# Brief for the Respondent in Opposition — Fetters v. United States Ex Rel. Cunningham > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0052%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Respondent in Opposition - **Published:** January 1, 1931 - **Citation:** 283 U.S. 638 ## Text _ 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0052%3A4. Public record. Not legal advice.