The court will consider three questions involved by the motion to quash. 1. Was the arrest lawful, and, if not, can the defendant be held to answer? 2. Is the information legally sufficient, the names of the witnesses for the prosecution not being indorsed thereon? 3. Can a person be held to answer for an offense, not capital or infamous, on an information filed by the law officer representing the government?

The first question is answered by the fourth constitutional amendment, which declares that "no warrant of arrest shall be issued but upon probable cause supported by oath or affirmation," etc. Had there been any showing for the arrest at Chicago, supported by oath or affirmation, this court could not inquire whether the showing was sufficient to justify the issuance of the warrant by the district judge of Illinois; but when it is alleged there was no showing supported by oath or affirmation, and the illegality of the warrant is made the basis for arresting all further proceedings in the cause, it is our duty to inquire whether the fact is as asserted.

§3195. Where an information is not supported by affidavit, a warrant of arrest is not authorized.

We have already stated what is proved here,- namely, that the certified copy of the warrant was all that was shown to procure the order of arrest. The constitution declares that "no warrant of arrest shall issue but upon probable cause," etc.; the information is not supported by oath or affirmation; it follows, as a corollary, that the warrant was not authorized. There was no proof of probable cause, supported by oath or affirmation to justify it. Doubtless, the learned judge who issued the warrant acted upon the presumption that the proceedings here had been such as to establish probable cause; treating the information as having been filed upon cause shown, and regarding the certified copy as affording the same evidence as a certified copy of an indictment would furnish, when the evidence of probable cause is presumed to have been given to the grand jury. It now turns out that the proceedings anterior to the issuance of the warrant laid no foundation for the arrest, and all proceedings based upon such unlawful arrest must fail.

§ 3196. A warrant of removal of an accused is authorized only where he has been arrested and committed for want of bail in a bailable case.

Under the question we have been considering, a point was made that the. warrant to remove defendant from Chicago, in one district, to Detroit, in another district, was unauthorized under the facts exhibited. The only act of congress upon the subject of the arrest and removal of offenders against the laws of the United States is that of September 21, 1789, § 33 (1 Stat. at L., 91), in reference to removal of offenders in one district, to be tried in another. It is this: "If such commitment of the offender shall be in a district

other than that in which the offender is to be tried, it shall be the duty of the judge of that district where the delinquent is imprisoned seasonably to issue, and of the marshal of the same district to execute, a warrant for the removal of the offender to the district in which the trial is had." By consulting the previous portions of this section, in connection with the clause I have read, it will appear that the warrant of removal is authorized only where the offender has been first arrested and committed for want of bail, in a bail

The statute does not seem to contemplate or warrant removing a person from one district to another in the summary way pursued in this case. He is first to be taken before the proper officer, who is to examine as to the crime alleged against the accused. If there be not probable cause of his guilt,

he is entitled to be discharged; whereas, if there be found reasonable cause for holding the accused to answer, upon tendering sufficient bail, he is entitled to his discharge from arrest. Only on failure to give bail, in a bailable case, can he be committed.

Defendant was at liberty in the city of Chicago; was arrested and immediately removed to Detroit, without opportunity to confront the charge at the place of his arrest. We are at a loss to understand how the defendant could thus be dealt with under the statute. Suppose defendant had been a resident of Galveston, in Texas, or San Francisco, in California, instead of Chicago, and was thus arrested and summarily removed nearly across the continent, before having the opportunity of meeting the charge on which he was arrested. We will suppose, when examined here, before the proper officer upon the charge, it should turn out that the charge is not sustained. Does not this plainly illustrate the wrong and injury which may be done to a citizen under such forms of legal proceedings? We regard the removal as having been wholly without the authority of law.

3197. State laws do not control in criminal cases on questions of procedure.

In reference to the second question, we remark that state laws do not control in criminal proceedings in the United States courts, either in the mode or form of charging the offense, in the rules of evidence, or in the manner of conducting the trial. On the contrary, the proceedings throughout are according to the course of the common law, except so far as has been otherwise provided by the laws of congress or by constitutional provision. United States v. Reid, 12 How., 365 (§ 2694-99, supra). It was not required by the common law that the names of witnesses for the prosecution should be indorsed on the indictment or information, and there is no act of congress requiring it. In trea son, a list of the government witnesses is to be furnished to the accused. The Michigan statute does require the names to be indorsed on the indictment; but if the state statute governed our proceedings, we should regard this provision as directory, and the omission as not affecting the validity of the indictment or information. The other question to be considered presents an interesting inquiry. We have said the common law governs in criminal cases in the United States courts; hence the question whether the accused can be held to answer to a criminal information must be solved by determining, first, what is the common law on that subject; and, second, what modifications have been effected through the laws of congress or the constitution. The English system of jurisprudence brought by our ancestors as the common law, and those statutes of par liament applicable to the situation of the colonies, which extended to them and were adopted by usage or acts of assembly, have been by the United States courts held to be the common law of this country. Patterson v. Winu, 5 Pet.,

241.

At the time of the Revolution and of the adoption of the constitution, it was the practice in the court of king's bench for the king's attorney-genera to file informations in the name and behalf of the king, in a class of cases not above the grade of misdemeanors, without any previous showing to the court, but in the discretion of that officer. This discretion was not, however, exercised, except in cases where the offense tended to disturb or endanger the king's government, or to molest him in the regular discharge of his royal functions, and where delay would be dangerous. There was another class of offenses of the same grade, which could be proceeded against by information filed by the

master of the crown office-a person appointed as the king's attorney to prosecate in behalf of the public, on complaint made by a subject or by a common. informer. This officer could not substitute an information for the indictment of a grand jury, unless upon a showing and leave of court. The practice was to present affidavits of the offense, and move the court for a rule on the accused to show cause, and if the affidavits were not sufficiently answered leave was granted to file a criminal information in cases below the degree of felony. 4 Bl. Com., 308-9, 311; 1 Ch. Cr. L., 845-6, 849, 856. Now what changes have been produced by the constitution or laws of the United States, affecting the practice in form or substance, so far as regards the question at bar? Congress has passed no law on the subject, and the only constitutional provision affecting the question is the fifth amendment, proposed the same year that the original instrument went into operation - 1789. It declares, "No person shall be held to answer for a capital or otherwise infamous crime, unless upon a presentment or indictment of a grand jury," etc.

$3198. All offenses not capital nor infamous may be prosecuted by information or by indictment.

Congress by proposing, and the states by ratifying, that amendment, left all offenses not capital or infamous to be prosecuted by information or by indictment, as the circumstances of each case should seem to require, and as the common law would sanction. Indeed, this constitutional provision produced no change in the practice or law, except, perhaps, as regards a class of misdemeanors regarded as infamous crimes, and which might, before the amendment, be prosecuted by information. The amendment, however, fixed the matter beyond the power of congress or the courts to alter the course of proceeding in bringing forward a charge of crime, in the class of cases embraced by the provision. We regard the converse of the fifth amendment to be that persons may be held to answer for crimes other than such as are capital or infamous, upon information or indictment, according to the course of the common law. We have examined all the cases referred to by counsel, and find no well considered decision which conflicts with the views we have expressed, and therefore we conclude that, so far as the question rests on the common law, it is the right of the government, by its proper law officer, the district attorney, to charge offenses against individuals through the forms and mode of informations.

There are, however, two considerations growing out of this subject to which we should allude to give a proper understanding of our full views. It was said on the argument that the usage since the organization of the United States courts has been to present offenders, in all classes of criminal cases, only through the instrumentality of a grand jury by indictment. If the practice of prosecuting by criminal information has fallen into disuse for eighty years, it certainly presents a strong reason for urging that such proceeding has become obsolete. Our reply, however, is that the fifth amendment, adopted almost at the start of the government under our present constitution, recognized the right to pursue the common law course by criminal information, in all but capital and infamous crimes. And if such rights existed then, not only at common. law, but by clear implication in the fifth amendment, as we have shown, then, even though such right has been in abeyance for eighty years, there has been no abrogation of the power of the government to assert that right, particu larly as the courts do not seem to have refused, by any well-considered case, the exercise of such right, though we find some intimations by the courts adverse to its exercise.

§ 3199. Necessary preliminary steps before the right to file a criminal infor mation can be asserted.

The other consideration concerns the necessary preliminary steps before the right to file a criminal information can be asserted. We incline to the opinion and hold that there must first be a complaint, supported by oath or affirmation showing probable cause, followed by an arrest and examination, agreeably to section 33 of the act of September 21, 1789. If the accused is held to bail or committed, the district attorney, on filing the magistrate's or commissioner's return, with the proofs, will have leave to file a criminal information. Tais course would seem as nearly adapted to the method of procedure in these courts, and to our laws, as anything which suggests itself. It would certainly be quite foreign to any known practice in the United States courts to pursue the English practice of requiring a rule for the accused to show cause before the court, and there contest the question whether the evidence justified placing him upon trial. The right of the accused to contest the probable cause shown by the prosecution is secured to him on his examination before the commissioner or magistrate, under the complaint on which he was arrested.

We ought, perhaps, to remark that the position assumed by the defendant's attorney, that the charge in this case involves a felony, is not sustained. The fact that the accused is liable on conviction to be imprisoned in the penitentiary does not determine the offense to be a felony. On the contrary, a felony at common law embraces only such crimes as are punished capitally. Nor is it an infamous crime; for if the defendant should be convicted on such charge it would not render him incompetent to testify as a witness, as would be the result if it were a crimen falsi. Neither does the charge necessarily involve perjury which would be a crimen fulsi, and infamous. The information in this case, as we have shown, was filed without right or authority. The arrest and holding to bail were also unauthorized; and for both grounds the court must refuse to hold the accused to answer. Motion granted.

§ 3200. Contempt of court.- A warrant for the removal of a person charged with a contempt of court to another district for trial cannot be issued till the defendant has been arrested and imprisoned or bailed. United States v. Jacobi, 1 Flip., 113; 14 Int. Rev. Rec., 45; 3 Ch. Leg. N., 345.

§ 3201. A wilful contempt of a federal court is a crime and offense against the United States within the thirty-third section of the judiciary act of 1789, relating to the removal of offenders from one district to another. Ibid.

§3202. Where a person charged with a contempt of court flees to another district, the United States may proceed against him in the district where he is, by complaint or by the issuance of the warrant upon certified copies of the proceedings for contempt and the attachment, precisely as on a certified copy of the indictment in other cases. United States v. Jacobi, 1 Flip., 113.

§ 3203. Section 17 of the judiciary act of 1789, by declaring that "all said courts of the United States shall have power . . . to punish by fine or imprisonment, at the discretion of the courts, all contempts of authority, in any cause or hearing before the same," makes contempt a crime against the United States. It is, therefore, a crime within the meaning of the thirty-third section of the same act, providing that "for any crime against the United States the offender may be arrested and imprisoned," etc., and if such commitshall be in a district other than that in which the offender is to be tried, it shall be the duty of the judge . . seasonably to issue, and of the mar shal .. to execute, a warrant for the removal of the offender in which the trial is to be had. Ibid.

ment of the offender

.

.to the district

§ 3204. After proceedings had in district court.—Under the act of 1816, providing that the district court may remit indictments pending before it to the circuit court, when, in the opinion of the court, difficult and important questions of law are involved; "and the proceedings thereupon shall be the same in the circuit court as if such indictment had been originally found and presented therein," an indictment may be remitted after any proceedings

have been had in the district court which do not amount to a bar to a future trial. United States v. Morris,* 1 Curt., 23.

§ 3205. The act of 1846 provides that the "district court may, moreover, in like manner, remit to the circuit court any indictment pending in said district court when, in the opinion of the court, difficult and important questions of law are involved in the case." The direction to remit in like manner refers to a previous clause in the same section, which declares that "every indictment for a capital offense presented to the district court" shall be remitted to the circuit court. It is held that the district judge may remit a case for difficult and importan questions at any time when in his opinion such questions exist, whether during the term at which the indictment was presented or after such term. Ibid.

§ 3206. The term "indictment" does not include an information.- Section 1037 of the Revised Statutes authorizes the district court to remfit to the next session of the circuit court of the same district any indictment pending in said district court. Held, that the term indict

ment does not include an information. United States v. Tiernay,* 3 McC., 603.

§ 3207. Case sent back to circuit court.-The circuit court has jurisdiction to try an indictment found in the circuit court and remitted to the district court, and by the district court remitted back to the circuit court; these transactions having taken place under the act of congress of August 8, 1846, authorizing the remission of an indictment from the circuit court to the district court, on motion of the district attorney, when the offense may be cognizable by the district court; and also authorizing the district court to remit indictments to the circuit court, on motion of the district attorney, or whenever difficult and important questions of law are involved. United States v. Murphy,* 3 Wall., 649.

§ 3208. Sending case to district court.—There is no provision of law whereby a circuit court can, of its own motion, or on the application of the defendant, remit an indictment to a district court. This can only be done when the district attorney deems it necessary. United States v. Bennett, 16 Blatch., 338 (§§ 2480-89).

SUMMARY

2. From State to Federal Courts.

[See CONSTITUTION AND LAWS, VI; VII; XI, 3.j

Prosecution commenced, when, § 3209.- What the application must show, § 3210. § 3209. Under section 643 of the Revised Statutes, providing that "when any criminal prosecution is commenced in any court of a state against any officer appointed under or acting by authority of any revenue law of the United States," etc., the prosecution may, on petition of the defendant to the circuit court of the United States, be removed into such circuit court, it is held that the prosecution is commenced within the meaning of the act when the warrant is issued. It is further held that a prosecution has been commenced in a court of a state, within the meaning of the act, when a justice of the peace in the state of Georgia has, upon affidavit, issued a warrant of arrest, since the constitution of that state vests the judicial power of the state in "the supreme court, superior courts, courts of ordinary, and justices of the peace,” and a statute of the state declares that a "justice of the peace may hold a court of inquiry to examine into any accusation against any person legally arrested and brought before him." United States v. Port, § 3211-12.

§ 3210. An application for the removal of a criminal prosecution from a state to the federal courts under section 643 of the Revised Statutes must show that the offense is within the category of removable crimes. The general assertion of the party that it is so, or any general assertion that does not enable the court to see that it is so, is insufficient. The petition must show that the prosecution is for an act done by the defendants as officers of the United States under the provisions of the title of the statutes headed elective franchise, or on account of some right, title or authority claimed by them under its provisions. Ex parte Anderson, $3213-14.

[NOTES.-See $$ 3215-3230.] ·

STATE v. PORT.

(Circuit Court for Georgia; 3 Federal Reporter, 117–124. 18S0.)

STATEMENT OF FACTS.- Petition to remove into a federal court a prosecution in a state court of Georgia, against Port and others, for alleged murder. Defendants were United States revenue officers, and were arrested under a warrant issued by a justice of the peace.