Ornelas v. Ruiz, 161 U. S. 602,
followed to the point that if in extradition proceedings the
committing magistrate had jurisdiction of the subject matter and of
the accused, and the offense charged is within the terms of the
treaty of extradition, and the magistrate, in arriving at a
decision to hold the accused, has before him competent legal
evidence on which to exercise his judgment as to whether the facts
are sufficient to establish the criminality of the accused for the
purposes of extradition, such decision cannot be reviewed on habeas
corpus.
This was an appeal from a final order of the Circuit Court for
the Southern District of New York dismissing writs of habeas corpus
and certiorari sued out by the appellant to obtain his release from
the custody of the marshal of that district and the warden of the
jail of the City and County of New York.
The proceedings were originally instituted by a complaint made
before a commissioner of the circuit court, duly authorized to act
in cases of extradition, by her Britannic Majesty's Consul General
at the City of New York, who charged the appellant with the crimes
of forgery, larceny, embezzlement, and false entries, committed in
the City of London, and demanded his extradition under Article X of
the Treaty of November 10, 1842, and Article I of the treaty
supplemental thereto, of March 25, 1890.
The commissioner held that the evidence clearly showed that the
appellant had been guilty of a crime specifically mentioned in the
treaty stipulations between the two countries, and accordingly held
him to await the action of the Secretary
Page 167 U. S. 105
of State and the final warrant of delivery. Appellant thereupon
sued out from the circuit court writs of habeas corpus and
certiorari, but that court, holding that there was legal evidence
upon which the commissioner could properly exercise his judgment as
to the guilt or innocence of the accused, dismissed the writs and
remanded the prisoner to the custody of the Marshal for the
Southern District of New York. From that order petitioner appealed
to this Court.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The question before the commissioner in this case was whether,
in the language of the treaty of 1842, Article X, 8 Stat. 572, 576,
there was
"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 been there committed."
In other words, whether, according to our laws, there was
probable cause to believe him guilty of the crimes charged.
Rev.Stat. § 5270;
Benson v. McMahon, 127 U.
S. 457,
127 U. S. 462.
The question before us is even narrower than that --
viz.,
whether there was any legal evidence at all upon which the
commissioner could decide that there was evidence sufficient to
justify his commitment for extradition, or, as stated in
Ornelas v. Ruiz, 161 U. S. 502,
161 U. S.
508,
"if the committing magistrate has jurisdiction of the subject
matter and of the accused, and the offense charged is within the
terms of the treaty of extradition, and the magistrate, in arriving
at a decision to hold the accused, has before him competent legal
evidence on which to exercise his judgment as to whether the facts
are sufficient to establish the criminality of the accused for the
purpose of extradition, such decision cannot be reviewed on habeas
corpus."
See also In re Oteiza, 136 U.
S. 330.
Page 167 U. S. 106
The evidence before the commissioner tended to show that Bryant
was employed by the firm of Morrison & Marshall, of London, as
bookkeeper and assistant cashier from January to October, 1896 at a
salary of �104 per annum; that he had under his control the check
books of the firm, and the paid checks returned from the bank,
although he was not authorized to sign the firm's name to checks;
that the firm kept an account with the London office of the
Commercial Bank of Scotland, and that such account was charged with
the three following checks,
viz.: June 23, �500; August
14, �500; September 1, �720. These checks purported to be drawn on
the bank, and to be signed by Morrison & Marshall, and were
presented for payment by the Provincial Bank of England, and were
paid and debited to Morrison & Marshall.
It further appeared that Bryant kept an account with the
Provincial Bank, in which he deposited on June 22 a check for �500,
on August 13 a check for �500, and on September 9 a check for �720,
which were credited to his account. It appeared that the three
checks paid by the Commercial Bank were abstracted from two check
books which were not in use at the time, and were accessible to
Bryant. No entry was made upon the counterfoils, or, as they are
called in this country, the "stubs," of the checkbooks from which
they were taken, nor was any memorandum of such checks anywhere
entered, nor were these checks among those received back from the
bank in the ordinary way.
It further appeared that Morrison & Marshall had a sum
exceeding �5,000 carried to the credit of a "suspense account" in
their ledgers, with which account, however, Bryant had no authority
to interfere. He did, however, bring a credit of �2,000 from such
"suspense account" to a fictitious account, which he opened in the
ledger in the name of T. H. North. Against this credit of �2,000 he
debited two items of �780 and �1,220. The �780 was posted in the
ledger from the cash book, and consisted of �280 and the �500
represented by the first check paid June 23. The �1,220 was
represented by the checks paid August 14, �500, and September 10,
�720. These amounts Bryant did not carry
Page 167 U. S. 107
out in the cash column of the cash book, but in order that the
balances of the cash book, ledger, and banker's pass book should
agree, he added the sum of �1,220 to the total at the bottom of the
page, notwithstanding that amount was not in the column, nor was
there any entry in the cash book relating to the �1,220, which
could be posted to North's fictitious account.
Upon this evidence, the appellant contended first that there was
no testimony before the commissioner tending to show that he had
been guilty of forging the three checks; second that if it were
shown that he had made false entries upon the books of Morrison
& Marshall, this would not constitute an offense for which he
could be extradited, for the reason that, when the treaty of 1842
was executed, the making of false entries was not forgery; third,
that as to the additional sum of �280, which the relator was
charged with embezzling, there was no evidence of criminality;
fourth, that, if there were evidence sufficient to hold appellant
upon the charge of forgery of the three checks, he could not be
held as for larceny or embezzlement, and that, if he were held for
embezzlement from Morrison & Marshall, he could not be also
held for obtaining the same money from the bank upon the forged
checks; fifth, that, as he could only be tried for the particular
offense for which he is surrendered, the demanding government and
the commissioner should have elected, and, if the latter deemed the
evidence sufficient to commit upon the one charge, he should not
have been committed upon the other.
We think there was legal evidence against the prisoner upon
which the commissioner was authorized to act, and that is
sufficient for the purposes of this case. If it were true that
three checks were missing from the checkbooks of Morrison &
Marshall to which the prisoner had access, and no corresponding
memoranda were made on the stubs, that three checks were presented
to the Commercial Bank by a bank at which the appellant kept a
personal account, and this account showed a credit of three checks,
which upon the following day were presented and paid by the
Page 167 U. S. 108
Commercial Bank, and that the appellant had no authority to sign
checks for Morrison & Marshall, the inference is at least a
reasonable one that these checks were forged by the appellant. The
commissioner was of opinion that if the moneys of the firm were not
actually obtained by forgery, they were obtained by embezzlement or
larceny, or at least there was probable cause to believe that they
were so obtained. So long as the prisoner is tried upon the facts
which appeared in evidence before the commissioner and upon the
charges or one of the charges for which he is surrendered, it is
immaterial whether the indictment against him shall contain counts
for forgery, larceny, or embezzlement. That is a matter of practice
with which we have nothing to do. While the original treaty of 1842
authorized the surrender only for the crime of forgery, or the
utterance of forged paper, the supplemental treaty of March 25,
1890, 26 Stat. 1508, included both embezzlement and larceny.
The order of the circuit court is
Affirmed.