*2
ground
dictment on the
that it was not
Antonio, Tex.,
Drought,
L.
San
James
years
returned
three
the
appellant.
for
committed,
offense
Parrott,
Atty.,
Asst. U.
Harman
S.
San
Statute of Limitations1 barred
that the
Antonio, Tex.,
appellee.
for
prosecution.
the
The motion was de
HOLMES,
nied,
holding
and CAM-
Before
RIVES
the Court below
“that as a
Judges.
ERON, Circuit
matter of law the statute
limitations
herein
was tolled as
the defendant
CAMERON,
Judge.
Circuit
juris
virtue
without
court,
one narrow
involved in diction of this
that the
intent
leaving
appellant’s
appeal
in so
of the defendant
whether
inten-
re
absenting
juris- maining
jurisdiction
without
tion in
himself from the
is im
where
”.2
diction of
the crime
material
any person
jus-
18 U.S.C.A.
.3282:
extend
capital
not
tice.”
“Offenses
brief,
“Except
expressly
pro
Government,
in its
otherwise
states
law,
prose
following:
vided
cuted,
no
shall be
tried,
submitting
punished
any offense,
“Prior
January 10, 1955,
capital,
ad-
not
the Court
unless
appellant
vised counsel
question
found or
information
instituted
by appellant’s
years
motion
raised
of
within three
next after
such
be submitted
dismiss would not
fense shall have been committed.
June
undisputed
jury,
evidence,
since
c.
62 Stat. 828.”
testimony
appellant,
cluding
position
appellant
2. Government
takes
showed
without
running
jurisdiction
Court and ruled
the statute of
pro-
appellant’s
leaving
was tolled
intent
under
U.S.C.A.
viding:
“No statute of limitations
shall
was immaterial.”
supporting
is a
There
line
cases
position
slightly
the Government L.Ed.
A
taken
different facet of
ruling
subject
justifying
tolling
the Court
Statute
*3
below,3
line of
think this
of
but we do not
Limitations was
dealt
with but
pronouncement
correct rule or the its
cases announces the
clear and un-
was
Supreme
equivocal
rule established
the
in its adherence to the dic-
Court;
tionary
quoted.
nor do we
followed
this
definition above
language of
think that
the
the statute
In the
case the indictment was
supports
position.
itself
years
found
than
the
more
three
charged
crime
committed.
been
statutory
prime
con-
of
The
rule
Shortly
Streep had
after its commission
is
should be
struction
words
where
been indicted also
a state court
given
meaning they
evoke in
would
the
of
his bail
later forfeited because
was
“For
ultimate
the
mind.
the
common
appear.
There was testi-
failure to
Congress
command-
is what has
mony
tending to
at the trial
show that
ed,
its in-
has
no clue to
it
when
Europe
forth-
went to
to avoid the
English
except
words
familiar
tentions
coming prosecution
state court.
draftsmen
the
hint
the
and no
they
be-
they
to use them
meant
words that
*
evidence,
lieved
then the defendant
ordinary
any
an
sense.
but
“fugitive
justice”
legislation
from
all,
was a
the
not ex-
when
After
meaning
pressed
is addressed
under considera-
in technical terms
of the statute
run of men and
there-
to
common
The trial court declined to direct
tion.
according to
give
understood
acquittal
fore to be
an
or to
an instruction to
ordinary
thing,
man
fugitive
sense of
the effect
in order to be
ordinary
right
rely
words
justice,
has a
from
the defendant must have
fleeing
justice
to him.”4
addressed
United
not that of
state court.
Dic
In
New
Webster’s
World
Language,
affirming,
Supreme
tionary
Court held
Col
of the American
meaning given
unnecessary
lege Edition,
that a
first
avoiding
justice
is,
have mind
“flee”
“1. To
intransitive verb
fugitive
pur particular
escape
danger,
away
court
order
run
suit,
unpleasantness,
within the
the statute. Nev-
etc.” The statute
ertheless,
recognized
clearly
quoted,
it was
the connotation
carries-
above
general
only
persons
intention
the
leaving
defendant
those
shall be denied
jurisdiction
Limitations
material
of the Statute
the benefit
considering
indispensable aspect is an
themselves
who
absented
have
was,
juris-
jurisdiction
whether he
while outside the
of the crime with the intent
diction,
justice.
prosecution.
escaping
The fol-
lowing
quotations gathered
made
one declaration on
disconnected
but
pages
subject, Streep
U.S. at
v. United
133-
—
711,
point
854,
1413,
in the Government’s
U.S.
65 S.Ct.
L.Ed.
At another
States, 1939,
position
thus
v. United
stated:
and McGowen
brief its
App.D.C.
791,
place
268,
“Departure
105 F.2d
from one’s usual
A.
1047,
552,
L.R.
denied 308
concealment within the dis-
certiorari
abode and
U.S.
elsewhere for
60 S.Ct.
5($ avoiding diction, ris with the intention demonstrate 16 S.Ct. being brought justice particular of this statement: correctness for “ offense, can have no benefit of limita- quite clear ”, [emphasis tion’ stated: we added] any person himself out who takes plaintiff for counsel in error inten- with the proceeded upon seem to have theory that, the false brought avoiding tion of constitute offense, particular can justice, 1045, id., person under section limitation, at have no benefit only must not have left the prosecuted of- for that least *4 the United States. in a fense prosecution, a but that he must besides “ * * * there It is that sufficient territory be found within the of another flight is a with the intention court.” prosecuted, whether present- Greene F. case [154 411] prosecution not been or has a has * * * quite ed involved and facts the decision begun. actually up twenty-three pages and dissent take considerations, our “From these good Reporter, in the Federal and no to con- order conclusion making by an ex- will served ‘fleeing justice’ within stitute tended examination of the facts. It is meaning 1045 of section say held sufficient to that we 18 U.S.C.A. [now Statutes lay question of intent which behind the 3290], is not flight proper a one to submit to the jus- avoid the be an intent should calling upon Streep jury, opinion for States, it is but of the United tice authority: our is an intent that there sufficient justice of the state avoid the they “If a in the committed crime jurisdiction over the same criminal and, Georgia, Southern District territory same act.” sought when be tried the court having jurisdiction, they had left the two cases before it This Court and are found in district another subject,5 and, dealing in each with district, state and not in dis instance, accepted as law the we homes, trict their under circum language Streep quoted case. indicating purpose stances to evade to in- he made effort Porter’s case authority charge as a matter court to duce the trial might courts, they justly local prosecution was barred law fugitives justice. considered admittedly he had States, Streep United 160 U.S. jurisdic- period spent quite outside the 40 S.Ct. L.Ed. 365. court. We affirmed trial tion of the ** * But it is sufficient for the rejecting that conten- court’s action purposes of our decision to show stating, page tion, 497: F. proper that there evidence to be proceed did not for the defendant counsel jury flight submitted sufficient question upon view that the * * that the defend sustain verdict jury An *. en- was one fugitives justice ants became presented tirely case would be different ** court, This *. the exercise requested plaintiff in error had appellate cannot judge question to submit the trial and reverse the of a review verdict flight to the jury upon the facts of the case.” quoting from the After [Emphasis added.] language set forth above to some “ quite any ‘it is clear that United effect Brouse v. 68 ju- 294, person takes himself out of the reasoned case who is a well wherein Cir., 1907, certiorari Porter v. F. denied Greene L.Ed. 357. F. completion of the crime. It after the case and cited our Greene First Circuit wholly unexplained. authority We cannot stands for this case as finding say Judge that it was Hale’s of the statute. same construction prompted by jurisdic- evade arrest question of absence court, prosecution or un- was unwarranted to the trial tion was submitted plea in His decision on the reasonable. intent found the page abatement must stand.” [At 296]. and the Court of the Government favor using affirmed, part this is, This construction of the statute language: “The essential characteristic opinion, our opposite reasonable and sound. leaving justice one’s of residence, other conclusion reached place or re- of abode or usual based, apprehend, to some courts we concealing self, sort, one’s upon extent- to invest their effort punishment. to avoid intent (Note 1, supra) words of Section [At 295]. given by with the same as that during “Whether language the courts to similar in the period fed- purposes extradition statute.6 But the *5 is, make as these decisions eral courts clear, question designed the two were to statutes serve fact to determined of be entirely one are different. When state * * * intent. his acts and person physically then indicts a “ * * * state, papers another it is entitled to extradite face of the On the immediately trial, appeared him and it for is of to of the statute “fugitive” alleged importance government no the the have run. As state of been absent from the had been the the tolled that the statute only day fleeing for that from dictment one state is was defendant that the fact justice, regardless govern- to of was entitled his return what on the the burden ”* * * away. took him that fact. ment to establish page 296]. [At But it would do violence to the reason hold Thereupon and of Section to Court of set the “fleeing concerning person justice” was so detail the facts in some out running suspend absenting of as to the the statute in himself intent Brouse’s legitimately point- if he all of limitations left the of which supposed of or the crime moved his absence was dedi- district fact that ed openly district, prose- his home to another be- of the cated ing easily any all the accessible to while concludes discussion The Court cution. might subject who have a officer warrant with this statement: of the Supreme striking change the Court in defend- serve. And cases “There was upon by customary places the and relied his cited recognize Government as to habits ant’s beginning immediately difference.7 resort, the almost of fugitive Chapter to be delivered to of cause agent such sections of the One appear.” [Emphasis “Extradition”, implement- he shall titled U.S.C.A. Paragraph IV, added.] ing 2 of Article Clause provides Constitution, part: in reading example, 7. Eor ease of the executive au- Whenever “§ Appleyard Massachusetts, any Territory thority or State de- 51 L.Ed. U.S. 27 S.Ct. will any person clearly. as a difference demonstrate this New mands authority applied justice, the executive York to Massachusetts extra Territory Appleyard and, upon State, or to which District dition its fled, produces corpus sought. copy granted, person habeas such * » * charg- discharged found Massachusetts court of an writ having Supreme person affirmed, using ing demanded with and part treason, felony, language: or other committed crime, * authority provision relating the executive constitutional ** * fugitives justice, history such as the adoption show, person him will has fled shall cause be of its is nature treaty stipulation into secured shall of a entered arrested clear, therefore, under extra- It of absence at dition the fact 365: statutes sought establishes time of the arrest “Section 1045 of the Stat- right the district of removal to utes is a re-enactment of the corre- regardless motive of the the crime sponding proviso in first crimes But intent behind absence.8 ‘Provided, act the United determining equally wheth- clear nothing herein contained shall charged will crime with er a any person persons extend to right protected to be denied the justice.’ April Act limitations, purpose and (1 119). c. Stat. important an his absence is intent jury inquired into matter passage “At the time plain the statute words of under act, only use, con- discussed.
the decisions
stitution or statutes of
ap-
held that
jus-
below
The Court
words
‘flee
standing
alone took
pellant’s
tice,’
absence
in article
right
concerning
to have
Constitution,
persons
from him
intent
the circumstances
consider
crime
one state
with
absence,
attending
judgment
found
state of the Un-
in another
remanded for
and the cause
reversed
ion.”
conformity
proceedings
further
My
brothers think that
opinion.
supra,
*6
remanded.
Reversed
Massachusetts,
Appleyard
203
v.
L.Ed.
U.S.
27 S.Ct.
51
Judge.
RIVES, Circuit
recognized
difference
a
in construction
present
ex-
and the
respectfully
it seems between the
statute
because
I
dissent
“fleeing
jus
phrase,
To me
is incon-
from
tradition statute.
to
that the
me
Supreme
could
tice”,
ac ceivable how the
in the statute1 has
used
as
clearly
expressed
opinion more
quired
have
its
defined historical
well
a
opinion
majority.
should receive the
contrary
of
the two statutes
to
history
In
phrase, we
v. United
have same
of that
construction.
For the
page 134,
supra,
16
160 U.S. at
of the
read
but to
page
the Court
United
160
at
said:
v.
S.Ct.
justice”
connection,
securing
prompt
a
and ef-
as used
of
be understood
in a literal
criminal
must
not
administration
ficient
subject
sense,
*.
in reference
[At
several
but
states
laws
considering
object
U.S.,
page
matter,
general
page
124
at
of 203
227
S.Ct.]
Constitution
laws
27
“
justice,
fugitive
in relation
a
thereto.
A
‘To be
United
regulating
Congress
person
state,
a crime in one
of the act of
who commits
sense
consideration,
indicted,
departs
subject
it is not
under
he
which
necessary
party
therefrom,
state,
should
found
another
and is
regarded
fugitive
in which the crime is
left
the state
well be
have
alleged
committed,
justice
have
after an
to
been
in the sense
which it
is here
found,
[Emphasis
page
added]
[at
or for
used.’”
prosecution anticipated
avoiding
page
U.S.,
be
at
S.Ct.]
232
203
125
27
having
simply
gun,
within
but
And cf. Rule
Federal Rules of Crim
Procedure,
which
its laws
state
committed that
inal
18 U.S.C.A.
sought
crime,
he
(cid:127)constitutes
when
C.J.S., Extradition,
10, p. 326;
35
8. Cf.
process
subjected to its criminal
to be
Reilly,
80, 97,
Roberts v.
116 U.S.
6 S.Ct.
offense,
left
lie has
its
to answer
291,
States.
“Q. long you here ? A. How were on
I was here a week and I returned
November 29th. “Q. Hon- To To Honduras? A.
duras, yes.”
During period alone, defendant
in Honduras for hundred one more than fifty-six days. facts, Clearly, under-such holding:
the district court was correct “ * * * as a matter of law of limitations tolled to the de-
fendant herein virtue
without of this court and the intent of defendant in so
leaving remaining juris- without immaterial, diction is respectfully
I therefore dissent. City McHugh, York New Martin J. McKernan, Speer,
(Macklin, Hanan & brief), City, for libel- on the New York ant-appellant. COR TRANSPORTATION OIL ULSTER Barge PORATION, THE Mason, City (Ma- as owner York C. New Frank Libelant-Appel NO. PETROLEUM City, Mason, New York on har & lant, Towing Corp., claim- brief), for Matton ant-respondent-appellee. MELDRUM, Matton Tug A. THE H. Martin, City (Fo- J. New York Warren Towing Corporation, Claimant- City, Martin, York ley New & Respondent-Appellee, Towing Transpor- brief), for Red Star & claimant-impleaded-appellee. Co.,, tation BRIDGEPORT, Tug Star Tow Red THE Company, Transportation ing & CLARK, Judge, Chief Before Claimant-Impleaded-Appellee. Judg- LUMBARD, FRANK and Circuit 229, Docket No. es. *9 PER CURIAM. Circuit. Second Judge Byers’ opinion findings, D. 10,11, Argued Jan. C.E.D.N.Y., F.Supp. which are 25, 1956. Decided Jan. record, fully sustained demon- negligence no can strate towing tug passing either in, stone found the side bot- three-inch barge tom of libelant’s it had along the bank of the New rubbed York Barge point Canal. We also find State judge’s large (cid:127)’n the remark that with so