179 F. 762 | E.D. Pa. | 1910
Three indictments have been found in the District of Columbia charging certain persons with conspiring there to violate the so-called “bucket shop” law of the District,
For present purposes it may be conceded that if the evidence clearly showed that the defendants now before the court did not conspire within the District of Columbia, and also that they did not take part in the overt acts that are charged to have been committed there, they cannot be tried in that jurisdiction. In that event the sixth amendment of the Constitution would be a bar to the removal. But if they did take part in these acts, it is lawful to try them in Washington, although the unlawful agreement may not have been entered into there; for participation may be proved by the evidence of their conduct elsewhere (In re Palliser, 136 U. S. 257, 10 Sup. Ct. 1034, 34 L. Ed. 514), if such conduct was intended to further, and did further, the doing of the overt acts in the District of Columbia. The physical absence of the defendants does not of itself prove that they did' not conspire in the District; neither does it prove of itself that they did not take part in the overt acts that may have been committed there. It is merely evidence on these questions, and, while it is evidence in favor of the defendants, it is by no means conclusive. In spite of it, the result of all the testimony may justify the commissioner’s finding. And this, I think, is what the evidence taken as a whole does show — that probable cause for the removal exists. The prima facie case made out by the indictments has not been overcome, so as to enable me to say with the required certainty that the defendants have committed no offense for which they can lawfully be put on trial in the District of Columbia. In an admirable and exhaustive argument, the defendants’ counsel relies on two legal propositions to prevent the removal. One of them is that a conspirator can only be tried in one of two places— either where the unlawful agreement was in fact made, or in a jurisdiction where he himself took part in some overt act that was done in furtherance of such agreement. For the reason already stated, this proposition need not be controverted; but, assuming it to be sound, it is my opinion that probable cause has been shown for the commissioner’s finding that the defendants did take part in the overt acts that were done in the city of Washington. This is sufficient to justify their removal to that jurisdiction for trial. Price v. Henkel (decided Feb. 21, 1910) 216 U. S. 488, 30 Sup. Ct. 257, 54 L. Ed. —, and cases there cited.
The second proposition is that even actually to conspire in the Dis
“ * * * Any construction oí the law which would preclude the extradition to the District of Columbia of offenders who are arrested elsewhere would be attended by such abhorrent consequences that nothing but the- clearest language would authorize such construction. It certainly could never have been intended that persons guilty of offenses against the laws of the. United States should escape punishment simply by crossing the Potomac river, nor, upon the other hand, that this District should become an Alsatia for the refuge of criminals from every part of the country.”
The motion is granted.