To support an indictment on section 5480 of the Revised
Statutes, as amended by the Act of March 2, 1889, c. 393, for
devising a scheme to sell counterfeit obligations of the United
States, by means of communication through the post office, it is
unnecessary to prove a scheme to defraud.
In order to come within the exception of "fleeing from justice"
in section 1045 of the Revised Statutes concerning the time after
the commission of an offence within which an indictment must be
found, it is sufficient that there is a flight with the intention
of avoiding being prosecuted, whether a prosecution has or has not
been begun.
In order to constitute "fleeing from justice" within the meaning
of section 1045 of the Revised Statutes, it is not necessary that
there should be an intent to avoid the justice of the United
States, but it is sufficient that there is an intent to avoid the
justice of the state having jurisdiction over the same territory
and the same act.
This was an indictment in the Circuit Court of the United States
for the Southern District of New York, on section 5480 of the
Revised Statutes, as amended by the Act of March 2, 1890, c. 393,
and copied in the margin,
* for devising a
scheme to sell counterfeit obligations and securities of the United
States by means of circulars through the post office. The
indictment was found October 10, 1892, and contained two
Page 160 U. S. 129
counts, one charging the offence to have been committed on May
13, and the other on May 20, 1889.
By sections 1043 and 1044 of the Revised Statutes, as amended by
the Act of April 13, 1876, c. 56, "no person shall be prosecuted,
tried or punished" (except for murder, or under the revenue laws or
the slave trade laws of the United States) "unless the indictment
is found, or the information is instituted, within three years next
after such offence shall have been committed." 19 Stat. 32. But, by
section 1045, "nothing in the two preceding sections shall extend
to any person fleeing from justice."
At the trial of this indictment, the United States introduced
evidence tending to prove the commission of the offense at the
times alleged in the indictment, and also testimony that the
defendant was indicted June 20, 1889, for the same transaction, in
a court of the State of New York, under the Penal Code of the
state, and was arrested by the police, and gave bail upon that
indictment; that on October 10, 1889, his case was called in that
court, and his bail forfeited by order of the court; that the
officers afterwards made unsuccessful attempts to find him; that in
August, 1890, being in New York, he stated to Anthony Comstock (who
was called as a witness for the government) that he went to Europe
in the fall of 1889 because his counsel advised him to do so, and
told him to go abroad so that they could not call him as a witness
against one Bechtold, by whom the bail had been put up; that
Page 160 U. S. 130
in October, 1890, he made an affidavit and testified in a
prosecution in behalf of the United States against Bechtold, and
that the first charge made against him, for a violation of the laws
of the United States, was a complaint charging the same offense as
in this indictment, and upon which he was arrested October 2,
1891.
The defendant offered no evidence, and at the close of the
evidence for the government moved the court to direct an acquittal
because the indictment was found more than three years after the
offenses alleged and given in evidence, and because the words
"fleeing from justice," in section 1045 of the Revised Statutes
meant a fleeing from the justice of the United States, and not from
the justice of any state. The motion was denied, and the defendant
excepted.
The court instructed the jury that if they found that the
defendant was fleeing from justice between the times of the
commission of the offenses and of the finding of the indictment,
they might find him guilty, notwithstanding the indictment was
found more than three years after the commission of the offenses.
The further instructions of the court to the jury, together with
the requests and exceptions of Mr. Hess, the defendant's counsel,
and a request of Mr. Mott, the attorney for the United States, were
stated in the bill of exceptions as follows:
"The Court: The evidence as to his fleeing from justice, as I
understand it, was that there was a prosecution against the accused
in the state courts; that he gave bail to answer to the charge;
that when the time for trial came, he did not appear and his bail
was forfeited, and afterwards, when he had returned, he told the
witness Comstock that the reason why he was away was that he had
gone away because of the prosecution, under the advice of his
counsel, and that his bail had been paid by somebody else. If you
find that true, I charge you that he was fleeing from justice in
the meaning of the statute of the United States, during the period
of his absence notwithstanding the fact that that was a prosecution
in the courts of the state, and that there was then no prosecution
of him pending in any court of the United States."
"Mr. Hess: And to that I except. "
Page 160 U. S. 131
"The Court: For the purpose of this trial, I charge that if the
jury is satisfied of the main charge in this indictment, and are
likewise satisfied that during the three years mentioned he was
fleeing from justice, having gone from the country to Europe to
avoid the prosecution in the state courts, then you can convict him
notwithstanding the fact that it is conceded that the indictment is
found more than three years after the offense."
"Mr. Hess: To the latter part of your honor's charge I except. I
ask your honor to charge the jury that the forfeiture of the bail
by the state courts is not presumptive evidence of a fleeing from
justice."
"The Court: It is not conclusive evidence, but it is a
circumstance which the jury may consider."
"Mr. Hess: I ask your honor to charge the jury that before they
can convict this defendant under the indictment, they must be
satisfied from the evidence that there was a scheme to
defraud."
"The Court: No, the statute says a scheme to defraud, and
likewise a scheme to sell counterfeit money. This indictment
charges a scheme to sell counterfeit money. It is a scheme to sell
counterfeit money that the jury must find to have been devised by
the accused."
"Mr. Hess: They must be satisfied, before they convict, from the
evidence in the case that there was a scheme on the part of this
defendant to sell counterfeit money."
"The Court: I charge that."
"Mr. Hess: I also ask your honor to charge the jury that they
cannot infer a scheme to defraud from the circulars themselves.
They must be satisfied from the evidence that there was such a
scheme."
"The Court: I do not accede to the request. (Exception by
defendant.)"
"Mr. Hess: I also ask the court to charge the jury that it must
appear from the evidence that the defendant fled from justice of
the United States, and not from the justice of the state."
"The Court: That is declined. (Exception by defendant.)"
"Mr. Mott: I ask your honor to charge that if the jury find that
the defendant was absent from the country, as stated, for six
months at any time between the commission of this act
Page 160 U. S. 132
and the time of the filing of this indictment, then they can
convict notwithstanding the lapse of three years."
"The Court: I will give that charge. (Exception by
defendant.)"
The court also at the request of the defendant's counsel,
instructed the jury that the failure of the defendant to testify
should not raise a presumption against him, and that if they had a
reasonable doubt they must acquit the defendant.
The jury returned a verdict of guilty. The court sentenced the
defendant to be imprisoned in a penitentiary for eighteen months,
and he sued out this writ of error.
MR. JUSTICE GRAY, after stating the case, delivered the opinion
of the Court.
Only two of the questions argued in this Court are presented by
the exceptions taken at the trial.
One subject of exception was the refusal of the court to
instruct the jury, as requested by the defendant, that they could
not infer a scheme to defraud from the circulars themselves, but
must be satisfied from the evidence that there was such a scheme.
That instruction was rightly refused as immaterial. The court had
already instructed the jury, without exception by the defendant,
that they need not, under this indictment, be satisfied that there
was a scheme to defraud; that the statute spoke of a scheme to
defraud, and also of a scheme to sell counterfeit money; that the
indictment charged a scheme to sell counterfeit money, and it was a
scheme to sell counterfeit money that the jury must find to have
been devised by the accused. The statute, in very words as well as
in manifest intent, applies to any person who devises either a
scheme to defraud or a scheme to sell counterfeit money or
counterfeit obligations of the United States, provided the scheme
is intended to be effected, and is effected, by communications
Page 160 U. S. 133
through the post office. This indictment charged not a scheme to
defraud, but a scheme to sell counterfeit obligations of the United
States, and therefore no proof of a scheme to defraud was necessary
to support it.
Upon the question whether there had been such a "fleeing from
justice" by the defendant as to take the case out of the statute of
limitations, the only point taken at the trial was that there must
have been a fleeing from the justice of the United States, and not
from the justice of any state. No exception was taken to the
sufficiency of the whole evidence to prove that there had been a
fleeing from the justice of the State of New York, or to the
statement of that evidence in the instructions of the court to the
jury.
By section 1045 of the Revised Statutes, it is provided that
"nothing in the two preceding sections" (one of which, as amended
in 1876, requires the indictment, in such a case as this, to be
found within three years after the commission of the offense)
"shall extend to any person fleeing from justice."
The statute, while laying down the general rule that charges of
crime shall be formally presented within a limited time after the
act complained of, expressly excepts from that rule the case of
"any person fleeing from justice." It is unnecessary, for the
purposes of the present case, to undertake to give an exhaustive
definition of these words, for it is quite clear that any person
who takes himself out of the jurisdiction with the intention of
avoiding being brought to justice for a particular offense can have
no benefit of the limitation, at least when prosecuted for that
offense in a court of the United States.
In order to constitute a fleeing from justice, it is not
necessary that the course of justice should have been put in
operation by the presentment of an indictment by a grand jury, or
by the filing of an information by the attorney for the government,
or by the making of a complaint before a magistrate. It is
sufficient that there is a flight with the intention of avoiding
being prosecuted, whether a prosecution has or has not been
actually begun. Chief Justice Ellsworth so held.
Page 160 U. S. 134
Williams' Case, cited in
United States v.
Smith (1809), 4 Day 121, 125. And there can be no doubt that,
in this respect, section 1045 of the Revised Statutes must receive
the same construction that has been given to section 5278 by this
Court, saying:
"To be a fugitive from justice in the sense of the act of
Congress regulating the subject under consideration, it is not
necessary that the party charged should have left the state in
which the crime is alleged to have been committed after an
indictment found, or for the purpose of avoiding a prosecution
anticipated or begun, but simply that having, within a state,
committed that which by its laws constitutes a crime, when he is
sought to be subjected to its criminal process, to answer for his
offense, he has left its jurisdiction, and is found within the
territory of another."
Roberts v. Reilly, 116 U. S. 80,
116 U. S.
97.
Nor is it necessary in order to satisfy the terms of the statute
now before us that the fugitive should have the intention of
fleeing from justice as administered by any particular court, or
system of courts, having criminal jurisdiction over the territory
where the act supposed to have been criminal was committed.
The statute speaks generally of "fleeing from justice," without
restriction either to the justice of the state or to the justice of
the United States. A person fleeing from the justice of his country
is not supposed to have in mind the object of avoiding the process
of a particular court, or the question whether he is amenable to
the justice of the nation or of the state, or of both. Proof of a
specific intent to avoid either could seldom be had, and to make it
an essential requisite would often defeat the whole object of the
provision in question.
In the Constitution, laws, and treaties of the United States,
the words "fleeing from justice," or "fugitive from justice," have
not been used as of themselves implying a flight from the justice
of the nation only.
Section 1045 of the Revised Statutes is a reenactment of the
corresponding proviso in the first crimes act of the United States:
�Provided, that nothing herein contained
Page 160 U. S. 135
shall extend to any person or persons fleeing from justice." Act
April 30, 1790, c. 9, § 32, 1 Stat. 119.
At the time of the passage of that act, the only use, in the
Constitution or statutes of the United States, of the words "flee
from justice" was in Article IV, Section 2, of the Constitution,
concerning persons charged with crime in one state and found in
another state of the Union. And the earliest act passed by Congress
in execution of that provision of the Constitution used, both in
the title and in the enacting clause, the general words "fugitive
from justice" as applicable to that class of cases. The whole title
of that act, so far as it related to this subject, was "An act
respecting fugitives from justice." Act of February 12, 1793, c. 7,
1 Stat. 302. And that part of the act is reenacted in section 5278
of the Revised statutes.
The treaties made by the United States with foreign countries
for the extradition of persons accused of crime make no distinction
between crimes against one of the states of the Union and crimes
against the United States. By successive treaties between the
United States and Great Britain, for instance, each nation engages
to "deliver up to justice all persons" who, being charged with
certain crimes committed within the jurisdiction of either nation,
seek an asylum in the country of the other. Treaties of 1794, art.
27; 1842, art. 10, 8 Stat. 129, 576. There can be no doubt that
these treaties apply to all offenses, of the kinds specified,
committed within the territorial jurisdiction of the United States,
even if cognizable only in the courts of the several states.
United States v. Rauscher, 119 U.
S. 407,
119 U. S.
430.
From these considerations, our conclusion is that in order to
constitute "fleeing from justice" within the meaning of section
1045 of the Revised Statutes, it is not necessary that there should
be an intent to avoid the justice of the United States, but it is
sufficient that there is an intent to avoid the justice of the
state having criminal jurisdiction over the same territory and the
same act.
The only case cited at the bar which restricts the effect of
this section to persons fleeing from the justice of the United
States is
United States v. O'Brian, 3 Dillon 381, which
appears
Page 160 U. S. 136
to us to have proceeded upon too narrow a construction of the
section, inconsistent alike with its words and with its
purpose.
Judgment affirmed.
*
"If any person having devised or intending to devise any scheme
or artifice to defraud, or to sell, dispose of, loan, exchange,
alter, give away, or distribute, supply, or furnish, or procure for
unlawful use, any counterfeit or spurious coin, bank notes, paper
money, or any obligation or security of the United States or of any
state, territory, municipality, company, corporation, or person, or
anything represented to be, or intimated or held out to be, such
counterfeit or spurious articles, or any scheme or artifice to
obtain money by or through correspondence, by what is commonly
called the 'sawdust swindle,' or 'counterfeit money fraud,' or by
dealing or pretending to deal in what is commonly called 'green
articles,' 'green coin,' 'bills,' 'paper goods,' 'spurious Treasury
notes,' 'United States goods,' 'green cigars,' or any other names
or terms intended to be understood as relating to such counterfeit
or spurious articles, to be effected by either opening or intending
to open correspondence or communication with any person, whether
resident within or outside of the United States, by means of the
post office establishment of the United States, or by inciting such
other person or any person to open communication with the person so
devising or intending, shall, in and for executing such scheme or
artifice, or attempting so to do, place or cause to be placed any
letter, packet, writing, circular, pamphlet or advertisement, an
any post office, branch post office, or street or hotel letter box
of the United States, to be sent or delivered by the said post
office establishment, or shall take or receive any such therefrom,
such person so misusing the post office establishment shall, upon
conviction, be punishable by a fine of not more than five hundred
dollars and by imprisonment for not more than eighteen months, or
by both such punishments at the discretion of the court."
25 Stat. 873.
