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Opinion of the Court.

which were intended to be carried by a letter carrier, and which letters contained obligations and securities of the United States of pecuniary value, called treasury notes. There were six other counts for a similar offence.

Upon the trial in the District Court, the jury found a verdict of guilty, against petitioner. He thereupon made a motion in that court for a new trial, and likewise a motion in arrest of judgment. Pending the argument of these motions, the District Court made an order transferring the cause to the Circuit Court for said district, which order is in the following language:

“ It is now by the court ordered that this case be certified and remitted to the next Circuit Court of the United States for this district."

These motions were heard in the Circuit Court on the 11th day of March, 1889, before Judges Howell E. Jackson, Circuit Judge, and Henry B. Brown, District Judge, and on the 12th day of March, 1889, the following order was entered of record :

“ United States of America

V. Charles Wight. “In this cause the defendant's motion to set aside verdict and in arrest of judgment, after mature deliberation thereon, are by the court here now denied.”

And on the same day, at the District Court room in the city of Detroit, that court made the following entry:

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“The United States Convicted on indictment for embezzling Charles Wight.

letters, etc. “The court now deliver judgment on the motions to set aside the verdict rendered by the jury herein and for a new trial, heretofore argued and submitted ; and, thereupon, it is ordered that said motions be, and the same are hereby, denied, and that the order heretofore made herein certifying this cause to the Circuit. Court of the United States for this district be.

Opinion of the Court.

and the same is hereby, w catcd as having been improvidently made.

“And the said defendant being now placed at the bar of the court for sentence, thereupon the court do now sentence hiin, the said Charles Wight, to be imprisoned and kept at hard labor, at and in the Detroit House of Correction, in the city of Detroit, Wayne County, Michigan, for the term of two years from and including this day, and to stand committed until the terms of this sentence are complied with.”

On the 25th of August, thereafter, an application was made to Mr. Justice Harlan of this court, who was the justice assigned at that time to the sixth circuit, for a writ of. habeas corpus, to deliver the petitioner, Wight, from restraint in the Detroit House of Correction, by Joseph Nicholson, its superintendent. On this application Justice Harlan made an order that a rule issue from the Circuit Court against the marshal of the United States for the Eastern District of Michigan and the superintendent of the Detroit House of Correction, returnable before that court within three days after service of process, to show cause why the habeas corpus should not issue as prayed in the petition. To this rule Nicholson made a return, in which he said that he held the said Wight in restraint of his liberty as a prisoner in the Detroit House of Correction, by virtue of the judgment and sentence of the District Court of the United States for the Eastern District of Michigan, rendered on the 12th day of March, 1889, a copy of which he set out. To this return, Wight, by his counsel, made exception by way of answer, in which he said that the District Court for the Eastern District of Michigan had not, at the time of the sentence referred to in said return, any jurisdiction over him, the said Wight, or any authority to pass sentence against him, because the said cause in which it pretended to pass sentence upon him on the 12th of March, 1889, had been duly certified and remitted from said District Court into the Circuit Court of the United States in said district, and the transcript thereof duly filed, and that up to the date of said alleged sentence, to wit, the 12th day of March, 1889, was and at the date hereof is still pending in the Circuit Court of

Opinion of the Court.

the United States, as more fully and at length alleged and shown by the certified copies of the proceedings in said cause, in the petition filed in this matter.

Petitioner Wight also averred that the District Court of the United States for the Eastern District of Michigan never had or obtained jurisdiction over him for the following reasons : That the indictment on which petitioner was arraigned and tried in said court did not charge the commission of any offence over which said court had jurisdiction, and because the evidence in the case did not establish any offence against the laws of the United States, of which said District Court had jurisdiction.

Upon examination of the record of the Circuit Court in the case at this stage of the proceeding on the writ of habeas corPUs,

it was ascertained that no order remanding the case from the Circuit Court to the District Court had been entered on the journals of the former court, the last order on the subject being the one which we have already recited, overruling the motion for a new trial and the motion in arrest of judgment. Thereupon the judges of the Circuit Court caused the following order to be made:

“ United States of America

V. Charles Wight. “The defendant, being personally present in court, as well as by his counsel, Henry M. Duffield, Esq., and the court having its attention called to its records made and entered in the above-entitled cause on the 12th day of March, A.D. 1889, by the return of Joseph H. Nicholson, superintendent of the Detroit House of Correction, to the writ of habeas corpus heretofore allowed by this court on the petition of the abovenamed Charles Wight, and upon inspection of said records, so made and entered as aforesaid, it satisfactorily appears to the court that the same is not a full and correct record of the order which was in fact made by this court on the 12th day of March aforesaid, in this, that it fails to show the order of this court which was duly made on the said 12th day of

Opinion of the Court.

March, remitting said cause out of this court into the District Court of the United States for the Eastern District of Michigan; therefore, after hearing the said Charles Wight, by his counsel, in opposition thereto, this court, upon its own motion, based upon its recollection of the facts of the making of said order remitting said cause as aforesaid into said District Court, now orders and directs that the same be entered now as of the said twelfth day of March, one thousand eight hundred and eighty-nine, according to the facts thereof, which are as follows:

“ At a session of the Circuit Court of the United States for the sixth circuit and eastern district of Michigan, continued and held, pursuant to adjournment, at the district court room, in the city of Detroit, on the twelfth day of March, in the year of our Lord one thousand eight hundred and eighty-nine.

“ Present: The Hon. Howell E. Jackson, Circuit Judge; the Hon. Henry B. Brown, District Judge.

“ United States of America

V. Charles Wight. “The defendant being personally present in court, as well as by his counsel, Henry M. Duffield, Esq., said United States being represented by C. P. Black, United States attorney, and Charles T. Wilkins, assistant United States attorney, and the said United States attorney objecting to the consideration of said cause on the part of this court for the reason that there was no authority in law for the District Court to remit said cause to this court after verdict had in said District Court; therefote the court, upon its own motion, hereby remits said cause back into the said District Court for the Eastern District of Michigan for such action as said District Court shall seé fit to také.”

Thereupon the Circuit Court on the 30th day of September, 1889, on the same day that it had ordered the nunc pro tunc entry 'f the order remanding the cause to the District Court, being of the opinion that this order cured the defect of the record, which showed the case to be still pending in the Circuit

Opinion of the Court.

Court and being further of opinion, as appears from their judgment in the matter, that the case had never been lawfully removed from the District into the Circuit Court, and that therefore said District Court had always retained jurisdiction of the case, made an order discharging the writ of habeas corpus.

It is mainly upon these orders about the several removals of the case from one court into the other that appellant relies to show that the District Court at the time of pronouncing its judgment of imprisonment against appellant had no jurisdiction of the case. But there is also a further point made, that the letters which the appellant embezzled were never put into the mail with intent that they should be carried, within the meaning of the statute.

Of course if the judge of the District Court is right in the opinion expressed by him in the orders which he made, that he had no power after the verdict in the District Court to transfer it to the Circuit Court, then the case had really never been withdrawn from the jurisdiction of the District Court, and the question arising upon the absence of any record in the Circuit Court of an order remanding it back to the District Court is of no consequence, because all that was done in the Circuit Court, in that view, was without jurisdiction, and the case never was lawfully in that court, and the District Court had the right to make the order, which it did make, setting aside its former order transferring the case to the Circuit Court. In this view of the subject, the case having always been really under the jurisdiction and control of the District Court, its judgment sentencing the prisoner on the verdict was within its power, and is not examinable on this writ of habeas corpus.

But we are not satisfied that this view of the powers of the two courts is a sound one. While we do not decide the question now, because it is not necessary, (as our judgment is the same in either event,) we shall, for the purposes of the present case, treat it as if the order transferring the case from the District Court into the Circuit Court was a valid order, so that it could only be remanded from the Circuit Court into the District Court by some order or action of the former.

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