for removal by proof of indictment charging crime and defendant's identity, burden shifts, and, unless defendant overcomes burden by positive evidence, order of removal will be al

lowed.

On Petition for Allowance of Supersedeas on Appeal from the District Court of the United States for the Eastern District of

Pennsylvania; J. Whitaker Thompson, Judge.

Habeas corpus proceeding by the United States, on the relation of Barney Tassell and Samuel Tassell, against W. Frank Mathues, United States Marshal, wherein the relators appealed from an order dismissing the petition and remanding them to custody. On a petition to a judge of the Circuit Court of Appeals for allowance of supersedeas, which was denied by the District Judge. Application denied.

John W. Crolly, of Philadelphia, Pa., for appellants.

Henry B. Friedman, of Philadelphia, Pa., for appellee.

DAVIS, Circuit Judge. The defendants, Barney Tassell and Samuel Tassell, were indicted in the District Court of the United States for the Southern District of Ohio, Eastern Division, with a number of other defendants, for conspiracy to violate the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.). They were arrested and taken before a United States commissioner in the Eastern district of. Pennsylvania under section 1014, R. S. (section 1674, Comp. St.), and, after hearing, the commissioner held them each in bail pend

Subsequently the defendants surrendered themselves to the United States marshal at Philadelphia and then obtained a writ of habeas corpus and were admitted to bail pending a hearing. After a hearing on the writ of habeas corpus before Judge Thompson, of the Eastern district of Pennsylvania, petition for the writ of habeas corpus was dismissed, and the relators remanded to the custody of the marshal pending the issuance of a warrant of removal to the District Court in Ohio, with leave to the defendants to enter bail for their appearance at that court on February 15, 1926.

An appeal from the order dismissing the petition and remanding the relators was taken to the United States Circuit Court of

Appeals. The appeal was duly allowed by Judge Thompson, but after a full hearing he refused to allow a supersedeas pending the appeal, whereupon application was made to me for the allowance of a supersedeas.

The appeal is not before me, but in determining the question of a supersedeas the merits of the appeal must not be lost sight of. If the appeal raises questions of doubt as to the right of the government to remove the defendants, a supersedeas should be allowed, because, if it is denied, and the defendants are removed or enter bail for their appearance in the Southern district of Ohio, the issues involved in the appeal are largely academic.

[1,2] While I think, as a general proposition, the defendant should be tried by a jury of the vicinage, the district in which he resides, yet under the law of conspiracy a defendant may be tried at any place where the conspiracy took place, or where an overt act to effect it was done. Without going into detail, there is no doubt in my opinion that the District Court in the Southern District of Ohio had jurisdiction of the crime which the government has attempted to charge in the indictment. If the indictment clearly fails to charge a crime, it is bad, and a defendant should not be removed to a district to answer the crime with which he has not been charged; but, where only doubtful questions of law arise as to the sufficiency of the indictment, final determination of them should be left to the court in which it was found. Benson v. Henkel, 25 S. Ct. 569, 198 U. S. 1, 10, 11, 49 L. Ed. 919; Haas v. Henkel, 30 S. Ct. 249, 216 U. S. 462, 54 L. Ed. 569, 17 Ann. Cas. 1112; Henry v. Henkel, 35 S. Ct. 54, 235 U. S. 219, 59 L. Ed. 203; Ex parte Littleton (D.

C.) 1 F. (2d) 752; Rodman v. Pothier, 44 S. Ct. 360, 264 U. S. 399, 68 L. Ed. 759. The indictment in the instant case does not raise in my mind sufficient doubts as to its legal sufficiency to justify the denial of the order of removal.

[3] A defendant should not be removed from the district in which he resides, which has jurisdiction over the crime charged, to another district, which also has jurisdiction, for trial, if it appears that the grand jury which found the indictment did not have reasonable and probable cause for its action. The question arises here as to what constitutes probable cause.

[4, 5] The general rule of law is that the finding of an indictment of itself raises a presumption of probable cause, which alone, if the crime is sufficiently charged and the defendant identified, is sufficient to justify an order of removal, unless the presumption is overcome by evidence on the part of the defendant. Upon this prima facie showing, the burden shifts from the plaintiff to the defendant, and, unless the defendant overcomes this burden by positive evidence,

the order of removal will be allowed.

Looney v. Romero (C. C. A.) 2 F.(2d) 22; United States v. Levy (D. C.) 3 F. (2d) 816; Hawkins v. Borthwick (C. C. A.) 5 F. (2d) 564; Magnus v. Keville (C. C. A.) 6 F. (2d) 157; Gayon v. McCarthy, 40 S. Ct. 244, 252 U. S. 171, 64 L. Ed. 513.

[6] The tribunal before which removal proceedings are pending must afford the defendant an opportunity to show, if he so desires, that the grand jury did not have reasonable and probable cause for finding the indictment. If this opportunity is denied him, he cannot bear the burden which the existence of the indictment places upon him. Therefore it is error to refuse him such an opportunity. Hastings v. Murchie, 219 F. 83, 134 C. C. A. 1.

[7] In the case at bar the defendants had ample opportunity to produce evidence showing that the grand jury in the Southern Dis'trict of Ohio did not have reasonable and probable cause. They did not avail themselves of that opportunity. They apparently relied upon the alleged weakness of the government's case. The defendants said: "In view of the contention of the appellants that the government failed to establish cause for removal, no defense was offered." They therefore did not overcome the prima facie showing of probable cause established by the indictment.

There is no question as to the identity of the defendants. As I understand it, they

admit their identity. Therefore I am of the opinion that the learned District Judge was justified in denying a supersedeas, which I am also constrained to deny.

cert. denied

271 us, 675, 70-fed. 1145

46 SUN Of 488.

ELMAN et al. v. MOLLER et al.*

(Circuit Court of Appeals, Fourth Circuit. January 14, 1926.)

No. 2372.

1. Admiralty 5-District Court properly refused to take jurisdiction of controversy relating to detention of foreign seamen by master of foreign ship, occurring in American port, where none of them had asked for discharge or payment of his wages.

District Court properly refused to take jurisdiction of controversy relating to detention of foreign seamen by master of foreign ship, occurring in American port, where mas

ter put in for bunker coal and wished to sail within 24 hours, and did not wish to run risk of any of his crew overstaying their shore leave, and none of them had asked master for

a discharge or for payment of his wages in whole or in part.

2. False imprisonment 6-Seamen's detention pending habeas corpus hearing to secure release held not false imprisonment.

That seamen were detained in custody, pending habeas corpus hearing to secure their release from detention from aboard vessel, held not a false imprisonment, where such course was suggested by judge, and was apparently acquiesced in by everybody to keep things in statu quo.

3. Constitutional law ~83(2).

Seamen cannot, when their ship is in port, be held in involuntary servitude. 4. Seamen

24.

Seamen, who received their wages, but two days after they demanded them, could not complain of delay in making payment.

5. Admiralty 5-District Court erred in refusing to take jurisdiction of controversy relating to detention of foreign seaman by master of foreign ship, occurring in American port, where his discharge had been promised him.

District Court erred in refusing to take jurisdiction of controversy relating to detention of foreign seaman by master of foreign ship, occurring in American port, where he had asked for his discharge some time before, and master had promised to give it to him when ship put in at port.

6. Constitutional law 83(2).

Foreign ship cannot, when in an American port, forcibly compel one of its crew, albeit an alien, to serve against his will

*Certiorari denied 46 S. Ct. 488, 70 L. Ed. —.

7. False Imprisonment 36-Seaman held entitled to $100 damages for detention aboard vessel.

Seaman held entitled to an award of $100

for detention aboard vessel, where he had asked for his discharge, and had been promised it when immigration authorities withdrew their objection to his release, and they had done so.

Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk; D. Lawrence Groner, Judge.

Libel by Ed Elman and others against O. A. Moller, master of the steamship Roxen and others. From a decree dismissing the libel (7 F.[2d] 739), libelants appeal. Reversed and remanded in part, and affirmed in part.

Jacob Louis Morewitz, of Newport News, Va., for appellants.

John W. Eggleston, of Norfolk, Va., and Allan D. Jones, of Newport News, Va. (Hughes, Vandeventer & Eggleston, of Norfolk, Va., on the brief), for appellees.

Before WADDILL, ROSE, and PARKER, Circuit Judges.

ROSE, Circuit Judge. [1] The libelants were all alien members of the crew of the Swedish steamship Roxen, although one of them, Elman, had declared his intention to become a citizen. At various ports on the Pacific Coast of this country or in Australia they had shipped for a voyage, the last part of which was to be from the South Seas to Europe. On the afternoon of September 15, 1924, the ship put into Newport News to get bunker coal and for no other purpose. She tied up at the coal pier at about 5 p. m., was promptly served, and by 11 was again out in the stream. Her master expected to sail the next morning, but when, on that day, the 16th, he went ashore about 10 o'clock in the forenoon, writs of habeas corpus were served on him commanding him to produce on the 17th, the four libelants before a state court judge. Later in the day the libel in this case was filed. By it the libelants sought to recover for false imprisonment from the ship in rem and from her master, owners and the respondents Hornlein and Bridgers trading as the Newport News Ship & Cargo Watching Company in personam, and also from the ship, her master and owners the balance of wages due them and for two days for one during which payment was wrongfully delayed. At the instance of the ship, the hearing of the petitions in habeas corpus was begun on the afternoon of the 16th. The judge

sat until 7 that evening, and resumed his session at 9:30 on the morning of the 17th. He sustained the writs and discharged the petitioners. On the 18th, their depositions were taken in support of their libel, and at 8:30 in the evening of that day they were paid their wages, which they accepted without prejudice to such right, if any, as they had to demand an additional two days for one for improper delay in making such payment. By its final decree, the learned court below declined to take jurisdiction of the libel so far as the ship, her master and owners were concerned, on the ground that none of the libelants were citizens; that all of them had been duly articled seamen on board a Swedish vessel; that the matters of which they complained had their origin in their relation to the ship; and that the Consul of Sweden was ready to hear anything they had to say. He dismissed the libel as against Hornlein and Bridgers finding that the evidence showed that, if they did anything to the injury of the libelants, it was done on land, and therefore outside the jurisdiction of the admiralty.

When or before the ship put in to Newport News, her master learned or supposed that he learned that, if he confined himself to taking on bunker coal and made no changes in his crew, he would not have to enter or clear, and would escape certain not inconsiderable fees and dues. If any of the alien members of the crew went on shore and remained there without the consent of the immigration authorities, the ship would almost certainly be detained in port longer than would otherwise be necessary, and might be subject to a heavy penalty as well. Moreover, as he wished to sail early the next day, he did not want to run the risk of any of his crew overstaying their shore leave. For these reasons he decided not to grant any, and he employed the Newport News Ship & Cargo Watching Company to see that none of his men went on shore without special leave. Some of the libelants did not ask for permission to go ashore; only one of them seems to have attempted to do so, and he was stopped on the wharf by one of the watchmen acting for the Ship & Cargo Watching Company. None of the libelants, Elman excepted, had asked the master for his discharge or for the payment of his wages in whole or in part. With the same exception, none of them had expected to leave the ship at Newport News, but on the contrary had intended to go with her to Europe. Under such circumstances, we think that, as to the three libelants other than Elman, the learned District Judge was right in declining jurisdiction. So far as

they are concerned, the case has been argued before us as if they had demanded their discharge, which they themselves swear they had not done at any time before the hearing of their petition for habeas corpus, or upon the assumption that our laws give a right of shore leave to alien seamen serving on foreign ships and intending to continue in such service. We have not been favored with a reference to any statute which so provides. [2] When their petitions for habeas corpus were heard, they did say that they wanted to leave the ship and the state court judge, recognizing their right to do so, discharged them from the custody of the master. It is said, however, that, as there was an adjournment over night of the habeas corpus hearing, and as they were detained in custody, there was then a false imprisonment, if there had not been before. It appears, however, that the fact was that such course was at least suggested by the learned judge of the state court, and was apparently acquiesced in at the time by everybody as a common sense way of keeping things in statu quo until the judge and those concerned had found out just what the situation was and what were the rights of the respective parties to the controversy. [3, 4] The final judgment of the state court court properly held that when their ship was in port, they could not, in our day and generation, be held in involuntary servitude, but that was necessarily all that it could decide. It did not attempt to say that they might not be pecuniarily liable for a breach of a valid contract, precisely as men in all other walks of life are, and it said nothing as to whether any wages were due them, and, if so, how much. It was not until the 16th that any of them in any way asked for their discharge. On the 18th they received their wages in full, without any deduction on account of their apparently civilly unjustified breach of their contract. They certainly cannot complain that there was any improper delay in making payment.

[5,6] Elman's case differs from the others, in that while the ship was at Panama, he had asked for his discharge. The master had promised to give it to him when the ship put in at Newport News. Almost immediately upon her arrival there, she was boarded by an immigration officer. He was asked whether Elman could be discharged. He said that he could not say until the next day, the 16th. On the latter date, he told the captain that there was no objection to his paying Elman off. Before that time, however, the petition for habeas corpus had been filed. A good deal of the cross-examination of the master

and of the testimony of several other witnesses was directed to showing that the master did not intend to let Elman go, and, except for the habeas corpus proceedings, would not have done so. This contention is denied, and there is no means of doing more than guessing as to what would have happened had no legal proceedings been begun. We think, however, that the court below erred in declining jurisdiction in his case. Even a foreign ship cannot, when in an American port, forcibly compel one of its crew, albeit an alien, to serve against his will. If he alleges that such attempt has been made, we believe that an American court is bound to hear his complaint and give him such redress, if any, as he may show he should have.

To what measure of relief was he entitled? On the evening of the 15th, the master could scarcely have done otherwise than to wait upon the immigration authorities. On the morning of the 16th, Elman himself started litigation in the state and federal courts. The master may well have thought it was his duty to produce Elman before the state judge in obedience to the mandate of the writ. When, however, this had been done, the master should have at once told the court that he made no claim further to detain the petitioner. There was no reason why the latter should have been required to go into any hearing. He had asked for his discharge, and had been promised it so soon as the immigration authorities had withdrawn their objection to his release. They had done so. The further attempt to hold him was unjustified. He was not, it is true, humiliated or seriously injured or oppressed, but he may well have been put to some extra expense, and one who unlawfully restrains the liberty of another must answer for it. [7] We think under all the circumstances, an award of $100 in Elman's favor against the ship, master, and owners will be just.

The courts should act promptly and vigorously to vindicate all the rights of seamen, as well those recently conferred on them, as those which date from time immemorial. We doubt not that even now they will often need all the protection that can be given them. On the other hand, it will be well that those who act for them shall not take them unnecessarily into court or on their behalf set up claims destitute of other than the most purely technical support.

It follows from what has been said that the decree below dismissing the libel, so far as concerns the libelants other than Elman, should be affirmed. That, as to him, it should be reversed, and he should be awarded a de