30 F. 57 | U.S. Circuit Court for the District of Southern New York | 1887
Upon the complaint of the consul general of Great Britain at this port, ttie relator was arrested upon a charge of forgery, alleged to have been committed at Calcutta in April, 1888,' and brought before Commissioner Odborn in proceedings for extradition under article 30 of the treaty of August 9, 1842. Having been held by the commissioner, the relator lias been brought before the court on habeas corpus, together with the proceedings under a writ of certiorari.
Article 10 of the treaty with Groat Britain (8 St. at Largo, -576) provides that tlie persons charged are to be delivered up, “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
The identity of the prisoner is in this case established by the testimony of the officer who came from Calcutta with the Avarrant, and with the other papers designed to sustain the charge. These papers embrace the original warrant, dated August 11, 1886, signed by the chief presidency magistrate of Calcutta, and bearing the seal of that court. The only evidence of criminality, hoAvever, is found in the copies of numerous depositions AA'hich Avere taken before the presidency magistrate at Calcutta in September, 1884, and in August, 1886. No originals are produced. The only question necessary for me to consider is the competency of these copies as evidence of criminality.
By the very terms of the treaty just quoted, the evidence of criminality must be such as, according to the law of the place where the fugitive is found, Avould justify his apprehension and commitment. The competency of the evidence must therefore be judged Avholly according, to our own law, (1 Greenl. Ev. §522;) and this must be either according to such rules of evidence as congress may have prescribed, or, in the absence of such provisions, and in so far as they may be inapplicable, according to the rules of the common law.
It is not contended that by the common-law rules of evidence mere copies of ex parte depositions, taken before a foreign criminal magistrate, though attested by the clerk of his court, would here be competent evidence of criminality. Betts, J., in the Case of Kaine, 10 N. Y. Leg. Obs. 257, 268, says expressly that such copies, though they were there attested by the clerk and by the oath of the witness producing them, Avere “not competent proof at common Law,” though he held them sufficient under the act of 1848. See, also, In re Kaine, 14 How. 103, 115, 116, 144, 146, and 3 Blatchf. 1. Where the ultimate fact to be proved is merely the existence of a foreign record, such, for instance, as the fact of a foreign judgment in a suit brought upon that judgment, a properly attested or authenticated copy is admissible. Greenl. Ev. 514, 527, 538, 552. Here the ultimate fact is the criminality of the accused. The original depositions are only evidence tending to sIioav criminality, and the attested copies presented áre only evidence of evidence.
The statutes of a foreign country relating to the sufficiency of evidence in extradition proceedings within its own dominions, such as the statutes of 33 & 34 Viet. c. 52, §§ 14, 15, (L. E. 5 St. 292,) have no relevancy, except in so far as the laws of our own country may make them
Various provisions have been enacted by congress, from time to timo, touching tiie papers and documents, or copies thereof, which may be received as evidence of criminality. . As respects copies, it was provided by tbe act of August 12, 3818, (9 St. at Largo, 302, § 2,) that “copies of tbe depositions upon which an original warrant in any such foreign country may have been graniod, certified under the hand of the person or persons issuing»such warrant, and attested upon the oath of the party producing them to he true copies of the original depositions, may ho received in evidence of the criminality of tiie person so apprehended.” By the act of June 22, 1800, (12 St. at Large, 84,) it was provided that any “depositions, warrants, and other papers, or copies thereof, shall be admitted for the purposes mentioned in said section, [i. e., as evidence of criminality,] if they shall bo properly and legally authenticated so as to entitle them to bo received for similar purposes [i. e., as evidence of criminality] by the tribunals of the foreign country from which the accused party shall have escaped.” By the act of June 3 9, 187(>, (3 9 St. at Largo, f>9,) it was provided (1) that any “depositions, warrants, or other papers shall ho admitted if properly and legally authenticated so as to entitle thorn to he received as evidence of the criminality of the person so apprehended'by the tribunals of the foreign country from which he escaped;” and (2) that “copies ofány such depositions, warrants, or other papers shall, if authenticated according to the law of such foreign country, ho in like manner received as evidence.” By section 5 of the act of August 8, 1882, (22 St. at Large, 216,) the act of I860 is in substance restored, and it is enacted that any “ depositions, warrants, or other papers, or copies thereof, shall be received and admitted as evidence on such hearing, for all the purposes of such hearing, if they shall be 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 tiie certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that any deposition, warrant, or other paper, or copies thereof, so offered, are authenticated in tbe manner required by tills act.” Hiere is no other provision for the admission of copies. By section 6 of the act last named, prior statutes, so far as inconsistent with that act, were repealed.
The term “similar purposes” must receive the same construction in the last-named act as in prior acts. By its context it naturally refers to the words in the previous lino, “for all the purposes of such hearing;” that is, to proof of criminality, which is tbe purpose of the hearing. The same construction liad been given to similar words in prior statutes. In re Farez, 7 Blatchf. 345, 353; In re Henrich, 5 Blatchf. 414, 425. The act of 1876 made different provisions as respects original depositions,
The Case of Henrich, 5 Blatchf. 414, 425, arose under the act of 1860, and was very carefully considered. The opinion delivered by Shipman, J., was concurred in by Mr. Justice Nelson and by Blatchford, J. It was there said, (page 425:)
“Each piece of the documentary evidence offered by the agents of the foreign government in support of the charge of criminality should be accompanied by a certificate of the principal diplomatic or consular officer of the United States resident in the foreign country from which the fugitive shall have escaped, stating clearly that it is properly and legally authenticated, so as to entitle it to be received in evidence in support of the same criminal charge by the tribunals of such foreign country.”
Under none of the previous statutes could the copies of the depositions in the present case be admitted,.for the reason that these copies are not “certified under the hand of the person issuing such warrant,” — that is, under the hand of the presidency magistrate, — even if these provisions could be deemed now in force. As attested copies are not competent merely upon the common-law rules of evidence, the ease as against the accused must stand upon the provisions of section 5 of the act of August 3, 1882. Under that act, as under the act of 1860, the prosecution may rely upon the certificate of the diplomatic or consular officer, which, if in conformity with the statute, is of itself absolute proof that the papers so certified are receivable in the foreign country in proof of criminality. But, if that certificate be not conformable to the act of congress, resort may then be had under the former part of the fifth section to any oral or other proof that is competent to show that the copies presented are so authenticated as to entitle them to be received as evidence of criminality in a proceeding for commitment or transportation for trial in the foreign country from which the accused party shall have escaped. In re Fowler, 18 Blatchf. 430, 437, 438, 4 Fed. Rep. 303; In re Wadge, 15 Fed. Rep. 864, affirmed on appeal, 16 Fed. Rep. 332, 21 Blatchf. 300. The foreign law in the latter case must be proved as a fact. No oral proof of this kind has been submitted; nor, so far as the general law of Great Britain or the local British law of India has been ascertained by reference to books, has it been found that mere copies of original depositions taken before a.
If, for instance, the prisoner had been found in London, and proceedings were had there upon this original warrant from Calcutta, for the purpose of his commitment and transportation to Calcutta for trial, it is provided by tlie statute of 6 & 7 Viet, that, upon such an arrest in London, and on his being brought before a criminal magistrate there, “such evidence of criminality must be there produced as would justify committal if the ofíense bad been there committed,” (section 3:) “ provided, always, that in every such case copies of the depositions upon which the original warrant was 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,” (section 4.) Our statute of 1848 above cited was manifestly framed upon the statute of 6 & 7 Viet. The language is nearly identical in each. From this it is clear that, unless there be some later statutes that I have not found, the attested copies in this case could not have been received if this proceeding had been in London; nor could tbo prisoner have been committed for transportation, because the attested copies are not certified under the hand of the presidency magistrate who issued the original warrant.
The case must stand, therefore, upon the certificate of the consul alone. That certificate is very full in many respects. All that relates to the certified copies, however, is in the following words:
“And I certify that all and every the certified copies hereunto attached are properly and legally authenticated and certified according to tlie law in force in British India, so as to enable them to be used in evidence and as proof that tlie originals were duly received in evidence by the said Gilbert Stuart Henderson, Esquire, and the said Frederick Johk Marsden, Esquire, respectively in-proof of the criminality of the said liobert Bruce MePhun named therein, in respect of tlie said charges of forgery, uttering, and cheating.”
Had the foregoing certificate omitted all that follows the words “used in evidence,” and added only “for similar purposes,” that, with the context, must have been held sufficient, as in the Case of Wadge, supra. But, upon repeated consideration, I find myself unable to construe what follows the words “ used in evidence” as intended otherwise (han as a definition of the purposes for which the copies might ho received, namely, as evidence that certain originals wore on file, which originals liad been duly received in evidence by the magistrates at Calcutta as proof of criminality. That is manifestly quite a different thing from what our siatute requires. The certificate amounts to no more than what would be the force of tlie copies as evidence at common law; namely, that such depositions existed at Calcutta, which might be used as evidence as against the parties who made the depositions, perhaps, though not competent evidence of the criminality of the accused. 1 Greenl. Ev. 533, 538, 539. The
It cannot be justly claimed that there is anything unreasonable in the act of congress, or in the construction hero given to the certificate of the consul, which requires, as a condition of the receipt of copies of depositions as evidence of criminality here, that the copies should be legally receivable in evidence as proof of criminality within the kingdom from which the accused has escaped. If such copies were receivable here, although they were not competent evidence of criminality in the foreign country, the effect would be that persons would be committed and extradited to distant lands upon proof which -was there incompetent. Nor can there be any practical difficulty in obtaining the magistrate’s certificate to original depositions taken by him; and then such copies, so attested and certified, could be received here on the proper certificate of the consul, or on proof of the British law as found in the 6 & 7 Viet., above quoted.
The act of congress of 1876 may possibly have permitted foy a time the introduction of copies on less proof, because the authentication required as to copies did not expressly require that the copies should be competent evidence abroad; but the act of 1882, as stated above, has placed both originals and copies under the same restrictions, and has provided, in effect, that they are not to be receivable here unless they would be receivable in the foreign country as proof of criminality, or are certified to have that effect.
There has long been a practice, where an original warrant, upon competent original proof, has been issued by the magistrate where the offense was committed, to transmit the warrant to some other district where the accused may be found, and to procure his arrest there under the original warrant upon the indorsement and allowance thereof by the local magistrate, under which the prisoner is thereupon removed to the place of trial. In such cases there may or may not be further inquiry concerning the criminality of the accused in the place -where he is found and arrested. See 1 Chit. Crim. Law, 75, 82, 88, 89. Various stat-
If there were reasonable grounds to suppose that the imperfection of the consul’s certificate hr this case had arisen from inadvertence, or from a misunderstanding of the intention of the act of congress that the copies must be certified to be competent evidence of criminality, the court would remit the proceedings to the commissioner for a further hearing, if it also appeared that by the general English law', or by that of British India, copies of depositions attested in this manner were in fact competent proof of criminality; for other proof of this fact might supply the defects of the consul’s certificate. But though inquiries have been made by the court from the first concerning the British law in this respect, nothing has been cited from the text-books, statutes, or reports that goes to show that there is any such law or practice within the British dominions as would make these copies evidence of criminality. The prisoner must therefore bo discharged.