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(187 U. S. 181) As there is no evidence in the case as to the

SIMEON I. GRIN, Appt, practical operation of this regulation upon

o. shippers of cattle, as it does not appear

JOHN H. SHINE. ntherwise than that the statute can

be obeyed without serious embarrassment or Eatradition—jurisdiction of United States unreasonable cost, the court cannot assume

commissioner special designation arbitrarily that the state acted wholly

warrant of arrest-embezzlement-suffin without authority or that it unduly bur. ciency of complaint-evidence-prelimi dened the exercise of the privilege of en

nary requisition. gaging in interstate commerce.

The accused seems to have been content to rest his 1. A United States commissioner was not with defense upon such grounds as arose upon out jurisdiction over extradition proceedings the face of the local statute, without refer.

because at the time the warrant of arrest was ence to any evidence bearing upon the rea

Issued he had not been specially designated sonableness or unreasonableness of the par.

to act in such proceedings, as required by

U. S. Rev. Stat. $ 5270 (U. S. Comp. Stat ticular methods adopted by the state to pro- 1901, p. 3591), where he did not assume to tect its domestic animals. He seems to act therein until after he was so speclally have been willing to risk the case upon the designated. simple proposition-based upon the words 2. A complaint in extradition proceedings of the state enactment and upon the act of

to before a United States commis Congress, reinforced by certain regulations

sloner authorized generally to take affidavits,

but not specially designated to act in exmade by the Agricultural Department- tradition proceedings, is suficient under 0. that the local statute was inconsistent with 8. Rev. Stat. § 5270 (U. S. Comp. Stat. 1901, that act, and with the general power of Con- p. 3591), which only requires that the war. gress to regulate interstate commerce.

rant of arrest in such proceedings shall Is. As, therefore, the statute does not forbid

sue upon complaint made under oath. the introduction into the state of all live 3. The objection that the judge issuing the

warrant of arrest In extradition proceedings stock coming from the defined territory,–

made the warrant returnable before a that diseased as well as that not diseased, Unlted States commissioner specially desig. but only prescribes certain methods to pro- nated, as requlred by U. S. Rev. Stat. § 5270 tect the domestic animals of Colorado from (U. S. Comp. Stat. 1901, p. 3591), to act ID contact with live stock coming from that

such cases, is not available when first made territory between certain dates, and as those

on habeas corpus, even though such section

seems techuically to require the warrant to methods have been devised by the state un. be made returnable before the magistrate lo der the power to protect the property of its suing it. people from injury, and do not appear upon 4. A complaint in extradition proceedings does their face to be unreasonable, we must, in

not insufficiently charge the crime of embezthe absence of evidence showing the con.

zlement, as defined in Cal. Pen. Code, $ 508,

because it alleges that the money embezzled trary, assume that they are appropriate to

was intrusted to and received by the accused the object which the state is entitled to ac- "in his capacity as clerk," instead of charge complish.

ing, in the language of that section, that One other objection to the Colorado stat- such money came into his control or caro ute must be noticed, namely, that it is in.

"by virtue of his employment as such clerk." consistent with the clause of the Constitu- 5. The omission of the word “fraudulently" tion declaring that the citizens of each state

from a complaint in extradition proceedings

charging embezzlement does not render such shall be entitled to all privileges and immu

complaint defective, where it alleges that the nities of citizens in the several states. This accused "wrongfully, unlawfully, and fel position is untenable. The statute is equal. onlously" appropriated the property. ly applicable to citizens of all the states. 6. The production of a certified copy of an orNo discrimination is shown. No privileges

der purporting to be signed and sealed by are granted to citizens of Colorado that are

Russian examining magistrate, which,

though not in the form of a warrant of ar. denied* to citizens of other states. Kim

rest as used in the United States, was evl. mish v. Ball, 129 U. S. 217, 222, 32 L. ed. dently designed to secure the apprehension 695, 697, 2 Inters. Com. Rep. 407, 9 Sup. of the accused and his production before an Ct. Rep. 277.

examining magistrate, satisfies the requlre The principle is universal that legisla

ment of the extradition treaty with Russia

of June 3, 1893 (28 Stat. at L. 1071), that tion, whether by Congress or by a state,

applications for extradition shall be accommust be taken to be valid, unless the con

panied by an authenticated copy of the war. trary is made clearly to appear; and as the rant of arrest, or of some other equivalent contrary does not so appear, the statute of judicial document issued by a judge or mas Colorado is to be taken as a constitutional

istrate duly authorized to do so. exercise of the power of the state.

7. Congress has dispensed with the require

ment of the extradition treaty with Russla Perceiving no error in the judgment to

of June 5, 1893 (28 Stat. at L. 1071) with the prejudice of the plaintiff under the Con- respect to the production of a copy of a war stitution of the United States, tho judgment rant of arrest, or other equivalent documeat is affirmed

Issued by a magistrate of the Russian Empire, by S. Rev. Stat. § 5270 (U. S. Comp

Stat. 1901, p. 3591), which is applicable to Mr. Justice Brewer dissented from the

all forelga governments with which extra opinion and judgment of the courte

dition treatles have been considered and

а

simply requires a complaint onder oath, a plaint of Paul Kosakevitch, Russian consul warrant of arrest, evidence of criminallts at the city of San Francisco, stating, in sufficient to sustain the charge under the substance, that on March 6, 1901, Grin, as provisions of the proper treaty, and a cer: Cossack of the Don and a Russian subject, * tifcate by the magistrate of such evidence and his conclusions thereon, to the Secre in the employment of the firm of E. L. Zeefo tary of State.

& Co., doing business in the city of Rostov, 8. Whether the depositions and other docu- on the river Don, in the Empire of Russia,

ments offered under the act of August 3, cmbezzled the sum of 25,000 roubles, "in1882, 1 5 22 Stat. at L. 216, chap. 378, u trusted to and received by” him in his capac8. Comp. Stat. 1901, p. 3595), governing evl-|ity as "clerk” of such firm, and that he had dence in extradition cases, sufficiently es- subsequently absconded and taken refuge in tablish the criminality of the accused for the San Francisco; that he had been indicted in purposes of extradition cannot be reviewed Russia for the embezzlement of the money,

upon habeas corpus. 9. The certificate of the ambassador to Russia. Department of State in Washington direct

and that a mandate had been issued by the fered in evidence in an extradition case “are ing the necessary proceedings to be had in properly and legally authenticated so as to pursuance of the laws of the United States, entitle them to be received and admitted as in order that the evidence of his criminal. evidence for similar purposes by the trl-ity might be heard and considered. The bunals of Russia," which, except for the incomplaint was sworn to before George E. troduction of the words “as evidence," Is in Morse, United States commissioner, with the language of the act of August 3, 1882, the usual power to take affidavits, but not 15 (22 stat. at L. 218, chap: 378;. S. specially authorized by any court of the Comp. Stat. 1901, p. 3595), by which the United States to take proceedings in extra. proceeding is governed, is not defective be

cause of the addition of these words. dition; that upon such complaint the judge 10. No evidence is required in extradition pro of the district court for the northern dis

ceedings, that the consul of the foreign gov.trict of California issued a warrant of arrest, ernment who made the complaint had au. and directed that petitioner, when arrested, thority to do so, since all that is required by should be brought before E. H. Heacock, 0. s. Rev. Stat. & 5270 (U. 8. Comp. Stat. Esquire, United States commissioner, for 1901, p. 3591), is that such complaint be examination and further proceedings; that, made under oath.

at the time such warrant was issued, Heau. No preliminary requisition from the de cock was not authorized to take jurisdicmanding government is essential to the Jution of extradition proceedings, and that risdiction of a United States commissioner, the evidence before hím failed to show that under U. S. Rev. Stat. § 5270 (U. S. Comp. Stat. 1901, p. 3591), over extradition pro the petitioner had crimmitted the crime of ceedings.

embezzlement. 12. A sufficient showing that one accused, in

Several other defects in the extradition extradition proceedings, of the crime of em- proceedings are set forth in the petition, bezzlement, had the care and control of the and so far as they are deemed material, approperty within the meaning of Cal. Pen. pear hereafter in the opinion. Code, $ 508, defining that crime, is made by

Upon a hearing upon this petition the cira complaint which charges him with having cuit court made an order remanding the pe converted to bls own use the proceeds of a check after having cashed it at a bank to titioner to the custody of the marshal, and

to this wblch he had taken it in accordance with an appeal was thereupon taken his employer's Instructions to draw

Re Grin, 112 Fed. 790. money and take it to a railroad station, to be forwarded to anotber city.

Mr. George D. Collins for appellant.

Messrs. H. G. Platt and Richard (No. 303.)

Bayne for the Russian Government. Submitted November 3, 1902. Decided Mr. Justice Brown delivered the opin. December 1, 1902.

ion of the court:

We shall only notice such alleged defects

the court.

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United States for the Northern District pressed upon our attention in the briefs of of California to review a judgment dismiss-counsel. While these defects are of a teching a writ of habeas corpus. Affirmed. nical character, they are certainly entitled See same case below, 112 Fed. 790. to respectful and deliberate consideration.

Good 'faith toward foreign powers, with Statement by Mr. Justice Brown: which we have entered into treaties of ex

This was an appeal from a judgment of tradition, does not require us to surrender the circuit court for the northern district persons charged with crime in violation of of California, dismissing a writ of habeas those well-settled principles of criminal corpus sued out by Grin, and remanding procedure which from time immemorial him to the custody of the defendant, mar. have characterized Anglo-Saxon jurisprushal for the northern district of California, dence. Persons charged with crime in forwho held him under a mittimus issued by eign countries, who have taken refuge here, a commissioner in cer in proceedings un- are entitled to the same defenses as others der a treaty with the Emperor of Russia for accused of crime within our own jurisdio the extradition of criminals, proclaimed tion. June 5, 1893. 28 Stat. at L. 1071.

We are not prepared, however, to yield These proceedings were begun by a com-'our assent to the suggestion that treaties

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of extradition are invasions of the right of jurisdiction of any such foreign governpolitical habitation within our territory, or ment any of the crimes provided for by that every intendment in proceedings to such treaty or convention, issue his warrant carry out these treaties shall be in favor of for the apprehension of the person the party accused. Such treaties are rather charged, that he may be brought before such exceptions to the general right of political justice, judge, or commissioner, to the end asylum, and an extension of our immigra- that the evidence of criminality may be tion laws prohibiting the introduction of heard and considered. If, on such hearing, persons convicted of crimes (18 Stat. at he deems the evidence sufficient to sustain L 477 [chap. 141, U. S. Comp. Stat 1901, the charge under the provisions of the P: 1285]), by providing for their deporta proper treaty or convention, he shall cer. tion and return to their own country, even tify the same, together with a copy of all before conviction, when their surrender is the testimony taken before him, to the Secdemanded in the interests of public justice. retary of State, that a warrant may issue There is such a general acknowledgment of upon the requisition of the proper authorithe necessity of such treaties that of late, ties of such foreign government, for the sur. and since the facilities for the escape of render of such person, according to the stip.com criminals have so greatly increased, 'most ulations of the treaty or* convention; and civilized powers have entered into conven- he shall issue his warrant for the committions for the mutual surrender of persons ment of the person so charged to the proper charged with the most serious nonpolitical jail, there to remain until such surrender crimes. These treaties should be faithfully shall be made.” observed, and interpreted with a view to Under this section it is plain, first, that fulfil our just obligations to other powers, the commissioner must be specially authorwithout sacrificing the legal or constitu-ized to act in extradition cases; second, that tional rights of the accused.

a complaint must be made under oath In the construction and carrying out of charging the crime; third, that a warrant Buch treaties the ordinary technicalities of must issue for the apprehension of the per. criminal proceedings are applicable only to son; fourth, that he must be brought before a limited extent. Foreign powers are not such justice, judge, or commissioner to the expected to be versed in the niceties of our end that the evidence of criminality may be criminal laws, and proceedings for a surren. heard and considered; fifth, that the comder are not such as put in issue the life or missioner shall certify the evidence to the liberty of the accused. They simply de Secretary of State, that a warrant may ismand of him that he shall do what all good que for the surrender. There is certainly citizens are required, and ought to be will. no requirement here that the commissioner ing to do, viz., submit themselves to the shall be authorized to act before he assumes laws of their country. Care should doubt. to act, and in this case there is no evidence less be taken that the treaty be not made a that he assumed to act until after October pretext for collecting private debts, wreak 17, 1901, when he was specially appointed ing individual malice, or forcing the sur. for that purpose. The day upon which the render of political offenders; but where the petitioner was brought before the commis. proceeding is manifestly taken in good sioner, Heacock, does not appear, but his faith, a technical noncompliance with some commitment is dated November 19, 1901. formality of criminal procedure should not The warrant upon which he was arrested be allowed to stand in the way of a faithful was issued October 17, the day upon which discharge of our obligations. Presumably the commissioner was specially authorized at least, no injustice is contemplated, and to act. a proceeding which may have the effect of It is true that a warrant of arrest can relieving the country from the presence of only issue under $ 5270 (U. S. Comp. State one who is likely to threaten the peace and 1901, p. 3591), upon a complaint made ungood order of the community is rather to be der oath; but there is no requirement that welcomed than discouraged.

the oath shall be taken before a commis. 1. The first assignment of error is that sioner authorized to act in extradition prothe commissioner had no jurisdiction over ceedings, or even before the judge or comthe case, inasmuch as at the time the war- missioner who issues the warrant of arreste rant of arrest was issued he had not been While we are bound to give the person ao authorized to act in extradition proceedings cused the benefit of every statutory proviby any of the courts of the United States sion, we are not bound to import words into under Rev. Stat. $ 5270 (U. S. Comp. Stat. the statute which are not found there, or to 1901, p. 3591), which reads as follows: say that the judge issuing the warrant may

“Sec. 5270. Whenever there is a treaty not receive an oath taken before a commisor convention for extradition between the sioner authorized generally to take affidagovernment of the United States and any vits. There is no evidence that Mr. Morse, foreign government, any justice of the Su- who took this complaint, was not a United preme Court, circuit judge, district judge, States commissioner appointed under the commissioner, authorized so to do by any act of May 28, 1896 (29 Stat. at L. 184 of the courts of the United States, or judge [chap. 232, U. S. Comp. Stat. 1901, p. 499]), of a court of record of general jurisdiction and the fact that he signs his name as such, of any state, may, upon complaint made un- and that he was recognized as such by the der oath, charging any person found within circuit court in this proceeding, is sufiithe limits of any state, district, or terri- cient evidence of his authority. It is true tory with having committed within the the district judge, who issued this warrant

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of arrest, might himself have administered Com. v. Pindar, 11 Mete 639; Com. v. the oath, but he was equally at liberty *to Roark, 8 Cush. 210; Com. v. Wolcott, 110 act upon a complaint sworn to before a Mass. 67; Hendee v. Taylor, 29 Conn. 448. United States commissioner.

No objection seems to have been taken to 2. Nor did the district judge, who is the proceedings before the commissioner upsued the warrant, exceed his powers in on the ground that he did not issue the making it returnable before a commis- warrant, and as he was fully vested with sioner, who upon the same day was spe authority to act in extradition cases we do cially designated to act in extradition pro not think the fact that the judge, for the ceedings. It is true that the statute pro- convenient despatch of business, made his vides (8 5270 (U. S. Comp. Stat. 1901, p. warrant returnable before such commis3591]), that the person before whom the sioner can be made available upon a writ of complaint is made may “issue his warrant habeas corpus. for the apprehension of the person so 3. The eighth assignment of error turns charged, that he may be brought before upon the sufficiency of the charge of embezsuch justice, judge, or commissioner to the zlement. The first article of the extradi. end that the evidence of criminality may be tion treaty with Russia of June 5, 1893 (28 heard and considered;" but the practice in Stat. at L. 1071), after providing for the this as in other proceedings of a criminal or mutual surrender of fugitive criminals from quasi criminal nature has been to make the one country to another, declares that “this warrant returnable before the magistrate shall only be done upon such evidence of issuing the warrant, or some other magis- criminality as, according to the laws of the trato competent to take jurisdiction of the place where the fugitive or person proceedings. In the Heinrich Case, 5 charged shall be found, would justify his or Blatchf. 414, Fed. Cas. No. 6,369, the com- her apprehension and commitment for trial, plaint

made before Commissioner if the crime or offense had been there comWhite, was laid before Mr. Justice Nelson mitted.” We do not deem it necessary to of this court, who issued his warrant re inquire whether the words "evidence of turnable before himself or Commissioner criminality” include a definition of the White. No objection was made to the pro- crime charged or to determine by what law ceedings for this reason, though the case the elements of the crime of embezzlement

vigorously contested upon other are fixed. Moore, Extradition, § 344. As grounds. notably because the warrant was the petitioner has sought to apply the defi. executed without the limits of the district, nition of embezzlement given in the law of and within the state of Wisconsin. The California as likely to be most favorable to fact that the point was not made in tLe case himself, and the prosecution has assented to certainly indicates that it was not cunsid- this view, we assume for the purposes of ered by counsel to be even a plausible this case that this is the definition contemground for quashing the proceedings. plated by the treaty.

The commissioner is in fact an adjunct Section 508 of the Penal Code of Califor. of the court, possessing independent, though nia is as follows: subordinate, judicial powers of his own. 11 | *“Every clerk, agent, or servant of any the district judge, acting under $ 5270 (U. person who fraudulently appropriates to his 8. Comp. Stat. 1961, p. 3591), had made the own use, or secretes with a fraudulent inwarrant returnable before himself, there tent to appropriate to his own use, any could be no doubt of its legality; and in property of another which has come into such case, upon the return of the warrant his control or care by virtue of his employ. with the prisoner in custody, he might rement as such clerk, agent, or servant, is fer the case to the commissioner to examine guilty of embezzlement." the witnesses, hear the case, and report his Objection is made to the complaint upon conclusions to the court for its approval. the ground that there is no allegation that If he could do that, we see no objection to the money embezzled came into his control bis referring the case directly to the commis. or care "by virtue of his employment” as sioner by making the warrant returnable be such clerk, the allegation being that Grin fore him, inasmuch as the latter possesses was employed as clerk; that while so em. the same power with respect to the extradi- ployed the money was intrusted to and retion of criminals as the district judge him-ceived by him “in his capacity as clerk," as self. It may be said that technically the aforesaid. Whatever might be the force of warrant should be made* returnable before an objection to an indictment that it does the magistrate issuing it, but where it is not set out in the exact language of the made returnable before another officer, have statute the fact that the money came into ing the same power and jurisdiction to act, his possession by virtue of his employment, we do not think it is fairly open to criti. we think that the complaint in this particcism.

ular is clearly sufficient. It is a general This practice is by no means unknown principle of criminal law that the complaint under the criminal laws of the several need not set forth the crime with the par. states. Thus, in Com. v. O'Connell, 8 Gray, ticularity of an indictment, and that it is 464, it was held that a mere grant of "ex. sufficient, if it fairly apprises the party of clusive jurisdiction” to a police court over the crime of which he is charged. If there certain offenses did not exclude the author. be any distinction at all between an allega. ity of justices of the peace to receive com- tion that money came into the possession plaints and issue warrants returnable be of a person by virtue of his employment as fore that court. To the same effect are' clerk, and in his capacity as clerk, it is too

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.188

•190

SO.

shadowy to be made a matter of exception | hiding under a false name, and, as is seen to the complaint.

from his letters, is looking out for means 4. Equally unfounded is it that the com- to prevent his arrest and the finding out of plaint is defective because it does not use his address by the authorities, his temporal The word “fraudulently,” the allegation be place of residence being known at present, ing "that the accused wrongfully, unlaw. pursuant to art. 389 of the Criminal Code fully, and feloniously, appropriated said of Procedure, “he is ordered to be brought money.” As the word "embezzled” itself to the city of Rostov on the Don, in order implies fraudulent conduct on the part of to be placed at the disposition of the exam. the person receiving the money, the addition ining magistrate of the Taganrog circuit of the word "fraudulent” would not en court.” This order purports, not only to be large or restrict its signification. Indeed, it signed, but sealed, by the examining magis. is impossible for a person to embezzle trate Okladnykh, and while it is not in the the money of another without committing a form of a warrant of arrest as used in this fraud upon him. The definition of the country, it is evidently designed to secure word "embezzlement” is given by Bouvier as the apprehension of the accused, and his “the fraudulent appropriation to one's own production before an examining magistrate. use of the money or goods intrusted to one's This seems to us a sufficient compliance care by another.” In San Francisco V. with the treaty. If not a warrant of arrest Randair

, 54 Cal. 408, a complaint that de- it is an equivalent judicial document, issued fendant did "wilfully, unlawfully, and felo by a judge or magistrate authorized to do niously embezzle and convert" certain se curities to his own use, was held to be a But there is another consideration in this sufficient compliance with § 1426 of the connection which should not be overlooked. Penal Code, requiring the offense charged to While the treaty contemplates the produc. be set forth "with such particulars of time, tion of a copy of a warrant of arrest or place, person, and property as to enable the other equivalent document, issued by a defendant to understand distinctly the magistrate of the Russian Empire, it is character of the offense complained of, and within the power of Congress to dispense to answer the complaint.”. The complaint with this requirement, and we think it has in this case differs from that only in the done so by Rev. Stat. § 5270 (U. S. Comp. substitution of the word "wrongfully" for Stat. 1901, p. 3591), hereinbefore cited. the word "wilfully," and we think it is the treaty is undoubtedly obligatory upon clearly sufficient. As the word “embezzle" both powers, and, if Congress should preimplies a fraudulent intent, the addition of scribe additional formalities than those rethe word “fraudulently" is mere surplus- quired by the treaty, it might become the age. Reeves v. State, 95 Ala. 31, 11 So. subject of complaint by the Russian govern158; United States v. Lancaster, 2 McLean, ment and of further negotiations. But not 431, Fed. Cas. No. 15,556; State v. Wolff, withstanding such treaty, Congress has 34 La. Ann. 1153; State v. Trolson, 21 Nev. perfect right to provide for the extradition 419, 32 Pac. 930; State v. Combs, 47 Kan. of criminals in its own way, with or with136, 27 Pac. 818. We express no opinion out a treaty to that effect, and to declare as to whether it would be necessary in an that foreign criminals shall be surrendered indictment

upon such proofs of criminality as it may 5. It is further insisted that the treaty judge sufficient. Castro v. De Uriarte, 18 requires an authenticated copy of the war. Fed. 93. This appears to have been the obrant of arrest or of some other equivalent ject of $ 5270 (U. S. Comp. Stat. 1901, p. judicial document, issued by a judge or 3591), which is applicable to all foreign magistrate of the foreign government duly governments with which we have treaties authorized so to do, and that there is no of extradition. The requirements of that such process in the record as a warrant of section, as already observed, are simply a arrest or its equivalent. It is true that complaint under oath, a warrant of arrest, art. 6 of the treaty provides that "when the evidence of criminality sufficient to sustain person whose surrender is asked shall be the charge under the provisions of the propmerely charged with the commission of an er treaty or convention, a certificate by the extraditable crime or offense, the applica- magistrate of such evidence and his contion for extradition shall be accompanied by clusions thereon, to the Secretary of an authenticated copy of the warrant of ar- State. As no mention is here made of a rest or of some other equivalent judicial warrant of arrest, or other equivalent docdocument, issued by a judge or a magistrate ument, issued by a foreign magistrate, wea duly authorized to do so.” But it can do not see the necessity of its production. hardly be expected of us that we should be. This is one of the requirements of the treaty* come conversant with the criminal laws of which Congress has intentionally waived. Russia, or with the forms of warrants of Moore, Extradition, $ 70. arrest used for the apprehension of crimi- 6. Again, it is alleged that although the nals. The clause is satisfied by the produc-complaint sets forth that criminal proceed. tion of an equivalent document. On exam ings have been instituted in Russia, and ination of the record we find a certified copy that Grin had been therein "indicted” for of an order by one purporting to act as an embezzleme no indictment has ever been examining magistrate, and reciting that found, and that no other evidence of crimi. "having investigated the preliminary exam- nality can be received. It is obvious that ination concerning the accusation of the the word "indictment,” as it appears in this Cossack, Simeon Grin," and that "as he is complaint, was used in the general sense of

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