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two others for conspiring to defraud the United States in violation of § 5440 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 3676), and the other was against him alone for knowingly attempting to enter certain Japanese silks upon payment of less than the amount of legal duty thereon, in violation of 5444, Revised Statutes (U. S. Comp. Stat. 1901, p. 3677).
In January, 1904, he, in company with one of the others named in the indictment (the other having fled the jurisdiction), was tried in the circuit court of the United States for the southern district of New York upon the indictment charging them with conspiracy. He was convicted and sentenced to imprisonment in the state prison at Sing Sing, New York, for two years.
He appealed to the circuit court of appeals for the second circuit, where the conviction was affirmed, and thereafter an application was made in his behalf to this court for certiorari to review the judgment of conviction, which application was denied in January, 1906.
After his trial and conviction, and pending a review of the judgment, the respondent had been enlarged on bail, and after the judgment was affirmed in the circuit court of appeals and a certiorari from this court had been denied, he was, on the 19th of January, 1906, duly called in the circuit court to submit himself to sentence, but did not appear, and his default was entered.
A few days subsequently he was found in the Dominion of Canada. This government then instituted extradition proceedings in Montreal to procure his rendition upon the judgment of conviction of conspiracy to defraud the United States, and claimed it was an extraditable crime under the fourth subdivision of article 1 of the treaty or "extradition convention" of 1889, between the United States and Great Britain. [26 Stat. at L. 1508.] That subdivision reads as follows:
"4. Fraud by bailee, banker, agent, factor, trustee, or director or member or officer of any company made criminal by the laws of both countries."
The respondent was held for extradition by the Canadian commissioner, but, on writ of habeas corpus, the court of King's bench held that the conspiracy to defraua the United States, as set forth in the indictment upon which respondent was convicted, was not such a fraud as was provided for in the subdivision of the article of the treaty above referred to. Extradition was therefore refused.
Thereupon the United States secured the rearrest of the respondent on another complaint, charging him with the offenses for
which he had been indicted under § 5444 of the Revised Statutes, and for which he had not been tried in New York. The Canadian commissioner held the respondent upon that complaint, and ordered his extradition, and, upon a writ of habeas corpus, the court of King's bench affirmed that order; and the respondent was then surrendered to the proper agent of the United States, who at once took him to the state of New York, and, having arrived within the southern district of that state, the marshal of that district, proceeding under the warrant for imprisonment issued by the circuit court upon the conviction of the respondent on the conspiracy indictment, took possession of him and delivered him into the custody of the warden of Sing Sing prison, there to be imprisoned for two years according to the sentence imposed upon him under the conviction as stated.
The respondent then obtained this writ upon a petition setting forth the above facts, and claimed that his imprisonment was in violation of the 3d and 7th articles of the extradition treaty between the United States and Great Britain. 26 Stat. at L. 1508. The warden of the prison made return August 7, 1906, that he held the respondent by virtue of the final judgment of the circircuit court of the United States for the southern district of New York, rendered on the 9th of March, 1904, as above set forth.
Mr. W. Wickham Smith and Solicitor General Hoyt for appellant.
Messrs. Terence J. McManus, W. M. K. Olcott, and Black, Olcott, Gruber, & Bonynge for appellee.
Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court:
It does not appear that any movement has been made or notice given by this government to try the respondent on the indictment for the crime for which he has been extradited, but his imprisonment in Sing Sing prison is upon a conviction of a crime for which the Canadian court had refused to extradite him, and is entirely different from the one for which he was extradited. In other words, he has been extradited for one offense and is now imprisoned for another, which the Canadian court held was not, within the treaty, an extraditable offense.
Whether the crime came within the provision of the treaty was a matter for the decision of the Dominion authorities, and such decision was final by the express terms of the treaty itself. Article 2, Convention of July 12, 1889, 26 Stat. at L. 1508; United
States Treaties in Force April 28, 1904, | the country from which he was brought. pages 350, 351. This is undoubtedly a congressional con
tradition treaties, such as the one we have under consideration, and, whether it is or not, it is conclusive upon the judiciary of the right conferred upon persons brought from a foreign country into this under such proceedings.
We can readily conceive that if the Do-struction of the purpose and meaning of exminion authorities, after the court of King's bench had decided that the crime of which respondent had been convicted, and for which extradition had been asked, was not extraditable, and the request for extradition had, therefore, been refused, had been informed on the subsequent proceeding for extradition on the other indictment that it was not the intention of this government to try respondent on that indictment, but that, having secured his extradition on that charge, it was the intention of this government to imprison him on the judgment of conviction, they would have said that such imprisonment would not be according to the terms of the treaty, and they would have refused to direct his extradition for the purpose stated.
Although the surrender has been made, it is still our duty to determine the legality of the succeeding imprisonment, which depends upon the treaty between this government and Great Britain, known as the Ashburton treaty of 1842 (8 Stat. at L. 572-576, art. 10), and the subsequent one, called a convention, concluded in 1889, and above referred to.
The treaty of 1842 had no express limitation of the right of the demanding country to try a person only for the crime for which he was extradited, and yet this court held that there was such a limitation, and that it was to be found in the "manifest scope and object of the treaty itself;" that there is "no reason to doubt that the fair purpose of the treaty is that the person shall be delivered up to be tried for that offense, and for no other." United States v. Rauscher, 119 U. S. 407, 422, 423, 30 L. ed. 425, 430, 7 Sup. Ct. Rep. 234.
Again, at the time of the decision of the Rauscher Case there were in existence §§ 5272 and 5275, Rev. Stat. (U. S. Comp. Stat. 1901, pp. 3595, 3596), both of which are cited and commented upon in that case, and in the course of the opinion of Mr. Justice Miller, at page 423, L. ed. page 430, Sup. Ct. Rep. page 243, he said:
"The obvious meaning of these two statutes, which have reference to all treaties of extradition made by the United States, is that the party shall not be delivered up by this government to be tried for any other offense than that charged in the extradition proceedings; and that, when brought into this country upon similar proceedings, he shall not be arrested or tried for any other offense than that with which he was charged in those proceedings, until he shall have had a reasonable time to return unmolested to
"That right, as we understand it, is that he shall be tried only for the offense with which he is charged in the extradition proceedings and for which he was delivered up, and that if not tried for that, or after trial and acquittal, he shall have a reasonable time to leave the country before he is arrested upon the charge of any other crime committed previous to his extradition."
Mr. Justice Gray, page 433, L. ed. page 433, Sup. Ct. Rep. page 248, in his concurring opinion, places that concurrence upon the single ground that these sections clearly manifest the will of the political department of the government in the form of an express law that the person should be tried only for the crime charged in the warrant of extradition, and he should be allowed a reasonable time to depart out of the United States before he could be arrested or detained for any other offense. Both grounds were concurred in by a majority of the whole court.
If the question now before us had arisen under the treaty of 1842 and the sections of the Revised Statutes above mentioned, we think the proper construction of the treaty and the sections would have applied to the facts of this case and rendered the imprisonment of the respondent illegal. The manifest scope and object of the treaty itself, even without those sections of the Revised Statutes, would limit the imprisonment as well as the trial to the crime for which extradition had been demanded and granted.
It is true that the 10th article of the treaty contained no specific provision for delivering up a convicted criminal, but, if otherwise delivered, he could not have been punished upon a former conviction for another and different offense.
The claim is now made on the part of the government that "the manifest scope and object of the treaty" of 1842 are altered and enlarged by the treaty or convention of July 12, 1889. The 2d, 3d, 6th, and 7th articles of that convention are set forth in the margin.†
A fugitive criminal shall not be surrendered if the offense in respect of which his surrender is demanded be one of a political character, or if he proves that the requisi
It will be perceived that the second article | person, to use it for another and different provides that no person surrendered shall be purpose. Why the words were left out in triable or tried, or be punished, for any po- the 3d article of the convention of 1889, litical crime or offense, while article three when their insertion would have placed the provides that no person surrendered shall be subject entirely at rest, may perhaps be a triable or be tried (leaving out the words matter of some possible surprise, yet their "or be punished") for any crime or offense absence cannot so far alter the otherwise committed prior to the extradition, other plain meaning of the two treaties as to give than the offense for which he was surren- them a totally different construction. dered, until he shall have had an opportunity for returning to the country from which he was surrendered. Hence it is urged that, as punshment for another offense of which the person had been convicted is not in so many words expressly prohibited in and by article 3, a requisition may be obtained for one crone under that article, and, when possession of the person is thus obtained, he may be punished for another and totally different crime of which he had been convicted before extradition.
We do not concur in this view. Although if the words "or be punished" were contained in the 3d article the question in this case could not, of course, arise, yet we are satisfied that the whole treaty, taken in connection with that of 1842, fairly construed, does not permit of the imprisonment of an extradited person under the facts in this
The mere failure to use these words in the 3d article does not so far change and alter "the manifest scope and object" of the two treaties as to render this imprisonment legal. The general scope of the two treaties makes manifest an intention to prevent a state from obtaining jurisdiction of an individual whose extradition is sought on one ground and for one expressed purpose, and then, having obtained possession of his tion for his surrender has in fact been made with a view to try or punish him for an offense of a political character.
In addition to the provisions of the treaty of 1889 we find still in existence the already-mentioned sections of the Revised Statutes, which prohibit a person's arrest or trial for any other offense than that with which he was charged in the extradition proceedings, until he shall have had a reasonable time to return unmolested from the country to which he was brought.
It is argued, however, that the sections in question have been repealed by implication by the treaty or convention of 1889, and that the respondent, therefore, cannot obtain any benefit from them. We see no fair or reasonable ground upon which to base the claim of repeal. Repeals by implication are never favored, and a later treaty will not be regarded as repealing an earlier statute by implication unless the two are absolutely incompatible and the statute cannot be enforced without antagonizing the treaty. United States v. Lee Yen Tai, 185 U. S. 213, 46 L. ed. 878, 22 Sup. Ct. Rep. 629. If both can exist the repeal by implication will not be adjudged. These sections are not incompatible with the treaty or in any way inconsistent therewith. We find nothing in the treaty which provides that a person shall be surrendered for one offense and then that he may be punished for another, such as is the case here. The most that can be
The extradition of fugitives under the provisions of this convention and of the said 10th article shall be carried out in the ions, respectively, in conformity with the United States and in Her Majesty's dominlaws regulating extradition for the time being in force in the surrendering states.
No person surrendered by either of the high contracting parties to the other shall be triable or tried, or be punished for any political crime or offense, or for any actions, connected therewith, committed previously
to his extradition.
If any question shall arise as to whether a case comes within the provisions of this article, the decision of the authorities of the government in whose jurisdiction the fugitive shall be at the time shall be final.
No person surrendered by or to either of the high contracting parties shall be triable or be tried for any crime or offense, committed prior to his extradition, other than the offense for which he was surrendered, until he shall have had an opportunity of returning to the country from which he was surrendered.
The provisions of the said 10th article and of this convention shall apply to persons convicted of the crimes therein respectively named and specified, whose sentence therefor shall not have been executed.
In case of a fugitive criminal alleged to have been convicted of the crime for which his surrender is asked, a copy of the record of the conviction and of the sentence of the court before which such conviction took place, duly authenticated, shall be produced, together with the evidence proving that the prisoner is the person to whom such sentence refers.
asserted is that an inference to that effect such case, however important it may be to perhaps might be drawn from the absence the petitioner, does not involve a question in article 3 of positive language preventing of gravity and general importance, there such punishment. But that slight and being no conflict between the decisions of doubtful inference, resting on such an in-state and Federal courts, or between those of Federal courts of different circuits, and nothing affecting international relations. Error to court of appeals of District of Co
sufficient foundation, is inadequate to overcome the positive provisions of the statute and the otherwise general scope of both treaties, which are inconsistent with the existence of such right.
2. A judgment convicting a chancery receiver of embezzling money which had come into his possession in his official ca
It is urged that the construction contended for by the respondent is exceedingly tech-pacity is not reviewable on writ of error nical and tends to the escape of criminals on from the Federal Supreme Court to the refined subtleties of statutory construction, court of appeals of the District of Columand should not, therefore, be adopted. While bia, on the theory that the forfeiture by the escape of criminals is, of course, to be defendant, under D. C. Code, § 841, defining very greatly deprecated, it is still most im- the offense, of all right or claim to any portant that a treaty of this nature between commissions, was determined by the judg Sovereignties should be construed in accord-ment, and that therefore the jurisdictional sovereignties should be construed in accord amount prescribed by § 233 of such Code ance with the highest good faith, and that was involved, since the forfeiture of comit should not be sought, by doubtful conmissions does not follow the judgment, but struction of some of its provisions, to obtain follows the wrongful conversion or approthe extradition of a person for one offense priation of the moneys. and then punish him for another and different offense. Especially should this be the case where the government surrendering the person has refused to make the surrender Argued March 12, 13, 1907. Decided April for the other offense, on the ground that such offense was not one covered by the treaty.
Our attention has been directed to various other treaties between this government and other nations, where provision is expressly made in regard to punishment. They frequently provide that no person shall be triable or tried "or be punished" for any other
N ERROR to the Court of Appeals of the
District of Columbia to review a judgment which affirmed, with a modification of the sentence, a judgment of the Supreme Court of that District convicting the defendant of embezzlement. Dismissed for want of jurisdiction. Also
offense than that for which he was delivered review the same judgment. Denied. A to
up until he has had an opportunity of returning to the country from which he was surrendered. But because in some of the treaties the words "or be punished" are contained we are not required to hold that in the case before us the absence of those words permits such punishment, when that construction is, as we have said, contrary to the manifest meaning of the whole treaty, and also violates the statutes above cited. The order of the Circuit Court is affirmed.
See same case below, 27 App. D. C. 433.
Statement by Mr. Justice Brewer: Thomas M. Fields was indicted in the supreme court of the District of Columbia at the January term, 1905, for embezzlement. Of eight counts in the indictment seven were disposed of by demurrer or by verdict in favor of the defendant. The trial, begun on May 8, and ending May 15, 1905, resulted in a verdict of guilty under the third count.
Mr. Justice Moody did not sit in the case Motions in arrest of judgment and for a new and took no part in its decision.
THOMAS M. FIELDS, Plff. in Err.,
trial having been overruled, he was sentenced to imprisonment and labor in the penitentiary for five years. The court of appeals of the District modified the judgment of the supreme court by striking out the order for "labor," and, as so modified, affirmed it. 27 App. D. C. 433. The case was brought to this court on writ of error. A motion to dismiss and a petition for certiorari were pre1. Certiorari to review a judgment of the court of appeals of the District of Co- sented by the respective parties, the considlumbia in a criminal case will not be grant-eration of both of which was postponed to ed by the Federal Supreme Court, where the hearing on the merits. The indictment
Certiorari-to court of appeals of District of Columbia.
was found under § 841 of the District Code, | rules laid down by this court governing the which is as follows: latter applications are to be ignored, and the case held in this court by either the writ of error or the certiorari.
"Any executor, administrator, guardian, trustee, receiver, collector, or other officer into whose possession money, securities, or other property of the property or estate of any other person may come by virtue of his office or employment, who shall fraudulently convert or appropriate the same to his own use, shall forfeit all right or claim to any commissions, costs, and charges thereon, and shall be deemed guilty of embezzlement of the entire amount or value of the money or other property so coming into his possession and converted or appropriated to his own use, and shall be punished by a fine not exceeding one thousand dollars, or by imprisonment not exceeding ten years, or both." [31 Stat. at L. 1326, chap. 854.]
The statute under which the writ of error was sued out is § 233 of the District Code, which reads:
"Sec. 233. Any final judgment or decree of the court of appeals may be re-examined and affirmed, reversed, or modified by the Supreme Court of une United States, upon writ of error or appeal, in all cases in which the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars, in the same manner and under the same regulations as existed in cases of writs of error on judgments or appeals from decrees rendered in the supreme court of the District of Columbia on February ninth, eighteen hundred and ninety-three, and also in cases, without regard to the sum or value of the matter in dispute, wherein is involved the validity of any patent or copyright, or in which is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States." Stat. at L. 1227, chap. 854.]
Messrs. Frank J. Hogan, John C. Gittings, and Henry E. Davis for plaintiff in error.
Mr. J. S. Easby-Smith and Solicitor General Hoyt for defendant in error.
In this case there is no sufficient ground: for a certiorari. The application comes within none of the conditions therefor declared in the decisions of this court. However important the case may be to the applicant, the question involved is not one of gravity and general importance. There is no conflict between the decisions of state and Federal courts or between those of Federal courts of different circuits. There is nothing affecting the relations of this nation to foreign nations, and indeed no matter of general interest to the public.
Will a writ of error lie? Is the case one of which this court has jurisdiction? It is settled that a criminal case, as such, cannot be brought here on a writ of error from the court of appeals of the district. Chapman v. United States, 164 U. S. 436, 41 L. ed. 504, 17 Sup. Ct. Rep. 76, and cases cited in the opinion; Sinclair v. District of Columbia, 192 U. S. 16, 48 L. ed. 322, 24 Sup. Ct. Rep. 212.
The authority of these cases is not questioned, but it is contended that the forfeiture of all right or claim to any commissions, etc., was determined by the judgment in the case at bar, and that, therefore, it comes within the pecuniary provisions of § 233. Smith v. Whitney, 116 U. S. 167, 29 L. ed. 601, 6 Sup. Ct. Rep. 570, is cited as authority. In that case we sustained our jurisdiction over a judgment of the supremecourt of the District, dismissing a petition for a writ of prohibition to a court-martial convened to try an officer for an offense punishable by dismissal from the service and consequent deprivation of salary, which, during the term of his office, would exceed the ent from this. There the direct result of an sum of $5,000. But that case is very differthe deprivation of an office with a salary of adverse judgment of the court-martial was
over $5,000. That sum, therefore, was involved in the trial sought to be restrained.
Mr. Justice Brewer delivered the opinion But no such result follows in this case. The of the court:
The petition for certiorari must be first considered. A certiorari can be issued only when a writ of error cannot. 26 Stat. at L. 828, § 6, chap. 517, U. S. Comp. Stat. 1901, p. 550, last two paragraphs. There have been two or three instances in which, after a writ of error has been allowed, an application for a certiorari has been filed, the latter because of doubt whether the former would lie. It must not be supposed that because we have before us both a writ of error and an application for certiorari that the
act of the defendant in fraudulently converting or appropriating the moneys in his possession operates to forfeit all right or claim to any commissions, etc., and this, irrespective of the question whether he is or is not convicted of any crime in respect thereto. It is true such fraudulent conversion or appropriation is declared to be embezzlement, and the defendant was prosecuted and convicted of that offense, but the forfeiture. of commissions does not follow the judg ment, but follows the wrongful conversion or appropriation of the moneys. The only di