Unverzagt v. Benn

Ninth Circuit

Unverzagt v. Benn

5 F.2d 492, 1925 U.S. App. LEXIS 2692

CourtCourt of Appeals for the Ninth Circuit

DecidedMay 5, 1925

Docket4398

StatusPublished

Cited by9 cases

This text of 5 F.2d 492 (Unverzagt v. Benn) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Unverzagt v. Benn, 5 F.2d 492, 1925 U.S. App. LEXIS 2692 (9th Cir. 1925).

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Opinions

RUDKIN, Circuit Judge.

This is an appeal from an order discharging a writ of habeas corpus. The petition for the writ averred that the petitioner was imprisoned and restrained of his.liberty by color of authority of the United States; that the sole claim and authority for ids detention was a commitment issued by a United States commissioner; that the commitment was so issued in a certain proceeding instituted on behalf of the United States District Court for the Western District of New York, for [493]*493the removal of the petitioner to that district for trial, for the crime of using the mails of the United States with intent to defraud; that the petitioner did not commit the crime attempted to be charged in the indictment; that on April 24, 1924, the petitioner was, by artifice and physical violence, abducted and kidnapped from the city of Vancouver in the Dominion of Canada by certain officials of the United States; that the attorney for the petitioner, in Vancouver, had communicated the facts surrounding the abduction to the Department of Foreign Affairs at Ottawa, Canada; that the petitioner was informed and believed that the Canadian government was preparing to make a protest to the United States against the unlaw-, ful acts and removal of the petitioner from that country; and that the district attorney of the United States for the Western district of Washington planned to return the petitioner to the Western district of -- New York, without giving him an opportunity to present his ease to the court, and without giving the Canadian government time or opportunity to protest against the.removal of the' petitioner from the Dominion of Canada.

The prayer of the petition was that a writ of habeas corpus issue; that the court fix a time for hearing, at some date subsequent to May 15, 1924; that in the meantime the petitioner be permitted to remain in the county jail of Whatcom county, unless admitted to bail by the court; that all proceedings for the removal of the petitioner from the Western district of Washington be stayed until a hearing was had; and for such other relief as might be just and proper in the premises. The petition was dated May 1,1924. A copy of the commitment under which the petitioner was held was attached to the petition. From this it appeared that on April 25, 1924, the petitioner was required to give bond in the sum of $25,000 for his appearance before the United States commissioner on May 1, 1924, at the hour of 10 o’clock a. m., and from time to time as thereafter required, pending examination, and was committed to the jail of Whatcom county for failure to give such bond. On May 6, 1924, a writ of habeas corpus issued as prayed, returnable on the following day. The marshal made return that on May 1, 1924, the United States commissioner determined that there was probable cause to believe that the petitioner committed the offense charged in the exemplified copy of the indictment upon which the original warrant of arrest was predicated, and held him to abide the order of the United States District Court for the Western District of Washington, committing him to the jail of Whatcom county in the meantime.

It will be seen from the foregoing that the petition raised no question as to the validity or sufficiency of the indictment, no question as to the identity of the accused or of probable cause, and no question as to the regularity of any hearing theretofore had, or as to the sufficiency of the testimony to support any order theretofore made. The writ of habeas corpus was sought for the sole purpose of preventing the removal of the appellant from the Western district of Washington to the Western district of New York without a hearing or an opportunity to be heard. Of course, there could be no removal without a hearing as a matter of law, and there was no attempt at removal without a hearing as a matter of fact. At the time the writ was applied for the petitioner was detained in the county jail in default of bail until a hearing could be had before the United States commissioner, and at the time of the hearing in the court below a hearing had already been had before the commissioner, and the appellant was detained to await a further hearing before the court below, pursuant to section 1014 of the Revised Statutes (Comp. St. § 1674).

For these reasons, if the petition stated any grounds for the issuance of the writ in the first instance, the writ had fully accomplished its purpose at the time of the hearing in the court below.

The judgment is therefore affirmed. Mandate forthwith.

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RUDKIN, Circuit Judge.

This is an appeal from an order discharging a writ of habeas corpus. The petition for the writ averred that the petitioner was imprisoned and restrained of his.liberty by color of authority of the United States; that the sole claim and authority for ids detention was a commitment issued by a United States commissioner; that the commitment was so issued in a certain proceeding instituted on behalf of the United States District Court for the Western District of New York, for [493]*493the removal of the petitioner to that district for trial, for the crime of using the mails of the United States with intent to defraud; that the petitioner did not commit the crime attempted to be charged in the indictment; that on April 24, 1924, the petitioner was, by artifice and physical violence, abducted and kidnapped from the city of Vancouver in the Dominion of Canada by certain officials of the United States; that the attorney for the petitioner, in Vancouver, had communicated the facts surrounding the abduction to the Department of Foreign Affairs at Ottawa, Canada; that the petitioner was informed and believed that the Canadian government was preparing to make a protest to the United States against the unlaw-, ful acts and removal of the petitioner from that country; and that the district attorney of the United States for the Western district of Washington planned to return the petitioner to the Western district of -- New York, without giving him an opportunity to present his ease to the court, and without giving the Canadian government time or opportunity to protest against the.removal of the' petitioner from the Dominion of Canada.

The prayer of the petition was that a writ of habeas corpus issue; that the court fix a time for hearing, at some date subsequent to May 15, 1924; that in the meantime the petitioner be permitted to remain in the county jail of Whatcom county, unless admitted to bail by the court; that all proceedings for the removal of the petitioner from the Western district of Washington be stayed until a hearing was had; and for such other relief as might be just and proper in the premises. The petition was dated May 1,1924. A copy of the commitment under which the petitioner was held was attached to the petition. From this it appeared that on April 25, 1924, the petitioner was required to give bond in the sum of $25,000 for his appearance before the United States commissioner on May 1, 1924, at the hour of 10 o’clock a. m., and from time to time as thereafter required, pending examination, and was committed to the jail of Whatcom county for failure to give such bond. On May 6, 1924, a writ of habeas corpus issued as prayed, returnable on the following day. The marshal made return that on May 1, 1924, the United States commissioner determined that there was probable cause to believe that the petitioner committed the offense charged in the exemplified copy of the indictment upon which the original warrant of arrest was predicated, and held him to abide the order of the United States District Court for the Western District of Washington, committing him to the jail of Whatcom county in the meantime.

It will be seen from the foregoing that the petition raised no question as to the validity or sufficiency of the indictment, no question as to the identity of the accused or of probable cause, and no question as to the regularity of any hearing theretofore had, or as to the sufficiency of the testimony to support any order theretofore made. The writ of habeas corpus was sought for the sole purpose of preventing the removal of the appellant from the Western district of Washington to the Western district of New York without a hearing or an opportunity to be heard. Of course, there could be no removal without a hearing as a matter of law, and there was no attempt at removal without a hearing as a matter of fact. At the time the writ was applied for the petitioner was detained in the county jail in default of bail until a hearing could be had before the United States commissioner, and at the time of the hearing in the court below a hearing had already been had before the commissioner, and the appellant was detained to await a further hearing before the court below, pursuant to section 1014 of the Revised Statutes (Comp. St. § 1674).

For these reasons, if the petition stated any grounds for the issuance of the writ in the first instance, the writ had fully accomplished its purpose at the time of the hearing in the court below.

The judgment is therefore affirmed. Mandate forthwith.

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5 F.2d 492, 1925 U.S. App. LEXIS 2692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/unverzagt-v-benn-ca9-1925.

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