4 F. 303 | U.S. Circuit Court for the District of Southern New York | 1880
This case is before the court on habeas corpus, in proceedings for extradition brought before this court by a certiorari. On a complaint made before Commissioner Osborn by the consul general of Great Britain, at New York, that the relator, George Fowler, alias R. Gray, had, on the eighteenth of September, 1880, at Bradford, in England, committed the crimes of forgery and the utterance of forged paper, by feloniously forging and uttering, knowing the same to be forged, a check or bank draft dated at Bradford, on that day, for 1210 sterling, payable to the order of W,. Jow.etrt, and purporting to be drawn by said Jowett on. the Bradford Banking Company* limited, and indorsed by said
In the course of the hearing before the commissioner, certain documentary evidence was offered by the prosecution, and admitted under the objection of the relator. There is a copy of an information and complaint sworn to by Jowett, September 21,1880, at Bradford, before a justice of the peace there, charging Fowler with having feloniously forged and uttered the banker’s checks for £60 sterling, with intent to defraud. Such copy is certified by Angus Holden, a j nstice of the peace at Bradford, to be a true copy of the original information. On the back of the copy is a certificate by Godfrey Lushing-ton, assistant under secretary of state for the home department, certifying that the signature of Holden is the signature of a magistrate in England, having authority to take the information, and that the information “ so verified by a magistrate, when the same was taken and authenticated by a minister of state, and sealed with his official seal, would be received as evidence of the criminality of a fugitive criminal from the United States charged before a tribunal in Great Britain with an extradition crime under the extradition treaty as existing between that country and the United States.”
There is also a copy of a warrant, issued at Bradford, September 21,1880, by a justice of the peace there, reciting said information, and commanding the constables of Bradford to arrest Fowler, and bring him before a justice of the peace to answer said information. This copy is certified by Angus Holden, a justice of the peace at Bradford, to be a true copy of the original warrant.
On the back of the copy is a certificate by said Lushington of the same tenor, mutatis mutandis, as his certificate on the back of the copy of the information. Under said certificate is a certificate of Julian Pauncefote, assistant under secretary of state of foreign affairs, sealed with the seal of the foreign office, of the same tenor as the said certificate of said Lister. Under said two certificates is a certificate by Mr. Lowell, made at the legation .of the United States, London, under the seal of the legation of the United States to Great Britain, certifying that Pauncefote’s said signature was the handwriting of Sir Julian Pauncefote, “one of the assistant under secretaries of state for foreign affairs, and that the annexed documents are authenticated in the manner required by the statutes of the United States.” There are, also, an original deposition of William Jowett, and an original deposition of Edwin I. Hustler, signed by them respectively, and sworn to at Bradford, September 30, 1880, before W. Pollard, a justice of the peace
The second section of the act of August 12, 1848, (9 U. S. St. at Large, 302,) provided as follows: “In every case of complaint as aforesaid, and of a hearing upon the return of the warrant of arrest, copies of the depositions upon which an original warrant in any such foreign country may have been granted, certified under the hand of the person or persons issuing such warrant, and attested upon the oath of the party producing them to be true copies of the original depositions, may be received in evidence of the criminality of the person so apprehended.” This was a narrow provision. It allowed in evidence here, not any original depositions on which a warrant abroad issued, not any original depositions used abroad on the hearing of the charge after an arrest under the warrant, not any copies of the latter depositions, not such original warrant, not a copy of it, not any other original paper, or a copy thereof, but only copies of the depositions abroad on which the warrant abroad issued, and then it required such copies to be certified in a particular way, and to be attested by a particular oath.
Then followed the act of June 22, 1860, (12 U. S. St. at Large, 84,) which provided as follows: “In all cases where any depositions, warrants, or other papers, or copies thereof, shall bo offered in evidence upon the hearing of an extradition case,” under the second section of the act of 1848, “such depositions, warrants, and other papers, or copies thereof, shall bp admitted and received for the purposes mentioned in the said section, if they shall bo properly and legally authenticated, so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped, and the certificate of the principal diplomatic or consular officer of the United States, resident in such foreign country, shall be proof that any paper or other document so offered is authenticated in tlie maimer required by this act.”
Then came the Revised Statutes, § 5271 which, as it stood until 1876, provided as follows: “In every case of complaint and of a hearing, upon the return of the warrant of arrest, copies of the depositions upon which an original warrant in any foreign country may have been granted, certified under the hand of the person issuing such warrant, and attested upon the oath of the party producing them to be true copies of the original depositions, may be received in evidence of the criminality of the person so apprehended, if they are authenticated' in such manner as would entitle them to be reviewed for similar purposes by the tribunals of the foreign country from which the accused party escaped. The certificate of the principal diplomatic or consular officer of the United States, resident in such foreign country, shall be proof that any paper or other document so offered is authenticated in the manner required by this section.”
In In re Stupp, 12 Blatchf. 501, before this court in 1875, it was held that section 5271 was in force in lieu of the act of 1848, in regard to copies of the depositions on which an original warrant of arrest was granted abroad, but that the act of 1860 was still in force, after the enactment of the Be-vised Statutes, in regard to the admission in evidence of all depositions, warrants, and other papers, or copies thereof, except the copies mentioned in section 5271. In consequence of as uggestion made in the case of Stupp that section 5271 had chariged the law in regard to copies of the depositions on which an original warrant was issued abroad, instead of re-enacting it, and that the act of 1860 had not been reenacted in the Revised Statutes, the act of June 19, 1876, (19 U. S. St. at Large, 597,) was passsd. That act amends section 5271 so as to read as follows:
“In every case of complaint and of a hearing, upon the re
The provisions of section 5271, as thus amended, do not appear to have been construed in any adjudged ease. The section provides for two classes of documentary evidence— First, “depositions, warrants, or other papers,” which means original depositions, original warrants, and original other papers — the depositions, warrants, and papers themselves, and not copies of them; second, copies of “ any such depositions, warrants, or other papers.” The first class, the originals, must be documents which would bo entitled to be received in the tribunals of the foreign country as evidenco of the criminality of the person, in respect to the offence charged against him as committed there, if the inquiry as to his criminality in respect of such offence were being had in such foreign tribunals, and such originals must be authenticated in such a proper and legal manner as would entitle them to be received as such evidence in such foreign tribunals. The second class, the copies, must be copies of original documents, which originals would be entitled to be. received in the tribunals of the foreign country as evidence of the criminality of the person in respect to the offence charged against him, as committed there, if the inquiry as to his criminality in respect of said oifence were being had in such foreign tribunals, and such copies must be “authenticated according to the law of such foreign country;” that is, authen
When originals are offered they must be satisfactorily identified, and it must appear that they would be entitled to be received in the tribunals of the foreign country as evidence of such criminality, if the inquiry as to such criminality were being had in such foreign tribunals. When copies are offered it must appear that the originals of them would be entitled to be received in the tribunals of the foreign country as evidence of such criminality, if the inquiry as to such criminality were being had in such foreign tribunals, and it must appear that the copies are true cojúes of such originals, and the authentication that the copies are true copies must be made according to the law of the foreign country. There would seem to be a distinction industriously made, in the section, between originals and copies. If copies had been intended to be placed in the same category with originals, the words “or' copies of any such depositions, warrants, or other papers” would naturally have been inserted after the words “or other papers,” where the latter words first occur; and the portion of the section after the word “escaped,” to and including the word “evidence,” would have been omitted. The inference is that a different meaning may be looked for in the expression “properly and legally authenticated, so as to entitle them to be received as evidence of the criminality of the person so apprehended, by the tribunals of the foreign country from which the accused party shall have escaped,” from that which is to be looked for in the expression “authenticated according to the law of such foreign country.”
In Webster’s Dictionary “authenticate” is defined thus: “To render authentic; to give authority to, by the proof, attestation, or formalities required by law, or sufficient to enti. tie to credit.” In Worcester’s Dictionary “authenticate” is defined thus: “To prove authentic.” In Bouvier’s Law Dictionary “authenticaton” is defined thus: “A proper or legal attestation. Acts done with the view of causing an instrument to be known and identified.” In Burrill’s Law Dictionary “authentication” is defined thus: “The act or
The words “properly and legally authenticated, so as to entitle them to be received as evidence,” etc., are properly to be construed as if the expression were “so properly and legally authenticated as to entitle them,” etc.; that is, “so properly and legally authenticated that they would be entitled to be,” etc. This authentication, in regard to original papers, may be made by oral proof given here. A witness may swear here to the verity and identity of the original; and, also, from his knowledge and experience, that they would be received in the tribunals of the foreign country as evidence of the criminality of the person in respect to the offence charged against him as committed there, if the inquiry as to such criminality were being had in such foreign tribunals. This will be sufficient, under the statute, when originals are offered. When copies are offered they must be authenticated according to the law of the foreign country. The provision that “the certificate of the principal diplomatic or consular officer of the United States, resident in such foreign country, shall be proof Lhat any such deposition, warrant, or other paper, or copy thereof, is authenticated in the manner required by this section,” provides for a mode of proof in regard to both originals and copies, and in regard to both of the authentications mentioned in the section. Such certificate, if in proper form, is absolute proof, whatever may be the tenor of the certificates of foreign officials to the same documents.
Practically, there may, ordinarily, bo no adequate attainable means, other than such certificate, of proving that the authentication of the copies is according to the law of the for
The certificate of Mr. Lowell in this case cannot be held to be in compliance with the statute. It certifies that the documents “are authenticated in the manner required by the statute of the United States.” It ought to certify, in respect to the original depositions offered, that they are properly and legally authenticated, so as to entitle them to be received as evidence of the criminality of the person apprehended by the tribunals of Great Britain; and it ought to certify, in respect to the copies offered, that the originals of which they are copies would be received as such evidence, and that such copies are authenticated according to the law of Great Britain. Not only is the certificate of Mr. Lowell thus defective, but it clearly appears, from the authentications to which his certificates are appended, that the documents are not authenticated in the manner required by the statute of the United States. In each of the three certificates of Mr. Lushington he certifies that the document “would be received as evidence of the criminality of a fugitive criminal from the United States charged before a tribunal in Great
The document must appear to be one which would be received as evidence of the criminality of Fowler, in respect to this offence, by the tribunals of Great Britain, if the inquiry were going on there in respect to the offence as committed there, and not a document which would be received by the tribunals of Great Britain as evidence of the criminality of a fugitive criminal from the United States charged before one of such tribunals with an extradition crime committed in the United States.
The original depositions of Jowett and Hustler purport to have been severally taken and sworn to at Bradford before W. Pollard, a justice of the peace. Under the foregoing views, the certificates to such depositions ought to be in, or amount in substance to, the following forms:
“I hereby certify that the signature of W. Pollard to the foregoing deposition is, to the best of my knowledge and belief, his signature, and the signature of a magistrate in England having authority to take the same, and that said deposition certified as within, by said Pollard, to the taking thereof before him, and authenticated by a minister of state, and sealed with his official seal, would be received in the tribunals of Great Britain as evidence of the criminality of George Fowler, alias R. Gray, named in said deposition, in respect of the offence charged against him as committed in Great Britain, namely, that he feloniously did forge, utter, and put off certain orders, purporting to be orders by William Jowett, for the payment of money, to-wit, bankers’ checks, for the payment of the sum of ¿£60, with intent thereby then and there to defraud, if the inquiry as to such criminality were being had in the tribunals of Great Britain.
'Godfrey Lushinoton,
[Seal.] “Assistant under Secretary of State for the Home Department.
“ Whitehall, 2d October, 1880
“JtjliaN Pauncefote,
[Seal.] “Assistant Secretary of State for Foreign Affairs.
“Foreign Office, 7th October, 1880.”
“I certify that I believe the above signature, ‘Julian Paunce-fote,’ to be the handwriting of Sir Julian Pauncefote, one of. the assistant under secretaries of state for foreign affairs;. and that the foregoing documents are properly and legally authenticated, so as to entitle them to be received in the tribunals of Great Britain as evidence of the criminality of George Fowler, alias R. Gray, named therein, in respect of the offence named therein, charged against him as committed in Great Britain, if the inquiry as to such criminality were being had in the tribunals of Great Britain. In witness whereof, I have subscribed my name and caused the seal of this legation to be affixed, this eighth day of October, 1880.
“J. R. Lowell,
[Seal.] “Envoy Extraordinary and Minister Plenipotentiary of the United States of America.
“Legation of the United States, London, October 8, 1880.”
In regard to the copy of the information, in addition to the certificate of Angus Holden, justice of the peace, that it is a true copy of the original information, the certificates to such copy ought to be in, or amount in substance to, the following forms: “ I hereby certify that the signature of Angus Holden to the foregoing copy information is, to the best of my knowledge and belief, his signature, and the signature of a magistrate in England having authority to take such information, and that the original of said information would be received in the tribunals of Great Britain as evidence of the criminality of George Fowler, alias R. Gray, named therein, in respect of the offence charged against him as committed in Great Britain, namely, that he feloniously did forge, utter, and put
“Godfrey Lushington,
[Seal.] “Assistant Under Secretary of State for the Home Department.
Whitehall, 2d October, 1880.”
“I certify that I believe the above signature, ‘Godfrey Lushington,’ to be the handwriting of Godfrey Lushington, Esq., assistant under secretary of state for the home department.
T. V. Lister,
[Seal.] “Assistant Under Secretary of State.
“Foreign Office, 2d October, 1880.”
“I certify that I believe the above signature, ‘ T. Y. Lister,’ to bo the handwriting of T. Y. Lister, Esq., one of the assistant under secretaries of state for foreign affairs, and that the original of the foregoing copy information would be received in the tribunals of Great Britain as evidence of the criminality of George Fowler, alias B. Gray, named therein, in respect of the offence charged against him, as committed in Great Britain, namely, that he feloniously did forge, utter, and put off certain orders, purporting to be orders by William Jowett, for the payment of money, to-wit, bankers’ checks for the payment of the sum of £60, with intent thereby then and there to defraud, if the inquiry as to such criminality were being had in tho tribunals of Great Britain, and that the foregoing documents are authenticated according to the law of Great Britain. In witness whereof, I have subscribed my name, and caused the seal of this legation to be affixed thereto, this seventh day of October, 1880.
“J. B. Lowell,
[Seal.] “Envoy Extraordinary and Minister Plenipotentiary of the United States of America.
“Legation of the United States, London, October 7,1880.”
It follows, from the foregoing considerations, that neither the depositions nor the copies of the information or of the warrant were admissible in evidence by virtue of the certificates accompanying them. In regard to the copy information, Mr. Dobson, a detective officer attached to the Bradford police, who came to the United States to.take Fowler back to England, testifies that such copy is a copy of the original information; that he saw the original and was present when it was made, and saw Jowett sign it in the presence of Holden; that Holden is a justice of the peace at Bradford, and acting as such; and that the signature to the copy is the signature of Holden. Mr. Dobson also testifies that the copy warrant is a copy of the original warrant; that he was present when the original was signed, and that it was issued by a justice of the peace at Bradford, and that he has the original in his possession. But there is no evidence that the authentication of the copies is according to the law of Great Britain. The relator objected before the commissioner to the admission in evidence of the copies, but they were admitted on the evidence of Mr. Dobson. They were not competent evidence.
A different case exists as to the depositions of Jowett and Hustler. The originals were offered. Mr. Dobson testifies that W. Pollard, before whom they were sworn and taken, is a justice of the peace for Bradford; that he, Dobson, was present when the depositions were taken; that they are the originals; that they were sworn to by Jowett and Hustler severally; that two checks were produced to Jowett at the time, to which he referred in his deposition, as originals, (the witness producing copies of them, compared by himself, which are part of the case;) and that the indorsements were on the checks when they were presented to Jowett in court. Mr. Dobson also testifies that he has been attached for 12 years to the police force of Bradford; that he is familiar with the ordinary course of criminal procedure in England for the apprehension of offenders; that the said depositions would be used and received in evidence before the magistrates at Brad
Upon the contents of said depositions, and on the oral testimony given here before the commissioner, there was legal, and competent evidence of facts before him. for him to consider in making up his decision as to the criminality of the accused. On all the points bearing on the criminality of the relator, testimony legally admissible contains materials for a decision by the commissioner on the question of fact as to whether there was before him such evidence of criminality as the treaty requires. The commissioner having decided such question of fact, his decision cannot be reviewed by this court on habeas corpus. In re Stupp, 12 Blatchf. C. C. R. 501; In re Vandervelpen, 14 Blatchf, C. C. R. 137; In re Wiegand, Id. 370; In re Wahl, 15 Blatchf. C. C. R. 334. The writs must be discharged and the relator be remanded to the custody of the marshal.