United States ex rel. Millmond v. Fetters

Third Circuit

United States ex rel. Millmond v. Fetters

46 F.2d 997, 1931 U.S. App. LEXIS 2552

CourtCourt of Appeals for the Third Circuit

DecidedJanuary 23, 1931

DocketNo. 4446

StatusPublished

This text of 46 F.2d 997 (United States ex rel. Millmond v. Fetters) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States ex rel. Millmond v. Fetters, 46 F.2d 997, 1931 U.S. App. LEXIS 2552 (3d Cir. 1931).

Pincite

Opinion

BUFFINGTON, Circuit Judge.

In the court below Frank Millmond, who was in custody of its Marshal, sued out a writ of habeas corpus alleging he was unlawfully held. On hearing it appeared that Millmond had been committed to such custody by a United States Commissioner, who certified that on a hearing before him', with a view to removing Millmond to the Southern district of Now York for trial on a charge of using the mails in a scheme to defraud, the government had produced a certified copy of the indictment and a witness who identified Millmond as the person named in such in-’ dietment, and that thereupon he ordered such removal. The indictment sufficiently charged the commission by Millmond of crime, and Millmond’s identity was shown. The Com-’ missioner followed the law as stated by this court in U. S. ex rel. Haim v. Mathues, 19 F. (2d) 22, 23, where, referring to the probable cause of the charge and making certain the identity of the person charged, he said: “These are the two things that must be established before the accused can he lawfully removed. In such a hearing the function of the magistrate is not ministerial but is judicial in the limited sense indicated. He must pass on the question of identity — an issue purely of fact — and also on that of probable cause. The indictment is itself evidence that "there was probable cause for finding it.” On hearing, the judge below dismissed the writ and remanded Millmond to the custody of the Marshal, whereupon ho took this appeal.

Before the court below the alleged error of the Commissioner was his ruling, as follows :

“Mr. Shapiro: I want opportunity to produce evidence on the questions of jurisdiction, the crime charged, and probable cause.

“The Commissioner: The Commissioner states that the only evidence he will hear will [998]*998be the question of identification; that the indictment is conclusive evidence of jurisdiction and probable cause so far as the Commissioner is concerned.”

Under the many authorities that might be cited, it suffices to refer to two in this circuit, viz., U. S. ex rel. Haim v. Mathues, 19 F. (2d) 22, and Swan v. U. S., 23 F.(2d) 148, and to say the Commissioner committed no error in directing Millmond’s removal and the court none in discharging the writ.

Free access — add to your briefcase to read the full text and ask questions with AI

BUFFINGTON, Circuit Judge.

In the court below Frank Millmond, who was in custody of its Marshal, sued out a writ of habeas corpus alleging he was unlawfully held. On hearing it appeared that Millmond had been committed to such custody by a United States Commissioner, who certified that on a hearing before him', with a view to removing Millmond to the Southern district of Now York for trial on a charge of using the mails in a scheme to defraud, the government had produced a certified copy of the indictment and a witness who identified Millmond as the person named in such in-’ dietment, and that thereupon he ordered such removal. The indictment sufficiently charged the commission by Millmond of crime, and Millmond’s identity was shown. The Com-’ missioner followed the law as stated by this court in U. S. ex rel. Haim v. Mathues, 19 F. (2d) 22, 23, where, referring to the probable cause of the charge and making certain the identity of the person charged, he said: “These are the two things that must be established before the accused can he lawfully removed. In such a hearing the function of the magistrate is not ministerial but is judicial in the limited sense indicated. He must pass on the question of identity — an issue purely of fact — and also on that of probable cause. The indictment is itself evidence that "there was probable cause for finding it.” On hearing, the judge below dismissed the writ and remanded Millmond to the custody of the Marshal, whereupon ho took this appeal.

Before the court below the alleged error of the Commissioner was his ruling, as follows :

“Mr. Shapiro: I want opportunity to produce evidence on the questions of jurisdiction, the crime charged, and probable cause.

“The Commissioner: The Commissioner states that the only evidence he will hear will [998]*998be the question of identification; that the indictment is conclusive evidence of jurisdiction and probable cause so far as the Commissioner is concerned.”

Under the many authorities that might be cited, it suffices to refer to two in this circuit, viz., U. S. ex rel. Haim v. Mathues, 19 F. (2d) 22, and Swan v. U. S., 23 F.(2d) 148, and to say the Commissioner committed no error in directing Millmond’s removal and the court none in discharging the writ.

Cite This Page — Counsel Stack

Bluebook (online)

46 F.2d 997, 1931 U.S. App. LEXIS 2552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-ex-rel-millmond-v-fetters-ca3-1931.

Opinion

Related

Cite This Page — Counsel Stack