simply requires a complaint under oath, a warrant of arrest, evidence of criminality sufficient to sustain the charge under the provisions of the proper treaty, and a cer

tificate by the magistrate of such evidence

and his conclusions thereon, to the Secretary of State.

plaint of Paul Kosakevitch, Russian consul at the city of San Francisco, stating, ing substance, that on March 6, 1901, Grin, a in the employment of the firm of E. L. Zeefo Cossack of the Don and a Russian subject,' & Co., doing business in the city of Rostov, on the river Don, in the Empire of Russia, embezzled the sum of 25,000 roubles, "intrusted to and received by" him in his capacsubsequently absconded and taken refuge in San Francisco; that he had been indicted in Russia for the embezzlement of the money, Department of State in Washington directand that a mandate had been issued by the ing the necessary proceedings to be had in pursuance of the laws of the United States, in order that the evidence of his criminal.

8. Whether the depositions and other documents offered under the act of August 3, 1882, 5 (22 Stat. at L. 216, chap. 378, U. S. Comp. Stat. 1901, p. 3595), governing evi-ity as "clerk" of such firm, and that he had dence in extradition cases, sufficiently establish the criminality of the accused for the purposes of extradition, cannot be reviewed upon habeas corpus.

9. The certificate of the ambassador to Russia that the depositions and other documents offered in evidence in an extradition case "are properly and legally authenticated so as to entitle them to be received and admitted as evidence for similar purposes by the tri-ity might be heard and considered. The bunals of Russia," which, except for the introduction of the words "as evidence," is in the language of the act of August 3, 1882, 5 (22 Stat. at L. 216, chap. 378, U. S. proceeding is governed, is not defective be

Comp. Stat. 1901, p. 3595), by which the

cause of the addition of these words.

complaint was sworn to before George E. Morse, United States commissioner, with the usual power to take affidavits, but not specially authorized by any court of the United States to take proceedings in extra. 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, U. 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, at the time such warrant was issued, Heacock was not authorized to take jurisdiction of extradition proceedings, and that the evidence before him failed to show that the petitioner had committed the crime of

made under oath.

11. No preliminary requisition from the demanding government is essential to the juunder U. S. Rev. Stat. § 5270 (U. S. Comp. Stat. 1901, p. 3591), over extradition proceedings.

risdiction of a United States commissioner,

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 a complaint which charges him with having converted to his own use the proceeds of a

check after having cashed it at a bank to which he had taken it in accordance with his employer's instructions to draw the money and take it to a railroad station, to be forwarded to another city.

[No. 303.]

Submitted November 3, 1902. Decided

December 1, 1902.

Upon a hearing upon this petition the circuit court made an order remanding the pe titioner to the custody of the marshal, and an appeal was thereupon taken to this Re Grin, 112 Fed. 790.

court.

Mr. George D. Collins for appellant. Messrs. H. G. Platt and Richard Bayne for the Russian Government.

Mr. Justice Brown delivered the opinion of the court:

APPEAL from the Circuit Court of the in

United States for the Northern District of California to review a judgment dismissing a writ of habeas corpus. Affirmed.

See same case below, 112 Fed. 790.

are

8

We shall only notice such alleged defects* the extradition proceedings as pressed upon our attention in the briefs of counsel. While these defects are of a technical character, they are certainly entitled 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 certain 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 jurisdic the extradition of criminals, proclaimed June 5, 1893. 28 Stat. at L. 1071.

These proceedings were begun by a com

tion.

We are not prepared, however, to yield our assent to the suggestion that treaties

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 authori the necessity of such treaties that of late, ties of such foreign government, for the surand since the facilities for the escape of render of such person, according to the stip. 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 commit tions 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.

In the construction and carrying out of such treaties the ordinary technicalities of criminal proceedings are applicable only to a limited extent. Foreign powers are not expected to be versed in the niceties of our criminal laws, and proceedings for a surrender are not such as put in issue the life or liberty of the accused. They simply demand of him that he shall do what all good citizens are required, and ought to be willing to do, viz., submit themselves to the laws of their country. Care should doubtless be taken that the treaty be not made a pretext for collecting private debts, wreaking individual malice, or forcing the surrender of political offenders; but where the proceeding is manifestly taken in good faith, a technical noncompliance with some formality of criminal procedure should not be allowed to stand in the way of a faithful discharge of our obligations. Presumably at least, no injustice is contemplated, and a proceeding which may have the effect of relieving the country from the presence of one who is likely to threaten the peace and good order of the community is rather to be welcomed than discouraged.

a complaint must be made under oath charging the crime; third, that a warrant must issue for the apprehension of the person; fourth, that he must be brought before such justice, judge, or commissioner to the end that the evidence of criminality may be heard and considered; fifth, that the commissioner shall certify the evidence to the Secretary of State, that a warrant may issue for the surrender. There is certainly no requirement here that the commissioner shall be authorized to act before he assumes to act, and in this case there is no evidence that he assumed to act until after October 17, 1901, when he was specially appointed for that purpose. The day upon which the petitioner was brought before the commissioner, Heacock, does not appear, but his commitment is dated November 19, 1901. The warrant upon which he was arrested was issued October 17, the day upon which the commissioner was specially authorized to act.

It is true that a warrant of arrest can only issue under § 5270 [U. S. Comp. Stat. 1901, p. 3591], upon a complaint made under oath; but there is no requirement that the oath shall be taken before a commis1. 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 com the case, inasmuch as at the time the war-missioner who issues the warrant of arrest. rant of arrest was issued he had not been authorized to act in extradition proceedings by any of the courts of the United States under Rev. Stat. § 5270 [U. S. Comp. Stat. 1901, p. 3591], which reads as follows:

"Sec. 5270. Whenever there is a treaty or convention for extradition between the government of the United States and any foreign government, any justice of the Supreme Court, circuit judge, district judge, commissioner, authorized so to do by any of the courts of the United States, or judge of a court of record of general jurisdiction of any state, may, upon complaint made under oath, charging any person found within the limits of any state, district, or territory with having committed within the

While we are bound to give the person accused the benefit of every statutory provision, we are not bound to import words into the statute which are not found there, or to say that the judge issuing the warrant may not receive an oath taken before a commissioner authorized generally to take affidavits. There is no evidence that Mr. Morse, who took this complaint, was not a United States commissioner appointed under the act of May 28, 1896 (29 Stat. at L. 184 [chap. 252, U. S. Comp. Stat. 1901, p. 499]), and the fact that he signs his name as such, and that he was recognized as such by the circuit court in this proceeding, is sufficient evidence of his authority. It is true the district judge, who issued this warrant

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of arrest, might himself have administered the oath, but he was equally at liberty to act upon a complaint sworn to before a United States commissioner.

Com. v. Pindar, 11 Met. 539; Com. v.
Roark, 8 Cush. 210; Com. v. Wolcott, 110
Mass. 67; Hendce v. Taylor, 29 Conn. 448.

No objection seems to have been taken to the proceedings before the commissioner upon the ground that he did not issue the warrant, and as he was fully vested with authority to act in extradition cases we do not think the fact that the judge, for the convenient despatch of business, made his warrant returnable before such commissioner can be made available upon a writ of habeas corpus.

2. Nor did the district judge, who is sued the warrant, exceed his powers in making it returnable before a commissioner, who upon the same day was specially designated to act in extradition proceedings. It is true that the statute provides (§ 5270 [U. S. Comp. Stat. 1901, p. 3591]), that the person before whom the complaint is made may "issue his warrant 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 extradiend 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 trate competent to take jurisdiction of the place where the fugitive or person So 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 was 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 was vigorously contested upon other are fixed. Moore, Extradition, § 344. As grounds, notably because the warrant was the petitioner has sought to apply the defiexecuted without the limits of the district, and within the state of Wisconsin. The fact that the point was not made in the case certainly indicates that it was not considered by counsel to be even a plausible ground for quashing the proceedings.

The commissioner is in fact an adjunct of the court, possessing independent, though subordinate, judicial powers of his own. If the district judge, acting under § 5270 [U. S. Comp. Stat. 1901, p. 3591], had made the warrant returnable before himself, there could be no doubt of its legality; and in such case, upon the return of the warrant with the prisoner in custody, he might refer the case to the commissioner to examine the witnesses, hear the case, and report his conclusions to the court for its approval. If he could do that, we see no objection to his referring the case directly to the commissioner by making the warrant returnable before him, inasmuch as the latter possesses the same power with respect to the extradition of criminals as the district judge himself. It may be said that technically the warrant should be made returnable before the magistrate issuing it, but where it is made returnable before another officer, having the same power and jurisdiction to act, we do not think it is fairly open to criticism.

nition of embezzlement given in the law of California as likely to be most favorable to himself, and the prosecution has assented to this view, we assume for the purposes of this case that this is the definition contemplated by the treaty.

Section 508 of the Penal Code of California is as follows:

"Every clerk, agent, or servant of any person who fraudulently appropriates to his own use, or secretes with a fraudulent intent to appropriate to his own use, any property of another which has come into his control or care by virtue of his employment as such clerk, agent, or servant, is guilty of embezzlement."

Objection is made to the complaint upon the ground that there is no allegation that the money embezzled came into his control or care "by virtue of his employment" as such clerk, the allegation being that Grin was employed as clerk; that while so employed the money was intrusted to and received by him "in his capacity as clerk," as aforesaid. Whatever might be the force of an objection to an indictment that it does not set out in the exact language of the statute the fact that the money came into his possession by virtue of his employment, we think that the complaint in this particular 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 parstates. 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 allegaity 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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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 to prevent his arrest and the finding out of his address by the authorities, his temporaly place of residence being known at present," pursuant to art. 389 of the Criminal Code of Procedure, "he is ordered to be brought to the city of Rostov on the Don, in order to be placed at the disposition of the examining magistrate of the Taganrog circuit court." This order purports, not only to be signed, but sealed, by the examining magis trate Okladnykh, and while it is not in the form of a warrant of arrest as used in this country, it is evidently designed to secure the apprehension of the accused, and his production before an examining magistrate. This seems to us a sufficient compliance with the treaty. If not a warrant of arrest it is an equivalent judicial document, issued by a judge or magistrate authorized to do

4. Equally unfounded is it that the complaint is defective because it does not use the word "fraudulently," the allegation be ing "that the accused wrongfully, unlawfully, and feloniously appropriated said money." As the word "embezzled" itself implies fraudulent conduct on the part of the person receiving the money, the addition of the word "fraudulent" would not enlarge or restrict its signification. Indeed, it is impossible for a person to embezzle the money of another without committing a fraud upon him. The definition of the word "embezzlement" is given by Bouvier as "the fraudulent appropriation to one's own use of the money or goods intrusted to one's care by another." In San Francisco v. Randall, 54 Cal. 408, a complaint that defendant did "wilfully, unlawfully, and feloniously embezzle and convert" certain securities to his own use, was held to be a sufficient compliance with § 1426 of the Penal Code, requiring the offense charged to be set forth "with such particulars of time, place, person, and property as to enable the defendant to understand distinctly the character of the offense complained of, and to answer the complaint." The complaint in this case differs from that only in the substitution of the word "wrongfully" for the word "wilfully," and we think it is clearly sufficient. As the word "embezzle" implies a fraudulent intent, the addition of the word "fraudulently" is mere surplusage. Reeves v. State, 95 Ala. 31, 11 So. 158; United States v. Lancaster, 2 McLean, 431, Fed. Cas. No. 15,556; State v. Wolff, 34 La. Ann. 1153; State v. Trolson, 21 Nev. 419, 32 Pac. 930; State v. Combs, 47 Kan. 136, 27 Pac. 818. We express no opinion as to whether it would be necessary in an indictment.

So.

But there is another consideration in this connection which should not be overlooked. While the treaty contemplates the production of a copy of a warrant of arrest or other equivalent document, issued by magistrate of the Russian Empire, it is within the power of Congress to dispense with this requirement, and we think it has done so by Rev. Stat. § 5270 [U. S. Comp. Stat. 1901, p. 3591], hereinbefore cited. The treaty is undoubtedly obligatory upon both powers, and, if Congress should prescribe additional formalities than those required by the treaty, it might become the subject of complaint by the Russian government and of further negotiations. But notwithstanding such treaty, Congress has a perfect right to provide for the extradition of criminals in its own way, with or without a treaty to that effect, and to declare that foreign criminals shall be surrendered upon such proofs of criminality as it may judge sufficient. Castro v. De Uriarte, 16 Fed. 93. This appears to have been the object of § 5270 [U. S. Comp. Stat. 1901, p. 3591], which is applicable to all foreign governments with which we have treaties of extradition. The requirements of that section, as already observed, are simply a complaint under oath, a warrant of arrest, evidence of criminality sufficient to sustain the charge under the provisions of the proper treaty or convention, a certificate by the magistrate of such evidence and his conclusions thereon, to the Secretary of State. As no mention is here made of a warrant of arrest, or other equivalent document, issued by a foreign magistrate, we do not see the necessity of its production. This is one of the requirements of the treaty* which Congress has intentionally waived. Moore, Extradition, § 70.

5. It is further insisted that the treaty requires an authenticated copy of the warrant of arrest or of some other equivalent judicial document, issued by a judge or magistrate of the foreign government duly authorized so to do, and that there is no such process in the record as a warrant of arrest or its equivalent. It is true that art. 6 of the treaty provides that "when the person whose surrender is asked shall be merely charged with the commission of an extraditable crime or offense, the application for extradition shall be accompanied by an authenticated copy of the warrant of arrest or of some other equivalent judicial document, issued by a judge or a magistrate duly authorized to do so." But it can hardly be expected of us that we should become conversant with the criminal laws of Russia, or with the forms of warrants of 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 proceedtion of an equivalent document. On examings 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 embezzlement, no indictment has ever been examining magistrate, and reciting that "having investigated the preliminary examination concerning the accusation of the Cossack, Simeon Grin," and that "as he is

found, and that no other evidence of crimi nality can be received. It is obvious that the word "indictment," as it appears in this complaint, was used in the general sense of

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