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DAY V. KEIM, Sheriff, et al.

from the chief of police of Cleveland, Ohio, (Circuit Court of Appeals, Fourth Circuit. asking that he be arrested and held because November 17, 1924.)

he had in Cleveland given a check for $15 No. 2305.

to hotel when he had funds 1. Extradition Em36Arrest may be made in the bank on which he had drawn without warrant to await requisition from it. . When arrested he was asked whether another state.

he was willing to go to Ohio to answer the A person may lawfully be arrested without warrant by a peace officer of one state and held charge, and at first he said, “Yes,” but aftfor the reasonable time necessary to enable a er having obtained the advice of counsel requisition to be made for him by another he said he would not go unless he was propstate. 2. Habeas corpus m92 (2)—Warrant issued erly extradited. Nevertheless he averred after filing of petition may be considered.

that some Ohio officer was then on his way In habeas corpus proceedings for discharge to get and take him to Ohio without any of a state prisoner held without a warrant, the extradition warrant from the Governor of court may consider a warrant issued and served after filing of the petition.

West Virginia. The writ duly issued. The 3. Extradition. Com 21-Habeas corpus E45 return of the respondents was filed on the

(3)-Proceedings for interstate extradition 23d and set up that the petitioner was held governed by federal statute, and federal by them in virtue of a committment directed courts have jurisdiction of habeas corpus proceeding.

to the respondents by a justice of the counProceedings for interstate extradition are ty, committing him for further hearing upgoverned by Rev. St. $. 5278 (Comp. St. Ši on the charge of having on June 13, 1924, provisions of that statute is detained in viola- unlawfully, knowingly, and falsely delivertion of the Constitution and laws of the United ed to the Hotel Cleveland, Cleveland, Ohio, States and may invoke the jurisdiction of a federal court by writ of habeas corpus to in

a check signed by him and drawn upon the quire into the legality of his detention. Davis Trust Company, of Elkins, W. Va. 4. Habeas corpus Cow 103-Petition for writ by After a hearing, the learned judge below

one held for interstate extradition should be declined to discharge the petitioner, disretained until proceedings are lawfully con- missed his petition, and remanded him to cluded.

Where one held by state authorities for the custody of the respondents. Thereupon extradition to another

state applies to a fed- the petitioner took this appeal and was aderal court for a writ of habeas corpus, alleging mitted to bail pending the action of this that his unlawful removal is threatened, the court should retain jurisdiction and suspend the court. hearing for such reasonable time as required [1-3] The contention of the petitioner to enable the states to complete the proceed that he could not lawfully be arrested withings for his lawful extradition, and, if such action is not taken, discharge the petitioner. out a warrant by a peace officer of West

Virginia for detention for the reasonable Appeal from the District Court of the time necessary to enable a requisition for United States for the Northern District of him to be regularly made cannot be susWest Virginia, at Elkins; William E. Bak- tained. Burton v. New York Central & er, Judge.

Hudson River Railroad Co., 245 U. S. 315, Petition by B. W. Day against W. H. 38 S. Ct. 108, 62 L. Ed. 314; Kurtz v. Keim, Sheriff, and others, for writ of ha- Moffitt, 115 U. S. 487, 504, 6 S. Ct. 148, 29 beas corpus. Writ discharged, and petition- L. Ed. 458. Nor is there any better founer appeals. Reversed and remanded, with dation for his claim that the learned court directions.

below was not justified in considering the A. M. Cunningham, of Elkins, W. Va., warrant granted in the interval between the for appellant.

filing of his petition and the respondents'

turn to the writ of habeas corpus. NishBefore WOODS, WADDILL, and ROSE, imura Ekiu v. United States, 142 U. S. Circuit Judges.

651, 12 S. Ct. 336, 35 L. Ed. 1146; Iasigi v. ROSE, Circuit Judge. The appellant has

Van De Carr, 166 U. S. 391, 17 S. Ct. 595, appealed from the discharge of the writ of 41 L. Ed. 1045; Kelly v. Griffin, 241 U. S. habeas corpus he had applied for below and 6, 36 S. Ct. 487, 60 L. Ed. 861. Whether his remand to the custody of the respond- the court was right in dismissing his petients, the sheriff and jailer of Randolph tion depends upon other considerations. county, W. Va. He will be referred to as

The intention of the framers of article 4 the petitioner. His original petition was of the Constitution was to embrace fully sworn to on August 20th last, and was filed the subject of the rendition between the on the next day. In it he alleged that he states of fugitives from justice and to conwas arrested on the 19th upon a telegram fer authority upon Congress to deal with

2 F.(20) 966 that subject. Innes v. Tobin, 240 U. S. 127, States, he is not in the custody of federal 36 S. Ct. 290, 60 L. Ed. 562. The act now

officials or held under a warrant of its codified as Section 5278 of the Revised courts. Ableman v. Booth, 21 How. 506, Statutes (Comp. St. § 10126) was enacted 16 L. Ed. 169, in its denial of the right of for the

purpose of controlling the subject of state courts to inquire by habeas corpus interstate rendition, and its provisions were into the legality of federal arrests is withintended to be dominant and as far as they out application. The state and federal operated controlling and exclusive of state courts in such matters have concurrent jupower. Id.

risdiction. Robb v. Connolly, 111 U. S. 624, One who is held in custody contrary to the 4 S. Ct. 544, 28 L. Ed. 542. provisions of that statute is therefore de- As a corollary it follows that if the actained in violation of the Constitution and cused has first invoked the aid of the state laws of the United States, and the District tribunals, the courts of the United States Court has jurisdiction to inquire into the under ordinary circumstances require him cause of his detention and, if it be found to exhaust his remedies in them before seek-' insufficient, to discharge him. The proceed- ing the interposition of the Federal power. ings for extradition are executive functions. Appleyard v. Massachusetts, 203 U. S. 222, In re Leary, 15 Fed. Cas. 106, No. 8162. 27 S. Ct. 122, 51 L. Ed. 161, 7 Ann. Cas. The reasons given in Ex parte Royall, 117 1073. U. S. 241, 6 S. Ct. 734, 29 L. Ed. 868, and [4] The law being settled as stated above, the many cases which have followed it, why we think that the petitioner was entitled to the federal courts may and in their discre- ask the court below to retain jurisdiction tion frequently should decline to take a peti- of his application so long as was necessary tioner out of the custody of state courts so to insure that he should not against his will long as there is any probability that he be removed into Ohio by state officials in will be able successfully to assert his con- violation of his constitutional rights, as he stitutional rights before those tribunals, do alleges they threatened to do. On the othnot apply to petitions for habeas corpus by er hand, he should not have been summarily persons

held for interstate extradition. For discharged from custody. His petition for at least 80 years such jurisdiction has been habeas corpus was filed before the Goverfreely exercised. In the forties of the last nor of West Virginia had any hearing upon century, Joseph Smith, the founder of Mor- the extradition proceedings or indeed bemonism, obtained from the Circuit Court of fore there had been time for any applicathe United States for the District of Illi- tion to the Governor for an extradition warnois a writ of habeas corpus to prevent his rant. In such case the proper course would removal to Missouri under a warrant of ex- have been to suspend the hearing of the tradition issued by the Governor of Illi- writ for such reasonable time as might be nois. A grand jury of a Missouri county required to enable the Governor to hear, had indicted Smith as an accessory before consider, and act upon any application for the fact to an attempted murder in their Ex parte Thaw (D. C.) 209 F. 56. bailiwick. Extradition proceedings follow- Some three months have now gone by since ed and they culminated in the warrant of the petitioner was first arrested. More than the Governor of Illinois. It was not al- ample time in which to apply for extradileged that Smith had been in Missouri at tion and for the Governor to act on such or before, or even after, the commission of application has elapsed. The record does the alleged offense. Indeed, it was conced- not inform us whether such application has ed that whatever he had done had been done in fact been made. We therefore shall rein Illinois. He was therefore not a fugitive verse the order of the court below dischargfrom the justice of Missouri, and he was ing the writ and remand the case to the accordingly discharged by United States court below with the direction to require the District Judge Pope. Ex parte Smith, 22 respondents to show what action, if any, has Fed. Cas. p. 373, No. 12968.

been taken towards securing an extradition To give as much as the names of the liter warrant from the Governor of West Virginally scores of cases in which the same ju- ia and to grant the writ and discharge the risdiction has been since exercised would be petitioner if no application has in point of to waste time and space. It may, however, facť been made, no reasonable explanabe worth while to call attention to the fact tion such as the pendency of these proceedthat while a person held in custody for ex- ings shall be given for the delay in maktradition is in a sense detained under oring it. by color of the authority of the United Reversed.

one.

SOUTHEASTERN EXPRESS CO. v. affidavit before a United States commissionKENDRICK.

er, charging that the plaintiff, on or about (Circuit Court of Appeals, Fifth Circuit. No- June 25, 1922, unlawfully had in his posvember 5, 1924.)

session at Birmingham certain narcotics, in No. 4428.

violation of the Harrison Narcotic Law. 1. Malicious prosecution @ 64(!) – Evidence 38 Stat. 785 (Comp. St. $8 62878-6287q).

held to warrant finding prosecution was insti. This affidavit contained the allegation that gated by defendant's agents.

the affiant had reason to believe that one Evidence held sufficient to warrant finding that prosecution for unlawful possession of F. B. Pond was a material witness. On narcotics, in violation of Harrison Narcotic the same day that the affidavit was made Law (Comp. St. 88 62878-62879), was instigated by defendant's agents.

a warrant was issued by the United States 2. Malicious prosecution @m142—That plaintiff commissioner, and the plaintiff was subse

was charged with unlawful possession of nar. quently tried for the unlawful possession cotics did not relieve defendant, whose agents of narcotics, and acquitted. The plaintiff caused arrest for larceny of narcotics.

at the time of his arrest had been employed Where express company's agent caused arrest of employee for larceny of narcotics, ex. by the defendant as express messenger bepress company was not relieved of liability for tween Atlanta and Birmingham. He testimalicious prosecution because formal charge on which employee was prosecuted was unlaw- fied in his own behalf that, some time beful possession of narcotics.

fore he was arrested, the assistant superin3. Malicious prosecution em42_Principal lia- tendent, Mr. Roper, told him that there had

ble for agent's acts within scope of employ; been a robbery of narcotics which had been ment, regardless of whether particular act authorized.

shipped from Baltimore to New Orleans, Test of express company's liability for that the plaintiff was under suspicion, and causing arrest of employee for larceny of narcotics is not whether agent was acting in com

that the company was going to find out who pany's interest, but whether he was acting took the narcotics; that the day before he within scope of employment, and where he was was arrested F. B. Pond, defendant's speso acting it was immaterial that particular act cial agent or detective, accused him of the was not authorized.

larceny of the narcotics, wrote out a conIn Error to the District Court of the fession for him to sign, and demanded to he United States for the Northern District of allowed to take finger prints; that the Alabama; William I. Grubb, Judge. plaintiff declined to sign the confession, or

Action by Thomas L. Kendrick against to allow finger prints to be taken, and that the Southeastern Express Company. Judg- thereupon Pond stated that he would have ment for plaintiff, and defendant brings er

him (the plaintiff) arrested within 24 Affirmed.

hours; that on the morning of the day he

was arrested Mr. York, the division superR. H. Serivner, of Birmingham, Ala. intendent, requested him to be at the ter(Stokely, Scrivner, Dominick & Smith, of minal station in Birmingham about 2:30 Birmingham, Ala., on the brief), for plain

or 3 o'clock that afternoon for an interview tiff in error.

with reference to the larceny of the narcotH. M. Abercrombie, of Birmingham, Ala., ies; that the plaintiff agreed, and went to for defendant in error.

the station as requested; that Mr. York Before WALKER and BRYAN, Circuit was not there, but that he was met by a Judges, and ESTES, District Judge. deputy United States marshal and police of

ficers, who arrested him. BRYAN, Circuit Judge. This is an ac- Neither Roper nor Pond denied the statetion of malicious prosecution, in which the ments attributed to them by the plaintiff. plaintiff below recovered a verdict and judg- Mr. York stated that he did not agree to ment for $750. On this writ of error the meet the plaintiff at the station, but indefendant complains of the failure of the structed him to be there to resume his duties court at the close of the evidence to direct as express messenger. No attempt was a verdict in its favor, on the grounds that made by the defendant to prove that the there was no proof that it caused the ar- plaintiff was guilty of the larceny of the rest and prosecution of the plaintiff, and narcotics. The testimony in its behalf was that the prosecution, even if instigated by limited to an effort to show that none of defendant's agent, was not in its interest, its officers or agents had anything to do and therefore not within the scope of the with the charge of unlawful possession upagent's employment.

on which the plaintiff was arrested and [1] On August 5, 1922, one C. M. But- prosecuted, and that the narcotic agent proler, narcotic agent at Birmingham, made an ceeded on his own initiative and made the

ror.

2 F.(20) 969 affidavit upon the advice of the assistant 2. Poisons em 9—Indictment held_to charge United States attorney. However, Butler,

violation of Narcotic Import and Export Act.

Indictment for feloniously and fraudulently the narcotic inspector who made the affida- receiving, concealing, buying, selling, and favit, admitted on cross-examination that cilitating transportation after importation of

derivative of opium, which accused knew had Pond, the defendant's special agent, gave been unlawfully imported, held sufficiently to him some of the information on which he charge violation of Narcotic Import and Exacted.

port Act, & 2, subd. (c), as amended by Act

May 26, 1922, 8 1 (Comp. St. Ann. Supp. 1923, From this evidence we think the jury was 8 8801). authorized to draw the inference that the 3. Poisons mi-Evidence held to warrant prosecution of the plaintiff was instigated conviction under Narcotic Act. either by Pond, the special agent, or by

Evidence held sufficient to sustain convic

tion for unlawfully purchasing, possessing, and York, the division superintendent. Accord- distributing opium. ing to the undisputed evidence, Pond threat. 4. Criminal law 1056(1)-In absence of ened to have the plaintiff arrested, and had ruling or exception, objections to instructions given information concerning the charge to

not considered on appeal. the narcotic inspector. Besides, the jury structions, and no requests

Where no exceptions were taken to in

for instructions could properly infer that York's purpose were denied, objections thereto could not be was to have the plaintiff at the station, so

considered on appeal. that the officers would have no difficulty in

In Error to the District Court of the identifying him and making the arrest. United States for the Northern Division of

[2, 3] It is conceded that the defendant the Northern District of California ; John would have been liable if either the division

S. Partridge, Judge. superintendent or the special agent caused

Sam Wong was convicted of unlawfully the arrest upon the charge of larceny of purchasing, selling, and distributing narcotnarcotics. The fact that the formal charge ics, and of violating the Narcotic Import upon which the plaintiff was prosecuted

and Export Act, and he brings error. Afwas that of the unlawful possession of nar- · firmed. cotics does not relieve the defendant of liability. The test is, not whether the agent Marshall B. Woodworth, of San Francisco,

S. Luke Howe, of Sacramento, Cal., and was acting in the interest of the company, but whether his acts were within the

Cal., for plaintiff in error.

scope of his employment. It was within the scope

Sterling Carr, U. S. Atty., and T. J. of employment of defendant's agents to Sheridan, Asst. U. S. Atty., both of San cause the arrest to be made, and it makes

Francisco, Cal. no difference whether the particular act

Before GILBERT, HUNT, and RUDcomplained of was or was not authorized by KIN, Circuit Judges. the defendant. Southern Railway Co. v. Wildman, 119 Ala. 565, 24 So. 764; Jones convicted under three counts of an indict

HUNT, Circuit Judge. Defendant was v. Strickland, 201 Ala. 138, 77 So. 562; 18

ment charging in count 1 that he purchasR. C. L. 795. The conclusion is that the trial court did narcotics; in count 2 that he, being a person

ed, sold, dispensed, and distributed certain not err in refusing to direct a verdict for required to register under the terms of the the defendant.

acts of Congress, did have in his possession The judgment is affirmed.

with intent to sell certain narcotics; and in the third count that he feloniously and fraudulently did receive, conceal, buy, sell, and facilitate the transportation, conceal

ment, and distribution after importation of SAM WONG V. UNITED STATES.

certain described derivative of opium, which

defendant knew had been imported contrary, (Circuit Court of Appeals, Ninth Circuit. January 5, 1925.)

to law. He was sentenced to ten years in

the penitentiary. No. 4296.

[1] The assignments of error present the

question whether the indictment states a 1. Poisons 9-indictment for purchasing, selling, and distributing opium held sufficient: public offense. We can dismiss considera

tion of count 2, as counsel for the governIndictment charging unlawful purchase, ment concede that under our decision in sale, and distribution of opium, not in or from original stamped packages, held sufficient, since, Johnson v. United States, 294 F. 753, that under Act Dec. 17, 1914, § 8 (Comp. St. $ count is fatally defective. The first count, 6287n), it is not necessary to allege or prove that accused is required to register.

however, is clearly sufficient, for it distinctly charges unlawful purchase, disposition,

MALLORY S. S. CO. V. SIMMONS. and distribution of opium not in or from

(Circuit Court of Appeals, Fifth Circuit. Dethe original stamped packages. It is not

cember 10, 1924.) necessary to allege or prove that one charg

No. 4337. ed with that offense is required to register.

Shipping 86(2)-Evidence held to show that United States v. Wong Sing, 260 U. S. 18,

injuries to stevedore from fall of cross-ties 43 S. Ct. 7, 67 L. Ed. 105; Loewenthal v. on truck resulted from negligence of fellow United States (C. C. A.) 274 F. 563; sec

servants. tion 8, Act Dec. 17, 1914, 38 Stat. 785

Evidence held to show that injuries to

stevedore from falling of cross-ties on truck (Comp. St. 8 6287n).

which he was unloading resulted from negli[2] The third count is also sufficient in gence of fellow servants in not properly secur

ing iron stanchions to hold cross-ties in place, charging a violation of the provisions of

and not from defective equipment. section 2, subdivision (c), of the Narcotic Import and Export Act, as amended by Act Appeal from the District Court of the May 26, 1922, § 1, which provides that, if United States for the Southern District of any person knowingly imports any narcotic Texas; J. C. Hutcheson, Jr., Judge. drug into the United States contrary to law, Libel by Abraham Simmons against the or receives, conceals, buys, sells, or in any Mallory Steamship Company, owner of the manner facilitates the transportation, con

steamship San Jacinto. Decree for libelant, cealment, or sale of, any narcotic drug after

and libelee appeals. Reversed and remandbeing imported or brought in, shall, upon

ed. conviction, be punished. Camou v. United States (C. C. A.) 276 F. 120, certiorari de

Ballinger Mills, of Galveston, Tex., for nied 258 U. S. 626, 42 S. Ct. 382, 66 L. Ed. appellant. 798; Iponmatsu Ukichi v. United States (C.

W. E. Price, of Galveston, Tex., for apC. A.) 281 F. 525, certiorari denied 260 U. pellee. S. 729, 43 S. Ct. 92, 61 L. Ed. 485, 42 Stat. Before WALKER and BRYAN, Circuit 596 (Comp. St. Ann. Supp. 1923, § 8801). • Judges, and DAWKINS, District Judge.

[3] Reversal of the judgment, for lack of evidence to sustain the verdict, is urged; BRYAN, Circuit Judge. This is a libel but the record discloses that officers of the in personam, brought by the appellee law found the defendant and another China- against the appellant steamship company, man in a house on a ranch, and upon search to recover damages for personal injuries. discovered a quantity of morphine in the The libel alleges' that, while the appellee was bedroom underneath some fruit boxes upon employed by the appellant as a stevedore, which was the bunk in which the Chinaman he was injured as the result of appellant's slept. They also found a lamp and a can negligent use of a truck in loading crossand a jar of yen shee. After arrest the ties on a ship. The defenses were that the defendant admitted that he got the mor- truck was in sound condition, and that phine from a Chinaman in San Francisco, plaintiff's injuries, if any were suffered, that he was furnishing it to addicts who were caused by the negligence of other worked for him, as that was the only way stevedores, who were his fellow servants. he could keep the men, and that he paid Appellee testified that as he approached them by letting them have narcotics. Un- the truck, for the purpose of unloading it, der section 2, subdivision (f), of the act the stanchions on one side gave way, and heretofore referred to, whenever, on trial the load of cross-ties fell off, and some of for violation of subdivision (c), defendant them struck him on the leg. There was unis shown to have had possession of the nar- disputed evidence to the following effect : cotic drug, such possession shall be deemed Appellee was one of a number of stevedores, sufficient evidence to authorize conviction, some of whom were engaged in loading unless the defendant explains the possession trucks on the wharf, and others in unloadto the satisfaction of the jury. Defendanting them as they were brought on to the testified, but his explanation was not satis- ship. The same stevedores worked as difactory to the jury.

rected, sometimes on the wharf, and some[4] As no exceptions were taken to the times on the ship. There was no defect in instructions of the court, and no requests the truck which the appellee was in the act for instructions were denied, objections urg- of unloading at the time he claims to have ed to them require no consideration. Deu- been injured, or in the stanchions on either pree v. United States, 2 F.(20) 44.

side of it which held the cross-ties in place. We find no prejudicial error, and affirm The stanchions were made of iron pipe, and the judgment.

extended five or six inches into sockets on

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