United States v. Kerr

159 F. 185, 1908 U.S. Dist. LEXIS 95

Opinion

J. B. McPHERSON, District Judge

(after stating the -facts as above). Whatever may be said concerning the power of a grand jury in the Pennsylvania courts to find an indictment where the accused has not had a previous hearing before a magistrate, it is clear that no such hearing is necessary in the federal courts. No doubt, a prosecution before these tribunals is ordinarily begun in much the same way as in the criminal courts of the state. Information is laid before a commissioner, who hears the government’s case and thereupon either discharges the accused of holds him to answer; but this preliminary examination is not essential as the federal authorities abundantly show. If the grand jury sees proper to act upon evidence that is brought to their attention, they may bring in a suitable indictment, although the charge is made for the first time by their finding, and although the accused has had no preliminary hearing. Apparently, the argument offered to support the motion in arrest of judgment fails to, give due weight to the difference between the practice of the federal and the Pennsylvania courts in this respect,- and ceases, to be persuasive as soon as the distinction is clearly recognized.

The reasons for a new trial have also received consideration, but I do not see how the verdict upon the McDonald charges, at least, can be properly set aside. The other two offenses are much less important, but the conviction upon the charge growing out of the McDonald letter is a more serious matter. The testimony there was squarely in conflict, but there was sufficient to convict if the jury believed the government’s witnesses, and the verdict shows that belief was given to their account, and not to the defendant’s. To •determine the credibility of witnesses being peculiarly within the province of the jury, and the testimony here being in fair balance (to state the case most favorably for the defendant), there is no legal ground on which the court can interfere with the result.

Both motions must be refused. Sentence will be imposed upon one or more of the counts numbered 5 to 9, inclusive.