were met.

Resolution 195 of the 69th Congres’ ‘suthorized the

appointment of a Special Committee, defined the scope dt

its inquiry and granted to it powers incidental : and neces-

. sary to the performance of its duties.

The limit of the authority of the special Wee :

= was in its Ianguage to e what moneys e

=

7

: things of value * have been promised, contributed,

made or expended :* * * by any person, firm, corporation

or committee, organization to. influence: the nomination’ of.

any person as a candidate for membership in the

United States Senate, or to contribute to or promote the

election of any person as a member of the United States

e at the general election 1 to be. held in ‘November,

1926. aa 3

The resolution then . the Committee to ste: z

port the names of the persons, firms or corporations, ete.,

that have made * * * such promises * or pay-

ments and the amount of them N together with all facts

in relation thereto.“

The funds of money raised, the names of ‘dis contri-

butors and the amounts contributed together with the

relevant facts to influence the nomination of any person

as a candidate for the United States Senate at the general

| election to be held i in November, 1926, constitute the sub-

ject-matter and embrace the none of the Committee’ s au-

thority.

The witness testifled truthfully and concisely to his

official position and the different business in which he.

was interested; to the facts (a) of two contributions, (b)

the amount of each (e) the form in which made (d) to

whom and (e) when the respective contributions were

made; and specifically testified that (f) the contributions

were his personal donation and 0 g) from his personal oa

estate.

He refused to answer any N (a) tonching up-

on his wealth or (b) the course or (e) the manner of its :

accumulation of (d) out of what part of his pers a

estate either contribution came, or (e) how. long we part

contributed had been his property. |

The opinion of the Circuit. Court of Appolle at great 5 ö

length sets forth the questions which respondent an-

_Swered, as en, ‘as the questions bearing on the —

8 a

38 „„

Weh he answered fully and also the questions Which he 5

did not answer because by him deemed not pertinent. The

opinion then states the scope of the i inquiry as follows:

+

“Turning, then, to. the underlying question, Was

Cunningham in contempt in declining to answer the

questions asked?’ The answer to that is, Were such

questions relevant to the inquiry the Committee was

authorized to make?. That inquiry, so far as here =

pertinent was to investigate what moneys * * .* have

been * * * contributed * * * by any person OR ty

influence the nomination of a: any person as a candidate |

„„ for membership i in the United States Senate at

the General Election to be held in November, 1926.’

Such being the items of inquiry, the resolution pro-

vided for a report thereof to the Senate by the Com-

mitttee of such items, viz., said committee shall re-

5 port the names of the person * * * that have made

en payments and the amounts by them sever-

ally contributed: * * * including the methods of ex-

N penditure of said sum * together with all facts

constituted the scope of the committee’s

in relation thereof.’ And that the matters An specified .

quiry was

evidenced by the resolution providing for imposing

the penalties of Revised Statute 102 upon a witness

ho ‘having appeared refused to answer aff ques-

tion pertinent to fhe 3 heretotor@@athor- |

| ined“ = 5 =

The opinion then. abil with careful “ica to =

8 point out that the respondent had given full testimony —

and complete answer on every possible element of the in-

quiry and that the questions a eat a are not per 2

bent, seying:

Turning to ‘the inquiry 3 3 as

est “authorized, we note that ee as hearing

*

*

a

n ‘what moneys * * * haves hous contributed,’ tee-

ified he had contributed fifty thousand dollars. As

bearing on the question whether such money was con-

tributed to influence the nomination of any person

candidate, for membership in the United States

Senate testified that he paid the money to Thomas

F. Watson, treasurer of a political organization which

was supporting the Vare for nomination for Unite

States Senator and Beidleman for Governor; that

date his whole object in giving the money was to as-

the ticket I would not have given it.’ Touching the

subject of investigation described: as eee the

method of expenditure of said sums, Cunningham

testified he did not know whether his contribution had

been reported in Beidleman’s campaign expenses, add-

ing ‘I instructed Mr. Watson what my thought was ö

about it.’ It will thus be seen that Cunningham an

swered the questions asked him on the subjects speci-

committee, so far as the inquiry concerned him to.ful-

fill the specified duties of their appointment, viz: to

report payments and the amount by them sev-

erally contributed * * * including the method of ex- .

penditure of said sums.“ Such being the case, we do

not see that proof of how Cunningham came by the

money he says he thus persenally contributed, could

- affect the objects. of investigation r referred to y by the

Senate to the Committee. 5

It i is evident that the SEES — the indictment do not :

disclose the essential elements of the crime charged in that

standing alone, none of the counts shows the pertinency *

the questions propounded; but clearly and without dispute

of either fact: or law, are not within the N of the oom.

mittee’s oer

„while he favored and supported Vare as a eandi-

sist Beidleman, and if Beidleman had not been on

fied in the resolution and that his answers enabled the : 3

on

No effort is ade $ in as s argument to) t the 3

burden which the law imposes on him to show the Me 5

i neney of the questions, o r than to urge their pertine

to test credibility.

N It may N argued that the e having given all the

*.

i 2

*

information within his knowledge and contemplated under

the authority of the Senate, should not be eXposed on mere

surmise or suspicion to a cross-examination for the purpose

of testing his credibility; and that the Committee should

indulge the presumption that a witness is telling the truth’

who voluntarily appears in discharge of his duty as‘a cit-" :

inen before a Committee.

It is not suggested that Congress must be bound 1 the

testimony of the witness, nor that it be precluded from

asking any question that may be material or relevant to the

legislative inquiry, but only urged the necessity of ending

questions that impinge on his personal affairs, when the

witness has given all information essential to or within the

scope of the legislative inquiry and theregis no known fact

which impeaches the truth of his testimom

Attention should be called to the Ge of Sinclair vs.

United States (1928), 279 U. S. 263, fo:

Butler reviews the cases which emph

erein Mr. Justice

the caution with

which this Court will safeguard the individual against un-

i reasonable i 5 into his personal affairs.

‘SUMMARY.

_ Respondent 3 petitioner’ 8 ¢

diotment i is conclusive of. probable c@se and that the trial —

iction to determine

court consequently has exclusive j

the existence of a crime. He submits

that the indictment _ )

when offered in evidence as proof of probable cause may be

attacked if its counts do not charge a crime. and this be-

cause the existence of a erime is the most essential element :

in the determination of probable cause.

a burden was on e to ee that the ques-

* 225 ys \ :

jae 2 72

ie 5 8 55 “

x 2 4 4

— 5

tions serene b to some eerie under Westi

gation by tlie Senate committee; and the determination of

the question of pertinency is one of law for the court of

asylum and not of fact for the trial. court. :

I The entire evidence of probable cause or its lack con- a

‘sists alone of the indictment and the transcript of the notes

of testimony; and consequently the facts i in evidence are

free from doubt or dispute. f

aoe It is evident that the respondent: gave to the committee

all information that it was possible for him to give within

the scope of its inquiry or that could aid, it in any manner

in the performance of its duties; and it is crystal clear that

the questions by him not answered related to personal af.

fairs of the most delicate nature, and properly regarded no

all men as sacred. 88

It is, further suggested that this court is hon jur-

isdiction because paragraphs 4 and bꝰ of Section 240

ol the Judicial Code, as amended by the Act of February

13th, 1925, following: 5

% (a) In any wane, civil or criminal, in a circuit.

court of appeals, or in the Court of Appeals of the —

District of Columbia, it shall be competent for the

Supreme Court of the United States, upon the peti-

_tion of any party thereto, whether Government or 5

other litigant, to require by certiorari, either before

or after a judgmen or decree by such lower court,

that the cause be certified to the Supreme Court for

detérmination by it with the same power and au-

thority, and with like effect, as if the cause ‘had been

brought there by unrestricted writ of error or appeal..

( b). Any case in a cireuit court of appeals where

is drawn in question the validity of a statute of any

State, on t und of its being repugnant to the

Oionstitution, treaties, or laws of, the United States,

2 . the e is . its validity, may at the f

. 13

election of the party relying on such State statute,

be taken to the Supreme Court for review on writ —

of error or appeal; but in that event a review on

certiorari shall not be allowed. at the instance of such i

party, and the review on such writ of error or ap-

* peal shall be restricted to an examination and de-

cision of the Federal questions presented in the

case. 9? : . ¥

ee must be feud together, ing me neither the Constitution nor

any statute is construed. Paragraph ‘‘a’’ does not en-

„large the jurisdiction; it permits direct appeal in any

criminal or civil case only when. apps! is allowed ok the

other sections.

ee oP nelusion, iti is submitted that the pivotal inquiring }

in this proceeding ‘then is, whether the questions pro-

pounded are pertinent; and it is suggested that this is sobũ .

free frem doubt as to permit the remanding court to on-

dlude, as stated by the Circuit Court of Appeals, that the 4

indictment’s. prima. facie evidence of probable cause is

overcome by its own terms in failing to anne a crime. **

The petition should be dismissed.

: All of which 'i is nt subthitted.

BNA UHH M. Gol nn,

Orro Kraus, In.,

Jonx W. Dickerson,

. Rosy R. VaIn,

ext, h for Appellant

*

. eee

oS

wane

*

*

ee es 1

2 gare ony 8 : 3 He

5 * INTHE |.

UNITED STATES CIRCUIT COURT OF APPEALS, |

Fon rae TAD Omcurr. 3

Ve.. 3857. October Term, 1928.

“

UNITED STATES OF AMERICA mx mm.

. THOMAS W. CUNNINGHAM, =

| ‘il See.

+

5.

W. FRANK MATHUES, ee ee e 85

r eS Lite Leere

Ahr! FROM THE Disraaor Cours 0 OF n Unna Srarns FOR

Tun n ee or PENNSYLVANIA. )

4

(ved June 13, 1980, 2

. — 5 N ‘ {>

2 Burrixarow, Wootaaky and an oo Judges.

xerox, J. OY ghd aa? cee hr ie dale

After the opinion of this Court was , filed, the case of

Barry v. Cunningham, 279 U. S. 597, was decided. There-

upon the Government, conceiving that our ‘decision was at

“variance with the holdings of the Supreme Court in that

case, moved a rehearing be had. The motion was granted.

and such rehearing was given, .On due consideration the

3 members, of the Court: adhere to their views ep ex-

„

*

1 17

15 oe x 1 : ‘ 5 N N

1 & — . 2 5 9

pressed in the opinion and the dissent heretofore filed. We

2

therefore confine the present opinion to a brief statement

\

of why we do not regard the Barry case at ruling the present

one. .The indictment in thé present case in the Federal

Court for the District of Columbia concerns; solely what

had already taken place before a Committee of the Senate. .

When Cunningham refused to answer the questions pro-

pounded by that Committee, his erime of contempt, if such

it be, was completé/and for that. completed crime he was.

indicted. -As his entire acts were set forth in the indict-

ment, the Court, on the application for removal, was re-

.

4

5 FY

1

0 .

*

quired to determine whether probablé cause was shown.

On that question we lield the lack of probable cause was

shown in that the inquiry made of Cunningham was not per-

tinent because no*power had been conferred by the Senate |

on this Committee to make such inquiry.

On the other hand, the case of Barry v. Cunningham,

supra, as held by the Supreme Court, concerned what tdok

place afterwards, namely the action of the Senate in attach-

ing Cunningham and bringing him before it then and there

or elsewhere as it may direct, to answer such questions perti- |

nent to the matter under inquiry as the Senate, through its |

aid Committee, or the President of the Senate, may pro-

dase concerned questions already asked and refused to be

answered, while the Barry case concerned questions to be

pound,“ ete. It will thus be seen that so far as questions to

Cunningham are concerned the indictment in the present

asked in the future. In deciding the case before it, the Su.

2 Court explicitly stated what it did and what it did

ot decide, namely,

in response to questions to be propounded at the bar

of the Senate, and the question whether the informa-

tion sought to be elicited from Cunningham by the com-

mittee was pertinent to the inquiry which the commit

9.

7 tee had been directed to make may be put aside as im 5

material.

It results that the following are the sole ques-

tions here for determination: (1) whether the Senate

wis engaged in an inquiry which it had constitutional

power to make; (2) if so, whether that body had power

. to bring Cunningham to its bar as a witness by means

of a warrant of arrest; and (3) whether as a’ neces-

sary prerequisite to the issue of such, Warrant of arrest

a subpoena should first have been * and dis:

obeyed. ats

—

0 ie:

This: 3 of the pertinency of those questions,

which the Supreme Court thus stated it did not pass upon,

is the very, question which we did then pass upon and which: io

we are now constrained to pass upon in the present case. FoR

Adhering, as we have said, to the respective views here

‘fore held on that question, we adhere to our previous opi

\ion and in doing so, we do-not, in our 1 Wisregard’ the

holdings of the 2 Court. a | jae 2 |

x true Copy: . |

| Vestei .

Clerk of the United States Circuit Court of

Appeds the Third Circuit.