In re Hamilton

11 F. Cas. 319, 1 Ben. 455

• Court: District Court, S.D. New York
• Decided: October 15, 1867
• Status: Published

Opinion

BLATCHFORD, District Judge.

Inasmuch as Captain Brown came here under the habeas corpus ad testificandum issued by this court, and is now before the court, he is not out of its power, and this court has jurisdiction of the matter. It was decided in the-Kaine Case, that a party who was brought up by a writ of habeas corpus was under the control of the court which issued it, till the writ was disposed .of. The original writ in this matter bore the name of the district attorney of the United States for this district upon its face. Yet the officer from Philadelphia, who brought Brown here in obedience to that writ, when served with the habeas corpus issued by Judge Cardozo, did not notify the district attorney of this fact. It appeared from the petition on which Judge Cardozo’s writ was issued, that it was not alleged in it that Brown was held by any writ of this court at all, but only by a commitment of the court of quarter sessions of Philadelphia. And the return did not mend the matter, for it merely set out that Brown was held by an order of Mr. Perkins, the superintendent of the prison in Philadelphia. This-court will assume that, if the officer had made a proper return, Judge Cardozo would have done his duty and at once dismissed the writ. But, whatever may have been his private information, he was bound by the papers before him, and on those no valid reason for detaining the prisoner appeared. However, neither his action nor the negligence of the officer can affect the rights of this court. Captain Brown has never been out of its-jurisdiction, and the court has but one course to follow. It must send him back to the place from which he was brought for the purpose of testifying, and. as his proper guardian has abandoned him, the marshal must return him there, leaving him to such remedy as he may think proper for any injury he majr have sustained from the state courts of Pennsylvania.

The question in Hamilton’s Case having been argued on the evidence, the following decision was rendered:

BLATCHFORD, District Judge. The traverse to the return made by General Butter-field to this writ, denying that the petitioner was regularly enlisted into the service of the United States, and was regularly sworn on such enlistment,- would appear to have been intended to raise the legal question of the regularity of the enlistment, and not the question of the identity of the petitioner. But the testimony has been addressed to the question of identity. The recruit was enlisi-ed in Philadelphia, on the 1st of April last, deserted on the Gth of April, and the petitioner was arrested on the 20th of August. On charges being preferred against him, he was sent to Governor’s Island for trial, and is now brought up on this habeas corpus, the point being made that he is not the same individual who was enlisted. Though the traverse does not seem to raise this question, yet on the testimony, it is fair to the parties to dispose of the case on its merits. I have carefully examined the testimony, which was mainly taken before Commissioner Osborn. The only evidence produced by the petitioner is his own deposition. His language is very guarded on the question as to whether he did enlist. In the enlistment papers the recruit swore that he was twenty-one years of age. The petitioner swears that he is now nineteen, and has a mother living, his father being dead, and that he had been living with his mother in Philadelphia, until he was arrested there on the 20th of August. It is, therefore, to be noticed, that the petitioner admits that he lived in Philadelphia at the time of this enlistment. There is nothing in the case to show an alibi. The question of his enlistment was put to him, and he says that he does not recollect going to the office, and does not recollect signing the papers, and does not recollect taking the oath. The enlistment papers were shown to him, and he said that he could not read them, but he denied that either of the signatures was his. He was asked if he recognized Colonel Park, whose name is three times signed to the papers, and he said he did not He was then asked if he was not enlisted before Colonel Park, and his answer was, “Not that I know of.” On the other side, Colonel Park was sworn for the government, and, on looking at the petitioner, he said that he recognized him; first saw him at the surgeon’s office; saw him there on April 1st; that he saw the papers and swore to them before the witness; and that Hamilton remained under his charge till April Gth, when he deserted. Then the medical paper was produced, and Colonel Park testified that he was present at the examination, and that, as far as he could judge, the recruit was perfectly sober. Colonel Park’s testimony is very direct and clear, and he recognizes Hamilton as the party who swore to and signed the enlistment papers. Still, if the ease stopped here, it might be claimed that it was but one oath against another; but in addition to that, there is the correspondence of the petitioner’s personal appearance with the description in the enlistment papers. He is described in them as having brown eyes, dark hair, and florid complexion, and being five feet seven inches in height. He has brown eyes, dark hair, and florid complexion, and, on measurement, he appears to be five feet seven and one-quarter inches in height — a very slight discrepancy. Another circumstance is his handwriting. There is a peculiarity in it which can hardly be the result of accident; The recruit signed his name, on enlistment, in two places, and, after the word “William,” there is a period. That same period is found, in the same position, in the signature of the petitioner to his petition for the writ, and in his signature to the traverse of the return. In the latter he has written out his middle name in full — William Lewis Hamilton — and has put a period after the word Lewis also, showing that that was a habit of his, which is quite peculiar, and is a strong circumstance to show that the signatures are made by the same person. Moreover, the general correspondence of the signatures is such that there is no room to doubt that they were made by the same person. In view of the positive evidence of Colonel Park, the correspondence of the signatures, and the doubtful character of the petitioner’s testimony, I can have no reasonable doubt that the petitioner is the party who signed the enlistment papers. Moreover, in the medical paper, the surgeon states that the recruit has a crucifix stamped on his left arm, and the petitioner admits that he has a crucifix on his left arm, with a Virgin Mary on each side. As the petitioner was the person who signed the enlistment papers, in which he swore that he was twenty-one years of age, he was regularly enlisted, and must, therefore, be remanded.