Haas v. lIIN Keil, Unite') S'Il'AHS MAI{S1iAL

Syllabus.

The third and fourth errors assigned are for overruling an objectioni miade to the sufliciency of the iIictinient and to the admission of any evidence because the indictinent was bad.

No such ohjection is shown by the. record. The indictment is not in form bad, nor vague, but charges the crime of murder withIi great particularity. [here seems to have been no reason for dou,) as to the crime charged. Besides, objections of l)Onl Writ of (error for the first this character cannot be made tin ic.

Aside front the (iuestiol

of jurisdiction, v(l)Isi(hered herelo- fore, Ihe relililing iassignlilents 'are for 1hI('d (,rors in adlnIit- Bti. as It() hill (t except ions was til" )r rlejcting evideilce. v. taken, Unicd kslac8, 9-1 U. S. 76.

iteste assignmn't.s caulot be considered.

8/mrmn HAAS v. lIIN KEIL, UNITE') S'Il'AHS MAI{S1iAL.

No. 367. Argued January 6, 7, 1910.-Decided February 21, 1910.

Notwithstanding the hardship necessarily entailed upon the accused in being tried in a district other than that in which he resides, there is no l)rinciple of constitutional law that entitles him to be tried in the place of his residence.

Art. III, § 2 of, and the Sixth Amendment to, the Constitution secure to the accused the right to a trial in the district where the crime is committed, and one committing a crime in a district where he does not reside cannot object to his removal thereto for trial.

Where one has been indicted for the same offense in two or more districts, in one of which he resides, it is the duty of the prosecuting officer to bring the case to trial in the district to which the facts most strongly point; and if the court first obtaining jurisdiction'of the person of the accused does not object, the accused cannot object

Argument for Appellant.

to his being removed under§ 1014, Rev. Stat., from tlic district of his residence to the district in which the government elects to first bring the case to trial.

Where tie statute is plain, and Congress has made no exception in its application, the court cannot mnake one.

Under § 1014, Rev. Stat., the duty of the commissioner is to determine whether a prima facie case is nmade out that a crime has been conl- mnitted, indictable and triable in the dlistrict to which removal is sought, and if so determined there is no discretion; nor is the fact that the accused is under bail in the district where lie resi(cs a I)ar to tile removal.

A consl)iracy tho defraud the I en'vessaril* stiat'llt

it ied Statcs under § 5-140, Nev. Stlat., involvc a direct pec'uniary loss to the United does not includes any conspiracy hojilipair, obstruct States. lefeat the lawful fullotioi of '11Y (hleartnicnt of the ('overn- or iient, e. g., t11e promulgation of officially ac(quired information in rc- gard to the (otton crop.

Ili

Ilegulations of a del artnient. of the (Chverment iromulgated umer I ev. Stat., have the fo rce of law and Ibribery of an officer of § 16l, the United States to violate such regulations is inch nlcd under § 5451, Rev. Stat., making it a crime to Iribe such officer to violate ,his lawful duty.

Matters exclusively relating to lefense either sulbstantive or ill abate- tile. in- are returned, and where the case will be tried; they caI- tile order of removal ilade

Inent are proplerly deterliniative by the court into whihll (iictleits not be considered on aln aplpeal from under § 1014, Rev. Stat.

Introduction before the conlinissioner of aIn inlictInt found in tile district to which removal is sought uakes a prima fic'ic case fotr i by an indictment found ill an)ther removal which is not overc,, (!c district, although the locis is differently stated in each indict meit.

167 Fed. Rep. 211, affirmed.

THE facts are stated in the opinion.

Mr. Nash Rockwood, with whom Mr. Max Steuler was )n

The New York indictments are still pending; they have not been nolle prossed or quashed; they do not charge lhat the crime was committed in one district and completed in another; or, in the District of Columbia and completed in New York;

Argument for Appellant.

but each alleges that the completed acts of conspiracy took place within their reslective jurisdictions.

The conspiracy itself is the gist of the offense, and when the Government charged the commission of the offense in New York it elected its fortim and the defendant is, constitution- ally, entitled to be there tried.

It has become (uite the habit of late in criminal iprosecutions for the Government to seek the trial in the District of Colum- bia, presumably because the defendants are taken to a foreign jurisdictioln where they are unknown and subjected to enor- mous expense. This oppressive use of the criminal statutes invades the constitutional right of a citizen to a speedy trial in the district of his residence, provided, as in this case, the crime of which he stands accused was there committed.

There is no reason why lie should1 not, and every reason- both constitutional and statutory-why he should be tried in New York. See Tinsley v. Treat, 205 U. S. 20; United Slacs

v. Marx, 122 Fed. Rep. 964; United States v. Sauer, 88 Fed.

Rep. 249.

is to be removed has no jurisdiction, and in this case the courts of the District of Columbia have no jurisdiction as the Govern- ment alleges and has charged the same offense to have been committed and completed in New York. Nashville &c. v.

Alabama, 128 U. S. 96; In re Palliser, 136 U. S. 257; Homer v.

United States, 143 U. S. 207; Hyde v. Shine, 199 iT. S. 62; Georgia v. H~olton, 11 Fed. Rep. 217; United States v. Hackett, 29' Fed. Rep. 848; In re Rosdeitscher, 33 Fed. Rep. 657; Ex par/e Pritchard, 43 Fed. Rep. 915; In re Kelley, 46 Fed. Rep.

654; In re King, 51 Fed Rep. 434; United States v. Fowkes, 53 Fed. Rep. 13; United States v. Howell, 56 Fed. Rep. 21; 'United States v. Peterson, 64 Fed. Rep. 145; In re Huntington, 68 Fed. Rep. 881.; Ex parte Balliinger, 88 Fed. Rep. 781; United States v. Murphy, 91. Fed. Rep. 120; In re Belknap, 96 Fed.

Rep. 614; United States v. Alberty, 24 Fed. Cas. 765; United States v. Bickford, 24 Fed. Cas. 1144; United States v. Bird, 24

Argument for Appellant.

Fed. Cas. 1148; United States v. Britton, 24 Fed. Cas. 1239; United States v. Jackalow, 1 Black, 484.

The indictments did not confer jurisdiction upon the com- missioner to commit the defendant for removal, and there was an entire absence of probable cause as the indictments do not allege an illegal conspiracy to commit any offense against the United States.

Only crimes and offenses specifically enumerated by statute are indictable. United States v. Cook, 17 Wall. 168-174.

When the crime charged is conspiracy to do a criminal act, it must be shown that the act which is the purpose and object of the conspiracy is itself a violation of law. Conrad v. United States, 127 Fed. Rep. 798; United States v. Boyer, 85 Fed. Rep.

425; Rev. Stat., § 5440. Charging conspiracy to violate § 5451 must charge an intent to accomplish certain acts which when performed would violate § 5451.

Thkre was .no bribery as defined in § 5451 in this case. A conditional offer and promise based upon the success of a fu- ture event, where speculation was not successful and the prom- isee receives nothing is not a violation of § 5451. United States

v. Greene, 136 Fed. Rep. 651; United States v. Crafton, 25 Fed.

Cas. 681; United States v.. Kessell, 62 Fed. Rep. 57.

A conspiracy to do a lawful act is not an illegal conspiracy under § 5440. The conspiracy must be to commit an offense, punishable by statute. Goldfield Mines Company v. Miners' Union, 159 Fed. Rep. 500; United States v. Johnson, 26 Fed.

'Rep. 682; United States v. Lancaster, 44 Fed. Rep. 896; United States v. Benson, 70 Fed. Rep. 594; Drake v. Stewart, 76 Fed.

Rep. 142. The intent to violate the law is the gravamen of the offense, and must be distinctly averred. United States v.

Cruikshank, 92 U. S. 558; United States v. Carll, 105 U. S.

612; Bannon & Mulkey v. United States, 156 U. S. 466; United States V. Jackson, 25 Fed. Rep. -548; United States v. Van Lueven, 62 Fed. Rep. 69; McCarty v. United States, 101 Fed.

Rep. 113; United States v. Post, 113 Fed. Rep. 854; United States v. Greene, 136 Fed.:Rep. 658; United States v. Hess, 124

Argument for Appellant..

U. S. 483, 486; Pettibone v. United States, 148 U. S. 202; United

States v. Fox, 95 U. S. 670; People v. Lohman, 2 Barb. (N. Y.)

218.

The indictments do not allege an illegal conspiracy "to de- fraud the United States. in any manner or for any purposc."

Curley v. United States, 130 Fed. Rep. 1; United States v.

Morse, .161 Fed. Rep. 429; Hyde v. Shine, 199 U. S. 62; United States v. Keitel, 211 U. S. 370, can be distinguished, as there the government policy was interfered with ahd acts were performed directly con'travening the spirit and letter of the statutes. To

be a' crime to deprive the United States of a right or an official function, the right'must be one defined by law and the official function one imposed by law. See new Federal Penal Code, §§ 123 and 124.

No case has yet applied the statute unless the5acts com- plained of constituted the deprivation of a right or duty im- posed upon a department of the Government by statute, or that the acts operated to deprive the Government of property or the right of property. United States v. Cruikshank, 92 U. S.

542; United States v. Simmons, 96 U. S. 360; United States v.

Hirsch, 100 U. S. 35; Dealy v. United States, 152 U. S. 539; France v. United States, 164 U. S. 676; Re Wolf, 26 Fed. Rep.

611; United States v. Reichert, 32 Fed. Rep. 142; United States

v. Millper, 36 Fed. Rep. 891; United States v. Purchel, 116

Fed. Rep.- 142; United States v. Thomas, 145 Fed. Rep. 79; United States v. Taffe, 186 Fed. Rep. 113.

Penal laws must be strictly construed and if there is any doubt concerning' the application of a criminal statute, it must be resolved in favor of the defendant. Williamson v. United States, 207 U. S. 425; Hamilton v. United States, 26 App. D. C.

382.

The indictments do not aver an illegal conspiracy to defraud the United States in the matter of making the reports untrue and inaccurate.

It is not a crime or offense to violate a custom, practice or regulation of, the head of a department of the Government

Argument for Appellant.

/

unless such custom, practice or regulation has been authorized by statute and its violation made penal by some general or special law. A charge of crime could not be predicated upon the violation of a rule to keep information regarding the cotton crop secret as there is no statute authorizing the Secretary to make such a rule, nor any statute making its violation a criminal offense. There are no common law offenses against the United States. United States v. Eaton 144 U. S. 677.

While by Rev. Stat.,.,§ 161, the head of a department mnay prescribe regulations not iriconsistent With law for the gov- ernnent of his department, it is likewise true that in order to constitute any act or set of acts, an offense, the act must be made criminal by statute: United States v. Sandefuhr, 145 Fed! Rep. 49; Morrill v. Jones, 106 U. S. 466; United States

v. Boyjer, 85 Fed. Rep. 425; Wilkins v. United States, 96 Fed.

Rep. 837; United States v. Maid, 116 Fed. Rep. 650; United States v. Blasingame, .116 Fed. Rep. 654; United States v.

Matthews, 146 Fed. Rep. 306. See also Caha v. United States, 152 U. S. 211;: Williamson v. United States, 207 U. S. 425.

The violation of 'a custom cannot be made the basis of a criminal prosecution in the absence of any statute imposing any duty.

None of the counts allege that the defendants knew, or had' reason to know, of. any alleged custom, practice, regulation or rule of secrecy in the department; and knowledge not being alleged, and there being no presumption of knowledge, they cannot be held liable for criminal wrong-doing.

Ignorantia facti excusat, ignorantia . juris non excusat. Pettibone v.

United States, 148 U. S. 197; Wilkins v. United States, 96 Fed.

Rep. 837.

'Regulations to have the force of law must be made by an executive department in pursuance of authority deic7 gated by Congress and only when so promulgated, will the courts take judicial notice of their existence. -The existence of such rule is a fact and must be pleaded and proven as any other fact. United States v. Matthews. 146 Fed. Rep. 306.

Holmes was not an officer of the United States nor a person

Argument for Appellant.

acting for or on behalf of the United States in an official function under or by virtue of any department or office of the Government thereof. Nothing was pending in connection with the cotton crop reports, which could by law be brought before him in an official capacity, or upon which his decision or action could be influenced. He was not charged with any duty whatever in connection with reports upon the cotton crop. As to who is an officer of the United States, see United States v. Germaine, 99 U. S. 508; United States v. Smith, 124

U. S. 525; Au ffmordt v. Hedden, 137 U. S. 310; United States

v. McDonald, 72 Fed. Rep. 295; United States v. Cole, 130 Fed.

Rep. 614; United States v. McCrory, 91 Fed. Rep. 295; United States v. Schlierholz, 137 Fed. Rep. 616; United States v. Gib- son, 47 Fed. Rep. 833; United States v. Haas, 167 Fed. Rep.

211; United States v. Ingham, 97 Fed. Rep. 935.

The words "official function," as used in § 5451, mean a duty imposed by law, and a charge of crime cannot be predi- cated upon an act not made an official function, obligation or duty by express command of law.

If Holmes was a public officer, the indictments are defective, because he could not con- spire with himself to bribe, influence, or induce himself to corn- mit the alleged offense of misconduct. United States v. Dietrich, 126 Fed. Rep. 664. See also 2 McClain's Cr. L., § 959; Shannon

v. Commonwealth, 14 Pa. St. 226; Miles v. Butler, 8 Washing-

ton, 194; S. C., 35 Pac. Rep. 1093; S. C., 25 L. R. A. 434; S. C., 40 Am. St. Rep. 900; 2 Wharton's Cr. Law, § 1339; Chadwick v.

United States, 141 Fed. Rep. 225; United States v. New York Central C Jladson River Railroad Company, 146 Fed. Rep. 298.

There was no )roof of the iss0ance of bench warrants or that defendiats were wated within the District of Columbia.

Removal proceediings must be based U)On the fact that the accused is wanted in the demanding jurisdiction and the absence of such proof is a jurisdictional defect.

The history of the act and adjudicated cases show that it was the intention of Congress in this provision to as- similate all the proceedings for holding accused peisons to

Argument for Appellant.

answer before a court of the United States to the proceed- ings provided for similar purposes by the laws of the State where the proceedings should take place. United States v.

Martin, 17 Fed. Rep. 150; United States v. Tureaud, 20 Fed.

Rep. 621; Marvin v. United States, 44 Fed. Rep. 405; Re Gourdin, 45 Fed. Rep. 842; United States v. Sauer, 73 Fed.

Rep. 671; United States v. Sapinkow, 90 Fed. Rep. 654; United States v. Rundlett, 2 Curtis (U. S.), 41; United States v. Horton, 2 Dill. (U. S.) 94; Ex parte Burford, 3 Cranch, 448; United States

v. Burr, 2 Whel. Crim. (N. Y.) 573; United States v. Insley, 54

Fed. Rep. 223; Re Dana, 68 Fed. Rep. 895; United States v.

Collins, 79 Fed. Rep. 65; Re Price, 83 Fed. Rep. 830; United States v. Price, 84 Fed. Rep. 636; Johnson v. United States, 87 Fed. Rep. 187; People v. Cramer, 22 App. Div. 396; Comfort v.

Fulton, 13 Abb. Pr. 276; Blodgett v. Race, 18 Hun, 132; Tracy

v. Seamens, 7 N. Y. 146.

The law of New York requires the issuance of a bench war- rant for the arrest of one indicted, and also for the arrest of one sought to be extradited to another jurisdiction.

The crimes and offenses were all barred by the statute of limitations. If any conspiracy existed at all with relation to the report of June, 1905, it was entered into in 1904, so that the acts of May 31, 1905, now alleged in the indictments as separate conspiracies, were mere overt acts of the original conspiracy, and the statute of limitations became a bar in August, 1907. The indictments were found in May, 1908.

Re Snow, 120 U. S. 282, and see United States v. Kessel and American Sugar Refining Company (not yet reported).

A conspiracy formed under § 5440, Rev. Stat., is a com- pleted crime when an overt act has been committed to effect the object of the conspiracy. United States v. Irvine, 98 11. S.

450; Pettibone v. United States, 148 U. S. 97; Dealy v. United States, .152 U. S. 539; United States v. Owen, 32 Fed. Rep. 534; United States v. Lancaster, 44 Fed. Rep. 896; United States v.

McCord; 72 Fed. Rep. 159; Berkowitz v. United States, 93 Fed.

Rep. 452; United States v. Greene, 100 Fed. Rep. 941; United

Argument for Appellant.

States v. Biggs, 157 FedL Rep. 264; United States v. Black, 160 Fed. Rep. 431.

If the conspiracy is the offense and it becomes complete upon the performance of the first overt act and the defendants then at that timen sudet to idictment, the bar of the 'te

statute must apply after three years from the commission of that overt act. To hold otherwise is to read into § 5440 elenits is to the ren;ewal or continuance of a conspiracy which are not therein expressed. Ware v. United States, 154 Fed. Rep. 577; United States v. Lonabough, 158 Fed. Rep.

31-4; A rtnour 'acking Coimpany v. United States, 209 IT. S.

56. The general Statute of Limitations, Rev. Stat., § 1044, is

a))licablh to the D)istrict of (oluhmia. United States v. C('iahn, 197 IT. S. 477.

The alleged trime of eolispiracy to )ribe merged in tei comn- Ided o eii se.

)ril)(rV N

The overt ac't is made applicable to both counts of lhe in- dit lelnt so thlnt. the collspiray to bribe merged in the specific ofl' iie of .t li time the money w'as paid to Holmes.

1i iiied qlaNoes v. I1gyfjs, 157 Fed. Re). 264; United States v. lllt,, 1 (1( Fed. liep. -1:31 : Berkowitz v. 1ni/ed States, 93 Fed.

Rep..152: 1'ni/ctd Sates v. Jones, 5 Utah., 552; 1. 3ishop's Crim. § 787: 1 Whart. Cr. L. 27a; Un ited States v. L., N. (Cr. ILa, Alelli, I IS 'ed. Rep. 900: 6 Am. & Eng Eney. of Law, 863.

SSe dso 'ho,s v. U;nited States, 1 5( led. Rep. 902; 'Clune v. I'n ilcd Ntaes, 159 1t. S. 590-595; /ni/ed ktates .v. Gardner, 42

lt(baed

Elsei v. State, 47 Arkansas, .572; WJ'right v. N/ate, 5 Idliaa, 528: N/ate v. Lewis, IS Iowa, 579; State v. Mayberry, 48 Mfaine, 28; ( 'Conotion we1alth v. Kigsb0' ry, 5 Massah usetts, 106i: People

v. Riuhards, I Miehigaii, 222; People v. MeKane, 31 A)1. N. (.

(N. Y.) 478; People v. Malher, 4 Wend.

176: 7 Misc. Rep. (N. V.) 229; S. C., 21 Am. Dec. 122.

Mr. Jesse C. Adkins, Special Assistant to the Attorney Gen-

Opinion of the Court.

eral, with whom Mr. Assistant Attorney General Fowler was on the brief, for appellee.

MR. JUSTICE LURTON delivered the opinion of the court.

On May 29, 1908, four indictments were found in the Supreme Court of the District of Columbia against Moses Haas, and certain others, charging them with having con- spired in -the District of Columbia to defraud the United States, and with having conspired to commit an offense against the United States, under § 5440, Rev. Stat. Bench warrants were issued and returned not found.

On the same day four other indictments were found in the Circuit Court of the United States for the Southern District of New York against the same Moses Haas and the others named in the District of Columbia indictments, charging them with having conspired in the Southern District of New York to commit the same offenses covered by the four Dis- trict of Columbia indictments. Haas appeared in the New .York courts and gave bail. Later he was arraigned and pleaded not guilty, then withdrew his plea and entered a motion to quash, which was overruled.

On June 24, 1908, and while this motion to quash was sub judice, proceedings were duly begun by the United States district attorney for the Southern District of New York before the United States commissioner for the arrest of Haas and his removal to the District of Columbia for trial upon the indictments there pending against him. Pen(ing these removal proceedings, and before any hearing, the United States district attorney moved the Circuit Court in which the New York in(lictrneits were pending for consent to the pros- ecution of these removal proceedings, and consent was granted over the objection of taas. This application was made by direction of the then Attorney General of the United States, who, in an official communication, said "that should the trial here [Washington] in acquittal or conviction,, the indictments in New York will be dropped." Among other

result

Opinion of the Court.

reasons for desiring the trial in Washington, aside from mere questions of convenience to Government officials and wit-

"1. The indictments charge a conspiracy on the part of the several defendants to cause to be issued at Washington by the Bureau of Statistics for the Department of Agriculture .of false cotton crop reports, and that Holmes, who was then Associate Statistician of the Bureau of Statistics, was to fur- nish to his, co-conspirators in advance of their official issue the information to be contained in the reports. While, owing to the commission in your district of acts in pursuance of the conspiracy, the court in your district has jurisdiction of the offense, yet the conspiracy was in all probability actually formed in Washington. The false reports were prepared and issued here and the advance information was given out here.

The real situs of the crime then is in the District of Columbia, and the trials should therefore be had here.

"2. The defendant Holmes has been arrested and is now awaiting trial on the indictments pending in the District of Columbia. There are two series of these indictments, one against Price, Haas and Holmes, and the other against Haas, Peckham and Holmes.

It would be a great convenience and a vast saving to the Government to try the defendants together. Even this would necessitate two trials,- one in each series.

If the non-resident defendants are not removed to Washington, four trials would be needed, two in Washing- ton and two in New York."

Upon the hearing before, the commissioner the Government put in evidence certified copies of the four District of Colum- bia indictments, and proof that bench warrants had issued in that district and been returned not found: The defendant admitted his identity and put in evidence copies of the four New York indictments and of the proceedings had there- under. The commissioner found probable cause and directed that Haas be held to await an order of removal by a district judge. Thereupon a petition for writs of habeas corpus and

Opinion of the Court.

certiorari were filed in the Circuit Court, averring that his arrest and detention was illegal and in violation of the Federal Constitution. The Circuit Court upon a full hearing denied the writs and remanded the petitioner. 166 Fed. Rep. 621.

This appeal was thereupon taken.

The facts stated present the question as to whether Haas could be lawfully removed under § 1014, Rev. Stat., over his objection, pending the proceedings against him in the South- ern District of New York for similar offenses.

Section 1014 provides for the arrest and detention of. any person, wherever found, "for trial" before such court of the United States as by law has cognizance of the offense, and that "where any offender or witness is committed in any district other than that where the offense is to be tried, it shall be the duty of the judge of the 'district where such offender or witness is imprisoned seasonably to issue, and of the marshal to execute; a warrant for his removal' to the district where the trial is to be had."

Haas was arrested upon a warrant duly sworn out, charging him with offenses against the United States, committed within the District of Columbia. Copies of the indictments duly re- turned by a grand jury were put in evidence. That made a primafacie case, requiring detention until an order of removal could be applied for and issued. Haas insisted upon his right to be tried in the district of his residence, and complained, with more or less justice, of the expense and hardship incident to a trial in the District of Columbia. But there is no prin- ciple of constitutional law which entitles one to be tried in the place of his residence. The right secured by Art. III, § 2 of, and the Sixth Amendment to, the Constitution is the right of trial in the district "where the crime shall have been If, therefore, Haas committed a crime against committed." the United States in the District of Cqlumbia he had neither legal nor constitutional right to object to removal to the In re Palliser, 136 district where the trial was to be had.

Opinion of the Court.

If the only constitutional right secured is the right to a trial by jury in the district where the crime was committed, there is obviously no invasion of either right by the election of the Government to prosecute the offense in any district and "court of the United States as by law has cognizance of the offense."

If the same accusation has been made by grand juries of different jurisdictions, it would be manifestly. the duty of the prosecuting officer of the United States to deter- mine in which the Offense was most probably committed and bring the offender to trial there. Thus, if the place of the formation of the conspiracy be doubtful, and there be some facts pointing to one district and some to another, and indictments have been returned in each, it would be the plain duty of the prosecution to take steps to bring the case to trial in that district to Which the facts most strongly pointed. This seems to have been the very situation of this case, and the principal motive moving the Attorney General to give the instruction shown by his letter'to the district attorney for the Southern District of New York. The removal statute is plain and leaves no room for the court to make an exception, when Congress has made none.

Has the United States court for the District of Columbia jurisdiction over the accusation made in that District and is the case triable there?

If so, the duty of the commissioner, assuming a showing of probable cause, was to detain and of the judge of the distrkt to issue his warrant, for the removal of the accused "to the district where the trial is to be had."

The case, on principle, must be the same if the offense be one which was committed in more than ofie district. In such a case § 731, Rev. Stat., makes it cognizable in either. But, if. indicted in two or more districts, there must be an election as to where the defendant shall be tried. Primarily, this is the -right and duty ofithe Attorney General, or those acting by his authority.

If the election require the arrest of the .accused in a district other than that in which the trial is to be had, removal proceedings must, of course, be instituted.

Opinion of the Court.

The duty of the commissioner is then limited to the determina- tion of the single question of whether a prima facie case is made that the accused has committed an offense against the United States, indictable and triable in the district to which a removal is sought. There is no discretion reposed when such a case is made out. That bail had been given would not prevent removal, for in such a situation the sureties would be exonerated by act of the law. Beavers v. Haubert, 198

But in the case before us the consent of the Circuit Court, to which the New York in(lictments had been returned, was granted. To say that the accused had a right to a speedy If unreason- trial of'the New'York cases may be conceded. able delay should result from continuanc s (lue to an election to try the same accusations in another district, a very different question might arise, calling for relief through habeas corpus.

But such a possibility affords no legal reason for denying the right of removal. The precise question has not been before raised; but in principle the, case is within In re Palliser, 136

U. S. 257, 267; Hyde v. Shine, 199 U. S. 62, and Benson v.

Henkel, 198 U. S. 1, 15.

In the Palliser case, a removal from a New York district, the residence of Pa~liser, to a Connecticut district, was ob- jected to because the offense had been committed in New York

"But there can be no doubt at all that, if any offense was committed in New York, the offense continued to be com- mitted when the letter reached the postmaster in Connecti- cut; and that, if no offense was committed in New York, an offense was committed in Connecticut; and that, in either .aspect, the District Court of the United States for the District of Connecticut had jurisdiction of the charge against the petitioner. Whether he might have been indicted in New York is a question not presented by this appeal."

In Hyde v. Shine the fact that the conspiracy charged was one triable inCalifornia, the residence of the appellant, was

Opinion of the Court.

not considered as an answer to the demand for removal from California to the District of Columbia, the-question of distance being the one pressed and decided as presenting no obstacle to the legal right of removal.

In Beavers v. Haubert, 198 U. S. 77, the appellant objected to removal from the district of his residence to another to be there tried, because he was at the time under indictment in the district of his residence, and under bail for his appearance for a different offense against the United States. But it was held that this fact afforded no reason for denying a removal upon the election to try the one case before the trial of the other.

In Benson v. Henkel, 198 U. S. 115, objection was made to a removal to the District of Columbia upon the ground that the offense, if any, was committed in California, and that, under the Constitution, the appellant was entitled to a trial in that jurisdiction.

In dealing with that question Mr. Justice

"The objection does not appear upon the face of the indict- ment, which charges the offense to have been committed within this district, but from the testimony of one of those clerks it seems that the money was received by him in certain letters mailed to him from San Francisco and received in Washington. Without intimating whether the question of jurisdiction can be raised in this way, the case clearly falls within that of In re Palliser, 136 U. S. 257, in which it was held that 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, although it may be that he could also be punished in the former."

The next objection is that the District of Columbia indict- ments do not charge any offense against the United Stateg.

The four District' of Columbia indictments charge two sets of conspiracies. One conspiracy charged in indictment No. 26,088 is averred to have been formed between Haas, one

Opinion of the Court.

to defraud

Theodore Price and one Edwin S. Holmes, Jr., who was an Associate Statistician in the Department of Agriculture. The charge in certain of these accounts is that these three defend- the United States by secretly ants conspired obtaining hiformation from Holmes which he should acquire in his official character as Associate Statistician and should, in violation of his official duty, give out secretly to his co- conspirators, information as to the probable contents of certain official cotton crop reports in advance of the time when these reports were to be promulgated according to law.

In oneof the counts it is Oharged that Holmes was to falsify one of these official cotton crop reports, of which fact his associates were to be advised iii advace. All of which information in a(lvance of the publication of the official cotton crop r'l)orts was to be used for speculative purposes in the open market.

Indictment No. 2(i,098 charges that Haas and Price con- spired to bribe Holmes to make this false report and to furnish them in advance information as to its contents.

Indictment No. 2(i,086 charges that Haas and Ohic Frederick

A. Peckham conspired with one Van Riper to bribe Holmes

to give them advance information of the June report of 1905, while No. 26,087 chariges Haas, Pcckham and Holmes with conspiracy to defraud the United States by Holmes giving his co-conspirators advance information as to that report.

The indictments are of such great length that it is not feasible to set them out in full or to state the substance of It is for the l)urposes of this case enough their several counts. to say that it is averred that the Department of Agriculture includes a Bureau of Statistics established by law. That one of the govermental functions exercised by that department, is the acquire- particularly through the Statistical Bureau, ment of detailed information from time to time in respect to the condition of the cotton crop of the country. That this information comes through thousands of correspondents, some official and others not, through the reports of local agents scattered through the cotton region and through travel-

Opinion of the Court.

ing representatives of the department. From these and other sources a report is made estinmating acreage, condition and the probable size of the crop. ('onparisons with former reports are made, and every explanation furnished-. which utay throw light upon. the present condition and prospect, of the growing crop. That the purpose is to complete and pro- iulgate at, stated times fair, impartial and reliable reports, and that said reports are issued about the third day of the months of June, ,July, August, September, October and )e- ceml)er. That the inforniation thus officially acquired and coi) led and thie estiniates thereon are ()f value and do greilt ly affect the market price of ti crop. That such reports are required to ?e sul)mitted t) and apl)lroved by the Secre- )efore pul)lication, and that mider the tary of Agriculturc ctitoni, lpractices and regulations of the Secretary of Agricul- tuc all officers and e l loy6s are i' required to kee) seeret the inforniation so gathered, alldi from in aiy way divulginlg same or giving out any information forecasting such report ill advance of its official ap)roval and Iromulgation.

It is'averred that tile said HolneS was an enilpoyc or an official in said Department, and in the Bure6au of Statistics.

That by virtue of his duty as such official and Assistant Statistician he acluired inuch of the information upon which such reports are based, and, as an official, came into knowl- edge of the probable contents of the regular reports. That neither Haas nor- Price had any official connection and were not authorized to obtain information about such reports in advance of their promulgation. That the conspiracy was to obtain such information from Holmes in advance of general publicity and to use such information in speculating upon the cotton market, and thereby defraud the United States by defeating, obstructing and impairing it in the exercise of its governmental function in the regular and official duty of publicly promulgating fail, impartial. and accurate reports concerning the cotton crop. One count charges, in addition, that the conspiracy included the making of a false report, the

Opinion of the Court.

facts to be given by Holmes to his co-conspirators in advance of its publication.

The counts charging a conspiracy to commit an offense against the United States in substance charge that this was to be accomplished by bribing the said Holmes to inducehim to do certain acts in violation of his lawful duty not to give out advance information in respect to the condition of the cotton crop, acquired in the performance of his official duty.

Do the counts which charge a conspiracy to defraud the United States charge any offense?

"If two or more persons conspire

The authority for the indictments charging a conspiracy to defraud is § 5440, Rev. Stat. Its language is plain and broad: to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable," etc.

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These counts do not expressly charge that the conspiracy included any direct pecuniary loss to the United States, but as it is averred that the acquiring of the information and its intelligent computation, with deductions, comparisons and ,explanations involved great expense, it is clear that practices of this kind would deprive these reports of most of their value to the public and degrade the department in general estima- tion, and that there would be a real financial loss. But it is not essential that such a conspiracy shall contemplate a finan- cial loss or that one shall result. The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government. Assuming, as we have, for it has not been challenged, that this statistical side of the Department of Agriculture is the exercise of a function within the purview of the Constitution, it must follow that any conspiracy which is calculated to obstruct or impair its effi- ciency and destroy the value of its operations and reports as fair, impartial and reasonably accurate, would be to defraud

Opinion of the Court.

the'United States by depriving it of its lawful right and duty of promulgating or 'diffusing the information so officially acquired in the way and at the time required by law or departmental regulation. That it is not essential to charge or plrove an actual financial or property loss to make a case. under the statute has been more than once ruled.- Hyde v.

Shine, 199 U. S. 62, 81; United States v. Keitel, 211 U. S. 370, 394; Curley v. United States, 130 Fed. Rep. 1; McGregor v.

United States, 134 Fed.-Rep. 195.

The counts charging a conspiracy to commit an offense against the United States, namely, the offense of bribing Holmes to violate his duty as a public official by giving out advance information about the monthly cotton reports, are said not to charge an offense against the United States, because there is no statute which prohibits the giving out of such official secrets in advance of lawful promulgation.

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Section 5451, Rev. Stat., makes it a crime to bribe or offer to bribe "any officer of the United States," or "any person acting for or on behalf of the United States, in any official function, under or by authority of any department or office to induce him to do or omit to of the Government; do any act in violation of his lawful duty." The head of each Department is authorized by § 161, Rev. Stat., "to prescribe regulations not inconsistent with law for the government of his departmenit, the conduct of its officers and clerks, the distribution and performance of its business, and the pres- ervation of its records, papers and property appertaining to' it." Such regulations need not be promulgated in any set form, nor in writing.

In United States v. Macdaniel, 7 Pet. 1, 14, 15, it was said of departmental regulations that, "of necessity usages have been established in every department of the Government, whit-h have become a kind of commonJaw, and regulate the rights and-duties of those who act within their respective lIn its."

In Benson v. Henkel, 198 U. S. 1, 11, a similar question

Opinion of the Court.

arose in an appeal from an order denying a writ of habeas corpus in a removal case. The appellant was charged with a conspiracy to commit an offense by bribing certain clerks of the land office to divulge the contents of certain reports. It was said that these clerks had not been forbidden by any stat- ute to give out such information. Mr. Justice Brown, for the

"But it is clearly for the court to say whether every duty to be performed by an official must be designated by statute, or whether it may not be within the power of the head of a department to prescribe regulations for the conduct of the business of his office and-the custody of its papers, a, breach of which may be treated as an act in violation of the lawful duty of an official or clerk. United States v. Macdaniel, 7 Pet.

1, 14."

We have not dealt with certain-minor objections which go to the form of the indictments rather than to the substance.

These are matters to be determined in the court where they were found and are not proper for consideration upon a habeas corpus proceeding.

The exclusion of the evidence taken in Price v. United States, and offered in this case upon the petition for writ of habeas corpus in the Circuit Court, touching the history of the finding of indictment No. 26,088, is not a matter which is proper for review on such ani appeal as this. So, also, the defense of the statute of limitations. The one defense is mat- ter in abatement and the other of substantive defense, and both are properly matters for the determination of the court into which the indictments were returned and where the case will be tried.

It is enough to hold, as we do, that the indictments suffi- ciently charge an offense committed within the District of Columbia to require that the appellant shall be removed- to that District for trial. Benson v. Henkel, 198 U. S. 1.

The introduction of certified copies of the District of Colum- bia indictments made a prima ,Awie case for removal. That

VOL. ccxvi-31

BREWER, J., concurring.

case was not overcome by the copies of the New York indict- ments. That they laid the locus of the conspiracy in a differ- ent place from that laid in the District of Columbia indict- ments is true. But if such indictments are evidence for the purpose of showing that the place of the conspiracy was not in the District of Columbia,.such evidence was not, as matter of law; sufficient to overcome the probable cause shown by the District of Columbia indictments. They certainly could not be regarded as admissions by the Government. They were at most evidence of .the opinion of the New York gi'and jury as to the locus of the conspiracy. But if the fact be that the offense charged in both sets of indictments is identical and that the locus of the conspiracy ,is laid in one set as in one district and in the other as in a different district, it is still for the Government to determine-in whiclof the two districts it will bring the accused to trial, .and of the commissioner to determine whether a prima facie case has been shown that the accused had probably committed an offense in the District of Columbia which was indictable and triable there. This we have dealt with already and ofily refer to it now in connection with the use of the New York inde'cti'ients as evidence that the offense was not committed in the District of Columbia.

Upon the whole case we conclude that the commissioner had jurisdiction, and that no sufficient reason is shown for discharging the appellant.

Final order denying writ Affirmed.

BREWER, J., concurring.

I concur in affirming the orders of removal in these cases, but my concurrence must not be taken as holding that the in- dictments will stand the final test of validity or sufficiency.

Assuming that there is a doubt in respect to these matters, as I think there is, and as seems to be suggested by the opinion in No. 367, I am of the opinion that such doubt should be

Counsel for Parties.

settled by direct action in the court in which the indictments were returned and not in removal proceedings.

MR. JUSTICE McKENNA concurs in the result, but reserves opinion whether the facts alleged in the indictment constitute a conspiracy to defraud the United States.

No. 366. Argued January 6, 7, 1910.-Decided February 21, 1910.

Haas v. Henkel, ante, p. 462, followed as to jurisdiction of commis- sioner under § 1014, Rev. Stat., in removal proceedings to remove accused who has been indicted in more than one district.

The fact that the person whose removal is sought, is under bond to appear in other removal proceedings on prior indictments, does not prevent the removal order being issued. The effect could only be to exonerate the sureties.

The rule that the jurisdiction over the person by one Federal court must be respected until exhausted is one of comity only, and has It will not prevent removal a limited application in criminal cases. under § 1014, Rev. Stat., where the cases are not the same.

Even if a second removal proceeding does amount to an election by the Government to abandon the first complaint, that fact does not affect the jurisdiction of the commissioner.

Disregard of comity between Federal courts at the instance of the Government is not an invasion of constitutional rights of the accused.

It does not affect the jurisdiction of the commissioner, and even if his decision is erroneous it cannot -be attacked on lhabea8 corpus.

Habeas corpus is not writ of error.

166 Fed. Rep. 627, affirmed.

THE facts are stated in the opinion.

Mr. Nash Rockwood and Mr. Henry E. Davis, with whom Mr. Max Steuer was on the brief, for appellant.1

1 For abstract of argument, see p. 463, ante.