IN RE HERRES.
:165
In re
HERRES)
(Olrcuit Oourt. D. Minneaota. December 16,1-887.) 1. EXTRADITI()lii-REQUIBITES...,.PREI,IMINARY MANDATE.
In proceedings for t4e extradition of a fugitivefriom justice, a preliIQ.insry mandate from the executive department. of the government is not necessary under the'extradition treaty:of 1842. between the United States and 'Great Britain; the act itself containing no provision to that effect, and because no extradition can be consummated, without action by the executive in the last i ' " . ' ,
9.
SAME-AuTHORITY FOR PROCEEDINGS:"-EvIDENCEOF.
A complaint :flIed before the United States commissioner for the extradition of an alleged fugitive from justice did not disclose the :fact that. the proceedings were initiated by the Canadian or that the party filing the same Was acting other'than in his private capablty; but it appeared from the testimony taken before the commissioner that the'icbmplaining witness was acting un,qer direct' authority from the officials of the Canadian government. Bela, that it is sufficient If such fact appear elsewhere in the proceedings than in the complaint. " ,
S.SAME-PRoOF OFCRThtE-MEASURE.
Depositions for tM extradition of an alleged fugitive from justice showed that e forgery had been committed by one John K. and a witnesstestified to have seen prisoner in Torontq, where the crime was charged to have . been committed. When attested, prisoner denied his name, claiming it was Walker. but subsequently he swore to and signed an affidavit for change of venue as John K. Herres.· On habeaa corpua, petitioner objected that the ,evidence failed to show that he was guilty of the offense'charged against him in Canada. Held; that extl!adition proceedings are like preliminary examinations, and if it appear th8t a crime has been committed, and that there is probable reason to believe that the defendant isgUllty of crime, substantial justice requires that he should be put upon trilL\. ,
4.
SAME-DEPOSITIONS-AuTHENTICATION.
On habea8 corpua for the discharge of a prisoner, held under extradition proceedipgs, it was illsisted that the depositions of complaining witness were not properly certified and authenticated. 22 St., U. 8.216, provide that depositions shall be received if they be properly'and legally authenticated, so as to be entitled to be received for similar purposes before tribunals of the foreign from which t4e accused shall have :fled.. geld, that the authentication was in the very language of the statute, and these depositions were as such entitled to be received for similar purposes. Rev. St. U. B. 1674, define "'Vice'consul " ss follows: .. , Vice-consuls' and 'vice-commercial agents' shall be deemed to denote consular officers who shall be substituted, temporarily, to fill the places of consuls general, consuls, or commercial agents, when they shall be temporarily absent, or relieved from duty." Depositions for the extr.adition of an alleged fugitive from justice of On,tario, Canada, having been autheJ;lticatedby the vice-consul of the United'States, held, that prisoner's claim that a vice-consul is a deputy, and not the principal diplomatic consular officer authorized to authenticate such papers, is unfounded.
5.
SAME.
Petition for Writ of Habeas CorpU8. On appeal from the district court. John Karl Herres, an alleged fugitive from justice of the province of Ontario, in the dominion of Canada, held in custody under extradition proceedings,. applied for a writ of habeas corpU8, upon the return of which 1
Reversing 62 Fed. RllP. 588.
FEDERAl.. REPGlRTER. ,
in the United States district court of Minnesota, a decree was entered discharging the prisoner. &e,82 Fed. Rep. 583. From this decree the case is brought to the circuit court. I say I am unable to agree with the views taken by' the learned judge' (if the district court; and I will state briefly therefor." , , The Jirst is:wpeth,era preliminary mandatefroUl ,the executive is essential to extradition proceedings. .That question has never bee'Ii decided by the suprtiine court; Tn the Case of KaiJne, 14 How. '129, the question was befqre,{tpa,t ,cpurt, ,and, of the Eleven judges, four expressed an opinion-one and three the otheJ.'.But that case went off on some other question, ,and S9 there never has been a decision. Of it,)V9uld'bep1:;ellthhing for rn:eto attempt to .review the different opinions. jridgesof that.:court. I simply state that I hold that a preliqtil1ary mandate is unnecesslt.ry;and, reasons: .First. The act itselfrilakes no' provision for such' a mandate. Second. No extradition can be consummated w:ithout acti()Uby. the executive in the last instance., It would seem, therefore, superfluous to compel the executive bOthtoinitiateandconsuinmat'ethe proceedings. Third. The ,:geperal 1 take it, of the decisions in the circuit courts, is against the necessity:for such Ii mandate. Fourth. Insisting upon it will oftentimes. defeatthe'yery purposes of the in that the fugitive is warned ornQJified of the proceeding, and may escape to some other place. So,'w..hile it would be presumption on my part to say that there are not cogerit"reasons on .both sides of question, I ,think it is the safer and better course to hold that no such preliminary mandate is essential. . , '.,' The second question lis this: The complaint filed before the commissioner doe$qot disclosetl1e fact that the proceedings are initiated by the government, or that the party filing the affidavit is acting other than in 1>,i8 private capacity as an individual. I doubt not that the pro- ' 'ceedingsmust be initiated and carried on by the foreign government; but it seems to me that, if it appearin the examination before the commis'sioner, or elseWhere in the proceedings than in thecom.plaint, that it is .in' reality a proceeding initiated and carried on by the foreign govern,hl:ent, that"i$, It is a matter of substance, rather than of form, and if it anywhere appear that this is officially undertaken by the foreign government;.thatought to ,It from the testi,000nyof witnesS 1before the commissioner that he was acting under direct authority from the officials of the Canadian government. ".The third question is this:· ,.It is insisted thattbedepositionsare not properlYc.ertitiied and authenticated. The old act in that respect as to ,certification andnaathentication was changed in 1882,and the new act is volume ofthe Statutes, upon page 216. That provides that depositions shall be received, if they be properly and legally authenticated, so as to be entitled to be receivei>for similar purposes BREWER,
.
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IN REHERRES.
167
before tribunals of the foreign country from which the' accused shall have language ofithe statute, and escaped. The authentication is in the these depositions were" as such, entitled' to be received for similar purposes. The certification is made by the vice-consul, and that is charged as the fourth reason, on the ground ·that the language of the act names the principal diplomatic consular of the United States, and the claim is made that the vice-consul is a deputy, and not a principal officer. Section 1674 of the Revised Statutes does away with that claim, for whatever may be force of the word in that section defines vice-corisul in this language: '''Vice-consuls' and 'vice-commercial agents' /l:gall be deemed to. denqte consular officers, who shall be tqfill the plaQl;18 of consuls general, consuls, or commercial agents, when they shall be temporarily absent, or relieved from duty." . words, the vice-cQnsul is 1;1ot.R deputy, but an acting consul. ' '. .'. . , The final objection is that the evidence fails to show that this petitioner was guilty of th,e offense charged against himjn Canada. The depoei- . tions show ,that forgery wascomm:lttejJ, by onlt John K. Ilerres; but as to the identity of this petitioner, they are not so satisfactory. One witness thinks that he once saw him in TorontO. It appears that John K. Herres lived in the community where the crime is charged to have been committed. Wrwh arrested, petiti6'net denied that his name was John K. Herres, and claimed that it was Walker; but afterswears wards he files an affidavit for a change ofvenue, which to as John K. Herres. . It was said in argument, although I have not tbe 'means of verifying' thiEf stattilllent, that,the signature to that ttffidavit is so similar to the signature on the forged paper that it is verystrc:>ng. evidence that the tWQsignatures were written by the Same person. '. What I have here is'only a copy, and so I am not able to verify thatstatement. But it is evident that th.e commissioner had whatever weight that testithat there is mony gave before him for consideration. It enough to justify this court in eaying that the party: ought to be extradited for trial.· Such a proceeding as this in sOlllerespects is like apl'eliminary examination; and if it appear that a crhl1e has been committed, and that there is probable reason to beHave that the defendant is guilty ofthat crime, substantial justice requites that he should 'be put upon trial. Finally, l'tnight obser"e,with reference to these extradition proceed.; ings, that the substanoe, and not the form, should be the main object of inquiry, and' that they should notbe condueted!;in'any technical'spirit' with a view' to prevent extradition.' While the courts should review the i proceedings 'to see that no extradition is consnmn1ated upon a 'mere pretext, or to subserV'e private malice, yet, if it appears that a crime has been committed,and probable that the aoCj,used;hi'ts 'fled: ltd this try for refuge,' then a spirit of fairnl>.ss,expecting that the foreigri couh;; try will treat ElxtradItion, i>roceedings from this' country in thesatnE' flpirit, requires that we adt r1'l:1sonably and justly, having reference more to the substance thtln to thefortn,of the proceedings.:Betwel':in govern-
FEDERAI, REPORTER.
ments,as between individuals, the golden rule is both wise and sonnd. Entertaining these views; the judgment Of the district court will be reversed,and the petition for habeas COrpU8 will be 4enied.
UNITED STATES
v.
MCCONAUGlIY·
'(Di8trict Oourt, D. Oregon. December 29, 1887.) OF DEFENDANT'S OATH.
1.
In an indiCtment for p'erjury, it must distinctly appear that the defendant , was sworn., An allegation tbat the 'defendant did "depose and swear" to the truth of the answers contained in the deposition following, does not show that the defendant was "sworn" to the truth of said answers. . '. . . " . '. " . n.: ,
2. SA.ME.
One may ""wear" who'is not "sworn;" and in such case the oath is not adbut self-iIJ;lposed, and the swearer inCUrS no legal liability ther!!" about. . (SllUabU8 bV thll (7Qurt.) '), 11.
S. SAME.
Indictment fQr PerjuJ:'Y.. OQ/;demurrer. ,Lewi8L. lIfcArthur, for the United States. Gyms A, Dolph, for defendallts. DJlj'ADY, .J. The indictmeritin tbis-case Wa!! filed AprilS, 1887,and charges the defendant with tbecDim.e of perjury, committed on August 19, 1885, -in a deposition given before the register and receiver of .the United States fand-office for the Lake'liew in· making the final proQf in the matter of bis desert-land entry in said district under taeaet of March,3, 1877, (11l St, l377.) .The defendant demurs to tae indictment; for that (1) the saDledbes not state,facts sufficient to constitute , a crime against.the United States; and (2) the court has no jurisdiction of the sUbje.ct-matter. On the argument the only point made by couns@l for the:demurrer is that the indictmept does not show that the defendant was swam. After stating the pendency of the proceeding before the r.egister and receiver, the indictment alleges that the defendant offered himself. as a witness therein on his own behalf, and" did subscribe his name to a deposition in the words and figures following: [here follows the deposition, with a certificate ·of the receiver thereto that the same was subscrih.ed and sworn to before me this nineteenth day of August, 1885.]" . indictment then allegesthat the defendant did in said proceeding willfully and corruptly "depose and swear" that the answers which he hadm.ade to the questions.in said deposition contained were, to the best of his knowledge and belief, true; that the ".said oath" in said proceeding," taken as aforesaid" by said .defendant, "was then and there duly administered" to him by said and receiver.