Farr v. Palmer

24 App. D.C. 234, 1904 U.S. App. LEXIS 5322

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 1, 1904
• Docket: No. 1441
• Status: Published

Opinion

Hr. Justice Shepard

delivered the opinion of the Court:

We are of the ojúnion that there was no error in dismissing the petition. It is well settled that an indictment presented in a court having jurisdiction of the offense is a showing of probable cause sufficient to justify the issue of the warrant for the removal of the accused, and that, “so far as respects technical objections, the sufficiency of the indictment is to be determined by the court in which it was found, and is not a matter of inquiry in removal proceedings.” Beavers v. Henkel, 194 U. S. 73, 87, 48 L. ed. 882, 887, 24 Sup. Ct. Rep. 605.

In'such proceedings, the only objection that can. be entertained to the sufficiency of the indictment is, that it fails to charge the commission of any offense against the United States, for in that event there would be no jurisdiction to make the order. Greene v. Henkel, 183 U. S. 249, 261, 46 L. ed. 177, 189, 22 Sup. Ct. Rep. 218; Beavers v. Henkel, 194 U. S. 73, 87, 48 L. ed. 882, 887, 24 Sup. Ct. Rep. 605.

The removal of the accused can be properly refused in those cases only, where, upon a broad and liberal construction of the indictment, it appears clearly that no offense has been charged. The necessary elements of the offense defined in § 5480, Rev. Stat. (U. S. Comp. Stat. 1901, p. 3696), as amended, are: (1) A scheme or artifice to defraud; (2) the opening of correspondence with some person through the postoffice establishment, or by inciting such other person to open such communication; (3) in execution of the scheme the accused must have deposited a letter or packet in the postoffice, or taken or received one therefrom. Stokes v. United States, 157 U. S. 187, 188, 39 L. ed. 667, 668, 15 Sup. Ct. Rep. 617.

In view of our conclusion, and having given in the preliminary statement a brief synopsis of the substantial charges of the indictment, we regard it as unnecessary to review the several objections that have been made and vigorously argued on behalf of the appellant. Forceful as some of these seem to be, we regard them as technical rather than substantial, and, therefore, for the exclusive consideration of the court before which the trial must be had. We think it sufficient to say that, for the purposes of removal for trial in that court, the charges of the indictment, liberally construed, tend to establish an offense within the scope and meaning of the statute.

It follows that the order discharging the writ and remanding the petitioner to await the warrant of removal must be affirmed; and it is so ordered, with costs.

A writ of error to the Supreme Court of the United States was refused November 15, 1904.