Page:Federal Reporter, 1st Series, Volume 8.djvu/918

 904 FEDEAAIi BEFOBTEB. �In re Esselbosn. �{Circuit Court, 8. D. Ncta Ywk. September 20, 1881.) �1. Criminai. Law— Dischabgh — Right to— Peobablb Cause. �A defendant, who is held to await the action of the grand jury, is entitled to his discharge on the discharge of the jury, when no Indictment has been found against him. Rdd, also, that there was then no longer any necessity for this court to pass on the question whether probable cause had been shown for holding him to await the action of the grand jury. �On Motion. The faets appear in the opinion. �Sutherland Tenney, Asst. Dist. Atty., for the United States. �Roger M. Sherman, for defendant. �Blatchford, g. J. In this case a writ of haheas corpus, returnable before this court forthwith, was issued on April 5, 1881, to the mar- shal of the United States for this district, to produce the body of George Esselborn, with the cause of his imprisonment. At the same time a writ of certiorari was issued to a United States commissioner to certify the cause of the detention of said Esselborn. The commis- sioner certified the proceedings before him, consisting of a complaint alleging a criminal offence, and the testimony taken upon the exam- ination on the surrender of the defendant on the complaint. The return of the marshal to the writ showed that a warrant of arrest on the complaint was issued by the commissioner to the marshal ; that the defendant appeared before the commissioner and an examination was had, and the defendant was held to await the action of the grand jury; that the commissioner ordered that the defendant be discharged upon his own recognizance ; that the defendant refused to give such recognizance; and that the commissioner then committed the defend- ant to the marshal in default of having given such recognizance. The case came before the court on the foregoing papers, and on April 6, 1881, the court made an order "that the defendant may depart with- out giving any recognizance, subject to the issuing of a new warrant, if ordered by this court. " Nothing has since been done in the mat- ter, and the counsel who appeared for the defendant, now, in Septem- ber, 1881, asks the court to pass on the question as to whether the evidence before the commissioner constituted probable cause for hold- ing the defendant to await the action of the grand jury, and to hold that it did iiot, and to discharge the defendant. The district attor- ney states that since the said order of April 5, 1881, was made, a grand jury has met and been discharged without indicting the defend- ant ; that no information has been filed against him ; that he is not ��� �