28 F. Cas. 411 | S.D.N.Y. | 1845
A complaint under oath having been made before me that one Harry Warr, a British subject, had committed the crime of forging an acceptance to a bill of exchange in England, and had fled from justice, and was on his way, or was in New York, a warrant was granted for his apprehension, and thereupon he was brought before me, to the end that .the evidence of his criminality might be heard and considered. Which having been done, the same is deemed sufficient to sustain the charge, and, according to the laws in force in the district and city of New York, the said evidence is judged sufficient to justify the aprehensión and commitment of said Harry Warr for trial. Which is hereby certified to his excellency, the president of the United States, in pursuance of the 10th article of the treaty signed at Washington, the 9th day of August, 1842. The phraseology of the 10th article of the treaty in question, which bears directly upon the duty and power of the examining magistrate, is but a reiteration of the statute of New York conferring analogous power upon the state executive (1 Rev. St., 2d Ed., p. 149, pt. 1, c. 8, § 10), and was obviously intended to provide for a qualified and limited co-operation with the foreign government in placing fugitive •criminals within the operation of the laws which they had violated, and from which they had fled, at the same time avoiding, while so •doing, a compromise of the spirit of our institutions, and of the penal legislation of the United States and of the states; the substance •of the provision being that if, under the evidence and circumstances, the accused person would be committed for trial if perpetrating the offence here, the same result shall, in effect, take place by handing him over to the authorities of the government whose laws have been violated. The inquiry, therefore, for the examining officer to make is whether the evidence, &e.. would justify the commitment of the accused for trial here, if charged with its commission in New York. The of-fence of forging an acceptance to a bill of exchange, with which the prisoner is charged; would, under the statutes- of New York, constitute the offence of forgery in the first degree, and be punishable by imprisonment in the state prison. 2 Rev. St. (2d Ed.) p. 561, pt. 4, art. 3, § 30.
The examination and commitment of persons charged with offences of this character is provided for by the laws of New York (2 Rev. St. p. 090, c. 11, §§ 12, 140), and would be complied with, to all intents and purposes, under the treaty for the commitment of a foreign fugitive for trial by the testimony of one competent and credible witness, or by the voluntary statement of the prisoner, and from which the magistrate should conclude that the offence had been committed, and probable cause to believe the prisoner to have been guilty thereof.
An officer who came out with a warrant to arrest the prisoner testifies that he had known the accused for fifteen years, and up to the time of his sudden disappearance from the place where the crime was committed; that witness saw the original of a bill, a true copy of which is produced, the existence of the original being voluntarily admitted by the prisoner, who is attended by counsel; that he knew the person who purports to have been the acceptor of the said bill, who declared, under examination on oath, in witness’ presence, that the same was a forgery, and that the ac- ■ ceptance was not in his handwriting, or had he ever authorized any person to sign his name to the said acceptance; that witness knew the handwriting of the said prisoner, and believed, upon inspecting said bill, that the acceptance was a forgery; that the prisoner left, &c. very secretly; that a warrant for his arrest was granted by a magistrate uniting in himself the character of mayor and justice of the peace, and duly authorized to administer oaths; that, the original warrant being produced, the prisoner voluntarily states that the acceptance in question was not made by the party referred to, but he says it was written by a person having authority to sign the acceptor’s name; that it was in his (the prisoner’s) possession, and by him was presented, so accepted, &c. Under 2 Rev. St. p. 592, § 21, this would constitute evidence from which the conclusion may certainly be drawn: (1) That an offence had been committed; (2) that there is probable cause for believing that the prisoner is guilty. The existence of the bill, an acceptance forged, and the prisoner’s connection therewith, appears in a shape as to evidence that would entitle it to be heard upon a trial.
Certified copies of various affidavits were also offered in corroboration of probable cause, but in my judgment these cannot be received as positive evidence under the laws of this place, nor could they in England, according to the rules of the common law. A statute of the United States, indicating this as a mode