The above named defendants were arrested in the Southern District of California and are before this Court for hearing of the Government’s petition for warrant •of removal to the District of Columbia in which district the defendants have been indicted.

The Indictment reads as follows:

Each defendant is named separately in separate indictments : “-having been summoned,” etc.

The statute under which the defendants are prosecuted is Title 2 U.S.C.A. § 192 :

The applicable section is Rule 40 of The New Rules of Criminal Procedure, 18 U.S.C.A. following section 687. These rules became effective on March 21, 1946. Subdivision 3 of Paragraph (b) of Rule 40 is as follows:

The italicized portion of the rule is the part on which counsel for the Government and the defendants request a ruling by the Court.

We are not concerned where a defendant is prosecuted upon information or complaint. The present prosecution is upon indictment, by a Grand Jury in the District of Columbia.

Judge Leon R. Yaukwich of this Court-published “The New Federal Rules of Criminal Procedure” with his commentary (Parker & Co. Los Angeles). With reference to the particular rule applicable in the matter before this Court, the distinguished jurist said:

The Second Preliminary Draft, Federal Rules of Criminal Procedure, published in 1944 and prepared by the Advisory Committee on Rules of Criminal Procedure appointed by the Supreme Court, commented upon the limited proof required in a removal proceeding where prosecution was by indictment, as follows (Page 152) :

For discussions of this rule, see Homer Cummings, 29 A.B.A.Jour. 654, 656; Reform of Federal Criminal Procedure, Holtzoff, 3 F.R.D. 445 , 450-452; Holtzoff, 12 George Washington L.R. 110, 127-130; Holtzoff, The Federal Bar Journal, October 1944, 18-37; Berge, 42 Mich. L.R. 353, 374; Medalie, 4 Lawyers Guild R. (3) 1, 4. See also Henry v. Henkel, 235 U.S. 219 , 35 S.Ct. 54 , 59 L.Ed. 203 ; Rumely v. McCarthy, 250 U.S. 283 , 39 S.Ct. 483 , 63 L.Ed. 983 .

All of the above named defendants appeared before the Court and, as each name was called by the Clerk of Court, each defendant identified himself as the person named in the Indictment. This complied with the rule, obviating any further testimony as to the identity of the defendant.

A certified copy of each indictment was presented to the Court and service by the United States Marshal was established by the Marshal’s notation that the warrants had been served. The Court examined the indictments and the warrants which showed service on their face, and there was no objection on the part of the defendants to the Court considering these instruments.

It was agreed by all counsel that the Court should first consider the pertinent part of Rule 40, as indicated above, and if the Court found that this section warranted removal, then it was unnecessary to consider the Constitutional questions and the *98 sufficiency of the indictments, which questions were not argued to the Court. The Court agreed to hear such arguments if it found in favor of the contention of defendants.

Up to the present time there has been no ruling on this section of the new criminal rules of federal procedure by the Supreme Court of the United States. There are, however, several District Court rulings.

In Singleton v. Botkin, D.C., 1946, 5 F.R.D. 173 , the court said: .

And 5 F.R.D. on page 174:

In Hemans v. Matthews, D.C., 1946, 6 F.R.D. 3 , at page 4, Id., 81 U.S.App.D.C., 417 , 158 F.2d 9 , the court said:

The petition for warrant of removal filed ■by the United States Attorney against each of the defendants above named, is granted, and the United States Marshal for the Southern District of California and his Deputies are ordered to deliver to the United States Marshal for the District of Columbia, or some other proper officer authorized to receive the defendants, each of the defendants above named, there to be dealt with according to law.