CASES ADJUDGED

IN THE

SUPREME COURT OF THE UNITED STATES,

AT

OCTOBER TERM, 1904.

BENSON v. HENKEL.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR

THE SOUTHERN DISTRICT OF NEW YORK..

No. 308. Argued February 20, 21, 1905.-Decided April 17, 1905.

In proceedings before an extradition Commissioner, if the indictment produced as evidence of probable cause in proceedings for removal is framed in the language of the statute, with ordinary averments of time and place, and sets out the substance of the offense in language sufficient to apprise the accused of the nature of the charge against him, it is sufficient to justify removal, even though it may be open to motion to quash, or in arrest of judgment in the court in which it was originally found. Whether § 5451, Rev. Stat., punishing bribery of officers of the United States, applies to bribery for acts to be committed in the future, in case a certain contingency which may never occur does occur, is a matter for the trial court to determine and not for the extradition Commissioner. The District of Columbia is a District of the United States to which a person, under indictment for a crime or offense against the United States, may be removed for trial within the meaning, and under the provision, of § 1014, Rev. Stat.

Where an offense is begun by the mailing of a letter in one district and completed by the receipt of a letter in another district, the offender may be punished in the latter district even though he could also be punished in the other. Re Palliser, 136 U. S. 257,

VOL. CXCVIII-1

(1)

Argument for Appellant.

198 U.S.

THIS was an appeal from an order dismissing a writ of habeas corpus, and remanding appellant to the custody of the marshal to await the action of the District Judge.

On December 31, 1903, an indictment was found by the grand jury of the District of Columbia, charging appellant with a violation of Rev. Stat. sec. 5451, in bribing an officer of the United States to do an act in violation of his official duty. Appellant was arrested in the Southern District of New York, upon a warrant issued by a United States Commissioner, which warrant was issued upon the complaint of a special agent of the Interior Department, to which a copy of the indictment was annexed. Appellant demanded an examination before the Commissioner, in the course of which witnesses were examined on behalf of the Government, and a certified copy of the indictment was admitted as evidence. No material testimony was offered on behalf of the defendant. The Commissioner found there was probable cause, and remanded defendant to the custody of the marshal to await a warrant for his removal. Immediately thereafter appellant applied for a writ of habeas corpus and certiorari. At the close of the hearing he was remanded to the custody of the marshal. 130 Fed. Rep. 486.

Mr. J. C. Campbell and Mr. Frank H. Platt for appellant: The appellant is deprived of his liberty without due process of law. The Commissioner was without jurisdiction to order his arrest or commitment. The process under color of which appellant is restrained of his liberty is illegal, unauthorized and void.

The sufficiency of the charge of a crime is jurisdictional. It has always been held that the writ of habeas corpus is a proper instrument to secure the release of a prisoner held under order or sentence of a tribunal which acted without jurisdiction, and whose process was consequently void. In re Nielson, 131 U. S. 176; In re Coy, 127 U. S. 731; In re Snow, 120 U. S: 274; In re Sawyer, 124 U. S. 200; Ex parte Bain, 121 U. S. 1;

In re Ayers, 123 U. S. 443; Ex parte Siebold, 100 U. S. 371; Ohio v. Thomas, 173 U. S. 276.

It has been the practice in all Federal jurisdictions, in removal proceedings, to determine whether the indictment sufficiently charges a crime and to discharge the prisoner if it does not. Stewart v. United States, 119 Fed. Rep. 89; In re Buell, 3 Dillon, 116; In re Terrell, 51 Fed. Rep. 213; In re Corning, 51 Fed. Rep. 205; In re Dana, 68 Fed. Rep. 886; United States v. Lee, 84 Fed. Rep. 626; In re Greene, 52 Fed. Rep. 104; In re Belknap, 96 Fed. Rep. 614; In re Huntington, 68 Fed. Rep. 881; In re Conners, 111 Fed. Rep. 734; In re Doig, 4 Fed. Rep. 193.

In In re Palliser, 136 U. S. 257, this court, in a removal proceeding similar to that at bar, examined the indictment to ascertain whether it charged a crime.

It appears affirmatively, both in the indictment and in the testimony of the Government's witnesses, that at the time of the payments to Harlan and Valk, the special agents' report had not come within the possession, knowledge or reach of either of them, and there is no allegation or proof that it ever would. They had no duty concerning it, and it was not shown that they ever would have any such duty. The crime of bribery cannot be predicated upon a payment to an officer to induce him to perform an act, as to which he has no duty, and may never have any duty. In re Yee Gee, 83 Fed. Rep. 145; State v. Butler, 178 Missouri, 272; State v. Joaquin, 62 Maine, 218; State v. Howard, 137 Missouri, 289; Newman v. State, 97 Georgia, 367; Moore v. State, 69 S. W. Rep. 521; Ex parte Richards, 72 S. W. Rep. 838; Messner v. State, 40 S. W. Rep. 438; Barefeld v. State, 14 Alabama, 603.

Neither Harlan nor Valk was forbidden by any lawful duty to reveal to Benson the contents of the report, even if they ever should come into a position to do so.

The indictment contains no allegation of fact showing that it would be a violation of duty for Harlan or Valk to reveal the contents of the report. Beaver's Case, 194 U. S. 73, 85.

Argument for Appellant.

198 U.S.

An allegation that a duty exists or that a certain thing is a person's duty is a conclusion of law. It is for the court to determine upon a disclosure of the facts whether or not a duty exists. Butler v. State, 17 Indiana, 450; Buffalo v. Holloway, 7 N. Y. 498; Atwood v. Welton, 57 Connecticut, 515; Cane v. Chapman, 5 Ad. & El. 647; Bailey v. Bussing, 29 Connecticut, 1; Nickerson v. Hydraulic Co., 46 Connecticut, 27; Hayden v. Smithville Mfg. Co., 29 Connecticut, 548; Hewison v. New Haven, 34 Connecticut, 138; 12 Ency. of Pleading & Practice, 1040.

An allegation of a conclusion of law in an indictment, without a statement of the facts from which such conclusion may be drawn, is insufficient. United States v. Hess, 124 U. S. 483. Facts are to be stated, not conclusions of law alone. United States v. Kelsey, 42 Fed. Rep. 882, 889; United States v. Kessel, 62 Fed. Rep. 59; United States v. Post, 113 Fed. Rep. 852; Rieger v. United States, 107 Fed. Rep. 916, 934; People v. Cooper, 3 N. Y. Crim. Reps. 117; W. St. L. & P. R. R. Co. v. People, 12 Ill. App. 448; State v. Paul, 69 Maine, 215.

For indictments held insufficient even where following language of the statute, see United States v. Carll, 105 U. S. 611; United States v. Britton, 107 U. S. 655, 669; Keck v. United States, 172 U. S. 434; Batchelor v. United States, 156 U. S. 426; United States v. Hess, 124 U. S. 483; Evans v. United States, 153 U. S. 584; United States v. Melfi, 118 Fed. Rep. 899; United States v. Wardwell, 49 Fed. Rep. 914.

The phrase "lawful duty" is equivalent to the expressions "legal duty" or "duty prescribed by law." The prohibition is limited and restricted to those duties which are prescribed by law. The words "legal" and "lawful" are synonyms. Standard Dictionary, Webster's Dictionary, Century Dictionary. A legal duty is defined to be that which the law requires to be done or forborne. Wharton on Negligence, $24. The law takes no cognizance of a breach of a duty except it be a legal one, which the law imposes, Pennsylvania Co. v. Frana, 13 Ill. App. 98. For instances where of