206 F. 400 | 6th Cir. | 1913
In September, 1911, there was a bank robbery in New Westminster, British Columbia. . In June, 1912, due complaint was made and warrant issued thereupon by the police magistrate at New Westminster, charging Martin Powell with this crime. The complaint and warrant alleged that he “did break and enter the countinghouse of the Bank of Montreal,” and that the sum of $270-000 found therein he did “then and there steal, contrary to the form of the statute,” etc. In July, 1912, His Britannic Majesty’s vice consul, at Detroit, made complaint before the United States commissioner that Powell was a fugitive from justice on account of this crime. Powell was arrested on the commissioner’s warrant, and after hearing was committed to the custody of the United States marshal to await .the extradition warrant of the Secretary of State. Powell’s petition for a writ of habeas corpus was denied by the District Court, the writ which had been issued was discharged, and Powell was remanded to the custody of the marshal; and Powell appeals. '
Appellant raises three distinct questions: (1) That the commissioner’s warrant was insufficient (a) because contradictory or ambiguous in charging any extraditable crime, and (b) because only o'n information and belief; (2) that there is no evidence sufficiently tending to show Powell’s guilt to authorize his commitment; and (3) that .the commissioner put on Powell the burden of establishing his innocence.
Appellant relies mainly upon the claim that breaking and entering a banking office is not a common-law burglary, and hence that the crime of burglary is not charged. We do not regard it as necessary to determine all the questions to which this inquiry, would lead. The complaint clearly does charge a crime, which is theft or stealing in
3. The evidence- which Powell offered tended to show that he was in the United States at the time of the robbery. The commissioner said:
“The defense in this cause is an alibi. It being a defense on the merits, it should be proved on the trial in the state where the crime is charged to have been committed. Evidence, however strong, the practical effect of which is to set up nothing more than a defense of alibi, raises an issue that can only be tried by the conrt having the exclusive jurisdiction to convict or acquit of crime. Any other rule would tend, in many cases, to defeat the salutary purpose of the constitutional provisions and the law intended to give it operation. This being so, I must certify these proceedings to the Secretary of State.”
From these considerations, it follows that the order of the District Court, discharging- the writ of habeas corpus and remanding Powell, must be affirmed.