TIBERG v. WARREN et al., 192 F. 458

WOLVERTON, District judge (after stating the facts as above). The first contention of counsel for appellant is that the Circuit Court erred in permitting the appellees to file the supplemental return, for the reason that the cause had been disposed of by final judgment and the petitioner discharged. It is not entirely clear from the transcript of record just what the procedure was. The order for petitioner’s discharge was made and entered December 1, 1910. The supplemental return was verified on December 12, 1910, and filed the same day.

The prayer is that the previous order discharging the petitioner from custody be - vacated and set aside, and that the writ of habeas herein be quashed and the petitioner remanded to the custody of the respondents. Next in order in the record appears the bail bond of the petitioner, which he was required by the court to give to abide the order of the Circuit Court of Appeals, should an appeal be taken by respondents from the order dismissing the writ and discharging the petitioner. It was upon the giving of this bond that the petitioner was eventually released from custody.

Then appears the traverse to the supplemental return. Following this is the order of the court made December 27, 1910, vacating the former charge, and remanding the petitioner again to the custody of Joseph Warren, one of the respondents. Then comes an order made on the same day, granting leave to file the supplemental return to the writ of habeas corpus theretofore issued. The regular course would have been for the respondents to make a showing why the former order of the court should be vacated, accompanying it with a tender of the supplemental return, with request for leave to file the same.

If the showing appeared to be sufficient, the prior judgment would be vacated, and leave granted to file the supplemental return. Then, when the supplemental return was filed, the question would have regularly arisen upon such return, in connection with the original return and the traverse, whether the petitioner should be discharged or remanded to the custody of the officer; the case being heard anew. These are matters formal in character, however, and do not go to the substantial rights of the petitioner.

The supplemental return contains matter relevant to- the question whether the order of discharge should be vacated,.‘and also pertinent as a further justification for detaining the petitioner. The reasons appearing were ample upon which to base an order for vacating the prior order of discharge, and for granting leave to file the supplemental return itself, and the irregularity of the procedure by which it was finally accomplished affords no sufficient ground of error. The vital question is whether the court was without power to vacate its prior order or judgment at all.

The order of vacation was made during the same term as the entry of the previous order. “It is a general rule of the law,” says the Supreme Court, “that all the judgments, decrees, or other orders of the courts, however conclusive in their character, are under the control of the court which pronounces them during the term at which they are rendered or entered of record, and they may then he set aside, vacated, modified, or annulled by that court.” Bronson v. Schulten, 104 U. S. 410, 415, 26 L. Ed. 797. See, also, Bassett v. United States, 9 Wall. 38, 19 L. Ed. 548; Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872.

The doctrine has direct application here, and the power of the circuit court to grant the order of vacation must be conceded. It is further contended that the allegations of the supplemental return are insufficient to justify respondents in restraining petitioner. The first objection is that the return contains no allegation that the warrant had been served. This relates to the second warrant issued by the Governor of Washington. It must he considered that this return is hut supplementary to the original, and is supposed to contain matters only which have transpired since the filing of such original return.

That is to say, the respondents justify through the original and the supplemental returns. The two pleadings together constitute their defense. It is doubtful whether the petitioner can be heard to complain that he is not in custody when the very proceeding inaugurated by him is to obtain release from alleged unlawful restraint. True, the petitioner had, in fact, been discharged from custody, but the supplementary proceeding revived the entire issue, and the cause was to be considered as though it were pending as originally instituted.

The formal matter of rearresting petitioner under the second warrant was not essential to the justification. 'The objection is therefore untenable. It is next objected that it is not shown that the petitioner is a fugitive from justice. The fact is alleged in so many words in both the original and the supplemental return, and the allegation is not denied by petitioner.

If the objection be that the proofs were insufficient at the trial to establish the fact, then the answer is that the issue presents a question of fact which the Governor of Washington was called upon to decide upon such evidence as he deemed satisfactory, and the issuance of this warrant is at least prima facie sufficient to justify the removal until the presumption is overthrown by contrary proof. Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Ed. 544. There was no countervailing proof offered at the trial in the present case.

So that, whether the objection be to the sufficiency of the returns, or to the proofs showing the petitioner to be a fugitive from justice, it must he held untenable. Another objection is that the complaint filed before the commissioner and ex officio justice of the peace in Alaska is demurrable and insufficient upon which to base the proceeding for petitioner’s removal. The complaint is made by one G. W. Campbell, and entitled in the justice’s court for the Precinct of Cape Nome, district of Alaska, Second division.

It is alleged thereby that said Johan Tiberg, “on the 18th day of July, 1910, in the district aforesaid, and within the jurisdiction of this court, did wrongfully and unlawfully and fe-loniously break, rob, and attempt to rob and break a flume, sluice, sluice box, mining claim, and bedrock not his own, to wit, the flume, sluice, sluice box, mining claim, and bedrock of -Pioneer Mining Company, a corporation, contrary to the form of the statute in such cases made and provided,” etc. By

section 75 of the Penal Laws of Alaska it is provided: “That any person who shall break or rob in any maimer, or who shall attempt to break or rob, any flume, rocker, quartz, quartz vein, or lode, bed rock, sluice, sluice box, or mining claim not his own, or who shall trespass upon such mining claim, with the intent to commit a felony, shall, upon conviction thereof, be punished by imprisonment in the penitentiary not less than one nor more than five years, or by fine not less than one hundred nor more than one thousand dollars, or by both such imprisonment and fine.” By

section 49 of the Code of Criminal Procedure, the indictment is sufficient if it can be understood therefrom: “That the act or omission charged as the crime is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.” And by

section 50 it is further provided: “That no indictment is insufficient, nor can the trial, judgment, or other proceedings thereon be affected by reason of a defect or imperfection in matter of form, which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” The specific objection of duplicity is made to the complaint, because it alleges a breaking and an attempt to break.

We understand, however, that where the statute makes the commission of different acts each an offense, and such acts are stated disjunctively in the statute, two or more or all of such acts may be embraced in a, single count in the indictment, but that they shoiild be set forth conjunctively; that is to say, where the word “or” appears in the statute the word “and” should be employed in the indictment. State v. Carr, 6 Or. 133. The complaint criticised conforms to that rule. In other respects the offense is sufficiently charged within the purview of the statute governing pleadings in criminal cases in Alaska.

Especially is this true where the indictment or complaint is challenged in a removal proceeding. Webb v. York, 79 Fed. 616, 25 C. C. A. 133. Other objections are made, namely, that the certificate to Geo. D. Schofield’s official character is insufficient; that the certificate of the Governor of Alaska does not show the official character of J. F. Hobbes on September 24, 1910, that the signature attached to the jurat is the signature of Hobbes, or that the seal attached is his official seal, or that Schofield was. the custodian of the original complaint, warrant, and return thereof on October 14, 1910.

The plain answer to these objections is that no such certificates are required by law. The requisition was made under

section 5278 of the Revised Statutes (U. S. Comp. St. 1901, p. 3597). This requires the production by the Governor demanding a fugitive from justice of a copy of the indictment found or affidavit made before a magistrate of his state'or territory, charging the person demanded with having committed a crime, “certified as authentic” by him, the demanding Governor. What is it that is required to be certified as authentic? It, is the indictment or affidavit made before the magistrate.

This is really all the certificate that is required of the demanding Governor,, and it is not essential that he go farther and certify to the official character of the grand jury or of the officer certifying to the copy of indictment, or the officer before whom the affidavit is subscribed and sworn to, or to the official character of the proper custodian of such a document. It is sufficient that the indictment or affidavit is certified as authentic. Ex parte Reggel, 114 U. S. 642, 5 Sup. Ct. 1148, 29 L. Ed. 250. This disposes of the several objections to the return.

It is next urged that the Circuit Court erred in refusing to-allow the petitioner to offer testimony under his traverse, and in remanding him to the custody of the officer. - To understand fully the-question involved, it will be necessary to advert to the record. When judgment was first entered discharging the petitioner from custody,. 1he paper by which the petitioner was charged with the offense designated therein was called an indictment, which was certified to be authentic, when in reality the paper was not an indictment, but a complaint before a magistrate.

It was probably this irregularity that prompted the discharge. The supplemental return shows the issuance of another requisition, wherein the paper charging the petitioner with the commission of a crime was properly and truly denominated a complaint.

Now, it is alleged in the traverse that said alleged second requisition of the Governor of Alaska was not accompanied by any complaint or affidavit, and that at the time the same was issued the said Governor of Alaska did -not have before him any warrant, complaint, or affidavit charging the petitioner with any crime, but Ensued the said requisition on the request, transmitted by cable, of some person in Seattle; further, that the Governor of the state of Washington issued his warrant on said requisition, and that he attached to said warrant a complaint and warrant received by him on the previous requisition.

At the trial, so it appears from the record, the petitioner offered to introduce evidence in support of the traverse. Whereupon the attorney for respondents admitted that the Governor of Alaska, when he issued the second requisition, did not have before him any complaint, indictment, or affidavit, but attached thereto only the papers alleged by the traverse to be so attached, and thereupon sent the requisition, with the attached papers, to Joseph F.

Warren in Seattle, Wash., with request that he, the said Warren, attach thereto the complaint previously attached to the first requisition, and the affidavits accompanying the same, which was done, and the whole returned to the Governor of Washington, who thereupon issued bi& warrant to Warren. Thus the exact manner of issuing the second requisition and the warrant by the Governor of Washington was made to appear.

The question to be decided is whether the alleged irregularity in putting these documents together, and in their certification by the Governor of Alaska,-is fatal to the validity of the warrant finally issued by the Governor of Washington. It is not questioned that the complaint attached to the first requisition is the identical document attached to the second. Further, there can be no doubt about the identity.

This being so, the fact that the agent of the Alaska Governor, at the latter’s request, attached the document to the requisition after it had been in fact signed and issued, ought not to invalidate the requisition or the warrant issued upon its authenticity. The Governor of Alaska knew what he was certifying to, as he had previously certified to the same document, but under another name, calling it an indictment, and it was not necessary that he attach the same to the requisition by his own hand. That could as well be done by an agent.

We conclude that the irregularity shown in making- up the requisition is not fatal to its authenticity and validity. The record further shows that the petitioner refused to admit that any affidavits,were attached to the second requisition before its delivery to the Governor of Washington, whereupon the respondent Warren produced in court the papers which he alleged were presented to the Governor of Washington with said requisition, and the cause was then determined by the court.

The petitioner would not admit that the papers produced by Warren were the papers presented to the Governor of Washington, and it seems to be contended that the court determined the'cause without according to the petitioner a full hearing upon his traverse. In this it is claimed there was error. The record, however, which contains a bill of exceptions, does not disclose that the petitioner offered or was ready to produce any evidence after the attorney for respondents made the admission in open court as above noted.

Nor is it shown what the petitioner would have been able to prove in support of his traverse if allowed to produce his witnesses, and no objection was interposed to the court’s then determining the cause. So the cause seems to have gone to the court upon the statements and admissions of counsel for respondents, and the documentary evidence produced by Warren. The burden was upon the petitioner to substantiate the allegations of his traverse, and under the record we find no error in the court’s action.

It is further urged, it having been alleged by the traverse that Campbell made his affidavit charging petitioner with the crime designated upon hearsay, that the affidavit was thus rendered insufficient upon which to base the requisition, and likewise the warrant for petitioner’s removal or extradition. The contention is fully answered by what is said respecting the trial, if it were otherwise tenable as a defense to the extradition. It does not appear that petitioner offered, or was ready, or desired, to go into a trial of that fact, and he is therefore precluded by the record.

It is suggested that the petitioner was placed in jeopardy by reason of the proceedings in the justice court in Seattle and the dismissal of the complaint filed therein. This was one of the means resorted to for detaining the petitioner until the proper warrant could’ be had for his extradition, and does not constitute a defense to his' removal on requisition. The judgment of the Circuit Court will be affirmed.