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two others for conspiring to defraud the which he had been indicted under $ 5444 of United States in violation of $ 5440 of the the Revised Statutes, and for which he had Revised Statutes (U. S. Comp. Stat. 1901, p. not been tried in New York. The Canadian 3676), and the other was against him alone commissioner held the respondent upon that for knowingly attempting to enter certain complaint, and ordered his extradition, and, Japanese silks upon payment of less than upon a writ of habeas corpus, the court of the amount of legal duty thereon, in viola- King's bench affirmed that order; and the tion of $ 5444, Revised Statutes (U. S. respondent was then surrendered to the Comp. Stat. 1901, p. 3677).

proper agent of the United States, who at In January, 1904, he, in company with once took him to the state of New York, and, one of the others named in the indictment having arrived within the southern district (the other having fled the jurisdiction), was of that state, the marshal of that district, tried in the circuit court of the United proceeding under the warrant for imprisonStates for the southern district of New York ment issued by the circuit court upon the upon the indictment charging them with conviction of the respondent on the conspirconspiracy. He was convicted and sen- acy indictment, took possession of him and tenced to imprisonment in the state prison delivered him into the custody of the warden at Sing Sing, New York, for two years. of Sing Sing prison, there to be imprisoned

He appealed to the circuit court of ap- for two years according to the sentence impeals for the second circuit, where the con- posed upon him under the conviction as statviction was affirmed, and thereafter an ap

ed. plication was made in his behalf to this The respondent then obtained this writ court for certiorari to review the judgment upon a petition setting forth the above facts, of conviction, which application was denied and claimed that his imprisonment was in in January, 1906.

violation of the 3d and 7th articles of the After his trial and conviction, and pend- extradition treaty between the United States ing a review of the judgment, the respond and Great Britain. 26 Stat. at L. 1508. ent had been enlarged on bail, and after the The warden of the prison made return Aujudgment was affirmed in the circuit court gust 7, 1906, that he held the respondent of appeals and a certiorari from this court by virtue of the final judgment of the cirhad been denied, he was, on the 19th of circuit court of the United States for the January, 1906, duly called in the circuit southern district of New York, rendered on court to submit himself to sentence, but did the 9th of March, 1904, as above set forth. not appear, and his default was entered.

A few days subsequently he was found Mr. W. Wickham Smith and Solicitor in the Dominion of Canada. This govern- General Hoyt for appellant. ment then instituted extradition proceedings Messrs. Terence J. McManus, W. M. K. in Montreal to procure his rendition upon Olcott, and Black, Olcott, Gruber, & Bon. the judgment of conviction of conspiracy ynge for appellee. to defraud the United States, and claimed it was an extraditable crime under the

Mr. Justice Peckham, after making the fourth subdivision of article 1 of the treaty foregoing statement, delivered the opinion of or "extradition convention" of 1889, be the court: tween the United States and Great Britain. It does not appear that any movement has [26 Stat. at L. 1508.] That subdivision been made or notice given by this governreads as follows:

ment to try the respondent on the indict4. Fraud by bailee, banker, agent, factor, ment for the crime for which he has been trustee, or director or member or officer of extradited, but his imprisonment in Sing any company made criminal by the laws of Sing prison is upon a conviction of a crime both countries."

for which the Canadian court had refused The respondent was held for extradition to extradite him, and is entirely different by the Canadian commissioner, but, on writ from the one for which he was extradited. of habeas corpus, the court of King's bench In other words, he has been extradited for held that the conspiracy to defraua the one offense and is now imprisoned for an. United States, as set forth in the indictment other, which the Canadian court held was upon which respondent was convicted, was not, within the treaty, an extraditable of. not such a fraud as was provided for in fense. the subdivision of the article of the treaty Whether the crime came within the pro. above referred to. Extradition was there vision of the treaty was a matter for the fore refused.

decision of the Dominion authorities, and Thereupon the United States secured the such decision was final by the express terms rearrest of the respondent on another com- of the treaty itself. Article 2, Convention plaint, charging him with the offenses for of July 12, 1889, 26 Stat, at L. 1508; United

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States Treaties in Force April 28, 1904, the country from which he was brought. pages 350, 351.

This is undoubtedly a congressional conWe can readily conceive that if the Do-struction of the purpose and meaning of exminion authorities, after the court of King's tradition treaties, such as the one we have bench had decided that the crime of which under consideration, and, whether it is or respondent had been convicted, and for not, it is conclusive upon the judiciary of which extradition had been asked, was not the right conferred upon persons brought extraditable, and the request for extradi- from a foreign country into this under such tion had, therefore, been refused, had been proceedings. informed on the subsequent proceeding for “That right, as we understand it, is that extradition on the other indictment that it he shall be tried only for the offense with was not the intention of this government to which he is charged in the extradition protry respondent on that indictment, but that, ceedings and for which he was delivered up, having secured his extradition

his extradition on that and that if not tried for that, or after trial charge, it was the intention of this govern- and acquittal, he shall have a reasonable ment to imprison him on the judgment of time to leave the country before he is arrestconviction, they would have said that such ed upon the charge of any other crime comimprisonment would not be according to the mitted previous to his extradition." terms of the treaty, and they would have re

Mr. Justice Gray, page 433, L. ed. page fused to direct his extradition for the pur- 433, Sup. Ct. Rep. page 248, in his concur. pose stated.

ring opinion, places that concurrence upon Although the surrender has been made, it the single ground that these sections clearly is still our duty to determine the legality of manifest the will of the political departthe succeeding imprisonment, which depends ment of the government in the form of an upon the treaty between this government express law that the person should be tried and Great Britain, known as the Ashburton only for the crime charged in the warrant treaty of 1842 (8 Stat. at L. 572–576, art. of extradition, and he should be allowed a 10), and the subsequent one, called a con- reasonable time to depart out of the United vention, concluded in 1889, and above re- States before he could be arrested or deferred to.

tained for any other offense. Both grounds The treaty of 1842 had no express limita- were concurred in by a majority of the tion of the right of the demanding country whole court. to try a person only for the crime for which If the question now before us had arisen he was extradited, and yet this court held under the treaty of 1842 and the sections of that there was such a limitation, and that the Revised Statutes above mentioned, we it was to be found in the “manifest scope think the proper construction of the treaty and object of the treaty itself;" that there and the sections would have applied to the is “no reason to doubt that the fair purpose facts of this case and rendered the imprisonof the treaty is that the person shall be de- ment of the respondent illegal. The manilivered up to be tried for that offense, and fest scope and object of the treaty itself, for no other.” United States v. Rauscher, even without those sections of the Revised 119 U. S. 407, 422, 423, 30 L. ed. 425, 430, Statutes, would limit the imprisonment as 7 Sup. Ct. Rep. 234.

well as the trial to the crime for which exAgain, at the time of the decision of the tradition had been demanded and granted. Rauscher Case there were in existence $$ It 5272 and 5275, Rev. Stat. (U. S. Comp. Stat. treaty contained no specific provision for de1901, pp. 3595, 3596), both of which are livering up a convicted criminal, but, if cited and commented upon in that case, and otherwise delivered, he could not have been in the course of the opinion of Mr. Justice punished upon a former conviction for anMiller, at page 423, L. ed. page 430, Sup. other and different offense. Ct. Rep. page 243, he said:

The claim is now made on the part of the The obvious meaning of these two stat-government that "the manifest scope and utes, which have reference to all treaties of object of the treaty" of 1842 are altered and extradition made by the United States, is enlarged by the treaty or convention of July that the party shall not be delivered up by 12, 1889. The 2d, 3d, 6th, and 7th articles this government to be tried for any other of- of that convention are set forth in the marfense than that charged in the extradition gin. proceedings; and that, when brought into

Article II. this country upon similar proceedings, he shall not be arrested or tried for any other

A fugitive criminal shall not be surrenoffense than that with which he was charged dered if the offense in respect of which his in those proceedings, until he shall have had surrender is demanded be one of a political a reasonable time to return unmolested to character, or if he proves that the requisiIt will be perceived that the second article person, to use it for another and different provides that no person surrendered shall be purpose.

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 opportun- In addition to the provisions of the treaty ity for returning to the country from which of 1889 we find still in existence the alhe was surrendered. Hence it is urged that, ready-mentioned sections of the Revised as punshment for another offense of which Statutes, which prohibit a person's arrest or the person had been convicted is not in so trial for any other offense than that with many words expressly prohibited in and by which he was charged in the extradition proarticle 3, a requisition may be obtained for ceedings, until he shall have had a reasonone crne under that article, and, when pos- able time to return unmolested from the session of the person is thus obtained, he country to which he was brought. may be punished for another and totally It is argued, however, that the sections in different crime of which he had been con question have been repealed by implication victed before extradition.

by the treaty or convention of 1889, and We do not concur in this view. Although that the respondent, therefore, cannot obif the words “or be punished” were con- tain any benefit from them. We see no fair tained in the 3d article the question in this or reasonable ground upon which to base the case could not, of course, arise, yet we are claim of repeal. Repeals by implication are satisfied that the whole treaty, taken in con- never favored, and a later treaty will not be nection with that of 1842, fairly construed, regarded as repealing an earlier statute by does not permit of the imprisonment of an implication unless the two are absolutely extradited person under the facts in this incompatible and the statute cannot be encase.

forced without antagonizing the treaty. The mere failure to use these words in United States v. Lee Yen Tai, 185 U. S. 213, the 3d article does not so far change and 46 L. ed. 878, 22 Sup. Ct. Rep. 629. If both alter "the manifest scope and object” of can exist the repeal by implication will not the two treaties as to render this imprison be adjudged. These sections are not inment legal. The general scope of the two compatible with the treaty or in any way intreaties makes manifest ap intention to pre. consistent therewith. We find nothing in vent a state from obtaining jurisdiction of the treaty which provides that a person an individual whose extradition is sought on shall be surrendered for one offense and then one ground and for one expressed purpose, that he may be punished for another, such and then, having obtained possession of his 'as is the case here. The most that can be tion for his surrender has in fact been made

Article VI. with a view to try or punish him for an offense of a political character.

The extradition of fugitives under the No person surrendered by either of the provisions of this convention and of the high contracting parties to the other shall said 10th article shall be carried out in the be triable or tried, or be punished for any

United States and in Her Majesty's dominpolitical crime or offense, or for any actions, respectively, in conformity with the Connected therewith, committed previously being in force in the surrendering states.

laws regulating extradition for the time to his extradition. If any question shall arise as to whether

Article VII. a case comes within the provisions of this article, the decision of the authorities of the The provisions of the said 10th article government in whose jurisdiction the fugi- and of this convention shall apply to per. tive shall be at the time shall be final. sons convicted of the crimes therein respec

tively named and specified, whose sentence Article III.

therefor shall not have been executed.

In case of a fugitive criminal alleged to No person surrendered by or to either of have been convicted of the crime for which the high contracting parties shall be triable his surrender is asked, a copy of the record or be tried for any crime or offense, com- of the conviction and of the sentence of mitted prior to his extradition, other than court before which such conviction took the offense for which he was surrendered, place, duly authenticated, shall be produced, until he shall have had an opportunity of together with the evidence proving that the returning to the country from which he prisoner is the person to whom such senwas surrendered.

tence 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 sufficient foundation, is inadequate to over. nothing affecting international relations. come the positive provisions of the statute Error to court of appeals of District of Coand the otherwise general scope of both

lumbia-criminal case. treaties, which are inconsistent with the

2. A judgment convicting a chancery existence of such right.

receiver of embezzling money which had It is urged that the construction contendo come into his possession in his official caed 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 ance with the highest good faith, and that amount prescribed by $ 233 of such Code

was involved, since the forfeiture of comit should not be sought, by doubtful con

missions 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

[No. 395.] 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

8, 1907. such offense was not one covered by the treaty.

IN ERROR to the Court of Appeals of the Our attention has been directed to various

District of Columbia to review a judg. other treaties between this government and ment which affirmed, with a modification of other nations, where provision is expressly the sentence, a judgment of the Supreme made in regard to punishment. They fre- Court of that District convicting the defendquently provide that no person shall be triant of embezzlement. Dismissed for want able or tried “or be punished” for any other of jurisdiction. Also

PETITION for a writ of certiorari to offense than that for which he was delivered A up until he has had an opportunity of re

review the same judgment. Denied. turning to the country from which he was See same case below, 27 App. D. C. 433. surrendered. But because in some of the treaties the words "or be punished” are con- Statement by Mr. Justice Brewer: tained we are not required to hold that in Thomas M. Fields was indicted in the su. the case before us the absence of those words preme court of the District of Columbia at permits such punishment, when that con- the January term, 1905, for embezzlement. struction is, as we have said, contrary to Of eight counts in the indictment seven were the manifest meaning of the whole treaty, disposed of by demurrer or by verdict in and also violates the statutes above cited. favor of the defendant. The trial, begun The order of the Circuit Court is affirmed.

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.

trial having been overruled, he was sentenced to imprisonment and labor in the peniten

tiary for five years. The court of appeals of THOMAS M. FIELDS, Plff. in Err.,

the District modified the judgment of the su

preme court by striking out the order for UNITED STATES.

“labor," and, as so modified, affirmed it. 27

App. D. C. 433. The case was brought to Certiorari—to court of appeals of District this court on writ of error. A motion to disof Columbia.

miss 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

V.

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 “Any executor, administrator, guardian, the case held in this court by either the writ trustee, receiver, collector, or other officer in- of error or the certiorari. to whose possession money, securities, or In this case there is no sufficient ground other property of the property or estate of for a certiorari. The application comes withany other person may come by virtue of his , in none of the conditions therefor declared office or employment, who shall fraudulently in the decisions of this court. However imconvert or appropriate the same to his own portant the case may be to the applicant, use, shall forfeit all right or claim to any the question involved is not one of gravity commissions, costs, and charges thereon, and and general importance. There is no conshall be deemed guilty of embezzlement of flict between the decisions of state and Fedthe entire amount or value of the money eral courts or between those of Federal or other property so coming into his posses-courts of different circuits. There is nothsion and converted or appropriated to his ing affecting the relations of this nation to own use, and shall be punished by a fine not foreign nations, and indeed no matter of exceeding one thousand dollars, or by im- general interest to the public. prisonment not exceeding ten years, or

Will a writ of error lie? Is the case one both." [31 Stat. at L. 1326, chap. 854.] of which this court has jurisdiction? It is

The statute under which the writ of er settled that a criminal case, as such, cannot ror was sued out is $ 233 of the District be brought here on a writ of error from the Code, which reads:

court of appeals of the district. Chapman "Sec. 233. Any final judgment or decree v. United States, 164 U. S. 436, 41 L. ed. of the court of appeals may be re-examined 504, 17 Sup. Ct. Rep. 76, and cases cited in and affirmed, reversed, or modified by the the opinion; Sinclair v. District of Colum. Supreme Court of the United States, upon bia, 192 U. S. 16, 48 L. ed. 322, 24 Sup. Ct. writ of error or appeal, in all cases in Rep. 212. which the matter in dispute, exclusive of The authority of these cases is not ques. costs, shall exceed the sum of five thousand tioned, but it is contended that the forfeidollars, in the same manner and under the ture of all right or claim to any commissame regulations as existed in cases of writs sions, etc., was determined by the judgment of error on judgments or appeals from de in the case at bar, and that, therefore, it crees rendered in the supreme court of the comes within the pecuniary provisions of $ District of Columbia on February ninth, 233. Smith v. Whitney, 116 U. S. 167, 29 L. eighteen hundred and ninety-three, and also ed. 601, 6 Sup. Ct. Rep. 570, is cited as auin cases, without regard to the sum or value thority. In that case we sustained our juof the matter in dispute, wherein is involved risdiction over a judgment of the supreme the validity of any patent or copyright, or court of the District, dismissing a petition in which is drawn in question the validity for a writ of prohibition to a court-martial of a treaty or statute of, or an authority convened to try an officer for an offense punexercised under, the United States.” [31 ishable by dismissal from the service and Stat. at L. 1227, chap. 854.]

consequent deprivation of salary, which, dur

ing the term of his office, would exceed the Messrs. Frank J. Hogan, John C. Gittings, ent from this. There the direct result of an

sum of $5,000. But that case is very differand Henry E. Davis for plaintiff in error.

adverse judgment of the court-martial was Mr. J. S. Easby-Smith and Solicitor

the deprivation of an office with a salary of General Hoyt for defendant in error.

over $5,000. That sum, therefore, was in

volved 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:

act of the defendant in fraudulently convertThe petition for certiorari must be first ing or appropriating the moneys in his posconsidered. A certiorari can be issued only session operates to forfeit all right or claim when a writ of error cannot. 26 Stat. at L. to any commissions, etc., and this, irre828, $ 6, chap. 517, U. S. Comp. Stat. 1901, spective of the question whether he is or is p. 550, last two paragraphs. There have been not convicted of any crime in respect theretwo or three instances in which, after a to. It is true such fraudulent conversion writ of error has been allowed, an applica- or appropriation is declared to be embezzle. tion for a certiorari has been filed, the lat- ment, and the defendant was prosecuted and ter because of doubt whether the former convicted of that offense, but the forfeiture would lie. It must not be supposed that be- of commissions does not follow the judg. cause we have before us both a writ of error ment, but follows the wrongful conversion or and an application for certiorari that the appropriation of the moneys. The only di

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