HIGGINBOTHAM, District Judge.
Relator, Malcolm H. Waldron, Jr., an attorney, was originally arrested on April 9, 1965, charged with embezzlement and conspiracy. On May 11, 1965, he filed with the Federal District Court a petition for a writ of habeas corpus, a stay of state proceedings
and a writ of certiorari. I have concluded after a thorough examination of the precedents for these unusual proceedings as well as of the record at all stages of the instant matter that although this Court has jurisdiction, the issuance of a writ is not warranted under the circumstances.
After preliminary arraignment on state charges, Waldron was held on April 9, 1965, the day of his arrest, under $5,000 bond, entered by a professional surety. On April 23, 1965, the Commonwealth offered evidence at a preliminary hearing. Judge Vincent A. Carroll of Philadelphia Quarter Sessions Court ordered Waldron held on the same charges under the same bail
and Relator was bound over for Grand Jury action.
On April 30, 1965, Relator surrendered himself to his bondsman and returned to the custody of the Sheriff of Philadelphia, apparently in order to file a writ of habeas corpus with the proper state court, the Court of Common Pleas. Judge Raymond Pace Alexander set May 3, 1965, as the hearing date and released Waldron on $5,000 bail. Judge Theodore Reimel dismissed Relator's petition after that hearing.
The threshold question raised by the Commonwealth that Relator has not exhausted his state remedies is disposed of by Commonwealth ex rel. Nichols v. Hendrick, 197 Pa.Super. 646, 180 A.2d 88 (1962).
There, as here, the relator had been arrested and held for indictment of the Grand Jury but he had not been tried on the merits of the criminal charges. The Pennsylvania Superior Court dismissed as interlocutory an appeal from a dismissal of the petition for a writ of habeas corpus alleging irregularities in the preliminary hearing. Since, therefore, at this stage no appeal from the denial of the writ by the state court is possible, Waldron has exhausted remedies available to him in the state courts at this time. Fay v. Noia, 372 U.S. 391, 399, 83 S. Ct. 822, 827, 9 L. Ed. 2d 837 (1963).
The gravamen of Relator's petition is that he is being held without probable cause.
The Commonwealth's major grounds for dismissal are two:
first, that this Court is without jurisdiction because custody
over Relator was obtained by his own voluntary surrender of his bail; second, that Relator has failed to state a cause upon which relief can be granted. The federal cases most often discuss the jurisdictional question in conjunction with the merits in a case such as this and thus have evolved a rule sensitive to comity considerations but allowing the writ in "exceptional cases." Henry v. Henkel, 235 U.S. 219, 228, 35 S. Ct. 54, 56, 59 L. Ed. 203 (1914).
Thus, the general practice of the federal courts has been to decide such cases on the merits and not to refuse jurisdiction. Baker v. Grice, 169 U.S. 284, 18 S. Ct. 323, 42 L. Ed. 748 (1897); Ex parte Royall, 117 U.S. 241, 6 S. Ct. 734, 29 L. Ed. 868 (1886).
Moreover voluntary surrender will not defeat federal habeas corpus jurisdiction. Baker v. Grice, supra, and Ex parte Royall, supra, are two celebrated cases where the relator, having been arrested by state authorities on state charges, and having obtained bail, nevertheless successfully acquired federal jurisdiction when they voluntarily surrendered themselves.
Baker v. Grice, 159 U.S. 284, 18 S. Ct. 323, 42 L. Ed. 748 (1897), is the model for decision in the instant matter.
The petitioner there, as here, surrendered himself to his sureties on a state criminal charge in advance of trial
and then sought a federal habeas corpus writ. Significantly, although the Supreme Court reversed the decision of the court below to grant the writ, the very first sentence of the opinion notes: "The court below had jurisdiction to issue the writ, and to decide the questions which were argued before it."
The Court's language provides a particularly relevant guide for dealing with Relator's petition here:
From [ the ] cases it clearly appears, as the settled and proper procedure, that while circuit courts of the United States have jurisdiction, under the circumstances * * * to issue the writ of habeas corpus, yet those courts ought not to exercise that jurisdiction by the discharge of a prisoner unless in cases of peculiar urgency, and that, instead of discharging, they will leave the prisoner to be dealt with by the courts of the state; that after a final determination of the case by a state court, the federal courts will even then generally leave the petitioner to his remedy by writ of error from this court. The reason for this course is apparent. It is an exceedingly delicate jurisdiction given to the federal courts, by which a person under an indictment in a state court, and subject to its laws, may, by the decision of a single judge of the federal court, upon a writ of habeas corpus, be taken out of custody of the officers of the state, and finally discharged therefrom, and thus a trial by the state courts of an indictment, found under the laws of a state be finally prevented. Cases have occurred of so exceptional a nature that this course has been pursued. Such are the cases In re Loney, 134 U.S. 372 [10 S. Ct. 584, 33 L. Ed. 949], and In re Neagle, 135 U.S. 1 [10 S. Ct. 658, 34 L. Ed. 55]; but the reasons for the interference of the federal court in each of those cases were extraordinary, and presented what this court regarded as such exceptional facts as to justify the interference of the federal tribunal. Unless this case be of such an exceptional nature, we ought not to encourage the interference of the federal court below with the regular course of justice in the state court.