United States v. Reilley

Sawyer, J. Motion to rescind tbe order made by United States District Judge Hillyer granting leave to file an information for embezzlement by a postmaster, and to strike tbe information from tbe files, tbe case having been transferred to tbe circuit court for trial. I have no doubt that tbe court has jurisdiction to try offenders for misdemeanors and offenses not capital or otherwise infamous, upon informations filed by leave of tbe court, and that tbe offenses charged in this case are not infamous. Whether tbe information presents a proper case for granting leave to the United States attorney to file it, is a question for the exercise of a sound discretion by the court. Generally, in this circuit, unless for some substantial reason the court otherwise determines, it has been required that the party charged shall be examined and held to answefi”by some committing magistrate, or else that evidence showing probable cause should be made to appear in some proper form before granting leave. In this case the information was verified by tbe direct, positive affidavit of the United States attorney, and, upon being arrested upon a warrant issued thereon, the prisoner was examined and held to answer for the offense set out in the information. I think the circumstances are sufficient to justify a refusal to vacate the order granting leave, and to strike the motion from the files. For authorities sustaining this action see Spear on the Law of the Federal Judiciary, 406, and the authorities there cited. See, also, U. S. v. Shepard, 1 Abb. (U. S.) 437; U. S. v. Waller, 1 Sawy. 701; U. S. v. Block, 4 Sawy. 211; In re Wilson, 18 Fed. Rep. 33; Thatch. Pr. 650-652, and cases cited. Let an order be entered denying the motion.