Fetters v. United States Ex Rel. Cunningham, 283 U.S. 638 (1931)

283 U.S.
638
51 S.Ct. 596
75 L.Ed. 1321
FETTERS, U. S. Marshal,
v.
UNITED STATES ex rel. CUNNINGHAM.
No. 720.
Argued April 16, 1931.
Decided May 25, 1931.
The Attorney General and Mr. Claude R. Branch, of Washington, D. C.,

for petitioner.
Mr. Ruby R. Vale, of Philadelphia, Pa., for respondent.
Mr. Justice SUTHERLAND delivered the opinion of the Court.
On April 20, 1928, an indictment was returned by a grand jury in the Supreme
Court of the District of Columbia, charging the respondent, Cunningham, with
a violation of section 102, R. S.1 (U. S. C. title 2, 192 (2 USCA 192)), in
having refused to answer pertinent questions put to him by a committee of the
United States Senate. It is not necessary to reproduce the indictment. For
present purposes, the facts pleaded therein sufficiently appear in the opinion of
this court in Barry v. United States ex rel. Cunningham, 279 U. S. 597, 49 S.
Ct. 452, 73 L. Ed. 867. After indictment, respondent was arrested in
Pennsylvania upon a warrant issued under section 1014, R. S. (U. S. C. title 18,
591 (18 USCA 591)), and taken before a United States District Judge sitting
as a committing magistrate. Section 1014 provides:
'For any crime or offense against the United States, the offender may, by any
justice or judge of the United States, or by any commissioner of a circuit court
to take bail, or by any chancellor, judge of a supreme or superior court, chief or
first judge of common pleas, mayor of a city, justice of the peace, or other
magistrate, of any State where he may be found, and agreeably to the usual
mode of process against offenders in such State, and at the expense of the
United States, be arrested and imprisoned, or bailed, as the case may be, for
trial before such court of the United States as by law has cognizance of the
offense.' That section further provides for the removal of the offender, if
committed, to the district where the offense is to be tried.
3
At the hearing before the District Judge, the government, to show probable
cause, in troduced in evidence a certified copy of the indictment, and rested.
Respondent challenged the sufficiency of the indictment upon the ground that
the questions set forth therein, which he had refused to answer, were not
pertinent to the committee's inquiry, and introduced a transcript of the
proceedings before the committee. The District Judge ordered respondent's
commitment and his removal to the District of Columbia. Respondent
thereupon sought his discharge from the custody of the United States marshal,
and filed a petition for a writ of habeas corpus to that end in the federal District
Court presided over by the same judge. That court held the indictment
sufficient to support the commitment and removal, and dismissed the petition.
U. S. ex rel. Cunningham v. Mathues, 26 F.(2d) 272. On appeal to the Circuit
Court of Appeals for the Third Circuit, the order of the District Court was
reversed on the ground that the indictment disclosed that the questions
propounded to respondent were not pertinent to the inquiry, and, therefore,
there was not probable cause for respondent's commitment and removal to
another district for trial. 33 F.(2d) 261.
After our decision in the Barry Case, supra, the Court of Appeals granted a
rehearing, but, upon consideration, adhered to its former decision. 50 F.(2d)
411. Thereupon the United States marshal applied to this court for a writ of
certiorari, which was granted, but with an order vacating the judgments of both
lower courts and remanding the cause to the District Court with directions to
dismiss the proceeding as abated. Mathues v. United States ex rel.
Cunningham, 282 U. S. 802, 51 S. Ct. 84, 75 L. Ed. . This was done because
the United States marshal named in the petition had gone out of office and no
substitution had been made within the statutory period. Respondent then
surrendered himself to United States Marshal Fetters, who was then in office,
and filed a new habeas corpus petition; and, upon that petition, after a hearing,
the District Court ordered the respondent to be discharged, 50 F.(2d) 449,
deeming itself bound by the opinion of the Court of Appeals upon the former
appeal. It is this last order which is now here for review; this court having
granted a writ of certiorari pending the disposition of an appeal therefrom to the
court below.
In proceedings under section 1014, R. S., the inquiry is limited to the question
whether there is probable cause to believe the prisoner guilty, so as to justify
his commitment and removal for trial. This inquiry may take place in advance
of indictment or without the production of the indictment if one has been

returned. When the indictment is produced before the committing magistrate, it
is received not as a pleading, but as evidence establishing or tending to establish
the commission of an offense; and the magistrate has authority to pass upon it
only in that aspect. He has no authority to determine its sufficiency as a
pleading. Morse v. United States, 267 U. S. 80, 83, 45 S. Ct. 209, 69 L. Ed.
522, and cases cited.
6
Whether the indictment in this case properly could be held sufficient by the
trial court upon demurrer, we have no occasion to consider. Without going into
particulars, we think it clearly sufficient for removal purposes. The most that
can be said is that the question whether the indictment is sufficient to put the
respondent on trial is fairly debatable. It was never intended by section 1014
that an examining magistrate should have the power in removal proceedings to
hold the facts pleaded in an indictment insufficient to charge an offense when
that question is reasonably open to a difference of opinion. Doubtful questions
of law relating to the sufficiency of the indictment or the validity of the statute
upon which the indictment is based, as well as all doubtful questions of fact, are
matters to be left for the trial court to determine. Parker v. United States (C. C.
A.) 3 F.(2d) 903, 904, and cases cited.
In U. S. ex rel. Hughes v. Gault, 271 U. S. 142, 46 S. Ct. 459, 460, 70 L. Ed.

875, this court, after pointing out that the proceedings under section 1014, R. S.,
were intrusted not only to judges and commissioners of the United States and
judges of state courts, but to any 'mayor of a city, justice of the peace, or other
magistrate, of any State where (the accused) may be found,' said (page 150 of
271 U. S., 46 S. Ct. 459, 460):
'Obviously, in order to make it the duty of the judge to issue the warrant a
mayor or a magistrate not a lawyer cannot be expected to do more than to
decide in a summary way that the indictment is intended to charge an offense
against the laws of the United States, that the person before him is the person
charged and that there is probable cause to believe him guilty, without the
magistrate's being held to more than avoiding palpable injustice.'
A rule in respect of the power of one of the magistrates named in the statute, of
course, applies to all.
10
And see Rodman v. Pothier, 264 U. S. 399, 402, 44 S. Ct. 360, 68 L. Ed. 759;
Henry v. Henkel, 235 U. S. 219, 229, 35 S. Ct. 54, 59 L. Ed. 203.
11
The first order of commitment and removal made by the District Judge was
proper and should have been sustained. In the trial court the accused will have
every opportunity to test the sufficiency of the indictment, since there it is not
evidence, but the very 'foundation of the charge.' Benson v. Henkel, 198 U. S.
1, 12, 25 S. Ct. 569, 571, 49 L. Ed. 919.
12
The judgment of the District Court must be reversed, and the cause remanded to
that court for further proceedings in conformity with this opinion. It is so
ordered.
Sec. 102. Every person who having been summoned as a witness by the
authority of either House of Congress, to give testimony or to produce papers
upon any matter under inquiry before either Huse, or any committee of either
House of Congress, willfully makes default, or who, having appeared, refuses
to answer any question pertinent to the question under inquiry, shall be deemed
guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less
than $100, and imprisonment in a common jail for not less than one month nor
more than twelve months.

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283 U.S.

The Attorney General and Mr. Claude R. Branch, of Washington, D. C.,

of indictment or without the production of the indictment if one has been

In U. S. ex rel. Hughes v. Gault, 271 U. S. 142, 46 S. Ct. 459, 460, 70 L. Ed.

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