15 F. 506 | S.D.N.Y. | 1883
The prisoner having been held by Commissioner Osborn for extradition under the treaty with the Swiss confederation, articles 13,14, (11 St. at Large, 593, 594,) has been brought before me.upon habeas corpus, and the record of the proceedings under a certiorari is also produced. The crime charged is that of embezzlement by Roth, as a public officer, of moneys collected by him as such, from a military tax, in the canton of Berne, Switzerland. The record shows abundant proof of the commission of the offense.
The only other objection which it seems to me neeessary to notice is that, upon the proofs, the crime with which the accused appears to be charged in Switzerland is not a treaty offense. The proofs submitted to the commissioner were largely documentary, showing proceedings against the accused taken in Berne. These documents, with the proofs attached, are all in the German language, and the offense referred to is throughout described by the word “unterschlagung;” the ordinary meaning of which, as testified to before the commissioner, is embezzlement, but which may also mean “fraud” or “breach of trust;” and the facts stated in the documents themselves also show very clearly that the offense was embezzlement of public funds by a public officer, within the language of article 14 of the treaty. The chancellor, however, who certified to the proceedings before the Swiss magistrate, gives his certificate of authentication in the French language, and certifies that the magistrate “was competent to entertain a proceeding of this nature, having for its object le crime d’abus de con-fiance above mentioned.” By the French Code, which is in force in Switzerland, there is a crime designated “d’abus de confíame,” which is embraced in the chapter pertaining to crimes against private persons only; while the embezzlement of public funds is a different
It is contended by the counsel for the accused that the certificate affixed to the documentary proof shows that the proceedings in Switzerland are for the private offense of “d’abus de confiance,” and not for the crime of “soustraction,” etc.; that, therefore, ,the accused cannot be extradited for trial of the former, which is not a treaty offense. An examination of the record shows that the use of this phrase in the certificate was either an inadvertence, or else that it was used in its general sense, and not intended as a technical description of the crime with which the accused was charged; for the papers certified to show clearly that the offense was committed by the accused as a public officer, and in the embezzlement of public moneys, and not the abuse of a private trust; nor does the proof of the treaty offense rest upon these certified documents alone; and it would be unreasonable to hold that the effect of these clear proofs in the documents certified to should be controlled by an inadvertence of this kind in the certificate of authentication. Moreover, it is immaterial what the particular charge made in Switzerland is, inasmuch as it is not essential to extradition that there should have been any previous criminal proceedings instituted there as a prerequisite to the institution of extradition proceedings here.
The same objection seems t¡o have been raised and overruled in the Case of Farez, 7 Blatchf. 346, and in the Case of Herman Thomas, 12 Blatchf.. 370, 380. Even if proceedings upon a lower grade of offense had been instituted in Berne, I do not see how that would prevent a subsequent complaint and requisition here for the extradition of the accused upon a higher offense within the treaty, if such an offense were proved, as has been proved in this case. All that the treaty requires is that a requisition be made “in the name of the respective governments, through the medium of their respective diplomatic or consular agents;” and if the commission of the crime be properly established, as has- been done in this case,, the treaty declares that the accused “shall be delivered up to justice.” There is no condition in the treaty requiring any previous criminal charge in Switzerland; nor can the fact—if it be a fact—that a less offense, not covered by the treaty, has been previously charged there, annul
In the complaint presented to the commissioner in this case the complainant makes oath that he is the consul of the Swiss confederation at this port, duly recognized as such by the president of the United States; and, in conclusion, the complainant, as such consular agent, and “in the name of the Swiss confederation, requests a warrant, etc., for the delivery of said Roth to the authorities of the Swis3 confederation, in accordance with the terms of said treaty.”
All the conditions of the stipulations of the treaty have, • in my opinion, been fully met; and the writ, therefore, should be dismissed, and the prisoner remanded.
See In re Fowler, 4 Fed. Rep. 303; Ex parte Lane, 6 Fed. Rep. 34.