The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This is a hearing on a writ of habeas corpus aided by a writ of certiorari.
The relator after a hearing was remanded by a United States commissioner of this district to the custody of the United States marshal of this district to await the order of a judge of this district directing the removal of the relator to the first division of the district of Kansas.
The better practice is to wait until an order of removal has been granted by the judge, and for the relator then to sue out the writ of habeas corpus, but, in this instance, the relator, having applied for the writ immediately after the commissioner had committed him to await the judge's order of removal, the resistance on the part of the government to the relator's discharge will be considered equivalent to a motion for a warrant for the removal of the accused to the other district, which the District Judge alone is authorized to issue, under section 1014 of the Revised Statutes, now title 18, section 591, U.S. Code (18 USCA § 591). United States v. Power (C.C.A.) 279 F. 735.
In April, 1930, the grand jury in the First Division of the District of Kansas found and presented an indictment charging a conspiracy to violate the laws of the United States, and named in said indictment as one of the defendants one "J. B. Greenberg, whose Christian name is to the Grand Jury unknown, alias Edward Jaybee."
No question appears to have been raised before the commissioner as to probable cause, and none was raised before this court on the argument on the writ; therefore probable cause is shown by the indictment, a copy of which is in evidence.
The sole question raised is that of the identity of the relator with the person indicted.
The government contends that the relator is the person whom the grand jury of the First Division of the District of Kansas indicted in the said indictment under the name of "J. B. Greenberg, whose Christian name is to the Grand Jury unknown, alias Edward Jaybee."
This is challenged by the relator, who tendered the issue of identity both before the commissioner and before this court upon the hearing of the writ.
The burden rests upon the government to clearly and satisfactorily establish the identity of the relator as the defendant indicted by the grand jury. In re Burkhardt (D.C.) 33 F. 25, 26; United States ex rel. Povlin v. Hecht (C.C.A.) 48 F.2d 90; United States ex rel. Mouquin v. Hecht (C.C.A.) 22 F.2d 264, 265.
The commissioner saw and heard the witnesses, and his finding of fact, if supported by competent evidence, is not reviewable on this hearing. Pumely v. McCarthy, 250 U.S. 283, 39 S. Ct. 483, 63 L. Ed. 983, affirming (D.C.) 256 F. 565.
We are not concerned at this time with the question of who committed the crime, our only concern is whether the relator is the person whom the grand jury meant to indict.
The meaning of the grand jury is to be ascertained from the words they used, and in case of doubt it may be found by looking at the circumstances under which they were uttered.
These circumstances were the evidence before the grand jury when they found the indictment, and, if doubt arises, they are to be understood as indicating ...