,INRE, CHARLESTON.
531
IIdueprocess oflaw" whicb ifrequired to beusedbv the state is its own process, and not the process of another stf:lte or the process of the United States. The supreme court has declined to define or attempt to define the meaning of "due processoflaw," and has wisely left its meaning to be ascertained by a"gradual process of judicial inclusion and exclusion." This case does not, however, require that we shall attempt to define it, becansetbere can be no doubt the Kentucky process by whi.ch thepetitioner was arrested after he was brought into the state, was "due procetls of law," so far as the process of that state is concerned. If, therefore we are correct in construing this part of the fourteenth amendment as meltning that the prohibition is confined to "a state," and that the "dlle process of law," which is required to be used before any person can be deprived of his life, liberty, or property by a state, is ,the due process of that state, then the petitioner's arrest and detention in the jail of Pike county is not a violation of this provision of the fourteenth amendment of the constitution of the United States. The fifth amendment to the constitution, ;of the United States deciared that 'Ino person shall be * * * deprived of life, liberty, or property;without due process of law." The uniform construction of this amendment is that the United States shall. not deprive any person of life, liberty, or property without due process oflaw, and that the process which is meant is a federal process. Indeed,the form and character of the government precludes any other construction. When this question was first presented, I was inclinedtotheopinion that '!due process of law" in tbe, meaning of the fourteenth amendment required the petitioner's extradition from West Virginia by a legal process, as well as his legal arrest after he was in Kentucky; but a more critical examination has satisfied me that this amendment has not been violated by the state of Kentucky in thus arresting and detaining the petitioner in the jail of Pik.e county. The petitioner must therefore be remanded to the custody of the jailer of 1'ik.e county, and it will be so ordered.,
In re
CHARLESTON.
(IJilJtr(ct Court, D. Minne8ota. Hay, 1888 )
1.
ExTRADITION-COMPl-AINT-FoRGERY.
forth the note alleged to be forged, its amount. the date. and names of the partiell. and the bank whic1l. discounted the note, is sufticient,both in sub· stance and in form. 2. SA1Ul:-IDENTITY OF PERSON; The identity of. the prisoner is sufficiently establlshed when, upon beinA brought before the commissioner. he admits that he is the person named in the complaint, and ,thl1t he. executed the note therein describe.d..
A complaint in extradition proceedings for forgery, which minutely sets
.
8.
SAME-EvlDENCE-DEPollITi:ONs-AUTHENTICATION..
The- act of congress (22, St. at Large, p. 216, § 0) 'declares that ineX'trscUtion cases copies of depositions, relating to' allegations in the complaint shall be
'.
1;32
FEDERAL REPORTER.
admitted 1\8 evidence for ,11 the purposes of the hearing,.ifthey shall be prop· erly and legally authenticated, so as to entitle them to be received for similar purposes by the trihunals of the foreign country from which the accused shall have escaped, and the certificate of the principal'diplomatic or consulate offi· cer shall be proof that any deposition, warrant, or other paper, or copies thereof, so offered, are duly authenticated. Held, that it is not necessary, in addition to the certificate of the consul. to prove that the law of the foreign country would allow "copies of original depositions taken before a mag· istrate to be received as competent proof against the accused for purposes of commitment. "
Habeas Corpus. James J. McCafferty, for petitioner. James E. Markham; contra. NELSON, J. A complaint of John Wilson MurraysetHng forth that he is chief of' the provincial detective department of the province of Ontario, in the dominion of Canada, and the duly-authorized agent of the government of said dominion to prosecute an extradition proceeding, was made before William A. Spencer, commissioner of the circuit court of the United States in this district, duly authorized to hear extradition proceedingsunder lhe treaty between Great Britain and the United States, charging the petitioner with the crime of forgery, alleged to have been committed at the township of Raleigh, in the county of Kent and province of Ontario. A warrant issued, and he was arrested and held and committed by the commissioner for extradition. He is brought· before me on a writ of habeas corpus with the proceedings under a writ of certiorari. A demurrer is interposed and it is urged by the counsel for the petitioner that the proceedings before the commissioner are irregular, and the evidence insufficient to justify this commitment. Article 10 of the "treaty with Great Britian declares that the persons charged with crime are to be delivered up, "provided that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person.so charged shall be found, would justify his apprehension and commitment for trial if the crime or offense had there been committed," a..d the magistrate shall have authority to issue a warrant that the person charged may be brought before such magistrate, "to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining magistrate to certify the same to the proper executive authority that a warrant may issue for the surrender of such fugitive." By section 5270, RE'v. St. U. S. ,comllli$sioners duly designated may issue and hear such cases. The questions involved before the examining magistrates, on a hearing, within the scope of the obligations assumed by the treaty, are clearly (1) the identity of the person charged with the crime; (2) the BufficiQncy of the evidence of criminality. It is urged that the complaint before the commissioner is not sufficient to give him jurisdiction. 'fhis objection is not well taken. 'fhe instTuplent alleged to be forged,. the amount of the. note, the date and names 'of the persons, and the bank which discounted the note, are all minutely
IN RE CHARLESTON.
533
set forth. The complaint is not only good in substance, but in form, and so describes the crime that the prisoner could not be mistaken in regard to the accueation. The commissioner had full jurisdiction to issue the warrant, and proceed in the case. The identity of the prisoner is established by his own admission, when brought before the commi\!!sioner, that he was the person named in the complaint, and that he executed the note therein described. Nothing further was necessary except to show probable cause of guilt by competent evidence. If this is done, the prisoner must be remanded. The original note was produced, and certain depositions offered in evidence respecting the allegations in the complaint. The manager of the bank which discounted the note certified, as appears in the copy of his deposition, that the prisoner brought the note alleged to be forged to the bank, and represented that the note was made by persons whose names are charged to be forged. The copy of the deposition of Robinson, whose name appears as one of the makers of the note, that he did not sign it, "nor was the prisoner or any other person authorized to sign it for me." If these depositions are competent evidence, and properly received, the sufficiency of the evidence of criminality is not doubtful. These copies of depositions and all the foreign ?apers offered in evidence have attached a certificate of the American con"ul at the city of Toronto, in the province of Ontario and dominion of Canada, that they are properly and legally authenticated toentitJe them to be used for similar purposes in the tribunals of the said province and of the said dominion. An objection is interposed to this certificate the force of which I do not clearly comprehend. The couDsel concedes that the question to be considered is the competency of the copies of the depositions, asevidence of criminality, and it is also true that the competency of the evidence is to be determined by our law, according to the rules of evidence which congres8 has prescrihed in the act passed August 3, 1882, but it is claimed that proof should have been given, in addition to the certificate of the cODsul. that the law of the dominion of Canada would allow "copies of original depositions taken before Ii. magistrate to be received .as competent proof against the accused for the purposes of commitment." I. cannot appreciate this point. The fact for the commissioner to determine .is the criminality of the person charged, and by the treaty the .question is, what is competent evidence of that fact here in Minnesota where the prisoner is arrested? The act of congress must settle this, which declares in substance "that in extradition cases copies of depositions relating to the allegations in the complaint shall be received and admitted as evidence on the hearing, for all the purposes of the hearing, if they shall be properly and legally authenticated, so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped, and the certificate of the principal diplomatic or consulate officer shall be proof that any deposition, warrant, or other paper, or copies thereof so offered. are authenticated in the manner required by this act." See 22 St. at Large, '.§ 5, p.216.
534
REPORTER;
The oertificate of the corisulto tlie depositions fully meets the requirements Qf this act to entitle the dep0sitions' to be. received by the commissioner as evidence of It has been held by all tribunals which ,have passed upon this act 0[1882 that "similal'l purposes" refers ro th,ew,Qrds "for all the purposes of such hearing," that is, to proof of criminality. : See In re McPhun, 30 Fed. Rep. 57; lnre Hems, 32 Fed. Rep. 583;,In reHinrich, 5 Blatchf. 414, 425; and others. The other objections to th,e proceedings are technical. According to the record, the prisoner, when shown the note, admitted>that he made it,:and,gotthe money on it from the Merchants' Bank in Chatham. I find, no ,error in the proceedings before the commissioner, and an order will, be. entered dismissing the writ of habeas corpus, and remanding the prisoner.
"(Oircuit OO'U'f't,
et. at·. ' March 26,' 1888.) . .
" .
N; 'D.
OaliJo'rnia.
TRADE·MARXfil-.-!NFRINGElIEN'r-MEASU>RIt, OF DAMAGES.
Thl"C1-wneris ,entltledto recover,pfthe Infrin.ger o,fa trade-mark profits arising from 'the sale of, thespurlohs' goods, with the trade-mark Impressed , upon' thenk ]fe is not 'limited to the difference between the price for which the spu,riouB, !to?ds would selIl\Tithout, and the the same goods witp.. the trade-mark Impressed upon them. ;'It
(Syllabus b1l.
!
OO'U'f't.)
"
.8uitfor Infringement of Trade-Mark. M. A. >Wlieat<m;, for complainant. Mastick, B,elcherOc Mastick. for defendants· SAWYER, J... This is a for the infringementofa trade-mark "C. Benkert & :80n,n used by' the plaintiff, doing business under that name, as the successor in interestofa Philadelphia firmo! which he was an original ,metnber,engaged in' the manuJiwture and sale of boots and shoes, upon which the trade-tnark,was stamped. There is no doubt in ' my mind, ,as to the right Mihe plaintiff as an original owner in part, and successo.r in interest to the business to this trade-mark acquired by many years nse,{morfl than a third of a century,)and :so generally known as to have almost become a part of the public history of the country. And I have as little that defendants knowingly and willfully infringed, the words I'C. F. Benkert &80n, Phila,',\' and "C. F. Benkert & Son, "on, at least 250 dozell pairs of boots and, shoes sold by them. The boots nndshoes so soldvvere not, manufactured by defendants, but purchased from other manufacturers,s.t the East, and then sold by them with the simulated trade-mark of plaintiff' stamped upon the soles and on the inside of the boot-top. Such sale is admitted by the defendants in their answer and in the' testimony of defendant· Feder. ' Hdoes not appear whether they wefe so stamped before or a·fler purchase hy defendsold with the trade-mark stamped upon them. ants, but they
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