In re Adutt

55 F. 376 | U.S. Circuit Court for the District of Illinois | 1893

JEME'ENS, Circuit Judge.

The petitioner, upon complaint of the consul, at Chicago, of the Austria-Hungary government, was, by the United States commissioner, committed to the custody of the marshal to await the action of the executive upon demand of the Austria-Hungary government for his extradition, upon the charge of forgery. He thereupon sued out this writ of habeas corpus to obtain his discharge, and a writ of certiorari to the commissioner to bring up the proceedings before him.

Many objections were raised by the petitioner, at the hearing, to the jurisdiction of the commissioner, and to the regularity of the proceedings before him, but I deem it necessary to consider only Hie following: First, that there is no evidence in the record of any demand or requisition made by the government of Austria-Hungary upon the government of the United States of America for the extradition of the prisoner; second, that the treaty with that government covers only the crime of forgery, and not the offense of uttering forged paper; third, that the crime of forgery, as known to the Jaw of Ausiria-Hungary, comprehends only the falsification of public obligations, and. not the forging of commercial paper; fourth, that the offense with which he is charged at Vienna is “fraud by means of forgery;” fifth, that the complaint to the commissioner does not state that Mr. Okussenius, the Austria-Hungary consul, in preferring the complaint, acted in the capacity of the representative ■of Ms government; sixth, that the complaint is defective and void as to jurisdiction, in that it does not set forth the particulars of the commercial paper alleged to lie forged.

The cilice of a writ of habeas corpus is not to correct irrogakilties; is not to reverse the decision of the commissioner because of some incompetent evidence admitted; Is not to review Ms decision upon the weight and sufficiency of the testimony. This court can only inquire as cc< the jurisdiction of the commissioner over the subject-matter, and whether {here was legal evidence before him, supporting the judgment

The first objection presents a question which has vexed the courts and executive department of the government for many years. I need not here enter imo a recital of the conflicting decisions upon tliia point, except to say that it would seem to have been decided against the petitioner in Re Kaine, 14 How. 103, and in Benson v. McMahon, 127 U. S. 457, 8 Sup. Ct. Rep. 1240. It would, I think, in the protection of individual liberty? be more seemly to require iliac the initiative of proceedings for extradition should rest with The government of the United States, upon demand of a foreign government, iluut that they should be allowed to be instituted by a consul of a foreign government without authorization of our own government, and would also, I think, better comport with the dignity of ihe government, and of judicial proceedings; lint I reel concluded by ¡he decisions to which I have referred, and am therefore unable to sustain this objection.

The second objection — that the crime of uttering forged paper is not comprehended in the term “forgery” — is, I think, not maintainable. The common-law definition of forgery does include the utterance of forged paper.

The ihird objection — that the crime of forgery, as known to the law of Austria-Hungary, comprehends only the .falsification of public obligations, end not the forging of commercial pape»' — Is, I think, not maintainable. The term “forgery,” as used in the treaty, should have, so far as ibis government is concerned, its common-law definition, as it was undoubtedly used in that sense. The law of the A ustrin-Kungary government, as expounded by Mr. Ziegler, does not indicate that “forgery” includes only the falsification of public documents. There is designated in its law the crime of falsification of public documents, and there would also seem to he the crime of falsification of private documents, treated in the Criminal Code of that country as one of the species of crime classified under the general head of “betrug,” or “fraud.” It is under that head defined to be a crime to manufacture false private documents, or falsify genuine ones. We must look to the essence of the offense, and not to its mere denomination in foreign Codes, to ascertain just the offense comprehended in the treaty. And the spirit of that treaty is, as I conceive, that one should be extradited for the commission of the offense known as forgery, by whatever name it may be called in the Criminal Code of Austria-Hungary; and if the charge before the commissioner is that of forgery, as known to our law, and the evidence is sufficient to hold the prisoner for the action of the executive, it is, I think, quite immaterial that the offense of forgery, as known to our law, is classified in Austria under the title of “Fraud by Means of Forgery.”

I am unable to sustain the fourth objection. The complaint states that the complainant is the duly-accredited official agent and representative of the Austria-Hungary government, at Chicago. The criticism upon the jurat to the complaint, that he does not there positively swear that he is the consul, but that his title is merely descriptio personae, is ill sustained in view of the positive statement in the body of the complaint; and the description of his person in the jurat was unnecessary, and is superfluous. It is doubtful, also, if it he essential that the complaint should show that it was preferred by the representative of a foreign government. It is enough, probably, if to the commissioner, or to the executive acting upon the proceedings before the commissioner, it duly appears that the proceeding is in fact instituted and conducted by the demanding nation, or its duly-accredited representative. It would, I think, be the better practice that the initiative of the proceeding should show that it was instituted by the demanding government; but it seems to have been considered unnecessary, so long as it does appear in the proceedings, as a matter of fact, that they are sanctioned by the demanding government. Benson v. McMahon, supra.

The fifth objection — that the complaint is defective as to jurisdiction — cannot, I think, be sustained. It is, of course, necessary that the substance of the offense charged should be declared, so that the court can see that the particular crime charged is one enumerated in the treaty; but a complaint need not have the precision and particularity of an indictment, hut should set forth the substantial and material features of the offense. In re Henrich, 5 Blatchf. 414; In re McDonnell, 11 Blatchf. 79. In the latter case the complaint charged that the prisoner did “commit the crime of forgery and the utterance of forged paper, to wit, did feloniously, in the said city, and at the time aforesaid, forge and utter, well knowing the same to he forged, several acceptances of two several bills of exchange, each for the payment of one thousand pounds sterling, lawful money of the United Kingdom of Great Britain «ad Ireland.’’ The court held that this complaint did charge ike crime of forgery at common. law, although without the particularity required in the formal indictment foe the offense. The complaint here, while I think it greatly wanting in particularity o? description, does charge the forging of certain bills of exchange, of xlse value of 81,000 golden, Hurt vían coin. T am inclined to hold this complaint sufficient to give the eoiaunusioxier jurisdiction, because It charges the crime of forgery. In ail such caaes as these, how* ever, the commissioner, apon objection of the petitioner, should require an amendment cf the com plaint, that the petitioner ?nay ha fully Informed of ihe particular charge for which he to sought to be extradited, and a-M the particulars of {hat charge. He ought not to be required to defend himself against u charge of forging certain bills of exchange without being advised by the complaint of all the particulars oí the bills which he is charged with forging. That is, however, a matter for the com missioned, acting within lila jurisdiction, and net a matter going to the jurisdiction of ihe commissioner to entertain the conupkdut,

There war, a further objection made, that the warrant under which tiie prisoner was amugne-d charges two offenses, — -the forging and the uttering of the forged paper. It need only be said, as to that, that both are comprehended within ihe crime of forgery, at common law.

I desire to add, in. conclusion, that I have been greatly impressed with the dissenting opinion of illr. Justice Kelson, concurred in by Chief Justice Taney and Justice Daniel, In Re Kaine, 14 How. 103, and should be glad fc« see the principles Iheio asserted adopted to ail extradition proceedings-!. The danger to individual liberty by the institution oí' these proceedings, except under ihe sanction of the executive of ihe Uni tod i’tai.es, la too grave to be tolera,ted. J'rocwtings in Literatato rendition cart oto»- be sec in motion by the executive of one state upon demand of the executive of another. J-o sknuhl it be with lesped; to exiradtooxL I should be glad t-o see the jurisdiction of the comcrissionev called into action only upon toe request of the executive. It is uue that exterditlon can be liad Anally only upon Use action of the executive, but there cannot be too many resii-ictionu to ¡-be rncroii chine ¡it upon Individual liberty. I should also be glad to see a raguimnent by law that tbe comp] a hits In suck cases as ibis should be required to have the .particularity with respect to charging live ótense that is required in formal indictments. This is important in view of the holding that one can be tried in the demanding country only tor ¡he oS'emsc for which he was demanded and extradited. I feel hound, however, by the decisions, and practice under them, to hold tiito proceeding sufficient.

'It was urged at the hearing that (here was not sufficient legal evidence before the commissioner to sustain his holding. I have carefully inspected toe record, end, without particulariKi/tg the facts, I deem it only nt-eessaiy to observe that 1 think there waa abundant legal evMemee before the comrainsioner, upon which he might well find that the offense had been committed by the petitioner.

The prisoner will be remanded to the custody of the marshal, to be held under the commitment of the commissioner, awaiting the order of the president of the United States in the premises, and the writs of habeas corpus and certiorari are discharged.