Extradition treaties should be faithfully observed and
interpreted with a view to fulfilling our just obligations to other
powers, without sacrificing the legal or constitutional rights of
the accused. Technical noncompliance with formalities of criminal
procedure should not be allowed to stand in the way of the
discharge of the international obligations of this government.
1. Section 5270 of the Revised Statutes is satisfied if the
commissioner before whom the warrant requires the person arrested
to appear has been specifically authorized to act in extradition
proceedings on the same day the warrant is issued, and the oath to
the complaint need not necessarily be taken before a commissioner
specifically authorized to act in extradition proceedings, but the
judge issuing the warrant may act upon a complaint sworn to before
a United States commissioner authorized generally to take
affidavits.
2. The district judge may make the warrant returnable directly
before a commissioner who, upon the same day, is specially
designated to act in extradition proceedings.
3. Under a statute punishing embezzlement of property which has
come under the control or care of the defendant by
virtue of
his employment as clerk, agent, or servant, it is sufficient
to allege that the defendant, while so employed, embezzled money
entrusted to and received by him in his capacity as clerk, etc.
A complaint in extradition need not set forth the crime with the
particularity of an indictment. It is sufficient if it fairly
apprises the party of the crime with which he is charged.
4. A complaint is not defective because it does not use the word
"fraudulently" in referring to the defendant's action in embezzling
the money entrusted to him. The word "embezzle" implies a
fraudulent intent; the addition of the word "fraudulently" would be
mere surplusage.
5. An order made by an officer in Russia purporting to act as an
examining magistrate, and reciting the fact of defendant's flight
and ordering him to be brought before an examining magistrate,
which is evidently designed to secure the apprehension of the
accused and his production before an examining magistrate, although
not in the form of a warrant of arrest as used in this country, is
a sufficient compliance with the provision of the treaty which
requires an authenticated copy of the warrant of arrest
Page 187 U. S. 182
or of some other equivalent judicial document issued by a judge
or magistrate of the demanding government. Furthermore, Congress
not having required by section 5270 the production of a warrant of
arrest by the foreign magistrate, has waived that requirement of
the treaty.
6. The sufficiency of evidence properly certified under section
5 of the Act of August 3, 1882, 22 Stat. 216, to establish the
criminality of the accused for the purposes of extradition cannot
be reviewed upon habeas corpus (following
In re Oteiza,
136 U. S.
330).
7. Where depositions and other documents in the record are
certified by the proper officer, as required by the Act of August
3, except that the certificate says that the papers "are properly
and legally authenticated so as to entitle them to be received and
admitted
as evidence for similar purposes by tribunals of
Russia," the language being a literal conformation to the statute,
adding only the words italicized, the introduction of those words
does not invalidate the certificate.
8. Under section 5270, the complaint may be made by any person
acting under authority of the demanding government having knowledge
of the facts. The accused, however, can only be surrendered upon
the requisition made by the foreign government through the
diplomatic agent or superior consular officer, and this may be made
entirely independently of the proceeding before the magistrate, and
the certificate of the Secretary of State that such demand has been
made does not have to be produced before the warrant can be
issued.
9. Where a cheque is delivered to a clerk with instructions to
draw money from the bank, take it to the railway and forward it to
another city, he obtains possession of both the cheque and the
money honestly and with the consent of his principal, and if he
subsequently converts the money to his use, it is
prima
facie a case of embezzlement, and not of larceny, within the
definitions of both crimes under the laws of California, and while
there might be a question for a jury in a Russian court to pass on,
it is sufficient in proceedings here if a
prima facie case
of embezzlement is made out.
This was an appeal from a judgment of the Circuit Court for the
Northern District of California, dismissing a writ of habeas corpus
sued out by Griffin and remanding him to the custody of the
defendant, marshal for the Northern District of California, who
held him under a mittimus issued by a commissioner in certain
proceedings under a treaty with the Emperor of Russia for the
extradition of criminals proclaimed June 5, 1893. 28 Stat.
1071.
These proceedings were begun by a complaint of Paul Kosakevitch,
Russian consul at the City of San Francisco, stating in substance
that on March 6, 1901, Griffin, a Cossack of the Don
Page 187 U. S. 183
and a Russian subject, in the employment of the firm of E. L.
Zeefo & Co., doing business in the City of Rostov, on the River
Don, in the Empire of Russia, embezzled the sum of 25,000 roubles,
entrusted to and received by him in his capacity as "clerk" of such
firm, and that he had subsequently absconded and taken refuge in
San Francisco; that he had been indicted in Russia for the
embezzlement of the money, and that a mandate had been issued by
the Department of State in Washington directing the necessary
proceedings to be had in pursuance of the laws of the United States
in order that the evidence of his criminality might be heard and
considered. The complaint was sworn to before George E. Morse,
United States commissioner, with the usual power to take
affidavits, but not specially authorized by any court of the United
States to take proceedings in extradition; that, upon such
complaint, the judge of the District Court for the Northern
District of California issued a warrant of arrest, and directed
that petitioner, when arrested, should be brought before E. H.
Heacock, Esquire, United States commissioner, for examination and
further proceedings; that at the time such warrant was issued,
Heacock was not authorized to take jurisdiction of extradition
proceedings, and that the evidence before him failed to show that
the petitioner had committed the crime of embezzlement.
Several other defects in the extradition proceedings are set
forth in the petition, and, so far as they are deemed material,
appear hereafter in the opinion.
Upon a hearing upon this petition, the circuit court made an
order remanding the petitioner to the custody of the marshal, and
an appeal was thereupon taken to this Court.
In re
Griffin, 112 F. 790.
MR. JUSTICE BROWN delivered the opinion of the Court.
Page 187 U. S. 184
We shall only notice such alleged defects in the extradition
proceedings as are pressed upon our attention in the briefs of
counsel. While these defects are of a technical character, they are
certainly entitled to respectful and deliberate consideration. Good
faith toward foreign powers, with which we have entered into
treaties of extradition does not require us to surrender persons
charged with crime in violation of those well settled principles of
criminal procedure which from time immemorial have characterized
Anglo-Saxon jurisprudence. Persons charged with crime in foreign
countries who have taken refuge here are entitled to the same
defenses as others accused of crime within our own
jurisdiction.
We are not prepared, however, to yield our assent to the
suggestion that treaties of extradition are invasions of the right
of political habitation within our territory, or that every
intendment in proceedings to carry out these treaties shall be in
favor of the party accused. Such treaties are, rather, exceptions
to the general right of political asylum, and an extension of our
immigration laws prohibiting the introduction of persons convicted
of crimes, 18 Stat. 477, by providing for their deportation and
return to their own country, even before conviction, when their
surrender is demanded in the interests of public justice. There is
such a general acknowledgment of the necessity of such treaties
that of late, and since the facilities for the escape of criminals
have so greatly increased, most civilized powers have entered into
conventions for the mutual surrender of persons charged with the
most serious nonpolitical crimes. These treaties should be
faithfully observed, and interpreted with a view to fulfill our
just obligations to other powers, without sacrificing the legal or
constitutional rights of the accused.
In the construction and carrying out of such treaties, the
ordinary technicalities of criminal proceedings are applicable only
to a limited extent. Foreign powers are not expected to be versed
in the niceties of our criminal laws, and proceedings for a
surrender are not such as put in issue the life or liberty of the
accused. They simply demand of him that he shall do what all good
citizens are required, and ought to be willing to
Page 187 U. S. 185
do,
viz., submit themselves to the laws of their
country. Care should doubtless be taken that the treaty be not made
a pretext for collecting private debts, wreaking individual malice,
or forcing the surrender of political offenders; but where the
proceeding is manifestly taken in good faith, a technical
noncompliance with some formality of criminal procedure should not
be allowed to stand in the way of a faithful discharge of our
obligations. Presumably, at least, no injustice is contemplated,
and a proceeding which may have the effect of relieving the country
from the presence of one who is likely to threaten the peace and
good order of the community is rather to be welcomed than
discouraged.
1. The first assignment of error is that the commissioner had no
jurisdiction over the case, inasmuch as, at the time the warrant of
arrest was issued, he had not been authorized to act in extradition
proceedings by any of the courts of the United States under
Rev.Stat. § 5270, which reads as follows:
"SEC. 5270. Whenever there is a treaty or convention for
extradition between the government of the United States and any
foreign government, any justice of the Supreme Court, circuit
judge, district judge, commissioner, authorized so to do by any of
the courts of the United States, or judge of a court of record of
general jurisdiction of any state, may, upon complaint made under
oath, charging any person found within the limits of any state,
district, or territory with having committed within the
jurisdiction of any such foreign government any of the crimes
provided for by such treaty or convention, issue his warrant for
the apprehension of the person so charged, that he may be brought
before such justice, judge, or commissioner, to the end that the
evidence of criminality may be heard and considered. If, on such
hearing, he deems the evidence sufficient to sustain the charge
under the provisions of the proper treaty or convention, he shall
certify the same, together with a copy of all the testimony taken
before him, to the Secretary of State, that a warrant may issue
upon the requisition of the proper authorities of such foreign
government, for the surrender of such person, according to the
stipulations of the treaty or convention,
Page 187 U. S. 186
and he shall issue his warrant for the commitment of the person
so charged to the proper jail, there to remain until such surrender
shall be made."
Under this section, it is plain, first, that the commissioner
must be specially authorized to act in extradition cases; second,
that a complaint must be made under oath charging the crime; third,
that a warrant must issue for the apprehension of the person;
fourth, that he must be brought before such justice, judge, or
commissioner to the end that the evidence of criminality may be
heard and considered; fifth, that the commissioner shall certify
the evidence to the Secretary of State, that a warrant may issue
for the surrender. There is certainly no requirement here that the
commissioner shall be authorized to act before he assumes to act,
and in this case there is no evidence that he assumed to act until
after October 17, 1901, when he was specially appointed for that
purpose. The day upon which the petitioner was brought before the
commissioner, Heacock, does not appear, but his commitment is dated
November 19, 1901. The warrant upon which he was arrested was
issued October 17, the day upon which the commissioner was
specially authorized to act.
It is true that a warrant of arrest can only issue under § 5270,
upon a complaint made under oath; but there is no requirement that
the oath shall be taken before a commissioner authorized to act in
extradition proceedings, or even before the judge or commissioner
who issues the warrant of arrest. While we are bound to give the
person accused the benefit of every statutory provision, we are not
bound to import words into the statute which are not found there,
or to say that the judge issuing the warrant may not receive an
oath taken before a commissioner authorized generally to take
affidavits. There is no evidence that Mr. Morse, who took this
complaint, was not a United States commissioner appointed under the
Act of May 28, 1896, 29 Stat. 140, 184, and the fact that he signs
his name as such and that he was recognized as such by the circuit
court in this proceeding is sufficient evidence of his authority.
It is true the district judge who issued this warrant of arrest
might himself have administered the oath, but he was equally at
liberty
Page 187 U. S. 187
to act upon a complaint sworn to before a United States
commissioner.
2. Nor did the district judge who issued the warrant exceed his
powers in making it returnable before a commissioner, who upon the
same day was specially designated to act in extradition
proceedings. It is true that the statute provides. sec. 5270, that
the person before whom the complaint is made may
"issue his warrant for the apprehension of the person so
charged, that he may be brought before
such justice,
judge, or commissioner to the end that the evidence of criminality
may be heard and considered,"
but the practice in this as in other proceedings of a criminal
or
quasi-criminal nature has been to make the warrant
returnable before the magistrate issuing the warrant, or some other
magistrate competent to take jurisdiction of the proceedings. In
the
Heinrich Case, 5 Blatchf. 414, the complaint was made
before Commissioner White, was laid before Mr. Justice Nelson of
this Court, who issued his warrant returnable before himself
or Commissioner White. No objection was made to the
proceedings for this reason, though the case was vigorously
contested upon other grounds, notably because the warrant was
executed without the limits of the district, and within the State
of Wisconsin. The fact that the point was not made in the case
certainly indicates that it was not considered by counsel to be
even a plausible ground for quashing the proceedings.
The commissioner is in fact an adjunct of the court, possessing
independent, though subordinate, judicial powers of his own. If the
district judge, acting under sec. 5270, had made the warrant
returnable before himself, there could be no doubt of its legality,
and in such case, upon the return of the warrant with the prisoner
in custody, he might refer the case to the commissioner to examine
the witnesses, hear the case, and report his conclusions to the
court for its approval. If he could do that, we see no objection to
his referring the case directly to the commissioner by making the
warrant returnable before him, inasmuch as the latter possesses the
same power with respect to the extradition of criminals as the
district judge himself. It may be said that technically the warrant
should be made returnable
Page 187 U. S. 188
before the magistrate issuing it, but where it is made
returnable before another officer, having the same power and
jurisdiction to act, we do not think it is fairly open to
criticism.
This practice is by no means unknown under the criminal laws of
the several states. Thus, in
Commonwealth v. O'Connell, 8
Gray 464, it was held that a mere grant of "exclusive jurisdiction"
to a police court over certain offenses did not exclude the
authority of justices of the peace to receive complaints and issue
warrants returnable before that court. To the same effect are
Commonwealth v. Pindar, 11 Met. 539;
Commonwealth v.
Roark, 8 Cush. 210;
Commonwealth v. Wolcott, 110
Mass. 67;
Hendee v. Taylor, 29 Conn. 448.
No objection seems to have been taken to the proceedings before
the commissioner upon the ground that he did not issue the warrant,
and as he was fully vested with authority to act in extradition
cases, we do not think the fact that the judge, for the convenient
dispatch of business, made his warrant returnable before such
commissioner can be made available upon a writ of habeas
corpus.
3. The eighth assignment of error turns upon the sufficiency of
the charge of embezzlement. The first article of the extradition
treaty with Russia of June 5, 1893, 28 Stat. 1071, after providing
for the mutual surrender of fugitive criminals from one country to
another, declares 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 or her apprehension and
commitment for trial if the crime or offense had been there
committed."
We do not deem it necessary to inquire whether the words
"evidence of criminality" include a definition of the crime charged
or to determine by what law the elements of the crime of
embezzlement are fixed. Moore, Extradition, § 344. As the
petitioner has sought to apply the definition of embezzlement given
in the law of California as likely to be most favorable to himself,
and the prosecution has assented to this view, we assume for the
purposes of this case that this is the definition contemplated by
the treaty.
Section 508 of the Penal Code of California is as follows:
Page 187 U. S. 189
"Every clerk, agent, or servant of any person who fraudulently
appropriates to his own use, or secretes with a fraudulent intent
to appropriate to his own use, any property of another which has
come into his control or care by virtue of his employment as such
clerk, agent, or servant is guilty of embezzlement."
Objection is made to the complaint upon the ground that there is
no allegation that the money embezzled came into his control or
care "by virtue of his employment" as such clerk, the allegation
being that Griffin was employed as clerk; that, while so employed,
the money was entrusted to and received by him "in his capacity as
clerk," as aforesaid. Whatever might be the force of an objection
to an indictment that it does not set out in the exact language of
the statute the fact that the money came into his possession by
virtue of his employment, we think that the complaint in this
particular is clearly sufficient. It is a general principle of
criminal law that the complaint need not set forth the crime with
the particularity of an indictment, and that it is sufficient if it
fairly apprises the party of the crime of which he is charged. If
there be any distinction at all between an allegation that money
came into the possession of a person by virtue of his employment as
clerk, and in his capacity as clerk, it is too shadowy to be made a
matter of exception to the complaint.
4. Equally unfounded is it that the complaint is defective
because it does not use the word "fraudulently," the allegation
being "that the accused wrongfully, unlawfully, and feloniously
appropriated said money." As the word "embezzled" itself implies
fraudulent conduct on the part of the person receiving the money,
the addition of the word "fraudulent" would not enlarge or restrict
its signification. Indeed, it is impossible for a person to
embezzle the money of another without committing a fraud upon him.
The definition of the word "embezzlement" is given by Bouvier as
"the fraudulent appropriation to one's own use of the money or
goods entrusted to one's care by another." In
San Francisco v.
Randall, 54 Cal. 408, a complaint that defendant did
"willfully, unlawfully, and feloniously embezzle and convert"
certain securities to his
Page 187 U. S. 190
own use was held to be a sufficient compliance with § 1426 of
the Penal Code, requiring the offense charged to be set forth
"with such particulars of time, place, person, and property as
to enable the defendant to understand distinctly the character of
the offense complained of, and to answer the complaint."
The complaint in this case differs from that only in the
substitution of the word "wrongfully" for the word "willfully," and
we think it is clearly sufficient. As the word "embezzle" implies a
fraudulent intent, the addition of the word "fraudulently" is mere
surplusage.
Reeves v. State, 95 Ala. 31;
United States
v. Lancaster, 2 McLean 431;
State v. Wolff, 34
La.Ann. 1153;
State v. Trolson, 21 Nev. 419;
State v.
Combs, 47 Kan. 136. We express no opinion as to whether it
would be necessary in an indictment.
5. It is further insisted that the treaty requires an
authenticated copy of the warrant of arrest or of some other
equivalent judicial document, issued by a judge or magistrate of
the foreign government duly authorized so to do, and that there is
no such process in the record as a warrant of arrest or its
equivalent. It is true that art. 6 of the treaty provides that
"when the person whose surrender is asked shall be merely
charged with the commission of an extraditable crime or offense,
the application for extradition shall be accompanied by an
authenticated copy of the warrant of arrest or of some other
equivalent judicial document, issued by a judge or a magistrate
duly authorized to do so."
But it can hardly be expected of us that we should become
conversant with the criminal laws of Russia, or with the forms of
warrants of arrest used for the apprehension of criminals. The
clause is satisfied by the production of an equivalent document. On
examination of the record, we find a certified copy of an order by
one purporting to act as an examining magistrate, and reciting
that, "having investigated the preliminary examination concerning
the accusation of the Cossack, Simeon Griffin," and that,
"as he is hiding under a false name, and, as is seen from his
letters, is looking out for means to prevent his arrest and the
finding out of his address by the authorities, his temporal place
of residence being known at present,"
pursuant to art. 389 of the Criminal
Page 187 U. S. 191
Code of Procedure,
"he is ordered to be brought to the City of Rostov on the Don,
in order to be placed at the disposition of the examining
magistrate of the Taganrog circuit court."
This order purports not only to be signed, but sealed, by the
examining magistrate Okladnykh, and while it is not in the form of
a warrant of arrest as used in this country, it is evidently
designed to secure the apprehension of the accused, and his
production before an examining magistrate. This seems to us a
sufficient compliance with the treaty. If not a warrant of arrest,
it is an equivalent judicial document, issued by a judge or
magistrate authorized to do so.
But there is another consideration in this connection which
should not be overlooked. While the treaty contemplates the
production of a copy of a warrant of arrest or other equivalent
document, issued by a magistrate of the Russian Empire, it is
within the power of Congress to dispense with this requirement, and
we think it has done so by Rev.Stat. § 5270, hereinbefore cited.
The treaty is undoubtedly obligatory upon both powers, and if
Congress should prescribe additional formalities than those
required by the treaty, it might become the subject of complaint by
the Russian government and of further negotiations. But,
notwithstanding such treaty, Congress has a perfect right to
provide for the extradition of criminals in its own way, with or
without a treaty to that effect, and to declare that foreign
criminals shall be surrendered upon such proofs of criminality as
it may judge sufficient.
Castro v. De Uriarte, 16 F. 93.
This appears to have been the object of § 5270, which is applicable
to all foreign governments with which we have treaties of
extradition. The requirements of that section, as already observed,
are simply a complaint under oath, a warrant of arrest, evidence of
criminality sufficient to sustain the charge under the provisions
of the proper treaty or convention, a certificate by the magistrate
of such evidence and his conclusions thereon, to the Secretary of
State. As no mention is here made of a warrant of arrest or other
equivalent document issued by a foreign magistrate, we do not see
the necessity of its production. This is one of the requirements
of
Page 187 U. S. 192
the treaty which Congress has intentionally waived. Moore on
Extradition, sec. 70.
6. Again, it is alleged that, although the complaint sets forth
that criminal proceedings have been instituted in Russia, and that
Griffin had been therein "indicted" for embezzlement, no indictment
has ever been found, and that no other evidence of criminality can
be received. It is obvious that the word "indictment," as it
appears in this complaint, was used in the general sense of charged
or accused by legal proceedings, and not in the technical sense of
an indictment as here understood. An indictment is a technical word
peculiar to Anglo-Saxon jurisprudence, and implies the finding of a
grand jury. To give it the construction contended for would require
us to know what an indictment was under the laws of Russia and to
inspect it at least so far as to ascertain the charge for which the
conviction of the accused is sought. No indictment was necessary to
be produced under this complaint, the proceeding being governed by
section 5 of the Act of August 3, 1882, 22 Stat. 216:
"That in all cases where any depositions, warrants, or other
papers of copies thereof shall be offered in evidence upon the
hearing of any extradition case under title sixty-six of the
Revised Statutes of the United States (secs. 5270 and 5271), such
depositions, warrants, and other papers, or the copies thereof,
shall be received and admitted as evidence on such hearing for all
the purposes of such hearing, if they shall be properly and legally
authenticated so far 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 consular officer of the United States,
resident in such foreign country, shall be proof that any
deposition, warrant, or other paper, or copies thereof, so offered,
are authenticated in the manner required by this act."
The sufficiency of such evidence to establish the criminality of
the accused for the purposes of extradition cannot be reviewed upon
habeas corpus.
In re Oteiza y Cortes, 136 U.
S. 330.
7. It is further insisted that the depositions and other
documents
Page 187 U. S. 193
which appear in the record have not been properly and legally
authenticated. The certificate of the ambassador in that connection
is that these papers "are properly and legally authenticated so as
to entitle them to be received and admitted as evidence for similar
purposes by the tribunals of Russia." As this is a literal
conformation to the above statute, adding only the words, "as
evidence," it is difficult to see in what respect it is deficient.
If we were to hold that a certificate in the language of the
statute was insufficient, the certifying officer would be at once
embarked upon a sea of speculation as to the proper form of such
certificate, and would be utterly without a guide in endeavoring to
ascertain what the requirements of the law were in that particular.
All that was decided in the case of
In re Luis Oteiza,
136 U. S. 330, in
this connection was that depositions and other papers authenticated
and certified as required by the act, were not admissible on the
part of the accused. The introduction of the words "as evidence"
does not vitiate the certificate. We find it difficult to conceive
any other purpose for which such depositions could be used except
as evidence of criminality.
8. No evidence was required that the Russian consul had
authority to make the complaint. All that is required by § 5270 is
that a complaint shall be made under oath. It may be made by any
person acting under the authority of the foreign government having
knowledge of the facts, or, in the absence of such person, by the
official representative of the foreign government, based upon
depositions in his possession, although under the first article of
the treaty the accused can only be surrendered upon a "requisition"
of the foreign government, and by art. VI such requisition must be
made by the "diplomatic agent of the demanding government," and in
case of his absence from the seat of government, by the "superior
consular officer." It is true that art. VII of the treaty provides
that it
"shall be lawful for any competent judicial authority of the
United States, upon production of a certificate issued by the
Secretary of State, stating that request has been made by the
Imperial government of Russia for the provisional arrest of a
person convicted or accused of the commission therein
Page 187 U. S. 194
of a crime or offense extraditable under this convention, and
upon complaint, duly made, that such crime or offense has been so
committed, to issue his warrant for the apprehension of such
person,"
and in this case, it appears by the certificate of the Acting
Secretary of State that application was made in due form by the
charge d'affaires of Russia accredited to this government,
for the arrest of Griffin, alleged to be a fugitive from the
justice of Russia. This, however, was entirely independent of the
proceedings before the magistrate, which might have been instituted
by any person making a complaint under oath and acting by the
permission or authority of the Russian government. While art. VII
undoubtedly contemplates a prior certificate of the Secretary of
State, the language of the article is merely permissive, and does
not compel the production of such certificate before the warrant
can be issued.
It might readily happen that the foreign representative might
have no knowledge of the facts necessary to be embodied in a
complaint, and have no documentary evidence then at hand to prove
them. In such case, if a complaint could not be made by a private
person having knowledge of the facts, the surrender might easily be
defeated by the flight of the accused.
It was formerly held that a requisition from the demanding
government was necessary to be produced before the commissioner
could act,
In re Herris, 32 F. 583, but the opinion in
this case was reversed by MR. JUSTICE BREWER on appeal to the
circuit court, who held that no preliminary requisition was
necessary, as extradition could not be consummated without action
by the executive in the last instance, and that the authority of
the foreign government to act need not appear in the complaint if
it were made to appear in the examination before the commissioner
or elsewhere in the proceedings. Bearing in mind the frequent
necessity for immediate action in case the whereabouts of the
accused is ascertained, the delay necessary to procure a
preliminary requisition might often result in the defeat of
justice.
In
Kaine's
Case, 14 How. 129, this Court was nearly equally
divided upon the question whether a preliminary mandate from the
executive was necessary. So long as Mr. Justice
Page 187 U. S. 195
Nelson, who thought such mandate necessary, remained upon the
bench his opinion was followed in the Second Circuit,
In re
Henrich, 5 Blatchf. 414;
In re Farez, 7 Blatchf. 34,
45, but since that time a different view has been taken of the
question.
In re Macdonnell, 11 Blatchf. 79;
In re
Thomas, 12 Blatchf. 370. Judge Lowell's opinion accorded with
the later, and, as we think, sounder views,
In re Kelley,
2 Lowell 339.
See also Benson v. McMahon, 127 U.
S. 457.
9. It is again objected that the facts set forth in the record
show that defendant, if guilty at all, is guilty of larceny, and
not of embezzlement, and that, as the laws of California make a
clear distinction between embezzlement and larceny, he cannot be
held for one crime upon proof of his guilt of the other. The charge
set forth in the complaint is that Zeefo, one of the members of the
firm of E. L. Zeefo & Co., entrusted and delivered a check for
the money to Griffin, who subsequently received the money from the
bank to take it to the Vladikavkaz Railway Company, by which it was
to be taken to Novorosseesk, and upon the same day absconded. Upon
these facts it is insisted that the defendant had nothing more than
the bare custody, as distinguished from the possession of the
money, and therefore could not and did not embezzle it, but stole
it.
By section 503 of the Code of California "embezzlement is the
fraudulent appropriation of property by a person to whom it has
been entrusted," and by section 508,
"every clerk, agent, or servant of any person who fraudulently
appropriates to his own use . . . any property of another which has
come into his control or care by virtue of his employment as such
clerk, agent, or servant, is guilty of embezzlement."
As Griffin was clerk of the firm, and as the money was delivered
to him in his capacity as clerk for a special purpose, it certainly
came into his control or care. We do not care to inquire into the
soundness of the distinction made is some of the older cases
between the custody and possession of property, because under the
section above quoted, nothing more is necessary to constitute
embezzlement than that the party charged should have the control or
care of the money.
The cases in California upon this subject are decisive.
Thus,
Page 187 U. S. 196
in
Ex Parte Hedley, 31 Cal. 108, where the agent of an
express company, authorized to draw telegraphic checks on his
principal for money to be used in the principal's business, but not
to draw individual checks, drew certain checks as agent for money
to be used in his private business, and the principal paid the
money to the drawee, it was held to amount to a receipt of the
money of the principal by the agent "in the course of his
employment." It was further held that, in order to convict one of
embezzling money of his principal, it was necessary to establish
four propositions: first, that the accused was an agent; second,
that he received money belonging to his principal; third, that he
received it in the course of his employment; fourth, that he
converted it to his own use with intent to steal the same. In
People v. Tomlinson, 102 Cal. 19, a recent case upon the
same subject, the law of California was summed up as follows:
"Where one honestly receives the possession of goods upon a
trust, and after receiving them, fraudulently converts them to his
own use, it is a case of embezzlement, . . . but where the
possession has been obtained through a trick or device, with the
intent at the time the party receives it, to convert the same to
his own use, and the owner of the property parts merely with the
possession, and not with the title, the offense is larceny."
These cases are strictly in line with that of
Moore v.
United States, 160 U. S. 268, in
which we held that
"embezzlement is the fraudulent appropriation of property by a
person to whom it has been entrusted, or into whose hands it has
lawfully come, and it differs from larceny in the fact that the
original taking of the property was lawful, or with the consent of
the owner, while in larceny the felonious intent must have existed
at the time of taking."
The cases relied upon by the petitioner are of the latter
description. Thus, in
People v. Abbott, 53 Cal. 284,
defendant was instructed by a bank to purchase silver for its
account, and, to provide him with funds, the bank certified and
delivered him a check drawn by him on the bank. He did not purchase
the silver, but used the check for his own purposes. It was held
that if he took the custody of the certified check with
Page 187 U. S. 197
the intention of stealing it, he was guilty of larceny. The
question was treated as one for the jury. In
People v.
Raschke, 73 Cal. 378, it was held that if one through false
representations obtains the possession of personal property with
the consent of the owner, but without a change of the general
title, he is guilty of larceny upon subsequently converting the
same to his own use if he had the felonious intent to steal the
property at the time the possession was obtained. The authority of
these cases is not questioned. In the case under consideration, a
check was delivered to the petitioner with instructions to draw the
money from the bank, take it to the railway station, to be
forwarded to another city. The facts show that he obtained
possession of both of the cheque and the money, honestly, and with
the consent of his principal, and subsequently converted it to his
own use.
Prima facie, at least, this makes a case of
embezzlement, and if there were in fact an original intent to
steal, that is a question for a jury in a Russian court to pass
upon. It is sufficient for the purposes of this proceeding that a
prima facie case of embezzlement is made out.
This disposes of all the questions made in the brief, and the
judgment of the Circuit Court is
Affirmed.