A-3886, JULY 28, 1924, 4 COMP. GEN. 120

A-3886: Jul 28, 1924

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UNITED STATES COMMISSIONERS - RETURNS ON BENCH WARRANTS - WARRANTS OF ARREST FOR PERSONS IN CUSTODY A BENCH WARRANT IS RETURNABLE ONLY TO THE COURT BY WHICH ISSUED. A UNITED STATES COMMISSIONER IS NOT ENTITLED TO A FEE FOR ENTERING A RETURN THEREON NOR FOR DRAWING A BOND FOR THE DEFENDANT BROUGHT BEFORE HIM ON A BENCH WARRANT. WARRANTS OF ARREST ARE NOT REQUIRED BY THE TEXAS CODE FOR DEFENDANTS ALREADY IN CUSTODY. ENTERING RETURN THEREON WHEN THE DEFENDANTS HAD PREVIOUSLY BEEN ARRESTED BY A DEPUTY MARSHAL ARE NOT ALLOWABLE. A UNITED STATES COMMISSIONER IS NOT ENTITLED TO FEES FOR ISSUING A WARRANT WHEN DELIVERED TO A COUNTY SHERIFF FOR SERVICE. ENTERING RETURNS THEREON IN CASES WHERE THE DEFENDANTS WERE IN CUSTODY PRIOR TO DELIVERY OF THE WARRANT TO THE MARSHAL FOR SERVICE.

A-3886, JULY 28, 1924, 4 COMP. GEN. 120

UNITED STATES COMMISSIONERS - RETURNS ON BENCH WARRANTS - WARRANTS OF ARREST FOR PERSONS IN CUSTODY A BENCH WARRANT IS RETURNABLE ONLY TO THE COURT BY WHICH ISSUED, AND A UNITED STATES COMMISSIONER IS NOT ENTITLED TO A FEE FOR ENTERING A RETURN THEREON NOR FOR DRAWING A BOND FOR THE DEFENDANT BROUGHT BEFORE HIM ON A BENCH WARRANT. WARRANTS OF ARREST ARE NOT REQUIRED BY THE TEXAS CODE FOR DEFENDANTS ALREADY IN CUSTODY, AND FEES CHARGED BY A UNITED STATES COMMISSIONER FOR COPY OF COMPLAINT, ISSUANCE OF WARRANT, AND ENTERING RETURN THEREON WHEN THE DEFENDANTS HAD PREVIOUSLY BEEN ARRESTED BY A DEPUTY MARSHAL ARE NOT ALLOWABLE. THE ISSUANCE OF A WARRANT OF ARREST IMPLIES THE DELIVERY THEREOF TO SOME PERSON AUTHORIZED BY LAW TO SERVE IT, AND A UNITED STATES COMMISSIONER IS NOT ENTITLED TO FEES FOR ISSUING A WARRANT WHEN DELIVERED TO A COUNTY SHERIFF FOR SERVICE.

COMPTROLLER GENERAL MCCARL TO TOM L. REES, UNITED STATES COMMISSIONER, JULY 28, 1924:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 24, 1924, RETURNING ASSISTANT TREASURER'S CHECK NO. 91510, IN THE AMOUNT OF $38.20, AND REQUESTING REVIEW OF SETTLEMENT NO. 032242-J, DATED JUNE 7, 1924, DISALLOWING AND SUSPENDING CERTAIN ITEMS IN YOUR ACCOUNT FOR THE QUARTER ENDED DECEMBER 31, 1923, IN THE AMOUNT OF $5.40, REPRESENTING CHARGES FOR ENTERING RETURNS ON BENCH WARRANTS, MAKING COPY OF COMPLAINT, ISSUING WARRANTS OF ARREST, AND ENTERING RETURNS THEREON IN CASES WHERE THE DEFENDANTS WERE IN CUSTODY PRIOR TO DELIVERY OF THE WARRANT TO THE MARSHAL FOR SERVICE, AND FOR MAKING COPY OF COMPLAINT WHEN SAME WAS NOT ATTACHED TO THE WARRANT OF ARREST.

ITEM 1, PAGE 1. UNITED STATES V. CHARLES SERVICE. CHARGE FOR ENTERING RETURN ON BENCH WARRANT.

THE ITEM WAS DISALLOWED FOR THE REASON THE WARRANT WAS RETURNABLE ONLY TO THE COURT THAT ISSUED IT.

AN EXAMINATION OF PAGE 1 SHOWS THAT THE COMPLAINT WAS FILED BY M. P. CROSBY, FEDERAL PROHIBITION AGENT, OFFENSE CHARGED VIOLATION OF TITLE 2 OF THE NATIONAL PROHIBITION ACT, WARRANT OF ARREST ISSUED BY YOU AND DELIVERED TO A DEPUTY MARSHAL FOR SERVICE AUGUST 25, 1923. AT THE BOTTOM OF THE PAGE, UNDER THE CAPTION "REMARKS," YOU STATE WARRANT WAS ISSUED BY THE CLERK OF THE UNITED STATES DISTRICT COURT, AND THE DEFENDANT WAS BROUGHT BEFORE YOU FOR THE PURPOSE OF MAKING A NEW BOND BY INSTRUCTION OF THE DISTRICT ATTORNEY. IN ANSWER TO THE ATTORNEY GENERAL'S INQUIRY, ,WHY CHARGE FOR ENTERING RETURN OF BENCH WARRANT? " YOU STATE: "BENCH WARRANT WAS ISSUED, AND THIS DEFENDANT WAS BROUGHT BEFORE ME BY DEPUTY UNITED STATES MARSHAL, BY INSTRUCTIONS, * * *.' UPON YOUR STATEMENTS THAT THE WARRANT WAS ISSUED BY THE CLERK OF THE UNITED STATES DISTRICT COURT YOU ARE NOT ENTITLED TO THE FEE FOR ENTERING THE RETURN THEREON, NOR TO THE FEE FOR DRAWING THE BOND, UNLESS IT IS SHOWN THAT YOU WERE INSTRUCTED BY THE COURT AFTER THE DEFENDANT HAD BEEN PRESENTED TO THE COURT TO DRAW THE BOND, FOR THE REASON THAT A BENCH WARRANT IS RETURNABLE ONLY TO THE COURT WHICH ISSUED IT. THE DISALLOWANCE OF THE FEE OF 15 CENTS FOR ENTERING RETURN IS SUSTAINED, AND IN ADDITION THERETO THE FEE OF 75 CENTS FOR DRAWING THE BOND IS ALSO DISALLOWED.

ITEM 2, PAGE 4. UNITED STATES V. W. E. LAMB.

CHARGE FOR ENTERING RETURN ON BENCH WARRANT, $0.15. SAME AS ITEM 1. THE DISALLOWANCE IS SUSTAINED, AND IN ADDITION THERETO THE FEE OF 75 CENTS FOR DRAWING BOND IS DISALLOWED.

ITEM 3, PAGES 2, 3, 5, AND 7. CHARGE IN EACH CASE FOR COPY OF COMPLAINT, ISSUANCE OF WARRANT OF ARREST, AND ENTERING RETURN ON SAME, $1.20 EACH CASE, $4.80.

THE ITEMS WERE SUSPENDED FOR FURTHER INFORMATION AND THE COMMISSIONER REQUESTED TO FURNISH A COPY OF THE LAW OF THE STATE OF ARIZONA, IF THERE IS SUCH A LAW, REQUIRING A WARRANT OF ARREST TO ISSUE IN EVERY CASE.

WITH THE REQUEST FOR REVIEW THERE IS SUBMITTED A COPY OF SECTIONS 836 AND 837 OF THE 1913 PENAL CODE, WHICH PROVIDE AS FOLLOWS:

SECTION 836. WHEN COMPLAINT IS LAID BEFORE A MAGISTRATE HE MAY ALSO EXAMINE, UNDER OATH, THE COMPLAINANT OR PROSECUTOR AND ANY WITNESSES HE MAY PRODUCE, IF THERE BE ANY WITNESSES TO THE COMMISSION OF THE OFFENSE CHARGED. BUT IF THE ACTION OR PROCEEDING BE COMMENCED OR THE COMPLAINT FILED UNDER THE DIRECTION OF THE COUNTY ATTORNEY OF THE COUNTY, NO SUCH EXAMINATION SHALL BE HAD.

SECTION 837. IF THE MAGISTRATE BE SATISFIED FROM THE COMPLAINT AND FROM THE EXAMINATION PROVIDED FOR IN THE PRECEDING SECTION, IF AN EXAMINATION BE HAD, THAT THE OFFENSE COMPLAINED OF HAS BEEN COMMITTED, AND THERE IS REASONABLE GROUND TO BELIEVE THAT THE DEFENDANT HAS COMMITTED IT, HE SHALL ISSUE A WARRANT OF ARREST.

THE PENAL CODE PROVIDES AS FOLLOWS:

SECTION 854. A PEACE OFFICER MAY ARREST IN OBEDIENCE TO A WARRANT DELIVERED TO HIM OR MAY, WITHOUT A WARRANT, ARREST A PERSON---

(1) FOR A PUBLIC OFFENSE COMMITTED OR ATTEMPTED IN HIS PRESENCE.

(2) WHEN A PERSON ARRESTED HAS COMMITTED A FELONY THOUGH NOT IN HIS PRESENCE.

(3) WHEN A FELONY HAS BEEN IN FACT COMMITTED, AND HE HAS REASONABLE CAUSE FOR BELIEVING THE PERSON ARRESTED TO HAVE COMMITTED IT.

(4) ON A CHARGE MADE UPON REASONABLE CAUSE OF THE COMMISSION OF A FELONY BY THE PARTY ACCUSED.

(5) AT NIGHT WHEN THERE IS REASONABLE CAUSE TO BELIEVE THAT HE HAS COMMITTED A FELONY.

SECTION 855. A PRIVATE PERSON MAY ARREST ANOTHER---

(1) FOR A PUBLIC OFFENSE COMMITTED OR ATTEMPTED IN HIS PRESENCE.

(2)WHEN THE PERSON ARRESTED HAS COMMITTED A FELONY, ALTHOUGH NOT IN HIS PRESENCE.

(3) WHEN A FELONY HAS BEEN IN FACT COMMITTED AND HE HAS REASONABLE CAUSE FOR BELIEVING THE PERSON ARRESTED TO HAVE COMMITTED IT.

IN EXPLANATION TO INQUIRY OF THE DEPARTMENT OF JUSTICE YOU STATED THAT YOU HAD KNOWLEDGE, PRIOR TO THE ISSUANCE OF WARRANTS, THAT DEFENDANTS R. GANDARILLOS ET AL. (P. 2) AND C. R. DOLLINS ET AL. (P. 5) WERE IN CUSTODY AT THE TIME PROCESS WAS ISSUED AND THAT YOU HAD NO KNOWLEDGE THAT F. RODRIQUEZ (P. 3) AND B. SEQURA (P. 7) WERE IN CUSTODY.

AN EXAMINATION OF THE VOUCHER, PAGES 2 AND 5, SHOWS THAT THE ARREST AND ARRAIGNMENT WERE ON THE SAME DATE, THAT THE ARREST WAS MADE BY A DEPUTY MARSHAL, WHO PRESUMABLY PRESENTED THE DEFENDANTS BEFORE YOU PRIOR TO THE ISSUANCE OF THE WARRANT OF ARREST. THE OFFICE OF THE WARRANT OF ARREST IS TO BRING THE PERSON OR PERSONS AGAINST WHOM IT IS ISSUED WITHIN THE JURISDICTION OF THE ISSUING TRIBUNAL, AND WHERE A DEFENDANT IS PRESENTED BY AN ARRESTING OFFICER BEFORE A COMMISSIONER PRIOR TO THE ISSUANCE OF THE WARRANT, THE COMMISSIONER IS AUTHORIZED TO HEAR THE CASE AND THE ISSUANCE OF THE WARRANT IS UNNECESSARY. THEREFORE THE FEES CHARGED ON PAGES 2 AND 5 IN THE AMOUNT OF $2.40 ARE DISALLOWED. SEE 5 COMP. DEC. 320; 3 COMP. GEN. 13.

DEFENDANTS RODRIQUEZ AND SEQURA, PAGES 3 AND 7, RESPECTIVELY, NOT BEING IN CUSTODY, THE ISSUANCE OF WARRANTS WAS PROPER AND THE FEES ARE ALLOWED.

ITEM 4, PAGE 6. UNITED STATES V. MARILIO SEQURA ET AL. CHARGE FOR MAKING COPY OF COMPLAINT, $0.30.

THE ITEM WAS DISALLOWED FOR THE REASON THE COPY WAS NOT ATTACHED TO THE WARRANT OF ARREST.

THE VOUCHER SHOWS THAT THE COMPLAINT WAS FILED BY W. F. WALLACE, COUNTY RANGER, AND THAT THE WARRANT OF ARREST WAS DELIVERED FOR SERVICE TO W. A. COMPBELL, SHERIFF OF COCONINO COUNTY, ONE NOT AUTHORIZED TO SERVE THE SAME. THE ISSUANCE OF A WARRANT IMPLIES THE DELIVERY OF THE SAME TO SOME PERSON AUTHORIZED BY LAW TO SERVE IT, AND A COMMISSIONER IS NOT ENTITLED TO FEES FOR PREPARING A WARRANT WHICH IS NOT SO DELIVERED. THE DISALLOWANCE IS SUSTAINED. SEE 4 COMP. DEC. 239.

UPON REVIEW, 90 CENTS IS CERTIFIED DUE CLAIMANT, AND CHECK FOR SAME WILL ISSUE IN DUE COURSE. CHECK NO. 91510 IN THE AMOUNT OF $38.20 IS RETURNED HEREWITH.