Opposition Brief — Hemans v. United States

BE INDEX

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CITATIONS

Cases:

E: Barrow v. Owen, 89 F. 2d 476__.._-___--____._________- 1l

Brooks v. United States, 267 U. S. 482__._._._._________- il

Hoke v. United States, 227 U. 8. 308_____._____________- 13

Horning v. District of Columbia, 254 U. 8. 135._________- 13

Jerome v. United States, 318 U.S. 101________._________ 12, 19

McGunnigal v. United States, 151 F. 2d 162, certiorari de-

; LIE te i PBR es ag oes ee oe wae 13

- Screws v. United States, 325 U.S. 91__.._._____________- 12

: Simmons v. Zerbst, 18 F. Supp. 929__.._________________ 11

; United States v. Brandenburg, 144 F. 2d 656_____________ 19, 20

; United States v. Miller, 17 F. Supp. 65_____..__________- 11

: United States v. Wheeler, 254 U. 8. 281__._______________ 13

: United States v. Worrall, 2 Dallas 384__.________________ 18

cS United States v. Wurzbach, 280 U.S. 396_______________- 13

- Constitution and Statutes:

: Constitution:

SR ag ae ee SOR PSE AST 13, 14

: SE OMNI oc a tat et pee ee Se oe 14

4 Anti-Racketeering Act, 18 U. S. C. 420 (a)—(e)__________- 10

Fugitive Felon Act of May 18, 1934, c. 302, 48 Stat. 782, 18

’ NI inna hc » a Saxdindaiowdeadibadie We cake Gasdaltad 3, 10

“ National Stolen Property Act, 18 U.S. C. 413 et seq______- 10

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e ND ins tn ons cnncdgnkactocanbacwed 11

4 Michigan Statutes Annotated:

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4 NGS Cc0d xd Ka bisa ec Ceakonceawawenn bain 4

4 NN ke i no ee ae 5

. (1)

761565—47——_1

u

Miscellaneous: Page

Clark and Marshall, Crimes (4th Ed., Kearney), §§ 8-17... 19

Congressional Power to Restrain Interstate Flight of

Witnesses ia Criminal Cases, IV Detroit Law Rev. (June

BODO, Te BR oaciicwccvncinvitcronntincctscdnccoecace il

Crime Laws of the 78d Congress, Govt. Print. Office, Wash.,

WR nncdcnssecscsscdecssciscascccdusccasccccccccs 10

Michael and Wechsler, Criminal Law and Administration

CROGED, Bre WEBB nics nc ccc cnc ccccnnccsccccccecceee 18

Problem of Fugitive Felons and Witnesses, The, 1 Law and

Contemporary Problems (October 1934), 415... ......- ll

Wharton, American Criminal Law (5th Ed. 1861), c. 1... 18

Inthe Supreme Gourt of the United States

Ocroser TERM, 1947

No. 299

CHARLES F. HEMANS, PETITIONER

Vv.

UNITED States or AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the circuit court of appeals (R.

101-120) has not yet been reported.

JURISDICTION

The judgment of the circuit court of appeals

was entered July 28, 1947 (R. 100). The peti-

tion for a writ of certiorari was filed August 25,

1947. The jurisdiction of this Court is invoked

under Section 240 (a) of the Judicial Code, as

amended by the Act of February 13, 1925. See

also Rules 37 (b) (2) and 45 (a), F. R. Crim. P.

(1)

2

QUESTIONS PRESENTED

Petitioner wags a witness before a so-called one-

man grand jury in Michigan which was investi-

gating illegal tampering with the state legislature.

A warrant was issued by the grand jury for the

arrest of the alleged conspirators, and arrange-

ments were made for their preliminary examina-

tion before a state judge to determine whether

they should be held for trial. Petitioner was ad-

vised that he would be needed as a witness at that

preliminary hearing, but he left Michigan to

avoid having to testify. Thereafter, he was in-

dicted and convicted under the fugitive witness

provision of the federal Fugitive Felon Act.

The questions raised by the petition are:

1. Whether the fugitive witness provision of

the Fugitive Felon Act is unconstitutional on the

grounds that—

a. Congress lacked power to enact such a

statute ;

b. The statute is indefinite and uncertain, and

improperly incorporates state criminal laws which

are indefinite and uncertain ;

ce. The statute contravenes the constitutional

right of a person to move freely among the states.

2. Whether an offense was committed under the

fugitive witness provision in that—

a. No “‘eriminal proceeding,’’ within the mean-

ing of the statute, was pending in Michigan when

petitioner left ;

3

b. No felony, within the scope of the general

common law, was charged in the Michigan pro-

ceeding ;

c. Even under Michigan law no felony was

charged.

STATUTE INVOLVED

The so-called Fugitive Felon Act of May 18,

1934, ¢. 302, 48 Stat. 782, 18 U. S. C. 408e, pro-

vides:

It shall be unlawful for any person to

move or travel in interstate or foreign

commerce from any State, Territory, or

nossession of the United States, or the Dis-

trict of Columbia, with intent either (1) to

avoid prosecution for murder, kidnapping,

burglary, robbery, mayhem, rape, assault

with a dangerous weapon, or extortion ac-

companied by threats of violence, or at-

tempt to commit any of the foregoing, un-

der the laws of the place from which he flees,

or (2) to avoid giving testimony in any

criminal proceedings in such place in which

the commission of a felony is charged.

Any person who violates the provision of

this Act shall, upon conviction thereof,

be punished by a fine of not more than

$5,000 or by imprisonment for not longer

than five years, or by both such fine and

imprisonment. Violations of this Act

may be prosecuted only in the Federal

judicial district in which the original crime

was alleged to have been committed.

4

STATEMENT

On September 16, 1946, a one-count indictment

was returned in the District Court for the East-

ern District of Michigan, charging that on or

about August 28, 1946, petitioner violated the

Fugitive Felon Act in that he moved and travelled

in interstate commerce from Ingham County,

Michigan, to Washington, D. C., with intent to

avoid giving testimony in a certain criminal pro-

ceeding then pending in the Ingham County Cir-

euit Court in which the commission of a felony

was charged (R. 1-2).

Petitioner’s motion to dismiss the indictment on

the grounds that it failed to state an offense and

that the statute was unconstitutional (R. 4) was

denied (R. 5). After a jury trial, petitioner

was found guilty (R. 24) and sentenced to im-

prisonment for four years and to pay a fine of

$1,000 (R. 25). On an appeal raising, inter alta,

the same questions as are presented by the peti-

tion here, the conviction was affirmed (R. 100).

The facts in support of the conviction may be

briefly summarized as follows:

Operating under a Michigan statute, set out in

the margin,’ providing for a so-called one-man

1 Sections 17217 and 17218 of the Compiled Laws of Michi-

gan for 1929 (Michigan Statutes Annotated, Sections 28.943

and 28.944) provide:

“28.943 Proceedings befdre trial; investigation of sus-

pected offenses by judge or justice; summoning witnesses,

inquiry, compensation. Sec. 3. Whenever by reason of the

filing of any complaint, which may be upon information and

5

grand jury, an investigation was in progress in

Ingham County, Michigan, in 1945 and 1946 with

respect to improper influences leading to the

earlier passage of certain banking statutes by

the state legislature (R. 33-34). Around October

1, 1945, the duties of one-man grand juror for

that investigation were assumed by Judge Louis

E. Coash, a Cireuit Judge for Ingham County

(R. 33). Judge Coash testified below that in

belief, any justice of the peace, police judge or judge of a

court of record shali have probable cause to suspect that

any crime, offense, misdemeanor or violation of any city

ordinance shall have been committed within his jurisdiction,

and that any person may be able to give any material evi-

dence respecting such offense, such justice or judge in his

discretion may, and upon the application of the prosecuting

attorney, or city attorney in the case of suspected violation

of ordinances, shall require such person to attend before him

as a witness and answer such questions as such justice or

judge may require concerning any violation of law about

which he may be questioned ; and the proceedings to summon

such witness and to comre] him to testify shall, as far as possi-

ble, be the same as proceedings to summon witnesses and com-

pel their attendance and testimony, and such witnesses shall

be entitled to the same compensation as in other criminal

proceedings.

“98.944. Same; apprehension of suspected person ; removal

of public officers, procedure; disclosure of statement. Sec.

4. Ifupon such inquiry the justice or judge shall be satisfied

that any offense has been committed and that there is prob-

able cause to suspect any persori or persons to be guilty

thereof, he may cause the apprehension of such person or

persons by proper process and, upon the return of such

process served or executed, the justice or judge shall proceed

with the case, matter or proceeding in like manner as upon

formal complaint. And if upon such inquiry the justice or

judge shall find from the evidence that there is probable

6

connection with this investigation, petitioner,

then a member of the Michigan Bar (R. 37),;?

appeared before him as a witness several times

(R. 34, 40) and was granted immunity by him

(R. 34, 38-39, 48, 52, 53-54). On April 25, 1946,

a subpoena was served on petitioner requiring

him to appear before Judge Coash, in his capa-

city as a one-man grand jury, ‘‘from day to day,

and at such other times as the Court may order’’

to testify in a certain cause entitled ‘‘in the mat-

ter of the complaint of Herbert J. Rushton, At-

torney General for the State of Michigan, for a

judicial investigation concerning certain criminal

offenses’ (R. 37, 40-42). That subpoena was

cause to believe that any public officer, elective or appointive

and subject to removal by law, has been guilty of misfeas-

ance or malfeasance of office or wilful neglect of duty or of

any other offense prescribed as a ground of removal, the said

justice or judge shall make a written finding setting up the

offense so found and shall serve said finding upon the public

officer, public board or body having jurisdiction under the

law to conduct removal proceedings against said officer. And

said finding shall be a sufficient complaint as a basis for

removal of said officer and the public officer, public board

or public body having jurisdiction of removal proceedings

against said officer shall proceed in the method prescribed by

law for a hearing and determination of said charges. And

in respect of communicating or divulging any statement

made by such witnesses during the course of such inquiry, the

justice, judge, prosecuting attorney and other person or per-

sons who may, at the discretion of such justice, be admitted

to such inquiry, shall be governed by the provisions of law

relative to grand jurors.”

? Petitioner resigned from the Michigan Bar on May 7, 1946

(R. 37, 48-49).

a as

7

still in force when petitioner left Michigan in

August 1946 (R. 37).

On July 20, 1946, Judge Coash,. acting under

the one-man grand jury statute, issued a warrant

of arrest for 24 of 28 persons named therein as

having unlawfully conspired among themselves

and with other unknown persons—

* * * to obstruct the due course of

legislation and wilfully and corruptly to

affect and influence the action of the Legis-

lature of the State of Michigan, the Senate,

the House of Representatives, divers mem-

bers thereof, and the Assistant Attorney

General assigned to act as the Legal Ad-

visor to the Governor of the State of Mich-

igan, and the Governor of the State of

Michigan, in the consideration of and ac-

tion on certain proposed legislative meas-

ures then and there pending in and before

said Legislature, Senate, and House of

Representatives, and Governor of the

State of Michigan, and which might by law

be and was brought before the said As-

sistant Attorney General in his public ca-

pacity, to-wit, Senate Bill Number One

of the sixty-first Michigan Legislature,

regular session of 1941, entitled; * fk Sod

and divers other measures and bills then

and there pending in and before said Leg-

islature, the Senate, and the House of Rep-

resentatives and Governor of the State of

Michigan, and which by law might be

brought before the said Assistant Attorney

761565—47——2

General in his public capacity by then and

there offering, tendering, promising, giving

and receiving bribes, money, and other

things of value; and by the actual giving

and receiving of the same; and by the wil-

ful, unlawful, malicious, corrupt, and felon-

ious employment for money and other

things of value of said Assistant Attorney

General as attorney and agent for them-

selves, the aforesaid conspirators and the

Michigan National Bank, a private Na-

tional Banking Corporation, to aid and

assist in defeating said proposed legisla-

tion by representations, opinions, state-

ments and arguments unfavorable thereto,

to the Legislature of the State of Michigan,

its committees and members, and to the

Governor of the State of Michigan, con-

trary to, and in abuse of, the powers of the

aforesaid public office, and in corruption

of the aforesaid public office, and in mis-

conduct in the aforesaid office and in rela-

tion to the duties of said office, * * *.

(R. 6-7.)

The warrant specified by name various of the

conspirators who were members of the state

legislature or officials of the state or who gave or

offered bribes. Petitioner was named as one of

the conspirators who had offered bribes, but the

warrant did not direct that he be arrested.’

° Apparently petitioner was not named as a defendant be-

cause of the immunity that had been given him for testifying

before Judge Coash and because he was needed as a prosecu-

tion witness.

9

Following the issuance of the warrant, all of

the defendants named therein were notified to

appear for arraignment on or before July 23,

1946, and, after several delays, all but one (who

was arraigned subsequently) appeared for ar-

raignment by August 15, 1946 (R. 36). After

several continuances, September 10, 1946, was

set as the date for their preliminary examination

before Chester O’Hara, a Circuit Judge for

Wayne County, Michigan, to determine whether

they should be bound over to the circuit court for

trial (R. 37, 39, 50, 55).

Petitioner was advised that he would be needed

us a witness at the preliminary examination be-

fore Judge O’Hara (R. 56-57). However, he

stated that ‘“‘he would not testify unless ne had

to” (R. 45, 48, 64). Judge Coash testified that

petitioner told him that the principal reason he

did not want to testify was because he had been

taken off the grand jury payroll, from which he

had been receiving $600 a month, and told that

in the future he would only receive regular stat-

utory witness fees (R. 45-46). Petitioner con-

sulted an attorney to determine whether the im-

munity previously granted him could be revoked

and whether the Michigan authorities could com-

pel his removal from the District of Columbia

(R. 60-61). ‘Then, in the latter part of August

1946, petitioner left Michigan and went to Wash-

ington, D. C. (R. 58-59) ; this action on his part

precluded service of a subpoena upon him to ap-

10

pear at the September 10th hearing (R. 66).

Early in September, certain Michigan prosecut-

ing officials went to Washington and talked to pe-

titioner about returning for the September 10

hearing, but he told them he would not return

and be a witness at that hearing (R. 59-60, 61-

62). Petitioner was not present when called to

testify at the hearing (R. 62).

ARGUMENT

1. (a) The unsoundness of petitioner’s chal-

lenge (Pet. 21-26) of the power of Congress to

enact the fugitive witness provision of the Fugi-

tive Felon Act is apparent when the statute is

considered in the light of its legislative and judi-

cial background. *

The Fugitive Felon Act is one of a series of so-

culled crime laws enacted by the 73d Congress

(1984), many of which, like that act, were de-

signed to implement state law enforcement where

immoral or other wrongful activity is, practically

speaking, beyond the physical reach of the sev-

eral states. See historic materials in Crime Laws

of the 73d Congress, Government Printing Of-

fice, Wash., 1934. Among the more important

statutes thus adopted were the National Stolen

Property Act (18 U. S. C. 413 et seq.), the Anti-

Racketeering statute (18 U. S. C. 420 (a)-(e))

and the statute here involved. These statutes

followed a pattern which had already been well

established by the enactment of federal legisla-

fl

tion in aid of the states excluding diseased cattle

(21 U. 8. C. 115) and impure foods and drugs

(21 U. S. C. 301-392), from interstate commerce;

for the suppression of the lottery traffic (18 U. 8.

C. 387); and prohibiting the interstate transpor-

tation of stolen vehicles (18 U. S. C. 408), of wo-

men for immoral purposes (18 U. 8. C. 397-404),

or of kidnapped persons (18 U.S. C. 408a).

The constitutionality of such legislation under

the commerce clause is firmly established. See

Brooks v. United States, 267 U. S. 482, 436-437,

and cases cited. In the light of the decisions of

this Court, we think it is clear that Congress was

well within its authority in prohibiting travel in

interstate commerce to avoid giving testimony in

a state criminal proceeding. See Congressional

Power to Restrain Interstate Flight of Witnesses

in Criminal Cases, TV Detroit Law Rev. (June

1934) 133-142; The Problem of Fugitive Felons

and Witnesses, I Law and Contemporary Prob-

lems (October 1934) 415. The validity of the

corollary provision prohibiting such travel to

avoid prosecution for certain specified crimes has

been sustained by several lower courts. United

States v. Miller, 17 F. Supp. 65 (W. D. Ky.) ;

Simmons v. Zerbst, 18 F. Supp. 929 (N. D. Ga.) ;

see also Barrow v. Owen, 89 F. 2d 476, 478 (C. ©.

A. 5).

(b) Nor is the fugitive witness provision void

for indefiniteness or uncertainty (see Pet. 45-50).

The fact that it does not, like the provision dealing

MP BOBO AG es ee Creches

with fugitive felons, enumerate any crimes upon

which the proscription hinges is of no moment, for

in any particular case state law will furnish an

adequate guide. And in view of the broad pur-

pose of the provision—to prevent the thwarting of

state criminal justice by fugitive witnesses—it can-

not be said that such an adoption of state law is

an unreasonable federal legislative device. As a

matter of fact, this Court, in Jerome v. United

States, 318 U. 8. 101, 104, 106, specifically citing,

inter alia, the Fugitive Felon Act as an example,

pointed out that Congress may and often does

make the application of a federal statute depend-

ent on state law. While it may be that the pre-

cise application of state law may at times be diffi-

cult of ascertainment—as petitioner suggests (Pet.

35-38) by his alleged difficulties in determining

whether the charges in the warrant issued by

Judge Coash constituted a felony under the law of

Michigan—the consequences of any doubt on that

score in a particular case are obviated in view of

the requirement of the federal act that the accused

must have left the state where a felony is charged

‘“‘with intent’? to avoid giving testimony in the

state proceedings. As the court below properly

noted, quoting from the opinion of this Court in

Screws v. United States, 325 U. S. 91, 101,

“* * * the requirement of a specific intent to

do a prohibited act may avoid those consequences

to the accused which may otherwise render a vague

or indefinite statute invalid.’’ Indeed, in the in-

stant case it is clear from the evidence set forth

in the Statement, particularly the terms of the

warrant and the character of the offenses investi-

gated by the one-man grand jury, that petitioner

could not have labored under any misapprehension

that the state proceedings did not involve felony

charges. Cf. United States v. Wurzbach, 280 U. S.

396, 399; Horning v. District of Columbia, 254

U. 8. 135, 137; McGunnigal v. United States, 151

F. 2d 162, 165-166 (C. ©. A. 1), certiorari de-

nied, 326 U. S. 776. In short, petitioner’s asser-

tion that he could not have foreseen that his con-

duct would be proscribed by the terms of the

statute is no more than an ew post facto attempt

to justify a wilful failure to heed the clear signs

of danger apparent to him when he left Michigan.

(c) Petitioner’s contention (Pet. 10-11, 25)

that the Fugitive Felon Act violates the constitu-

tional guaranty, under Article IV, Section 2, of

free ingress and egress among the states is friv-

olous. That provision is a limitation on the

states; it does not limit the federal government

in the exercise of its powers under the commerce

elause. See United States v. Wheeler, 254 U. S.

281, 299-300. As this Court said in H oke Vv.

United States, 227 U. S. 308, 320-321, in rejecting

a similar contention, the right to move freely

among the states ‘exercised in morality [cannot]

sustain a right to be exercised in immorality.”’

14

(d) Petitioner also asserts (Pet. 25) that the

statute is incompatible with the extradition clause

of Article IV, Section 2, of the Constitution.

However, the right granted to each of the states

to demand the surrender from sister states of

fugitive criminals does not limit the authority of

the federal government under the commerce

clause. Nor does the statute interfere with the

states’ right of extradition (see opinion below at

R. 118). Moreover, the extradition clause in

terms applies only to fugitives charged with crime

and offers no remedy whatsoever in the case of

fugitive witnesses.‘

2. Petitioner’s contention that the evidence does

not establish an offense within the terms of the

fugitive witness provision is as untenable as his

contention that the statute is unconstitutional.

(a) He argues that when he left Michigan there

was no “‘criminal proceeding’’ then pending there

because the defendants named in the warrant is-

sued by the one-man grand jury had not yet been

given a preliminary hearing to determine whether

they should be bound over for trial, and because

no criminal case had yet been docketed by the

clerk of the Circuit Court for Ingham County

* The claim that the sentence authorized by the statute for

fugitive witnesses and the sentence actually imposed upon

petitioner constitute cruel and unusual punishment (Pet. 14,

25-26) is, as the court below held (R. 115-116), without merit,

because (1) the Eighth Amendment was adopted to prevent

inhuman or barbarous punishment, and (2) the sentence im-

posed was within the statutory limits.

15

(Pet. 50-56). However, petitioner mistakenly

assumes that the statutory proscription applies

only where the accused flees to avoid testifying

in a pending state criminal proceeding. There is

nothing in the language of the statute or its leg-

islative history to support such an assumption. On

the contrary, since the obvious purpose of the

statute is to discourage witnesses from defeating

state justice by leaving state jurisdiction before

the resolution of criminal charges, it must have

been intended to apply whether or not state crim-

inal proceedings had actually commenced, so long

as the witness knew such proceedings were im-

minent. Otherwise witnesses could defeat state

justice, after having learned state proceedings

were to be commenced, by fleeing before the state

machinery could become operative. Patently, the

evil against which the statute is aimed is as seri-

ous in the one case as in the other.

But, assuming, arguendo, that the fugitive

witness provision applies only where state crimi-

nal proceedings were pending when the witness

left the state, we submit, as the court below fully

and properly demonstrated (R. 111-114), that the

Michigan proceedings had unquestionably ad-

vanced to such a stage that they were “‘criminal

proceedings’? then pending, for after full investi-

gation, initiated upon the complaint of the State

Attorney General and in which petitioner was

under a continuing subpoena, a warrant of arrest

constituting a charge of crime had been issued

16

by the one-man grand jury, the defendants had

been arraigned and given bond, and the matter

had been set for preliminary hearing to determine

whether they should be bound over for trial. The

fact that the case may not have been docketed

by the court clerk is obviously of no importance,

because, as the clerk’s testimony shows (R. 72-

74), his practice was not to docket criminal cases

until an accused was bound over for trial (R. 74).

As a matter of fact, certain of the documents re-

lating to the one-man grand: jury investigation

had been recorded in his office (R. 73; see also

R. 76).

(b) Petitioner’s contention that no ‘‘felony”

was charged in the Michigan proceedings is based

upon the subsidiary arguments that at common

law there is no such conspiracy offense as was

charged in the warrant (Pet. 26-35) ; that in any

event the Michigan statute providing that in-

dictable offenses at common law for which no

punishment is expressly provided by statute shall

be deemed felonies punishable by imprisonment

or fine (see fn. 5, p. 18, infra), on which the

Michigan proceedings were based, is unconstitu-

tional for indefiniteness (Pet. 35-38); and that

there could be no offense of conspiracy here be-

cause the substantive offense of bribery upon

which the conspiracy charge hinged requires a

plurality and concert of parties (Pet. 38-45).

These arguments obscure the real test of criminal

responsibility under the fugitive witness provi-

17

sion of the federal statute. The plain language

of that statute, referring to state criminal pro-

ceedings in which the commission of a felony is

“charged,” construed in the light of the purpose

of aiding state justice by discouraging the flight

of witnesses, makes it apparent that the statute

applies to any fugitive witness whose testimony

is desired in a proceeding purportedly charging

the commission of a felony under the laws of the

state. The federal offense, by reason of its na-

ture, would normally precede resolution of the

state charges, and final determination of the state

charges may never actually eventuate. Questions

as to the legal sufficiency of the state charges to

constitute a felony under state law, the regularity

of the state proceedings, the guilt or innocence

of the accused, or even as to the constitutionality

of the state criminal law involved in the proceed-

ings, are questions for determination, in the first

instance at least, by the state courts in the state

proceeding; they are irrelevant in a prosecution

under the federal statute for fleeing to avoid giv-

ing testimony in the state proceedings. For the

purposes of the instant prosecution, it was suffi-

cient that in the state proceedings the state pur-

ported to charge the defendants with the commis-

sion of a felony. The objections posed by peti-

tioner to the validity of the state proceedings are

matters for the state courts to decide in that pro-

ceeding in the event they are raised.

18

In any event, it is clear that in the Michigan

proceedings a felony was charged under a valid

statute. Petitioner’s attack upon the validity of

the state statute,* based on the asserted difficulty

of determining what are indictable offenses at

common law and therefore felonies under the —

statute (Pet. 35-38), must fail for similar reasons

as his argument that the federal statute is uncer-

tain (see pp. 11-13, supra). Additionally, peti-

tioner overlooks the obvious historical fact that

under Anglo-Saxon law most crimes were origi-

nally proscribed and defined by common lav,

rather than by statute (see Michael and Wechsler,

Criminal Law and Administration (1940), p.

1284), and that the common law of crimes origi-

nally transplanted to the several states was not

succeeded by or interwoven with statutes end

codes until later in the history of this country

under the very Constitution which petitioner seeks

to invoke against the Michigan statute. See, e. g,,

United States v. Worrall, 2 Dallas 384, 393-394;

Wharton, American Criminal Law (5th Ed. 1861),

5 Section 28.773 of the Michigan Statutes Annotated pro-

a indictable common-law offenses. Sec. 505. Any

person who shall commit any indictable offense at the com-

mon law, for the punishment of which no provision is ex-

~pressly made by any statute of this state, shall be guilty of

a felony, punishable by imprisonment in the state prison not

more than five (5) years or by a fine of not more than two

thousand five hundred (2,500) dollars.

a

19

¢. 1; Clark and Marshall, Crimes (4th Ed.,

Kearney), §§ 8-17.

Nor can there be any serious question that the

conduct charged in the state proceedings consti-

tuted a common law crime which, by virtue of the

Michigan statute, was a felony. In this connec-

tion, petitioner discursively analyzes historical

common law precedents at large and concludes

that a conspiracy of the character charged was

not an offense at common law (see Pet. 26-32).

However, the error of petitioner’s ? pproach lies

in the fallacious assumption that the federal

statute requires reference to the general common

law, rather than to the common law of Michigan.

Since the federal offense is predicated on flight to

defeat state justice, it seems obvious that the law

of the particular state from which the flight oc-

curs is exclusively controlling on the issue whether

a felony was charged. Indeed, the language of

tue fugitive witness provisions confirms this, for

it predicates federal liability on fleeing to avoid

testifying in any criminal proceedings “‘in such

place in which the commission of a felony is

charged.”” As we have previously noted (supra,

p. 12), this Court in the Jerome case specifically

indicated that this statute was a typical example

of congressional intention to adopt for federal

purposes the law of particular states.* Congress

‘For the reasons stated in the text, the case of United

States v. Brandenburg, 144 F. 2d 656 (C. C. A. 3), does not

support petitioner’s assumption that we must look to the

20

must have been aware that most states have so

codified their criminal law or intertwined it with

their own common law that reference to general

common law would be meaningless for the pur.

poses of this statute. Indeed, in such circum-

stances, contrary to petitioner’s thesis in his at-

tack upon the Michigan statute, reference to gen-

eral common law rather than to the law of Mich-

igan creates rather than reduces uncertainty.

Accordingly, it seems clear that whether a

felony was charged in the Michigan proceedings

is a matter to be determined solely by reference

to Michigan law, of which the Michigan courts

are the final arbiters. The persuasive analysis

in the opinion below demonstrates that, under the

Michigan decisions, such a conspiracy as was

charged in the warrant issued by the one-man

grand jury is a crime which, since the enactment

of the Michigan statute in 1927, is a felony (R.

107-108) ; and that the offenses which were the

objects of the conspiracy were of such scope, not

being confined merely to bribery, that agreement

general common law, rather than the common law of Mich-

igan, to determine whether under Michigan law a felony was

charged (see Pet. 24-25, 48). Moreover, the Brandenburg

case, which we think is wrong in principle in so far as it holds

that the offenses listed in the fugitive felon provision of the

federal statute are to be construed in terms of general com-

mon law or federal law rather than by reference to the

particular state law, is distinguishable because the fugitive

felon provision does not, as does the fugitive witness pro-

vision, so clearly in terms adopt the particular state law.

21

or combination was not a necessary element of

these objective offenses. The conspiracy to com-

mit these offenses was therefore separately

indictable. (R. 107, 109-111.)

CONCLUSION

For the reasons stated above, the judgment be-

low is correct and there is no conflict of deci-

sions. The case does not present any serious or

substantial questions as to the constitutionality of

the fugitive witness provision of the Fugitive

Felon Act or as to its application to the facts

here. We therefore respectfully submit that the

petition for a writ of certiorari should be denied.

/ Pum B. Periman,

Solicitor General.

T. VINCENT QUINN,

Assistant Attorney General.

| Rosert S. ERDAHL,

_SHELpon E. BERNSTEIN,

Attorneys.

SEPTEMBER 1947.

U. ., SOVERNMENT PRINTING ‘OFFICE: 1847

INDEX.

Page

ARGUMENT.

I The witness provision of Title 18 Section 408

(e), U. S. Code can not become applicable un-

less a ‘‘felony’’ be charged in the proceeding

wherein the testimony of the witness is desired 1

II The State statute being void on its face because

in conflict with the X1Vth Amendment, the peti-

tioner availed himself of the only means avail-

eS SS eer ae ert 5

III The Federal statute has not been correctly in-

terpreted by the courts below ............... 11

IV The commerce clause of the Constitution is not

supreme over the balance of that document and

its power over the travel of individuals is im-

pliedly limited by the Xth Amendment and by

the Privileges and Immunities Clause guaran-

teeing freedom of egress, ingress and residence

ee ee Pen: CRN is ice cs eae ese cea 12

EE. « i) -chinc doh bus ecceuaee ar Gldaadieu wens 13

SE <i. o) nee che tase Oba eads Lan eee 14

AUTHORITIES.

Constitution of the United States:

i SD. n's os wae bench eeesevceeeeees 12

EE Os MUN OF ns Gadecucvsaeteuce¥evsebes 12

EE i's 4 Vecsekseekavecesteapeeawee 2,6

i 4:5 ocscd ei baehs bxueurneeades 12, 13

Sune eet MMROMEOME 2 5 cc ccceenesase 1, 4, 5, 6, 8, 11

Statutes, United States:

Title 18, Section 408 (e), U.S. Code............ 1,11

Statutes, Michigan:

Section 28.773, Annotated Code ................ 3, 5

Index Continued.

CASES.

Page

American Seeding Co. v. Kentucky, 236 U. S. 660.... 5

Anderson v. Burnquist, 216 Minn. 101 .............. 5

SG S: Ee AA BEE io ec dices decenentrecsbecs 5

Chicago I, & I. R. Co. v. Hackett, 228 U.S. 559........ 6

Cleck, H. Earl v. Commission, 94 Mont, 488.......... 5

Cline v. Frink Dairy Co., 274 U.S. 445.............. 5

Coe v. Armour Fertilizer Works, 237 U. S. 413...... 7

Commonwealth v. Zasloff, 338 Pa. 457 .............. 5

ee Oy es SD Mis We MPD vee ne re carsccecsvenens 6

Glendale Coal Co. v. Douglas, 193 Ind. 73............ 5

Gould v. United States, 255 U.S. 298................ 6

Herndon v. Lowry, 301 U.S. 242.............0 cee eee 5

Lambrecht, In Re, 137 Mich. 450................000 3

Lamphere case, 61 Mich. 105 ..........cccseececeees 2

Little Rock & F. 8S. R. Co. v. Worthen, 120 U.S.97.... 6

Lonestar Gas Co. v. Kelley, 140 Tex. 15.............. 5

Loughran, Daniel Co. Inc. v. Maryland, 178 Md. 38.... 5

Louisville & N. R. R. v. Commonwealth, 99 Ky. 132.... 5

Massachusetts v. Mellon, 262 U. S. 447.............. 7

Mayhew v. Nelson, 346 Ill. 381.................0.05. 5

Missel v. State, 33 Okla. Cr. 376... 2... 0... cee cacs. 5

Norton v. Shelby County, 118 U.S. 425 .............. 6

People v. Goulding, 275 Mich. 353, 358.............. 4

People v. Norwood & Hardiman, 312 Mich. 266....... 8

People v. O’Gorman, 274 N. Y. 284 ................... 5

People ex rel Travis v. Rogier, 326 Ill. 310............ 5

Peppers, Ex Parte, 189 Calif. 581 .................. 5

oy OS Pree eee 5

SE, EE EOL BET Kis WA SOM cs nccccunseneteseses 6

i i Ol, ME Os 4.ins 0s Sb Arc deep edad eRe ene 4

Small Co. v. American Sugar Refining Co., 267 U. S.

Ne ti see en cs Le W Hee daa eh han sekes 5

SE Ws CUNO, CE Bln Th US i koe e-depvube cbc ekabees 5

Standard Oil Co. v. State, 178 Ala. 400.............. 5

State v. Binser, 196 Hams. 447 . ....cccccscccncccees 5

State v. Burns, 58 Idaho 418 ..........cccccccccees 5

State v. Crawford, 104 Kans. 141 .................. 5

State ex rel Crow v. West Side St. Ry. Co., 146 Mo.

CGM NG abens ebb eed kaehan eee eed wi 5

State v. Diamond, ee aa ears

——

Index Continued. iii

Page

State v. Excelsior, ete. Vo., 212 Mo. 101 ............ 5

State v. Klapprott, 127 N. J. L. 805 ..... 2c ccc ceees 5

State ex rel Hickey v. Levitan, 190 Wis. 646........ 5

State of Oregon v. Mann, 2 Ore. 238 ................ 5

SAGe Ts CAG, He Phe Dy Be eckcvencccvecctcenens 5

State v. Powles & Co., 90 Wash. 112 .............. 5

State ex rel English v. Ruback, 135 Nebr. 335 ........ 5

State v. Satterlee, 110 Kans. 84 ............ccceeees 5

State v. Standard Oil Co., 195 S. C. 267............ 5

eee FT, ee BON BD vise 0 bas Ca dicoscsverass 5

Stoutenburgh v. Frazier, 16 App. D. C. 229 .......... 5

Stromberg v. California, 283 U. S. 359.............. 5

Sullivan v. Brawner, 237 Ky. 730...........eceeeee: 5

Sunal v. Karge, 331 U. S. 91, U. S. Law ed. 1555...... 5, 7

United States v. Realty Co., 163 U. 8S. 427 ........... 6

Weaver v. Palmer Brs. (o., 270 U.S. 402............ 7

Weeds v. United States, 255 U.S. 109 .............. 5

ee -

IN THE

Supreme Court of the Anited States

No. 299

Cuaries F. Hemans, Petitioner,

Vv.

Tse Unirep States or America, Respondent.

PETITION FOR RECONSIDERATION OF ORDER EN-

TERED OCTOBER 20, 1947, DENYING ALLOWANCE

OF WRIT OF CERTIORARI.

This petition for rehearing is filed under Rule 33 of this

Court and is based on the following grounds:

I.

The witness provision in Title 18, Section 408(e) (2), U. S.

Code, is not complete in itself and can not become ap-

plicable unless a “felony” be charged in the proceeding

wherein the testimony of the witness is desired.

(a) The State statute on which the State proceeding is

based (quoted main brief, p. 27) shows on its face

that it is indefinite and uncertain. Therefore, it is

in conflict with the XIVth Amendment of the Fed-

A RON — mer

9

=

eral Constitution, and the conviction of the peti-

tioner is in violation of the Vth Amendment.

(Compare Federal cases cited on page 38 of the

main brief and State cases cited on pages 36-37

thereof.)

(b) Interpreting the State warrant—constituting the

basis of the proceeding wherein petitioner is wanted

as a witness—the Supreme Court of Michigan in its

opinion filed October 13, 1947, stated that the State

proceeding is one ‘‘wherein the defendants herein

were charged with the criminal offense of common

law conspiracy to wilfully, wrongfully and unlaw-

fully obstruct the due course of legislation, and to

wilfully and corruptly affect and influence the action

of the Michigan legislature.’’ (Supplemental Br. 5).

(Italics mine).

There was no such crime at common law as that charged

in these Michigan State proceedings.

Examination of the monumental History of the English

Law by Holdsworth, as well as the less exhaustive works

of the late Mr. Justice Holmes on The Common Law and

Wright On Criminal Conspiracies with Carson’s American

Notes (1896 ed.), cited in petitioner’s main brief, is amply

sufficient to show that there were and are no such Common

Law Crimes of Conspiracy (a) to wilfully, wrongfully and

unlawfully obstruct the due course of legislation or (b) to

wilfully and corruptly influence the action of a legislative

body. (See Main Brief, pp. 27-31.)

There is no common law crime in Michigan independently

of the English Common Law. In the early Lamphere case,

61 Mich. 105, the Supreme Court of Michigan stated:

‘*Michigan was never a common law colony, and that

while we have recognized the common law as adapted

to our jurisprudence, it is the English Common Law

unaffected by statute.’’!

' Statutory common law crimes had been abolished in Michigan

by Territorial Act of September 16,1810. (Vol. 1, Laws, Territory

of Michigan, pp. 900 et seq.).

3

Also, the Supreme Court of Michigan Jn Re Lambrecht,

137 Mich. 450 said:

‘*We can look only to the statute for any crime pun-

ishable in this State. We look to the common law for

definition and principle in our criminal jurisprudence,

but unless the statute provides a penalty, acts criminal

at common law are not crimes in the State.’’

This ‘State of Michigan statute (Section 28.773 Anno-

tated Code) purports to make a ‘‘felony’’ of any ‘‘in-

dictable offense at the common law,’’ whether a felony

or a misdemeanor, for the punishment of which no provi-

sion is expressly made by any other statute of the State.

A fair reading of the said statute is that if there be any

offense indictable at the cominion law, either as a felony or

misdemeanor, and there is no punishment for such offense

provided in any other State statute, such offense is a

‘felony’? and punishable as provided in the said State

statute.*

2 The legislative ancestor of this section, 28.773 Michigan Statute

Annotated, came into being in the Territorial Act of November 4,

1815 (Vol. 1, 109 Cass Code of Michigan Territorial Laws). It

was revised and reenacted in the Territorial Act of May 17, 1820

in See. 62 (Vol. 1, Michigan Code of Territorial Laws of 1820, pp.

561, 588); Section 7 of Act 39, Michigan Laws of 1840; Section

22, Chap. 161, Revised Statutes of Michigan 1846, which remained

in effect until 1927 ; See. 15, Chap. 1X, Act No. 175, Michigan Acts

of 1927; and then this Section 505 of Act 328, Michigan Statutes,

1931. None of the legislative ancestors of Section 505, except the

one of 1927, specifically made a conspiracy a crime. Section 22 of

the cited 1846 Michigan Revised Statutes, which was longest in

effect and adopted before the Due Process Clauses of the Michigan

Constitution of 1850 (for the first time) and before the Fourteenth

Amendment to the Federal Constitution, provided :

‘*Every person who shall commit any indictable offense at

the common law, for the punishment of which no provision is

expressly made by any statute of this state, shall be punished

by imprisonment in the county jail for not more than two

years, or by fine not exceeding two thousand dollars, in the

discretion of the court.’’

This statute here quoted was in effect when shemepetOt™P the

Supreme Court of Michigan rendered its opinion in the above cited

case of In Re Lambrecht.

+

Thus to arrive at what may be a common law crime in

Michigan, for which a penalty is not provided in some

other specific statute than the general section on which this

State proceeding is based, one must first determine whether

there is any such common law crime as charged in this

warrant, then perform a surgical operation thereon, if it

had been affected by any Parliamentary statute at the time

of the Revolutionary War or at some other period prior

thereto, and then determine from the voluminous statutes

of Michigan whether there is some specific statute among

them which fixes a penalty for such common law crime.

This is an impossible task for the layman and next to im-

possible for even judges and lawyers.

It is right here that this State statute runs afoul of the

XIVth Amendment to the Federal Constitution, because

of indefinieness and uncertainty, and for reasons which

this Court has so well stated in the Screws case, 325 U. 8.

91, that to attempt to improve on them would be equal to

an attempt to gild the lily.

Moreover, the Supreme Court of Michigan has stated in

People v. Goulding, 275 Mich. 353, 358-359 on this point of

necessary definiteness and certainty in its State criminal

statutes, that:

‘Statutes defining crimes are to be strictly con-

strued. They must prescribe with reasonable cer-

tainty the elements of the offense. 12 C.J. p. 1203.

They ought to be so explicit that all men subject to

their penalties may know what acts it is their duty to

avoid. United States v. Brewster, 139 U. S. 278; Com-

monwealth v. Atlas, 244 Mass. 78; United States v.

Sharp, 27 Fed. Cas. 1041. The legislature must inform

the citizen with reasonable precision what acts it in-

tends to prohibit, so that he may have a certain rule

of conduct. 8 R.C.L. p. 58.

‘*Criminal Statutes must so clearly define the acts

upon which the penalty is denounced that no ordinary

person can fail to understand his duty and the de-

parture therefrom which the law attempts to make

criminal. Brown v. State, 137 Wis. 543.

—

‘Tt is a well settled rule of law that no one can be

punished for doing an act unless it clearly appears the

act sought to be punished comes clearly within both

the spirit and the letter of the law prohibiting it. State

of Oregon v. Mamn, 2 Ore. 238.

‘‘No penal law can be sustained unless its mandates

are so clearly expressed that any ordinary person can

determine in advance what he may and what he may

not do under it. Tozer v. United States, 52 Fed. 917;

Chicago & N. W. R. Co. v. Dey, 35 Fed. 866; Ratlroad

Commission of Indiana v. Railroad Co., 179 Ind. 255.’

II.

The State statute being void on its face because in conflict

with the XIVth Amendment, the petitioner availed

himself of the only means available to test the same.

This Court has repeatedly stated, in effect, that an un-

constitutional statute is void and is as no law.

5

3A few of the many other cases to the same effect are Herndon

y. Lowry, 301 U. S. 242; Smith v. Cahoon, 283 U. 8. 552; Stromberg

v. California, 283 U. S. 359; Cline v. Frink Dairy Co., 274 U.S.

445: Small Co. v. American Sugar Refining Co., 267 U. S. 233;

Weeds v. United States, 255 U. S. 109; American Seeding Co. v.

Kentucky, 236 U. S. 660; Stoutenburgh v. Frazier, 16 App. D. C.

229; Carter v. State, 243 Ala. 575; Standard Oil Co. v. State, 178

Ala. 400; Ex parte Peppers, 189 Calif. 581; Phillips v. State, 60

Ga. 622; State v. Burns, 53 Idaho, 418; Mayhew v. Nelson, 346 II.

381; People ex rel Travis v. Rogier, 326 Ill. 310; Stone v. State, 220

Ind. 165; Glendale Coal Co. v. Douglas, 193 Ind. 73; State v.

Blaser, 138 Kans. 447; State v. Satterlee, 110 Kans. 84; State v.

Crawford, 104 Kans. 141; Sullivan v. Brawner, 237 Ky. 730; Louts-

vile & N. R. R. v. Commonwealth, 99 Ky. 132; Daniel Loughran

Co., Inc., v. Maryland, 178 Md. 38; Anderson v. Burnquist, 216

Minn. 101; State ex rel Crow v. West Side St. Ry. Co., 146 Mo. 155;

State v. Excelsior, etc. Co., 212 Mo. 101; H. Earl Cleck v. Commis-

sion, 94 Mont. 488; State ex re! English v. Ruback, 135 Nebr. 335;

State v. Klapprott, 127 N. J. L. 395; State v. Diamond, 27 N. M.

477; People v. O’Gorman, 274 N. Y. 284; State v. Partlow, 91 N. C.

550; Missel v. State, 33 Okla. Cr. 376; Commonwealth v. Zasloff,

338 Pa. 457; State v. Standard Oil Co., 195 S. C. 267; Lone Star

Gas Co. v. Kelley, 140 Tex. 15; State v. Powles & Co., 90 Was. 112;

State ex rel Hickey v. Levitan, 190 Wis. 646.

On REM Ml

6

Inttle Rock é F. 8S. R. Co. v. Worthen, 120 U. S. 97;

Norton v. Shelby County, 118 U.S. 425;

United States v. Realty Co., 163 U. S. 427;

Chicago I, é I, R. Co. v. Hackett, 228 U.S. 559;

Ex Parte Royall, 117 U. 8. 734.

The trial court instructed the jury as a matter of law

that a felony is charged in these State proceedings (R. 19).

The Circuit Court of Appeals affirmed. In view of the

unconstitutionality on its face of the State statute on which

the State proceedings are based, this charge in itself

amounted to a denial in the Federal court of due process

of law under the Vth Amendment.

Escoe v. Zerbst, 295 U. S. 490, 494;

Sunal v. Karge, 331 U.S. 91; U. S. Law ed. 1555.

Moreover, the trial court and the Circuit Court of Ap-

peals completely ignored the fact that the State proceed-

ings charged a conspiracy existing from January 1, 1941,

to March 1, 1944, concerning a certain named bill and

divers other bills and persons. The so-called grant of im-

munity related to a period from January 1, 1941, to De-

cember 31, 1941, and to one certain bill and a certain named

person. There is nothing whatever in this grant of im-

munity, even if valid, which protects the defendant from

self-incrimination for the balance of the period from Jan-

uary 1, 1942 to March 1, 1944, named in the warrant and

concerning the ‘‘other bills’’ not specifically named. Under

both the XIVth Amendment and the Michigan Constitution

the petitioner could not be required by the State courts to

incriminate himself for such subsequent period of time.

Both the Vth and the XIVth Amendments are to be lib-

erally construed to prevent impairment of the safeguards

which they respectively provide. See Gould v. United

States, 255 U. S. 298, 304, wherein it was stated:

“‘It has been repeatedly decided that these two

Amendments [IVth and Vth] should receive a liberal

construction, so as to prevent stealthy encroachment

upon or ‘gradual depreciation’ of the rights secured

7

by them, by imperceptible practice of courts or by

well-intentioned but mistakenly over-zealous executive

officers.’’

The petitioner is not now attempting to secure correc-

tion by means of habeas corpus, as was the situation in

this Court in Sunal v. Karge, supra. Petitioner sought cor-

rection by direct appeal to the Cireuit Court of Appeals

and that court refusing to make the correction, the case is

here on petition for certiorari.

Attention is invited to the fact that the petitioner previ-

ously attempted in his habeas corpus proceedings to pre-

vent his removal to Michigan to raise the issue of a lack

of legal basis for this prosecution. Mr. Justice Burton

heard the application on September 27 and 28, 1946, for

an order staying the execution of the warrant of removal

until counsel for petitioner could prepare and file in this

Court an authenticated copy of the records in the Federal

courts of the District of Columbia, so that this Court could

then inquire into the legality of the petitioner’s detention.

By an order entered at that time, Mr. Justice Burton

denied the application, stating, among other things, that:

‘‘Having given full consideration to the foregoing

proceedings and to the policy of Congress and of this

Court as to the purpose of removal proceedings in the

federal courts anc, especially as to the proper time

when, and place in which, consideration shall be given

to the sufficiency of an indictment and to the validity

of a statute upon which an indictment shall depend,

together with any justification for the granting of «

stay of execution so that such proceedings may be pre-

pared, filed and considered in the Supreme Court of

the United States before the warrant of removal shall

be permitted to take effect, the foregoing motion is

denied.”’

This Court has held that any person injured by a statute

may raise the question of its invalidity.

Weaver v. Palmer Brs. Co., 270 U. S. 402;

Coe v. Armour Fertilizer Works, 237 U. S. 413;

Massachusetts v. Mellon, 262 U. S. 447.

8

Since this indictment was filed, the petitioner has suc-

ceeded in sustaining in the Supreme Court of Michigan

his position before the examining magistrate that he was

then being called upon to incriminate himself in this Fed-

eral proceeding in violation of his constitutional safe-

guards. The opinion of the Supreme Court of Michigan

to that effect is now before this Court as Exhibit ‘‘D”’ to

petitioner’s supplemental brief. True it is that the almost

certainty of self-incrimination in the Federal proceedings

arose after—and because of—this indictment in the Fed-

eral court, but the attempt of the State prosecution to

compel petitioner to incriminate himself is illuminating and

might have succeeded but for the State courts.

There yet remains the attempt of the State prosecuting

authoritites, with the aid of the Federal government, to

compel the petitioner to incriminate himself in the State

proceedings, in violation of his rights under the XIVth

Amendment, because the so-called immunity order shows

on its face that it covers but a fraction of the period of

time that the warrant charges the conspiracy to have ex-

isted and in which petitioner is charged by the warrant to

have been a co-conspirator. Compare People v. Norwood

& Hardiman, 312 Mich. 266. In that case, the defendants

Norwood, Hardiman and others were convicted in 1940

under an amended information containing three counts,

each of which charged the defendants with the common

law offense of conspiracy to violate certain gambling laws

of the State. On motion the convictions were set aside and

a new trial granted. On a retrial in 1942 they were again

convicted and appealed.

The information charged that the defendants ‘‘on June

1, 1933, and on divers other days and dates up to and includ-

ing May 29, 1940’? conspired to violate certain gambling

laws of the State. During the first trial it developed that

on December 6, 1939 the defendants Norwood and Hardi-

man had testified and had been granted immunity in the

grand jury proceedings involving graft and corruption in

—

9

Wayne County. Thereupon the information was then

amended by changing the conspiracy period as December

7, 1939 to May 29, 1940. It later developed that Norwood

and Hardiman had again testified before the grand jury

on April 24, 1940, and again had been granted immunity.

Thereupon the information was again amended to change

the conspiracy period as April 25 to May 29, 1940. On the

second trial a motion was denied to quash the information

as to the defendants Norwood and Hardiman because of

the immunity granted them in the grand jury proceedings.

Upon appeal defendants Norwood and Hardiman con-

tended that the immunity granted in the grand jury pro-

ceedings extended through the full period of the con-

spiracies charged in the amended information and that,

therefore, the information should have been quashed as

to them.

The Supreme Court of Michigan in overruling such con-

tention stated that:

‘‘Defendants Walter Norwood and Harold Hardi-

man contend that the immunity granted them in the

pending grand-jury proceedings extended through the

full period of the conspiracies charged in the amended

information and, therefore, that the information

should have been quashed as to them., The statute,

3 Comp. Laws’ 1929, § 17220, (Stat. Ann. § 28.946),

under which immunity had been granted, provides:

‘‘ ‘No person shall upon such inquiry be required to

answer any questions the answers of which might tend

to incriminate him except upon motion in writing by

the prosecuting attorney which shall be granted by

such justice or judge, and any such questions and an-

swers shall be reduced to writing and entered upon

the docket or journal of such justice or judge, and no

person required to answer such questions upon such

motion shall thereafter be prosecuted for any offense

concerning which such answers may have tended to in-

criminate him.’

‘‘As hereinbefore mentioned, the information had

been amended during the first trial to change the con-

spiracy period as April 25 to May 29, 1940. Norwood

10

and Hardiman claim that they also testified before the

grand jury June 19 and 20, 1940. Relative to the im-

—_ granted them, the court said in the present

trial:

‘**Let me state, * * * for the benefit of the record,

that in the last trial * * * both Norwood and Hardiman

had been questioned by the grand jury in April, 1940,

and * * * Judge Ferguson said that this immunity * * *

[was] extended up to and through April 24, 1940. So

* * * the information was amended, so that the initial

date of the conspiracy was named as April 25, 1940.

Later * * * it transpired, by certain testimony that

was given, that * * * Hardiman and Norwood, again

testified before the grand jury some time in June

(1940). * * * That matter was again taken up with

Judge Ferguson and * * * (he) said that the immunity

did not extend to June * * * when they were again

before the grand jury. * * *

‘¢*When I charge the jury, I will charge that im-

munity was given by Judge Ferguson to both these

defendants * * * through April 24th.’

‘*'4, 5] These two defendants testified before the

grand jury under grants of immunity, and under the

statute they could not thereafter be prosecuted for any

offense concerning which their answers before the

grand jury might have ‘tended to incriminate’ them.

However, there was no claim or showing that their an-

swers before the grand jury would have incriminated

them of the subsequently committed conspiracies to

violate the gambling laws charged in the present case.

The mere fact that they testified before the grand jury

does not establish that their testimony would have

tended so to incriminate them. The grants of im-

nunity would not protect them from prosecution for

offenses about which they were not questioned before

the grand jury. In the present trial they could have

called the grand juror or his stenographer and shown

whether or not their answers before the grand jury

would have ‘tended to incriminate’ them of the con-

spiracies charged. People v. McCrea, 303 Mich. 213,

245, 246, 6 N. W. 2d 489; People v. O’Neill, 107 Mich.

556, 65 N. W. 540.

‘‘Furthermore, the testimony of Norwood and Hardi-

man before the grand jury could relate only to past

_ —— ms

11

offenses, and, therefore, could not incriminate them of

future offenses. The immunity granted them on De-

cember 6, 1939, and April 24, 1940, did not protect them

from the subsequently committed conspiracies charged

in the amended information. In People v. Woodson,

309 Mich. 391, 397, 15 N. W. 2d 679, 681, 157 A. L. R.

419, we said:

‘¢<The immunity statute expressly protects a wit-

ness against prosecution for any offense, concerning

which his answers may tend to incriminate him, but it

does not protect him from any offense subsequently

committed.’ ’’ (Italics mine.)

But above and beyond all this, as serious as it is, the

petitioner has been indicted and convicted in a Federal

court for refusing to testify in a State proceeding which

State proceeding has no basis whatever in law because the

State statute on which the warrant is based is itself con-

trary to the XIVth Amendment to the Constitution of the

United States, by reason of its indefiniteness and uncer-

tainty, and further because, in fact, no such crimes as are

charged in the warrant existed in the English Common

Law—the only common law, shorn of Parliamentary statu-

tory accretions, which exists in Michigan.

If a single individual in the United States, however un-

worthy he may be, may be indicted, convicted and impris-

oned to serve a long term in the penitentiary, any other

one of the 130,000,000-odd persons in the United States

may be similarly denied his constitutional rights.

We believe that to have been done in the instance of the

petitioner.

Il.

The Federal statute has not been correctly interpreted by

the courts below.

This Title 18, Section 408(e), U. S. Code, is known as

the Fugitive Felon Act and has a double purpose. Sub-

section 1 thereof is directed to the interstate travel of per-

sons to avoid prosecution for certain specific crimes, as

12

enumerated therein. Section 2, if it be constitutional, is

directed at witnesses who flee with intent to avoid giving

testimony in proceedings in which a ‘‘felony’’ is charged,

It is urged that the word ‘‘felony’’ in subsection 2 should

be interpreted to mean the crimes enumerated in subsection

1 of the same statute, or at least the same type of crimes

of gangster violence as those enumerated. These prosecu-

tions for such specific crimes might be in either Federal or

State courts. We can find nothing indicating that subsec-

tion 2 was intended to punish fleeing witnesses to avoid

testifying in State conspiracy cases, such as are charged in

this warrant, and particularly when the fleeing defendants

could not be punished under subsection 1 of the same

statute.

To give subsection 2 the interpretation given it by the

courts below means that a witness may be immobilized in-

definitely within a State boundary, in the real or pretended

hope of the prosecutor that the persons charged with sub-

stantive State crimes who may have fled the State might

eventually be found within the State and brought to trial.

It seems certain that no such result was within the inten-

tion of those of Congress concerned with the passage of

the bill which became this Fugitive Felon Act. It is obvi-

ous, however, that such may be the result if the courts

below be correct and subsection 2 of the Act be consti-

tutional.

IV.

The Commerce Clause of the Constitution is not supreme

over the balance of that document and its power over

the travel of individuals is impliedly limited by the

Xth Amendment and by the Privileges and Immuni-

ties Clause guaranteeing freedom of egress, ingress,

and residence in the several States.

The Privileges and Immunities of the citizen, now pro-

tected by the Constitution, are older than the Constitution

itself. The right to ingress, egress, and residence were

privileges and immunities which the people of the United

—

13

States enjoyed prior to the formation of the union. One

of the prime reasons for the Constitutional Convention of

1787 and the product thereof was the need for regulation

of trade and commerce among the several states.

No serious consideration can be given to any legal argu-

ment to the effect that power exists under the Commerce

Clause of the Constitution for the Federal Government to

abridge and restrict the Privileges and Immunities Clause

which the States may not do. The latter Clause does not

extend to instances where some item of trade and traffic is

involved which in itself constitutes an item of commerce.

Moreover, the existence of the Privileges and Immuni-

ties Clause and the Extradition Clause operates as an im-

plied restriction on the scope of the Commerce Clause, so

far as is concerned Federal restriction on travel of other-

wise innocent and upright persons.

Such conclusion is sufficient to explain the prostitution,

drug, lottery tickets, diseased live stock, stolen property,

and other similar cases in this Court involving interstate

travel, trade and intercourse.

But none of those cases appears to be in point and we

submit that the analogy of those cases with the present one

does not exist, particularly in view of Article IV, Section

2, of the Constitution of the United States and the Xth

Amendment thereto. Not even though police could find that

petitioner transported anything in interstate commerce.

It required a jury to find from the conflicting evidence

that petitioner had an intent to avoid testifying in a State

case wherein the defendants were not charged with any

. crime within the terms of subsection 1 of Title 18, Section

408(e), U. S. Code.

CONCLUSION.

It is respectfully submitted that no more serious and far-

reaching case has arisen in recent times than this one

wherein a vast extension of Federal power is attempted

over individual citizens, who must wage alone a struggle

with the Federal and State governments. The right of

14

asylum from personal and political prosecutions is seri-—

ously affected, if not destroyed, and certainly destroyed

as to those who may be indicted in a federal court as Flee-

ing witnesses, returned, and there released by Federal

officials to State controls to testify in proceedings wherein

State prosecuting officers are pleased to charge felonies.

It is further submitted that the case is of such great

public importance as to overshadow its supreme impor-

tance to this petitioner and that the grave constitutional

issues should be resolved by this Court.

Therefore, the Court is requested to reconsider its order

of October 20, 1947, and allow the writ of certiorari in the

case.

Respectfully submitted,

O. R. McGurre,

Attorney for Petitioner,

CERTIFICATE.

It is hereby certified by Counsel for the petitioner that

the above petition for reconsideration is presented in good

faith and not for purposes of delay.

O. R. McGutrr.

November 3, 1947.