The appellant, a Canadian, was extradited from Canada under the
extradition treaty between Great Britain and the United States,
and, being brought before a police court of Detroit, was charged
with larceny, gave bail for his appearance at the trial, and
returned to Canada. Returning from Canada to Detroit voluntarily
before the time fixed for trial, he was arrested on a capias issued
from the District Court of the United States for the Eastern
District of Michigan before his extradition, charging him with an
offense for which be was not extraditable, and was taken into
custody by the marshal of that district. He applied to the district
court of the United States for a writ of habeas corpus, which
Page 174 U. S. 65
was allowed. After hearing and argument, his application for a
discharge was refused by the district court. On appeal to this
Court, it is
held that under the circumstances, the
appellant retained the right to have the offense for which he was
extradited disposed of, and then to depart in peace, and that this
arrest was in abuse of the high process under which he was
originally brought into the United States, and cannot be
sustained.
November 7, 1895, Winney, United States Marshal for the Eastern
district of Michigan, made a complaint before one of the police
justices of the City of Detroit within that district against Thomas
Cosgrove for the larceny of a boat named the "Aurora," her tackle,
etc., whereon a warrant issued for his arrest. Cosgrove was a
resident of Sarnia, in the Province of Ontario, Dominion of Canada,
and extradition proceedings were had in accordance with the treaty
between the United States and Great Britain, which resulted in a
requisition on the Canadian government, which was duly honored, and
a surrendering warrant issued May 19, 1896, on which Cosgrove was
brought to Detroit to respond to the charge aforesaid, was examined
in the Police Court of Detroit, was bound over to the July Term,
1896, of the recorder's court of that city, and was by that court
held for trial and furnished bail. He thereupon went to Canada, but
came back to Detroit in December, 1896.
December 3, 1895, a capias issued out of the District Court of
the United States for the Eastern district of Michigan on an
indictment against Cosgrove on the charge of obstructing the United
States marshal in the execution of a writ of attachment, which was
not served until December 10, 1896, some months after Cosgrove had
been admitted to bail in the recorder's court.
Cosgrove, having been taken into custody by the marshal, applied
to the district court for a writ of habeas corpus, which was
issued, the marshal made return, and the cause was duly argued.
The court entered a final order denying the application and
remanding the petitioner. From this order an appeal was taken to
the circuit court of appeals, and there dismissed,
Page 174 U. S. 66
whereupon an appeal to this Court was allowed, and Cosgrove
discharged on his own recognizance.
The district judge stated in his opinion that it appeared
"that the property, for the taking of which he [Cosgrove] is
charged with larceny, was the vessel which, under the indictment in
this court, he was charged with having unlawfully taken from the
custody of the United States marshal while the same was held under
a writ of attachment issued from the district court in
admiralty."
And further:
"The only question which arises under this treaty, therefore, is
whether, upon the facts stated in the return, which was not
traversed, the petitioner has had the opportunity secured him by
that treaty to return to his own country. If he has had such
opportunity, then article 3 has not been violated, either in its
letter or spirit, by the arrest and detention of the petitioner. It
is conceded that he was delivered to the authorities of the State
of Michigan in May, 1896, to stand his trial upon the charge of
larceny. He gave bail to appear for trial in the recorder's court
when required, and immediately returned to Canada. On December 10,
1896, he voluntarily appeared in the State of Michigan, of his own
motion, and not upon the order of the recorder's court or at the
instance of his bail, and while in this district, was
arrested."
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
Article 3 of the extradition convention between the United
States and Great Britain, promulgated March 25, 1890, 26 Stat.
1508, and section 5275 of the Revised Statutes, are as follows:
"Article III. No person surrendered by or to either of the high
contracting parties shall be triable or be tried for any crime or
offense, committed prior to his extradition, other
Page 174 U. S. 67
than the offense for which he was surrendered, until he shall
have had an opportunity of returning to the country from which he
was surrendered."
"SEC. 5275. Whenever any person is delivered by any foreign
government to an agent of the United States, for the purpose of
being brought within the United States and tried for any crime of
which he is duly accused, the president shall have power to take
all necessary measures for the transportation and safekeeping of
such accused person, and for his security against lawless violence,
until the final conclusion of his trial for the crimes or offenses
specified in the warrant of extradition, and until his final
discharge from custody or imprisonment for or on account of such
crimes of offenses, and for a reasonable time thereafter, and may
employ such portion of the land and naval forces of the United
States, or of the militia thereof, as may be necessary for the
safekeeping and protection of the accused."
Cosgrove was extradited under the treaty, and entitled to all
the immunities accorded to a person so situated, and it is admitted
that the offense for which he was indicted in the district court
was committed prior to his extradition, and was not extraditable.
But it is insisted that, although he could not be extradited for
one offense, and tried for another without being afforded the
opportunity to return to Canada, yet as after he had given bail, he
did so return, his subsequent presence in the United States was
voluntary, and not enforced, and therefore he had lost the
protection of the treaty, and rendered himself subject to arrest on
the capias, and to trial in the district court for an offense other
than that on which he was surrendered, and this although the
prosecution in the state court was still pending and undetermined,
and Cosgrove had not been released or discharged therefrom.
Conceding that if Cosgrove had remained in the State of
Michigan, and within reach of his bail, he would have been exempt,
the argument is that, as he did not continuously so remain, and
during his absence in Canada his sureties could not have followed
him there and compelled his return if his appearance happened to be
required according to the exigency
Page 174 U. S. 68
of the bond, which the facts stated show that it was not, it
follows that when he actually did come back to Michigan, he had
lost his exemption.
But we cannot concur in this view. The treaty and statute
secured to Cosgrove a reasonable time to return to the country from
which he was surrendered, after his discharge from custody or
imprisonment for or on account of the offense for which he had been
extradited, and at the time of this arrest he had not been so
discharged by reason of acquittal, or conviction and compliance
with sentence, or the termination of the state prosecution in any
way.
United States v. Rauscher, 119 U.
S. 407,
119 U. S.
433.
The mere fact that he went to Canada did not, in itself, put an
end to the prosecution, or to the custody in which he was held by
his bail, or even authorize the bail to be forfeited, and when he
reentered Michigan, he was as much subject to the compulsion of his
sureties as if he had not been absent.
In
Taylor v.
Taintor, 16 Wall. 366,
83 U. S. 371,
Mr. Justice Swayne, speaking for the Court, said:
"When bail is given, the principal is regarded as delivered to
the custody of his sureties. Their dominion is a continuance of the
original imprisonment. Whenever they choose to do so, they may
seize him and deliver him up in their discharge, and if that cannot
be done at once, they may imprison him until it can be done. They
may exercise their rights in person or by agent. They may pursue
him into another state, may arrest him on the Sabbath, and, if
necessary, may break and enter his house for that purpose. The
seizure is not made by virtue of new process. None is needed. It is
likened to the rearrest by the sheriff of an escaping prisoner. In
6 Modern 231 it is said: 'The bail have their principal on a
string, and may pull the string whenever they please, and render
him in their discharge.' The rights of the bail in civil and
criminal cases are the same. They may doubtless permit him to go
beyond the limits of the state within which he is to answer, but it
is unwise and imprudent to do so, and if any evil ensue, they must
bear the burden of the consequences, and cannot cast them upon the
obligee. "
Page 174 U. S. 69
We think the conclusion cannot be maintained on this record that
because of Cosgrove's temporary absence, he had waived or lost an
exemption which protected him while he was subject to the state
authorities to answer for the offense for which he had been
extradited.
The case is a peculiar one. The marshal initiated the
prosecution in the state courts, and some weeks thereafter the
indictment was found in the district court for the same act on
which the charge in the state courts was based. The offenses,
indeed, were different, and different penalties were attached to
them. But it is immaterial that Cosgrove might have been liable to
be prosecuted for both, as that is not the question here, which is
whether he could be arrested on process from the district court
before the prior proceeding had terminated and he had had
opportunity to return to the country from which he had been taken;
or rather whether the fact of his going to Canada pending the state
proceedings deprived him of the immunity he possessed by reason of
his extradition, so that he could not claim it, though the
jurisdiction of the state courts had not been exhausted, he had
come back to Michigan, and he had had no opportunity to return to
Canada after final discharge from the state prosecution.
We are of opinion that, under the circumstances, Cosgrove
retained the right to have the offense for which he was extradited
disposed of, and then to depart in peace, and that this arrest was
in abuse of the high process under which he was originally brought
into the United States, and cannot be sustained.
Final order reversed and cause remanded, with a direction to
discharge petitioner.
