244 F. 967 | S.D.N.Y. | 1917
This relator, with Clarence F. Birdseye, Kellogg Birdseye, Joseph C. Watson, Robert R. Moore, and William D. MacQuestion, has been indicted by'the grand jury of the county of Allegheny, state of Pennsylvania, on a charge of -conspiracy under a PenriSylvania statute. The indictment charges that:
They “unlawfully did, on the 1st day of March in the year of our Lord one thousand nine hundred and seventeen, and at other times before and after said date, and within two years of the day of the taking of this inquisition, at the county aforesaid, and- within the jurisdiction of this court, falsely and maliciously conspire and agree together to cheat and defraud the Pittsburgh Life & Trust Company, a body corporate, of its goods, moneys, chattels, and other property, and other dishonest, malicious, and unlawful acts then and there to do to the prejudice of the said Pittsburgh Life & Trust Company with intent in them then and there and thereby to defraud the said Pittsburgh Life & Trust Company, contrary to the form of the act of the General Assembly in such case made and provided and against the peace and dignity of the commonwealth of Pennsylvania.”
The substance of the charge further is that the conspirators were to purchase a controlling interest of the stock of the Pittsburgh Life & Trust Company, the old board of directors were thereupon to resign, the conspirators were then to elect a board of dummy directors, and this board of directors, without adequate knowledge of the values of the respective properties to be exchanged, and deceived as to the real values of such properties by the conspirators, were to authorize the purchase of the bonds of the Dare Lumber Company, issued or about to be issued, and, to provide money for such purpose, they were to order the sale of certain of the assets of the said trust company, and all this notwithstanding the property covering the bonds of the Dare Lumber Company‘were either of no value or of inadequate value to secure the bonds. The indictment is questioned by Clarence F. Birdseye, who has made a similar application on a writ of habeas corpus. The result there expressed in an opinion will be handed down simultaneously with this.
This relator .makes the point that he is not a fugitive from justice, .and therefore should be discharged from custody. The crime charged is alleged to have been committed in the city of Pittsburgh on March 1, 1917,.and “at other times before and after said date within two years of this date.” In addition to a denial of his guilt, and, in fact,
The relator testified that while on the train with Birdseye he discussed with him Birdseye’s purpose of formulating in writing an option for the purchase of the properties of the Dare Lumber Company and the properties of the East Lake Lumber Company, so as to permit Birdseye to place the bonds of the Dare Lumber Company when issued; Birdseye representing that his client who would take the bonds was the Manhattan Life Insurance Company of New York City, and the Pittsburgh Life & Trust Company was not mentioned on this occasion.
I am not called upon on this application, to determine anything other than this question, whether a citizen of New York, indicted for the statutory crime of conspiracy in Pittsburgh, Allegheny county, Pa., who is conceded not to have been physically or personally present in that city or county within the time alleged in the indictment, or at any time since the alleged commission of the crime or prior thereto, shall nevertheless be deemed a fugitive from justice of Pennsylvania if it appears on several occasions during the lime alleged in the indictment that he was a passenger on a through interstate railroad train bound for points outside of the demanding state, said trains running through a portion of the state remote from the locus in quo, on one occasion he having stopped at the city of Philadelphia to attend to some business foreign to the subject-matter of the indictment, and on another occasion he having been a fellow passenger with an alleged coconspir-ator. Both occasions were prior to the filing of the indictment charging crime.
“The question in this case, therefore, is whether there was any proof before the Governor that Hoffstot was in the state of Pennsylvania when the crime or'any material part of the crime with which he is charged was committed.”
Learned counsel for the relator have referred to Judge Holt’s reference in the Hoffstot Case of the refusal of Governor Fort of New Jersey upon an application for requisition upon the Governor of Illinois for extradition of J. Ogden Armour. Armour, with others, was indicted in New Jersey for conspiracy to produce an artificial scarcity
“In this case, If the only evidence of Hofflstot’s presence In Pennsylvania during the time in which it is alleged that he engaged in the conspiracy had been that he passed through the state as an incident of a journey, as, for instance, that he went from Chicago to New York over the Pennsylvania Railroad, 1 should have no doubt that the proof of his commission of the crime, or any material part of it, in the state of Pennsylvania, was insufficient.”
And counsel argued that the case supposed by Judge Holt is the one judicial utterance that they are able to find that is absolutely in point. The difference, however, is that in this relator’s case it is established by his own admission that the defendant was in conference with the coconspirator on an interstate train passing through Pennsylvania, although distant from the county where he is charged with crime, during the period mentioned in the indictment as the time the crime was committed.
As Judge Shearn said in People ex rel. Ireland v. Woods, 177 App. Div. 1, 163 N. Y. Supp. 991:
“True, his stay was short on each occasion, but there was abundance of opportunity during his stay, not only to confer with his alleged confederate, but to hand to his confederate the letters of credit and the bogus checks which, it is alleged, were used to accomplish the overt criminal acts.”
The same reasoning was applied in Meeker v. Baker, 142 App. Div. 598, 127 N. Y. Supp. 382.
Therefore, in view of Montgomery’s own admissions upon the hearing, of his presence in the demanding state, with opportunity for and actual conference with a coconspirator during the period in which it is charged in the indictment the crime was committed, I am obliged to hold that he is a fugitive from justice within the meaning of the
If counsel represénting the relator feel aggrieved by these conclusions, they may have a stay pending such proceedings as they may be advised are necessary to take the case to the Supreme Court.