United States ex rel. Vause v. McCarthy

LEARNED HAND, District Judge (after stating the facts as above). The theory of Judge Brown in Re Dana, 68 Fed. 886, has been definitely overruled, that Revised Statutes, § 1014 (Comp. St. 1916, § 1674), does not apply to offenses committed in the District of Columbia, at least when they are crimes against the general laws of the United States. Benson v. Henkel, 198 U S. 1, 25 Sup. Ct. 569, 49 L. Ed. 919; In re Price (C. C.) 83 Fed. 830; Price v. McCarty, 89 Fed. 84, 32 C. C. A. 162. That theory rested upon the idea that the removal must be to courts existing at the time of the passage of the Judiciary Act and before the District of Columbia had been set apart, or at least that it must be to courts deriving their authority from the Judiciary Act. Judge Brown, however, went further than this, and held that in any event, disregarding that point, the removal could not apply to offenses which arose under the “local laws,” as he called them, of the District of Columbia. His notion as to these was that it would put the District of Columbia at a relative advantage over the states, which was rot to be understood. The contrary of such a doctrine was announced obiter in Benson v. Henkel, 198 U. S. 1, 14, 25 Sup. Ct. 569, 49 L. Ed. 919, and decided by Judge McPherson in United States v. Campbell (D. C.) 179 Fed. 762, and perhaps in result in United States v. Wimsatt (D. C.) 161 Fed. 586, though it is not clear whether the indictment there was not, as in Re Price, supra, under Revised Statutes, § 5356 (Comp. St. 1916, § 10460). [1] I see no reason to suppose that a crime created by an act of Congress, applying specially to the District of Columbia, should not be removable under section 1014, if for no other reason than because it cannot be tried there otherwise. Concededly there is no extradition between the District of Columbia and a state. It is certainly unreasonable to suppose that there is no way of removing to-the District of Columbia one who has offended against a local law, but who cannot be reached by bench warrant. [2] It is true that in the case at bar the critical question is not whether Revised Statutes, § 1014, applies to a violation of section 869a of the Code of the District of Columbia, but whether section 37 of the [802] Criminal Code includes a violation of that section. Yet the cases are convertible, because if section 869a is an offense against the United States under Revised Statutes, § 1014, there is no reason whatever why it should not be within exactly the same words of section 37 of the Criminal Code. There is no conspiracy section in the Code of the District, and, if the relators are right, the crime of conspiracy either does not exist in the District or depends upon the common law. It really makes little difference whether we take the statute or the common law, which is by statute in force in the District, since the indictment may read upon either; yet I should be unwilling to throw any doubt upon the doctrine that section 37 included any law of the United States, whether of general or local application. The writ is dismissed, and the relators remanded.