UNITED STATES V.EBBS.

llS

149

it might be reasonably expected a man would make out in his native city, after time for ample preparation; and the case is such as any impostor could easily make. We hold that when, upon a candid consideration of all the evidpnce in a case, there appears to be room for a difference of opinion as to the material facts in issue, this court ought not to reverse the jUdgment on a question of fact alone. Judgments affirmed and causes remanded.

UNITED StA.TES

EBBS.

(Distrlct Oourt, W. D. North OaroUna. November Term, 1881.)

1.

UNITED STATES MARSHALS-'-FEES FOR ARRESTS.

;A.:United States marshal who reads a warrant·of arrest to a person charged with crimej';but afterwards permits him to go free upon his verbal promise, to appear liefore the commission'er for examination, is not entitled to a fee for the arrest.
BOND.

The acceptance by.aUnited Stateac0tnmlssionerof an appearance bO,nd, tendered by' the ,f.rtends of an absent offender, supersedes a warrant.ofarrest theretofore issued,iand the marshal i9not entitled to'a fee fora subsequent arrest upon tliesame . . warraHt, ]lnder the verbal direction of the commissioner. 11. SAME-DuTY TO ARREST PROMPTLY.. . ..' . A deputy United liltates marshal who has a warrant of 'arrest is bound to be prepared at all tiIlles to execute the lIatlle, and if he comes into the presence of the accused,. but does not arrest him, because the warrant was left at home, he a not entitled to'fees for time subsequently spent in making the arresl;v . 4. S..u m....GuARDING PRISONB:R.·. W,ben a Unit1;ld Stal'.e8!l9mmissioner holds an accused person to trial.be.. f.ore the court, and verbally CouuriitS him to the custody of the marshal until bail is obtained, the latter is ·entitled· to fees for guarding him, as' he bas no authority to cOIllmjthim to jail without a mUtimus. The marshal is sole ju(lge as to wbetl!er a guard is necessary while the prisoner is before the commissioner.

S. .

At Law. Prosecution on a criminal charge. iaxationof costs. V. S.. Lusk, in support Of rule. O. M. McL01td, for marshal.

On a rule for the re-

DICK,:pistrict Judge. The exceptions presented in the affidavit to the taxed before the commissioner are as follows: (1) The; marshal chtlrges for service of the warrant when there was DQ valid service. (2) The marshal charges expenses for 14 days in endeavoring to arrest the defendant, when the defendant might have been easilyaTrested, as he made no effort to evade the process of the law. (3) The marshal charges for .attending the court of the commissioner, and guarding the'defendant. when there was no necessity for such service, as the defendant was upon bail. As to the first exception, it appears in evidence tbat the deputy-marshal, while he had the warrant in his hands, met the defendant, and read the warrant to him,and told him that he- was under arrest. The .defendant af once submitted tathe authority of, the -.who told him that he might de!>art from custody if he would .promise to

160,

FEDEiJM;L

Y!=l1;49.

Cdurt on a certain designated day. The deto the proposition;, and went <lff;: and did not afterwards fendant appearat the time and place designated. "I am of opinion that this was notariah ' 'service of the' warrant.as entitied the marshal, to the, fee chllr.ged., of a commiasioner's in a crimiIlal: case' consists of more than' a mere arrest, as the marshal must keep the defendant in custody until he is carried hefore ,an examining magistrate for a preliminary hearing upon the charges in the warrant. Where an arrest is made on a commissioner's warrant, the officer making the arrest has no authority, in law to take bail, and,if he voluntarily allows the defendant to depart from custody before the case has been heard by the magistrate, it is a voluntary,escape. Theliabllity of the officer is absolute, and cannot be relieved by a subsequent arrest of the defendant; but the warrant is d6tinvalidated,and the defendant:uiay be retaken under the same warrant, and by the s,ame officer. The misconduct of the officer docs no" prevent an arrest, as the public good requires that the de1 Ch,it. Crim. Law, 61. Tfle rule fendant of law is somewhat different in mesne process in civil cases, as the officer he allows a to depart out of custody without givblgAJlaU-bond., Upon final process of execution, if there is a voluntary escape, the liability of the officer is absohlte. " If there is a Jhe officer m,ay prisoner on fresh pursuit, llnd hold him; so as to, relieve,hisliabiHty. Adama v. Turnntine, 8 Ired. 147. "Th'e action, in this case, the submission of the defimdant to the control of the officer, constituted a valid constitute an arrest depends upon the intent of arrest. the parties' tbe time. .An.; arrest may be. made without touching the person of Hha :voluntarily submits to the process of the law in the hands of the J(Y{/,e8 v. Jones, 13 Ired. Although there was a valid arrest in this case, there was not a due service of process, and the marshal is not er!titled to the fee charged. In his answer the marshal insists that the (lelimdl;lnt was retaken on the 'warrant on 9, subsequent day, and carried before the commissioner for a , pre!iJuinary:bearing. 'The evidence shows that the defendant; previous to, second arrest, and while he wasstil! lurking in the woods and evading thElofficerj had an appearance bond, with sureties, prepared by 'lis brother, I, .N. Jj:bi:>s. with a condition to appear before the com mis'lioner for an o.n:the 20th day of August. This bond was hy:J. N.Ebbsto the corn tn issio,ner, and was by him accepted, ;nthe of. ,the defengant" and the deputy-marshaL knew that said bond had;\>een acceptep. f The, defendant made his appearance at the time and place designated in the bond. Before the hearing of the case cOlnmenced,,: thecommi$sioner, ,then regarding the said bond as erroneous and void, gave a yerb.w direction to the deputy-marshal to arrest thedelendant"ltnfl hold bim"iA (lustody until the case could be heard. The made an, _!Test on'the warrant, which he, bad long: had in,hish,ands.
448·. , '.". .

:UNITED STA'rES ".EBBS.

151

I am of the opinion that when thelippeil.rance bOlildwas accepted by the commissioner, and the advised of that lact, the warrant in his hands wasviDtually supe1'!leded, and did not authorize an arrest. If the bonn accepted by the commissioner was irregular, or in any way insufficient, he ought to pi-deeede-d to have the defendant arrested in the manner provided in seGtion 1019, Rev. St. This verbal direction to arrest ,was without legal force and authority. An examining and committing magistrate bas no 'power verbally to command an arrest, except for a felanyor breach oHhe 'peace committed in his presence, or for contempt in open court, or So near as to: disturb his offioial proceedings. After hearing a case, hamay, by verbal. order, direct an officer to take a pefendantinto 'custody until a propermitt-imus can be prepared; but in no case can he: commitadefandal'lt to prison without a written warrant: setting, forth, the causa:of sucb commitment in specific terms. '. The correctnassof the form of the bond, as an appearance bond, and the solvency oUhe sureties; are not denied·, but the counsel of the marshalinslstedthat the and void, as the commissioner had nG power to take such a bond,in the'nature ofa recognizance, in the absence of the principal, and befQr8 a hearing of the matter. -It is well· settled law in ,this state that a bond duly signed, with sureties, and with a 'condition the appearance of the principal in a criminal' case before a court, accepted by a person authorized ·to mke bail, is good as a recognizance. Edney's Gue, 2 Winst. 463; HOU8tOO'8 0ase,76 N. C. 256. In case ofa.form!1Lreeognizance, obligation iegenerally acknowledged by the parties in open court, and .entered <>[,reC01'd,and they need not sign their names; but in the case of,s bond in'llhe nature of a nizance, where the' parties sign their names, I can Bee no absolute neces· sity for the principlil bflingpresent before the person authorized to accept such bond. During the absence of the- principal, the magistrate ,might refuse.to accept such bond; but if he is satisfied that the bond was duly ,signed-and sealed, and the sureties are sufficient, and he ac{lePts the bond, 1 am ofthe opinion that it is valid. At the common law, even in the case of a formal recognizance, where the 'defendant is an iniant or in prison, and so absent, sureties were allowed to enter into recognizance of bail, and a warrant called a "Ii berate," was issued by the perSOD taking bail for the enlargement of the defendant. 2 Hale, P. C. 126. If !be bond in this case was as good as a recognizance, I am of opinion that it operated as a 8Upersed.ea8 of the warrant in the hands of the deputy-mat'Shal, without.anyformal8Upersedeas writ. At the common law, ati,apprebensionunder'a warrant could. in many cases, be prevented· by a-. party going before .a justice of the, peace, and finding sufficient suretiesJor his appearance to anSwer any indictment, and obtaining the 8Uper8Mea8 of the magistrate. ' This could be done even after an indictment found in a, court. tOhit. Crim. Law, 46. . If process of amrest froni .acourt after imictmebt·could thus be superseded ·.by a. justice· of tbe:pllace, 1 see lloreason: why a commissionE'lr, having the powers of a justice of ,the peace in such matters, cannotsu-

152

FEJ;lERA.L REPO;RTER,

vol.. 49.

persede a warrant whioh .he has issued to bring a person before him for an examination upon:acharge of crime, by accepting. a bond, with sufficientsureties, to secure. an appearance in a bHiilable case, and where the defendant is entitled to have his witnesses heard upon the investigation. I do not thill practice of accepting bail to prevent an apprehension upon legal process, and I will instruct the commissioners of thisdisttict not to adopt it, as I think it most proper and regular for defendants to enter into bond or recognizance in person' before the magistrate, and that other proceedings should be hi accordance with the usual .course and practice of the courts. No of the peace CRn supersede the warrantof another without a formal and legal eX:imination, (1 Chit. Crim. Law, 36j) but we may reasonably suppose that a justice with . whom .acomplaint was filed, and who had ·issued the warrant, may supersede such warrant when ;the appearance of the defendant had been secured by him in taking a sufficient bond. Commissioners are invested·with 'many. of the powers and Lunctions of justices of the peace, and they act within the scope of such; powers upon their own judgment and responsibility. IAdistrictattomey has no; authority to direct a io execute a warrant issued by a commissioner. U. & v. Scroggi:nBj 3 Woods, 529. He may appellrbefore tliecommissioner, and attend·:to the presentatidn of the evidence, but he lis'only counsel for the government, He cannot ,direct the'commissionedn his judgment, or'as to what course he shall pursue, or dismiss the proceedings. U. S. v. Schumali.n;'2 Abb.(U. S.) 523. I atndnclinedto doubt the power of a federaLjudge,by writ of prOhibition or otherwise, to control the discretion" of a commissioner in the hearing ofa causebefor'e,his order of oommitment. The decision of a commissioner may in50me things be reviewedupol1 writs of habeas carpus and certiorari, and rules of· court may. he adopted regulating the practiqe and modes of procedure in such inferior courts. As an examining. and, comtnitting .magistrate, a commissioner has sim,ilar powers to those of: a justice of. the peace, in the'state where he acts, anqhis proceedings.must be agreeable "to the usual mode of process against offenders in such states." In this state a justice of the peace is authorized ande directed to hear the witnesses of the defendant, and nnow him reasonable time to employ counsel in his defense, and determine the matter after' hooring evidenceanu argument on both sides of the case. The justice' being vested with such powers and duties of'investigation, he must necessarily .havethe incidental powers of continuing the matter to a future dny ,to enable parties to have. a fair and full investigation, and also allowing a defendant bail' in bailable cases, during such continuance of the. caUse. This course Of. procedure was adopted. by the justice of the peace in Queen's 02se,.66 N.C. 615, and the supreme court seemed tn regard such course as regular and proper. As the commissioner in this case adopted a similar course in accepting the appearance bond of the defendant, he could; not; bya mere, verbal order,revive a superseded and legally direetan arrest of a person on bail, which had been accepted, before an examination of the merits 'of the case. Ithillk that

UNITED STATES V. EBBS.

153

the deputy-marshal made the charge with an honest belief that he w,as Jl1titled to such fee for service of the warrant, and the commissioner is not blamable for approving the same, as required by the rules of court. The second exception presented by the defendant is not fully sus· tainedby the evidence. It appears that the warrant was issued on the 16th day of May, and that the defendant knew it was in the hands of the deputy-marshal, and he used all the means in his power to evade, an arrest. His brother,!. N. Ebbs, wrote to the deputy-marshaLthat, if he would meet him at his house on the 17th day of July, an arrangement could be made for the surrender of the defendant and three other The deputy went to the place at the time designated, but a satisfactory arrangement was not made. The deputy, on his. return, passed by a place where a number of men had met to ha.ve "a shooting match." ThEl defendant was there, and the deputy remained some time'with him, but did not make an arrest,as he did not have the warrant in his posses8ion. On several subsequent days the deputy inaue active efforts to arrest the' defendant, but did not succeed until the day ofthe first arrest mentioned in considering the The marshal is entitled to' the expenses charged for the days his deputyendea\'ored to make an arrest previous to the 17th of July. I disal. low the expenses for the SUbsequent days. When a warrant of arrest is putin the hands of an officer, it is his duty, as soon as he conveniently (lan, to proceed with secrecy and diligence to apprehend the defendant. He must always be ready to perform the mandate of the warrant. In this instance I am disposed to hold the officer to the' highest and strictest rule ordlity, for when he subsequently made an arrest he voluntarily lowed the defendant to depart from custody on a promise to appear be.. fore the commissioner for trial on a future day· He had no right to show favor or trust to the promise of a criminal who had 80 long been evading the process of law. At the common law it was allowable fora constable,when he had made an arrest without a warrant, in a case of a petty nature; to take the defendant's word for an 'appearance before a magistrate if he was of good repute, and there was no probability of his absconding, (1 Chit. Crim. Law, 59;) but such indulgence was not allowable in this case. As to the third exception, the evidence shows that the defendant had given bond to appear before the commissioner on the 20th day of August, and we have above decided that such bond was valid. While under bond, and before the case was heard, there was no necessity for guarding him, as he was in the constructive custody of the court, and his sureties were his keepers. The defendant gave a new bond·for his appearance on the 27th day of August, and the custody in which he was placed by the verbal order of the magistrate was unlawful. The law fixes no time -and place for the session of a commissioner's court, and the marshal and his de])uties are not required to be present at such court, except where they have process to return and defendants to bring in and guard. Whell a defendant is admitted to bail, he is placed in the custody of 'his sureties, who have power to artesthim at any timetheymaydesire;

154

FEDERAl.

vol. 49.

an,d they' must have him. before the court at the time and place designated in the bond, and they are not freed from this responsibility until the defendant is discharged, admitted again to bail,.or placed in the custody of an officer of the law. If the magistrate hears the case, and decides that the defendant shall give bail for his appearance in court to answer an indictment, and the defendant fails to :give sufficient bail, he may be committed to prison·, and, if no regular officer can conveniently be found, the mittimus may be directed to any person· who shall have power to execute the same. lBattle, Revisal, c. 33, § 97; Dean's Case, 3 Jones, (N. 0.) 393. In such a· case there:is no legnl requirement for the marshal or his deputy being present, but if either should be present, and the defendant is committed to the custody ·of such officer, then the marshal would be entitled to charge for his own attendance and the service of a guard, if such. service was rendered and was 'necessary, and the marshal must judge of such necessity. He would berespollsible if the defendant should make an escape through his negligence in not summoninga guard. The law does not require or expect an officer, without assistance; to keep the custody. of a prisoner charged with crime. If he relies upon,his,own vigilanee, strengtb,a.nd courage, /lnd the prisoner escapes, heis'not excused, no matter how earnestly and faithfully he endeavored to perform the duty imposed upon him. When themarshal or his depntyarrests a person under a warrant, the law requires him to carry the alleged offender before some examining magistrate as soon as the circumstances will permit. He may lodge the prisoner in the common jail, or resort to other modes of confinement, ,if any necessity or must keep the serious emergency should require such a prisoner. Nothing, however,but obvious necessity will authorize an officer to lodge a prisoner in jail before an examination and regular written commitmentby a magistrate. This course may be adopted if the arrest is made in or near night, whereby he cannot attend the magistrate, or if there be danger of a rescue, or the party be too ill to appear before the magistrate, etc. 1 Chit. Crim. Law, £)9; State v. James, 78 N. C. 455. When a prisoner is brought before the magistrate, he is still in the custody of therofficer, who m'ust keep him securely until he is disposed of in due course of law. As this high and strict responsibility is imposed by law upon the marshal, he is authorized to summon the necessary assistance, and he can keep such assistance as long as the responsibility continues,. and he is entitled to the fees allowed by law for such important and l'esponsible service. The rule of this court, which requires the commissioner: to determine the question whether a guard is necessary.for the marshal when a prisoner is before the court under arrest,ml!lst be setaeide, as iUs cQntrary .to law. The marshal alone can determine this' question, and say how far he is willing to subject himself to the chances and responsibilities of a.n escape. The marcannot be relieved by any action of the commissioner, as he has no power to commit.8 prisoner brought before him for examination until a cause of committnentjudicially appears., When any oomnlitment is ordered, a written mittimus, ,setting forth the cause, must be directed to

UN1TEDl!ITATES 'V. INGRAHAM.

155

the marShal or his deputy, commanding him to deliver ·the prisoner to the keeper of tho common jail; and when the mandate of the warrant is obeyed. thliln the marshal is relieved from the responsil!ility .of oustody. Randolph v. Donaldson, 9 Cranch. 78. I The marshal is clearly entitled to the fees oharged fo1' attending and guarding the defendant on the 27th of August. as the 'defendant was put in his custody by order of the commissioner until sufficient bail was given for an appearance at court to answer an indictment. After hearing a case, and determining to hold a defendant to bail, the commissioner can by verbal' order put the defendant iu custody of an officer until the bail required is given; but the officer cannot commit to jail without a written mittimus ftom the commissioner.' It is ordered that the clerk ofthia court rl;ltax th.e costs in this case jn conformity with. this opinion.

UNITED STATES 'V. INGRAHAM:.

(otrcuit oourt, D. RhOde IBland. February" 1892.)
1.

CLAIM8 AiJAINST UNITED BTATE8-FBUJD-INDIOTHENT·

.An indictment for the offense of presenting to any officer "in the civil, mUltary, or naval service of the United States" a false claim (Rev. St.1 5438) Is sufficiently certain in alleging that 8ucb claim was ,fresented to the "third auditor of the treasury department of the United State.. It need not allege that be is an oftlcer in tbe civll service of the United State.. .An indiotment alleging the presentation of a false affidavit need not aver that the officer before whom it was taken was authorized to administer oathR. The word "affidavit," as used in the statute. relates to the form of the false paper, and not its legal oharacter.

2. SAME·

At Law. Indictment of Royal Ingraham under Rev. St. § 5438. Motion in arrest of judgment. Rathbcme Gardnm', Diat. Atty., for the United State8. F'ranklin P. Owen, for defendant.
CARPENTER, District Judge. This is a motion in arrest of judgment after verdict on an indictment under section 5438 of the Revised Statutes, whicb is as follows:

"Section 5488. Every person'who makes or callses to be made, or presents or causes to be presented. for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, any claim upon or .against the government of the United States, or any or officer thereof. knowing such claim to be false, tlctitiOIlS. or fraudulent, or who, for the purpose of obtaining or aiding to obtain the payment or approval of sucb claim. makes, uses. or causes to be made or used. any false bill, receipt, voucher, roll, account. claim. certificate. affidavit, or deposition, knowing the same to contain any fraudulent, or fictitious statement or entry. ·.· · shall be imprisoned," etc.