The opinion of the court was delivered by: BYERS
This is a proceeding on the return of a writ of habeas corpus, secured on the relation of John C. McDermott, as attorney for Guiseppe Ferrara, Luigi Rosato, Salvatore Piccaluga and Eusibio Ceccarelli, to test the validity of an order of removal granted by a United States Commissioner for the purpose of bringing the named persons to trial in the United States District Court for the District of the Canal Zone, Cristobal Division.
In that court an information was filed by the United States Attorney for that District on April 8, 1941, charging that they did "unlawfully tamper with the motive power and instrumentalities of navigation of a vessel of foreign registry entitled to engage in commerce with foreign nations, to wit, the S.C. Conte Biancamano, and did then and there render useless the port and starboard turbine installations of said vessel, and did then and there destroy compasses and other instrumentalities of navigation with the intent then and there to injure and endanger the safety of the said S.S. Conte Biancamano and her cargo; and so did then and there commit the offense of Violation of Section 502, Title 18, United States Code Annotated, contrary to the law * * *."
"This information is based upon due investigation of the facts relating to the crime charged therein, and on the sworn testimony of one or more witnesses, and I believe there is just cause for the filing of this information."
Before the Commissioner, it was made clearly to appear that counsel moved to dismiss the information because on its face it does not state a cause of action or a crime. Thus, Mr. Kennedy, the United States Attorney:
"* * * Mr. Loomis, as I understand it, makes a motion to dismiss the Information on the ground that it fails to state facts sufficient to constitute a crime. The Information is before your Honor.
"Mr. Loomis: It fails to state a case of probable cause. The Information we say on behalf of the defendants is palpably lacking in those elements necessary to constitute a case of probable cause for the removal of these defendants.
"Mr. Kennedy: May I say, if I get your legal position perfectly clear, Mr. Loomis, as I understand it, you raise no issue of fact, but as a matter of law the Information fails to state a crime.
"Mr. Loomis: That is right."
The petition for the writ urges two grounds:
First: That, since the crime charged is an infamous one, in that a defendant convicted thereof may be sentenced to imprisonment for more than a year, these defendants may not be removed to answer the information, because they have not been indicted by a grand jury, whereby the fifth amendment to the Constitution has not been complied with.
Second: That the statute conferring jurisdiction upon the District Court of the Canal Zone, 18 U.S.C.A. § 574, in terms omits to state that said court shall have jurisdiction over offenses under § 502 of Title 18, and as a result that court is without power in the premises.
The second objection is no longer urged, since the brief of the Government makes clear that the omission in the United States Code is due to a printing error, and that the jurisdiction of the said court was conferred by the Act of June 15, ...