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then judge for himself and not trust to the judgment of another, whether sufficient and probable cause exists for issuing the warrant.”
Accordingly, a rule was formally established in that circuit that, "No warrant of arrest shall be issued by any commissioner upon mere belief or suspicion of the person making such charge; but only upon probable cause, supported by oath or affirmation of such person, in which shall be stated the facts within his own knowledge constituting the grounds for such a belier, or suspicion."
The same rule applies as on informations. U. S. v. Tureaud, 20 Fed. 621; U. S. v. Polite, 35 Fed. 58.
The fundamental requirements, therefore, of the fourth amendment, and of the practice of this state, made applicable by section 1014, are that the facts and circumstances tending to show criminality shall be made to appear to the magistrate on oath, whether upon examination by the magistrate himself, or by affidavit, or deposition; that if the defendant demand an examination, the complainant's witnesses, if within the county, shall be recalled, if desired, for cross-examination, and the defendant allowed witnesses in his own behalf; and that the magistrate must himself find in the facts thus shown sufficient probable cause, independent of the belief of other persons.
There is no express provision either by congress, or by the law of this state, as to the reception or effect of an indictment found in another state or district as evidence before a committing magistrate; though in California a state statute is said to make such an indictment legal evidence. U. S. v. Haskins, 3 Sawy. 262, Fed. Cas. No. 15,322. In New York such a question in the state practice never arises; because after indictment found in one county the offender, if in another county, is removed by a bench warrant, and not by proceedings before a committing magistrate. In proceedings under section 1014 in this state, therefore, a certified copy of a foreign indictment must stand upon the general rules applicable to preliminary examinations; and by these rules it is at best, as stated by Lowell, J., in U. S. v. Pope, supra, but secondary evidence of the facts constituting the offense, and hence in no way conclusive.
Section 905 of the Revised Statutes, as respects the faith and credit to be given to the "records and judicial proceedings of the courts of other states,” etc., is not applicable; for the reasons, (1) that a grand jury is not a court (U. S. v. Clark, 1 Gall. 497, Fed. Cas. No. 14,804; Todd v. U. S., 158 U. S. 278, 15 Sup. Ct. 889); (2) that if it were, its proceedings, being ex parte and without notice to the defendant, are in no way binding upon him elsewhere (Pennoyer v. Neff, 95 Ú. S. 714, 733; Scott v. McNeal, 154 U. S. 34, 46, 50, 14 Sup. Ct. 1108); (3) that the indictment as a record, even in the court where found, is not evidence of anything more than the finding of the grand jury. The warrant against the defendant in that jurisdiction is, indeed, based upon the action and the finding of the grand jury, of which the indictment is evidence; because they are each parts of one constitutional proceeding for bringing the accused to trial; but on the trial there the averments of the indictment are not the least evidence against the accused; nor are they primary legal evidence in any in
dependent proceedings elsewhere. No one would contend that aside from statute, an indictment in one district or state would be a sufficient basis for an indictment in another state or district in which legal evidence was required. King v. Willett, 6 Term R. 294; Code Cr. Proc. N. Y. § 256.
As the object of every preliminary examination, however, is not to determine finally the question of guilt, but only the existence of probable cause to believe an offense has been committed, more latitude in receiving evidence is allowed than upon a trial. In the Case of Bollman, supra, before Chief Justice Marshall, an affidavit taken in Louisiana stating facts and circumstances within the knowledge of the affiant was accordingly held admissible in Virginia, the witness not being procurable; although from the remark of the chief justice that commitments were made ex parte, it would seem that the state practice there was different from ours; and so in U. S. v. White, 2 Wash. C. C. 29, Fed. Cas. No. 16,685. Under the law of this state ex parte commitments are not allowed, if an examination is demanded. The witnesses are not required to be produced, however, for cross-examination, if they are not within the county; and committing magistrates are not, like a grand jury, limited by statute to strictly legal proof. Code Cr. Proc. N. Y. § 256; King v. Willett, 6 Term R. 294. Under the Criminal Code of this state, it has been held that a complaint upon information and belief is sufficient for issuing the warrant, if the particulars of the information and the informants are also stated. People v. McIntosh (1886) 5 N. Y. Cr. R. 39, and such is the common practice. It would, in many cases, defeat the ends of public justice, and the guilty would often escape before the necessary proof could be procured, if in issuing an order of arrest nothing but strictly legal evidence could be considered by the magistrate. But complaints on information and belief are to be closely scrutinized. Headley, N. Y. Cr. Just. 80–82.
An indictment found in another district, though not primary evidence of the facts stated in it, may, however, be secondary evidence of a more or less persuasive character. It contains the finding of a body specially constituted by law to inquire into offenses; it is required to be based either upon the examination of witnesses, or upon the knowledge of the grand jury itself; it is a record of their presentment or complaint, and purports to be made upon oath, and is delivered to the court upon their oath to make true presentments. Beyond that jurisdiction, it may, therefore, be received as any complaint on information and belief would be received, and its sufficiency should be judged by the same rules. The question of probable cause, the magistrate must himself determine from all the facts ascertained by him. The judgment of a foreign grand jury is not to be a substitute for his own. If the narrative of facts contained in the indictment is clear, consistent, and unambiguous in showing the commission of the offense charged, I think it may be regarded as equivalent to a deposition of the facts ascertained by the grand jury upon the sworn examination of the witnesses whose names are indorsed on it; and as such, sufficient evidence for the issue of the warrant of arrest, under section 1014, when other evidence of the facts is not conveniently attainable; and hence it is also sufficient for commitment, if examination is waived, or when the averments of the indictment are not contradicted.
But indictments are often of quite a different character. An indictment is not, in fact, prepared, or designed, as an affidavit, or a deposition. It is, in reality, a charge, an accusation, a pleading, designed to put the defendant on trial. Though presumed to embody the material facts proved before the grand jury, it is not necessarily confined to those facts. It is drawn up by the district attorney as a legal accusation. It is not formally verified. The matters stated in it are not necessarily stated as they were proved before the grand jury; they may be pleaded according to their legal effect; i. e., as the district attorney may understand their legal effect. Legal inferences are often stated as facts; facts and law indistinguishably blended; and in the use of different counts for the same actual offense, although by a legal fiction the different counts are supposed to relate to different offenses, the law tolerates such inconsistencies and even contradictions in indictments, as in a deposition would constitute perjury. An indictment that appears on its face to be of this character, cannot be deemed or treated as equivalent to a deposition or an affidavit of facts; because it plainly is not designed to be so treated, and its form and contents forbid it to be so regarded. It must be judged by its statements, altogether; and if taken as a whole, it is contradictory on material points, it becomes worthless as an affidavit of facts, however perfect as a pleading; and such an indictment is, therefore, insufficient as a foundation for removal proceedings.
Such, I think, is the indictment in this case. The main questions involved make it most material to know what acts of each defendant were committed here, and what, if any, in Washington. There is no definiteness or certainty in the essential statements in this regard, as respects Mr. Dana. He denies that any acts of his were done in Washington. The first count alleges that Mr. Dana wrote the libel in New York; the second and third counts allege, on the contrary, that Dana and Laffan wrote, or caused it to be written, in Washington. The indictment in the first count alleges a circulation and publication of the libel in Washington, and also alleges a prior publication of the same libel in New York. It does not distinctly allege any direct agency of Mr. Dana in the circulation in Washington. The averment of publication there by Mr. Dana is evidently a legal conclusion only. It states that Mr. Dana was the editor of the paper; but that Mr. Laffan was the manager, and that Laffan had charge and superintendence of its publication and sale; that Laffan, as manager, sold and caused it to be sold in New York and other places, including Washington; that 300 copies were regularly sold by Laffan for circulation in Washington, and were sent there; but in what place and to whom Laffan sold them, and by whom the 300 copies were sent to Washington, are not definitely stated. The indictment in the same count afterwards alleges that
Mr. Dana and Mr. Laffan sent and caused to be sent to Washington 300 copies for circulation there. All the averments as respects Mr. Dana's agency in the circulation of the paper in Washington are uncertain, and in part contradictory. Its averments might all be true, in the alternative and conjoined way in which they are stated, though the simple fact was that the 300 copies were sold in New York in the usual course of trade to a newsdealer here, who was accustomed to dispose of them in Washington, and sent them there on his own account, in the usual course of business. Such an indictment cannot be treated as equivalent to a complaint on oath; or if so treated it would discredit itself by its inconsistencies and contradictions. A magistrate could not properly act upon an affidavit of that character; and hence it cannot serve as the necessary legal basis for a proceeding under section 1014.
It is, moreover, the duty of a committing magistrate, as above observed, to scrutinize closely a complaint founded on information only, and to require the production of such original evidence as is near at hand and easily procurable, in support of such a complaint. The office of The Sun was but a few hundred feet distant, and orig. inal evidence as to the alleged libel and other important averments were easily procurable. The alleged libel consists of a few lines only extracted from an alleged editorial article in The Sun of February 22, 1895.
But the article itself was not produced, nor the paper in which it appeared; nor are either of them before me. Non constat, but if produced, they might have turned out to be only fair comments on the result of a judicial investigation. Other original evidence upon material facts was equally easy of production, but was not sought. Under such circumstances, to permit an investigation before a grand jury in a distant place, and such uncertain results of that investigation as are exhibited in this indictment, without the production of any original evidence easily available concerning facts occurring close at hand, to stand as a substitute for an investigation by a committing magistrate on the spot, and as a substitute for the magistrate's judgment on the facts that in such a proceeding would be ordinarily procured, would be to sustain the very practice which section 1014 was designed to prevent, in requiring the investigation to be conducted according to the usages of the state where the proceeding is had.
(2) Libel not a Removable Offense: I am equally satisfied that libel in the District of Columbia does not belong to the class of offenses contemplated or provided for by the thirty-third section of the judiciary act, or by section 1014 of the Revised Statutes, which re-enacted it.
The slight change of phraseology in section 1014 (shown in the quotation, supra) does not import any intent to change the meaning or effect of the original act. The verbal change was appropriate in order to avoid the incongruity arising from the wording of section 33, when applied to new states, whose courts, though of the same character as those created by the judiciary act, and within its gen
eral intent, were not within its letter, because not created "by that act.” The change has no other significance. The rule laid down by Spencer, J., in Taylor v. Delancy, Caines' Cas. 149, 151, for construing the revision of statutes, which was adopted by Kent, J., in Yates' Case, 4 Johns. 359, and which has since been so generally followed, is applicable here, viz.: “That mere change of phraseology shall not be deemed or construed a change of the law, unless such phraseology evidently purports an intention in the legislature to work a change.”
Mr. Justice Miller, in U. S. v. Bowen, 100 U. S. 508, 513, says: “This principle is undoubtedly sound.” In Murdock v. City of Memphis, 20 Wall. 617, he says the revision of the United States statutes was “based on the idea that no change in the existing law should be made”; and in Smythe v. Fiske, 23 Wall. 382, Mr. Justice Swayne says: “It was the declared purpose of congress to collate all the statutes as they were at that date, and not to make any change in their provisions.” See, also, U. S. v. Lacher, 134 U. S. 626, 627, 10 Sup. Ct. 625; U. S. v. Hirsch, 100 U. S. 35.
In The L. W. Eaton, 9 Ben. 289, 301, 302, Fed. Cas. No. 8,612, Blatchford, J., says that “the presumption is that new language is the result simply of revision, simplification, rearrangement and consolidation, with a view to re-enactment of the same substance and meaning"; unless the words clearly indicate a different intent. If, therefore, up to the time of the revision of 1874, section 33 of the judiciary act did not authorize removals for libel to the District of Columbia, it cannot be seriously contended that section 1014 of the Revised Statutes warrants such removals now.
It is plain, however, that the judiciary act did not contemplate any such local offenses as libel in the District of Columbia. In the federal system, there are no common-law crimes. It was early adjudged in the case of U. S. v. Hudson, 7 Cranch, 32, that even libel against the government, or its officers, could not be punished criminally, without a statute therefor. Mr. Justice Johnson says:
“The legislative authority of the Union must first make an act a crime, affix a punishment and declare the court that shall have jurisdiction of the offense.” U. S. v. Coolidge, 1 Wheat. 415; U. S. v. Britton, 108 U. S. 206, 2 Sup. Ct. 531; Benson v. McMahon, 127 U. S. 457, 466, 8 Sup. Ct. 1240; Manchester v. Massachusetts, 139 U. S. 262, 11 Sup. Ct. 559; U. S. v. Eaton, 144 U. S.. 677, 687, 12 Sup. Ct. 764; In re Greene, 52 Fed. 111.
There has never been any statute either of the United States or of the state of Maryland, making libel a criminal offense, or defining its punishment. The present indictment rests wholly upon the old common law of Maryland, and upon the act of congress of February 27, 1801 (2 Stat. 104), accepting the cession of that district, and providing that “the laws of Maryland as they now exist shall be and continue in force," except as modified, etc.
Assuming, though that point also is disputed, that libel in the District of Columbia is a criminal offense, it is nevertheless a purely local offense. It is no part of the federal system of laws, nor related to the general legislation of congress. In administering the local law of the District of Columbia, the national government there acts as