197 F. 67 | E.D. Wis. | 1912
On May 8th Michael Schorer filed his petition for a writ of habeas corpus to test the legality of his detention by the United States marshal of this district.
The petitioner and one Hans Boessl were arrested in November, 1911, as alleged fugitives from justice from the kingdom of Bavaria, charged with the crimes of forgery and the utterance of forged acceptances or bills of exchange. They were committed to jail; but subsequently discharged because the United States commissioner entertaining the proceedings had not been authorized to act as an extradition commissioner. Second extradition proceedings were instituted, and upon such they were committed to await the action of the .executive department. They again sued out a writ of habeas corpus, upon which they were discharged upon the ground that the record failed to disclose an executive mandate or requisition and failed to show a prima facie case of guilt. On the 16th day of March, 1912, the petitioner, Schorer, was again arrested by virtue of'a warrant issued by an. extradition commissioner upon a complaint charging him with being a fugitive from justice from the kingdom of Bavaria, having there committed the crimes of forgery and the utterance of forged
The petitioner attacks the proceedings upon the following grounds:
(1) That no mandate or demand upon the United States for the extradition of the accused has been produced or proven in the proceedings.
(2) That no warrant or equivalent of a warrant of any tribunal of the demanding country has been produced.
(3) That the copies of depositions taken in the demanding country and received by the commissioner are not properly certified.
(4) That no prima facie case of forgery or utterance of forged papers by the accused has been made.
(5) That there is no competent evidence in the record upon which the commissioner could exercise his judgment.
(6) That there is no evidence in the record showing that utterance of forged papers is a crime under the laws of Bavaria or of the German Empire.
These will be considered:
[ 1 ] First. The rule is well settled that, unless there is a provision in the treaty, a demand by one country upon another for the extradition of an alleged fugitive is not a step necessary to be taken prior to, or to be proven in, the proceedings before the extradition commissioner, pursuant to section 5270, R. S. U. S. Likewise, unless treaty stipulations require another or a different course to be pursued, the foreign country is authorized to institute the proceedings under the section named without any precedent formalities. Sonic confusion has arisen because of a failure to distinguish between cases where the treaty contains stipulations respecting procedure and cases where it is silent, leaving, in the latter case, the statute as the controlling guide in matters before the extradition commissioner.
The treaty provision applicable to this case is as follows:
“Article 1. The government of the United States and the Bavarian government promise and engage, upon mutual requisitions by them or their ministers, officers or authorities, respectively made, to deliver up to justice all persons who, being charged with the crime * “ * forgery, or the utterance of forged, papers, * * * committed within the jurisdiction of either party, shall seek an asylum, or shall be found within the territories of the other: Provided, that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify' Ms apprehension and commitment for Irial, if the crime or offense had there been committed; and the respective judges and other magistrates of the two governments shall have power, jurisdiction and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges or other magistrates, respectively, to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence he deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive. * * *” Treaty with Bavaria, Sept. 25, 1853, 10 Stat. 1023.
“It was formerly held that a requisition from the demanding government was necessary to be produced before the commissioner could act (In re Herris LD. 0.] 32 Fed. 583), but the opinion in this case was reversed by Mr. Justice Brewer on appeal to the Circuit Court, who held that no preliminary requisition was necessary, as extradition could not be consummated without action by the executive' in the last instance, and that the authority of the foreign government to act need not appear in the complaint, if it were made to appear in the examination before the commissioner, or elsewhere in the proceedings. Bearing in mind the frequent necessity for immediate action in case the whereabouts of the accused is ascertained, the delay necessary to procure a preliminary requisition might often result in the defeat of justice. In Kaine’s Case, 14 How. 103, 129 [14 L. Ed. 345], this court was nearly equally divided upon the question whether a preliminary mandate from the executive was necessary. So long as Mr. Justice Nelson, who thought such mandate necessary, remained upon the bench, his opinion'was followed in the Second Circuit (In re Henrich, 5 Blatch. 414 [Fed. Cas. No. 6,369]; In re Farez, 7 Blatch. 34, 45 [Fed. Cas. No. 4,644]), but since that time a different view has been taken of the question (In re MacDonnell, 11 Blatch. 79 [Fed. Cas. No. 8,771]; In re Thomas, 12 Blatch. 370 [Fed. Cas. No. 13,887]). Judge Lowell's opinion accorded with the later, and, as we think, the sounder view. In re Kelley, 2 Lowell, 339 [Fed. Cas. No. 7,655]. See, also, Benson v. McMahon, 127 U. S. 457 [8 Sup. Ct. 1240, 32 L. Ed. 234].”
In the case of In re Herris (D. C.) 32 Eed. 583 (s. c. [C. C.] 33 Eed. 165), and in the later cases above referred to, the necessity for such mandate was resolved against principally because the treaty makes no provision therefor, and, secondly, because .extradition must ultimately result through the action of the executive department. These cases explain what is meant in the quotation from Grin v. Shine, supra, that the mandate or authority need not appear in the complaint if it is made to appear in the examination before the commissioner or elsewhere in the proceedings. This latter clause undoubtedly means that the demand of the foreign government must be made to appear to this government some time or somewhere in the whole proceedings from their initiation down to their consummation by the executive. All of the later authorities clearly indicate that the usual diplomatic requisition is no concern of the extradition commissioner, but that his functions under section 5270 are limited to the matters therein stated, viz., the determination of the sufficiency of the evidence “to sustain the charge.” The treaty above referred to clearly contemplates nothing more. I may add that in the present proceeding the extradition commissioner requested the Secretary of State to furnish to him copies of the foreign or executive action relating to the petitioner, conceiving
(a) It is not necessary to produce before the commissioner any warrant or equivalent of a warrant of any tribunal of the demanding country. In Grin v. Shine, supra, involving the Russian treaty (which requires the production of such warrant), Mr. Justice Brown, after holding that the treaty provision had been complied with, says (187 U. S. page 191, 23 Sup. Ct. page 102, 47 L. Ed. 130):
“But there is another consideration in this connection which should not he overlooked. While the treaty contemplates the production of a copy of a warrant of arrest or other equivalent document issued by a magistrate of the Russian Empire, it is within the power of Congress to dispense with this requirement, and we think it has done so by Rev. Stat, § 5270, hereinbefore cited. The treaty is undoubtedly obligatory upon both powers, and, if Congress should prescribe additional formalities than those required by the treaty, it might become the subject of complaint by the Russian government and of further negotiations. But, notwithstanding such treaty, Congress has a perfect right to provide for the extradition of criminals in its own way with or without a treaty to that effect, and to declare that foreign criminals shall be surrendered upon such proofs of criminality as it may judge sufficient. Castro v. De Uriarte [IX 0.] 16 Fed. 96. This appears to have been the object of section 5270, which is applicable to all foreign governments with which we have treaties of extradition. The requirements of that section, as already observed, are simply a complaint under oath, a warrant of arrest, evidence of criminality sufficient to sustain the charge under the provisions of the proper treaty or convention, a certificate by the magistrate of such evidence and his conclusions thereon to the Secretary of State. As no mention is here made of a warrant of arrest, or other equivalent document, issued by a foreign magistrate, we do not see the necessity of its production. This is one of the requirements of the treaty which Congress has intentionally waived, Moore on Extradition, § 70.”
(b) The record in the present case discloses an authenticated copy of a document, signed by “The Examining Magistrate of Royal Superior Court of Munich, Meidinger, Royal Councillor,” to which is attached the court seal, and which, after description of the accused, recites the charge made against him, the provisions of the German
A further characteristic disclosed is that the great majority of the bills were addressed to certain persons whose names and addresses and occupations (principally farmers) were particularly stated, which persons, in turn, became the alleged acceptors of the bills. In nearly one-third of them the alleged acceptor appears to be the husband or wife of the alleged drawer. In fact, all but a dozen of the bills are drawn either by Schorer, or are of the character last above described. It is disclosed that some of the alleged makers or acceptors of what are proven to be spurious bills had in fact transacted legitimate business with the accused and his partner. Many of the bills are pronounced spurious by the persons whose names appear thereon as acceptors, who further state that they have had no business transactions whatever with the accused or his partner, and that, in fact, they have never drawn or accepted a bill of exchange. In examining the copies of the drafts carefully they disclose some remarkable coincidences re
It appears beyond question that the accused, Schorer, solicited from various persons, investors, bankers, and money lenders their patronage in purchasing the bills and acceptances referred- to in the testimony, and many others during the time above stated. The success in selling the paper was doubtless due to the liberal discounts which were offered, but also to representations made, particularly by the accused, respecting the quality of the paper offered. Among other representations were the following: That the accused and Boessl had lent such money to the alleged acceptors, or, in the event of the purchase by the proposed patron, such money would be immediately turned over to such acceptor; that the various acceptors were persons of good financial standing, the latter representation being in most cases supported by recommendations of credit of the nature of commercial reports, and, further, by representations or professions on the part of the accused and his partner of their own financial responsibility, and by other representations tending to inspire confidence, and to induce the purchase of the paper and securities offered. One witness testifies to a representation made by the accused that the acceptances were in fact secured by real estate mortgages. In all these transactions the accused- assumed an attitude of a personal ownership or interest in the paper offered for sale, and both he and his associate gave their indorsements freely to induce sales.
Another fact appearing in the testimony is the use of wrong Christian names of the wives or husbands of the acceptors or drawers, and in one or two instances the use of a fictitious name was disclosed. The accused had a habit, when paper matured, of paying the amount, either in cash or more frequently by inducing the holders of the-acceptances to take new or other similar acceptances. When some of the acceptances were held by banks, the money or new acceptances to pay the same was brought by the accused! usually a few days in advance of maturity. The purpose of this is not expressly disclosed, but doubtless it was to preclude notice being sent by the then holders to the persons appearing to be acceptors. Oti or about the 1st day of October the holder of one or more of the acceptances, having notified the acceptor of the maturity thereof, and being in turn notified that such acceptance was false and forged, remonstrated with the partner of the petitioner. It also appears that the aecused learned of such remonstrance; that he himself had paid to the holder of one of the alleged forged acceptances the amount thereof.
On or about October 5, 1911, 'both Boessl and Schorer left Munich without in any way closing up their business affairs, and came to the
After the first arrest of the petitioner he signed a written confession of his guilt. This document is in evidence. It is general, and does not pertain to any particular act charged in the complaint, but does state that before his departure from Germany on October 5, 1911, he “repeatedly forged drafts together with one Hans Boessl, alias M. Donanbauer, and that about eight persons were wronged thereby to the total amount of 60,000.00 to 70,000.00 marks.” He further states that he pleads guilty, and would willingly reimburse the amount embezzled “if he were in position to do so.” It therefore clearly shows an intention to admit his guilty participation in the transactions referred to in the complaint and the testimony. Upon the hearing before the commissioner and during the argument, the effect of such written confession was sought to be minimized by the claim that the accused did not know what he was doing, and that he was under great mental anxiety. However, the consular representatives testified that the conversations attending the alleged act of confession were in the German language, the written document is in such language, and it is undoubted that the accused read it before' signing.
The accused upon the hearing before the commissioner took the stand in his own behalf, and the following is given as a résumé of his testimony:
He denies forging the name of certain 20 or 25 alleged acceptors specified in questions asked him; denies generally having been guilty of forging any acceptances or uttering the same knowing them to be forged. He admits his own signature in the making and indorsing of the acceptances referred to in the evidence; admits knowing some of the alleged acceptors; denies knowing others. The course of dealing described by the bankers and money lenders who were patrons of the accused and his copartner, so far as the accused! participated therein, is, in general, admitted. No attempt is made to particularly explain the possession of the various alleged forged documents, other than to broadly intimate that so far as he, the petitioner, participated in the possession or utterance of the same, he was acting upon the suggestion and direction of his partner Boessl. No attempt is made to explain his flight other than by the suggestion that he felt his inability to meet the large number of maturing obligations and his desire not to. face the impending financial disaster. No explanation is given of the assumption of another name, except that he paid no particular attention to it, and that other people “in
As a summary of the evidénce the following is shown:
First. That at or about the time mentioned in the complaint the accused and his associate had in their possession upwards of 129 forged acceptances or bills of exchange.
Second!. That practically all of such bills of exchange had upon the same as maker or indorser the name of the accused, Micheál Schorer, written thereon by himself.
Third. That each and all of such acceptances or bills of exchange is and are pronounced false and forged by the person or persons other than the accused or Boessl, named therein as makers, drawers, or ■ acceptors.
Fourth. That such forged acceptances and bills of exchange came into existence in or about the office, banking house, or business occupied and conducted by the accused and) his partner Boessl; and none of such acceptances was in fact procured by them through any transactions had with any other persons.
Fifth. That the business of the accused and his partner, Boessl, was conducted by them without material assistance from any. other person or persons whatsoever.
Sixth. That the accused was in possession of these various forged acceptances and bills of exchange and sold or uttered the same, as detailed in the evidence.
Seventh. That in selling and uttering such acceptances the accused made representations respecting the character and origin thereof, the previous alleged dealings between himself and his copartner and the alleged acceptors, which were false.
Eighth. That the accused in at least one instance, for the purpose of inducing the purchase of a forged acceptance, represented that it. was secured by a mortgage, which representation was false to his knowledge.
Ninth. That on October 5, 1911, the accused) and his partner fled from Munich, leaving their place of business and all pertaining thereto without arranging for attention to the same or any of their private affairs, traveling and remaining here under assumed names.
It must be borne in mind that the accused was not on trial before the commissioner for the crimes charged. The only question to be determined by the commissioner was that of probable cause; or, to use the language common in treaties, whether there was such evidence of criminality as will justify the apprehension and commitment ; and it must likewise be borne in mind that upon habeas corpus the question is narrowed down to determining, whether there is any legal evidence upon which the extradition commissioner could exercise his judgment or discretion. In re Bryant, 167 U. S. 104, 17 Sup. Ct. 744, 42 L. Ed. 94. Upon the record the fact of forgery and the actual utterance of forged instruments by the accused are es
“The principle here applicable proceeds merely upon the doctrine of chances. It does not attempt to show knowledge or any other possible element of intent; bnt it endeavors to negative inadvertence and any other innocent explanation. It argues that, the of tener a like act has been done, the less probable it is that it could have been done innocently.”
Again (section 317):
“The very kernel of the principle (either of knowledge or of intent) is that the fact of the uttering tends in one way or another to show the defendant’s knowledge at the time in issue either by the probable warning received or by the improbability of innocent intent in repeated instances; and the assumption throughout is that the bare fact of utterance tends to show this.”
The following cases announce and apply the same rules; Dillard v. United States, 141 Fed. 308, 72 C. C. A. 451; Commonwealth v. Russell, 156 Mass. 196, 30 N. E. 763; People v. Everhardt, 104 N. Y. 591, 11 N. E. 62; Commonwealth v. Coe, 115 Mass. 481; Glucksman v. Henkel, 221 U. S. 508, 31 Sup. Ct. 704, 55 L. Ed. 830.
So, too, the rule is well settled and has been repeatedly applied that the mere possession of forged instruments raises a presumption that the party so in possession thereof either forged it or consented to the forging, and that, in any event, the burden is cast upon one having the possession of or uttering forged instruments to give some reasonable account of his own relation thereto; and, unless he is
The writ of habeas corpus and the writ of certiorari must each be discharged, and the petitioner remanded to the custody of the marshal, to be held by him pursuant to the order of the extradition commissioner.