In this case, this Court, reviewing the evidence, reverses the
territorial court and finds that there is evidence to show, with
sufficient certainty, that an extraditable crime was committed by
the person benefited thereby, and thus to satisfy the extradition
procedure statute and justify the order of the commissioner
committing the accused to await the action of the Executive
Department on a requisition made for forgery under the extradition
treaty with Mexico.
Although the statements of certain witnesses were unsworn to and
therefore might not, under the state law, be admissible before a
committing magistrate, under the extradition statute, they are
receivable by the commissioner to create a probability of the
commission of the crime by the accused.
90 P. 323 affirmed.
The facts ar stated in the opinion.
Page 215 U. S. 399
MR. JUSTICE McKENNA delivered the opinion of the Court.
Appellee was arrested as a fugitive from justice in pursuance of
the provision of a treaty of extradition between Mexico and the
United States, and, after a hearing before John H. Campbell, Judge
of the District Court of the First Judicial District of Arizona,
sitting as a commissioner in extradition proceedings, he was
committed, on the charge of forgery and the utterance of forged
papers, to the custody of the United States Marshal for Arizona, to
abide the order of the President of the United States in the
premises. Upon his petition to the supreme court of the territory
for habeas corpus, he was discharged from custody, and from the
judgment of the court the case is here on appeal.
The court decided that the offense charged is within the terms
of the treaty between the United States and Mexico, "that the
committing magistrate had jurisdiction of the subject matter and
the accused," and that the complaint was sufficient. The court,
however, held that there was not sufficient legal evidence to
establish the fact of forgery, and that therefore "the judge of the
district court exceeded his jurisdiction in holding the petitioner
(appellee) for extradition." This ruling constitutes the question
in the case.
The complaint, summarized, is that Ramirez forged certain
railroad wheat certificates, which purported to have been issued by
the Southern Pacific Company to show the true weight of certain car
loads of wheat shipped from the United States to Mexico, and had
the further purpose to show the amount of custom duties to be paid
to Mexico. The certificates, in order to appear authenticated, it
is alleged, purported and were intended to show that they were
signed or sealed or stamped by the railroad company with a seal or
stamp containing the words "gross weight, tare, net weight," and
that the true gross, tare, and net weight of the wheat in each
Page 215 U. S. 400
of the cars were inserted by the company after those words, and
that the certificates were initialed with the letters "G.W.B."
It is alleged that the certificates were not so authenticated by
the company or anyone in its employ, and did not show the weight of
the wheat, but showed that there was much less than the true
weight. It is alleged also, with the usual repetition, that Ramirez
forged the stamp and seal and the initials "G.W.B.," and did "use
and utter" the certificates, and presented them "to the customhouse
of the government of Mexico and the officials thereof," at the Town
of Nogales, "as true and genuine wheat certificates of the said
railroad company, and as showing the true weight contained in the
said cars."
There were two importations of wheat from Nogales, Arizona, to
Nogales, Mexico, in the name of E. Ramirez. The manifest or request
for importation was made to the proper officers at Nogales, Mexico,
in the name of and for E. Ramirez. It was the duty of the Mexican
inspectors of customs to inspect and weigh the wheat in order to
compute the proper amount of duties. One of the importations was
inspected by one Manuel Rosas, the other by one Francisco Enriquez,
both of whom were implicated in the prosecution in Mexico for the
crimes of fraud against the federal treasury and forgery of private
seals.
Rosas testified that he examined the interior of the cars in a
superficial manner, "satisfying himself by opening a sack that said
cars contained the merchandise represented." He did not weigh the
merchandise, because it came billed in carload lots, and "did not
come designated as to so many bundles, and also because the
customhouse lacked the proper scale facility." He testified
that
"the railroad of Sonora issued to the applicants a ticket with
the seal of the office, without any signature, bearing thereon,
indicated in lead pencil writing, the number of the respective
cars, the net weight, and the gross weight. It was so done in this
case;
Page 215 U. S. 401
that he compared the data upon the tickets with reference notes
with those presented by the customs agent, and, finding them to
correspond with each other, he had no objection in authorizing,
over his own signature, the correctness of the same, and ordered it
'dispatched.' As soon as the tickets, he further testified, are
compared with the applications, they are destroyed, and that he did
not know what had become of them in this case. He further testified
that the applications were delivered to him by the customhouse
collector, which applications manifested the weight of the
merchandise to be imported, and,"
"this being done, the manifest passed into the possession of the
revisers, who solicit the railroad ticket from the interested
parties for the purpose of verifying the respective
comparisons."
The person of whom he "asked for the tickets was Mr. Manuel
Ramirez, who was in charge of the customs department of the house."
Further testifying, he said that he did not know the origin of the
tickets "by their form of writing;" that he did not find in any of
them any erasures nor any trace of alteration, and could not tell
"even vaguely the name of the employees who wrote the tickets;"
that he did not know whether any person was present "when the
corresponding tickets were delivered to him;" that he had no
knowledge, from "private sources or otherwise, of Mr. Cerilo
Ramirez's connection with the customs agency that operates under
his name." He recognized, from the books of the railroad exhibited
to him, the seals to be the same used by the company to express the
weight, not recollecting having personally seen the books.
Explaining how he "erred," he testified that it was because he did
not go personally to the offices of the railroad to compare the
true weight at those offices, but, instead relied on the tickets
presented by Manuel Ramirez, "which were forged in the sense that
the said Ramirez personally, or in accord with some employee of the
railroad," forged the tickets, "making use of the seals of the
railroad."
Francisco Enriquez testified substantially to the same
Page 215 U. S. 402
effect, though in some parts more fully. He testified that the
tickets came approved by Mr. G. W. Bowman, chief of the station of
the Sonora Railroad. He, however, did not know, he said, the
handwriting of Bowman "to the extent of being able to identify the
same to a certainty," because
"the tickets in question only bring numbers, made in great
haste, setting forth the number of the car, the gross weight, the
net weight, and the tare, calculated in pounds,"
of which he "made the computation into kilos."
Ignacio Alleo testified that he was a private employee of the
firm under investigation, and served for five years as freighter
for the firm or house; that his duty was to receive the loose
freight from the American side, delivered to him at Nogales,
Arizona, to place the same in the cars which convey it south; that,
in doing so, he takes note of the number of bundles, marks,
countermarks, weights, and other memoranda which serve to form the
applications for shipment; that said data are made on loose papers,
which he delivers to Manuel Ramirez, who makes out the applications
for shipment; that "Ramirez is also occupied in making the
applications for exportation, reimportation, more properly
exportation;" that he, the witness, had no other connection with
the direct importation than to copy some applications for shipment;
that, when he came to the house five years ago, Manuel Ramirez had
been serving the house for a long time, and that Ramirez had
"personal charge of the dealings with the employees of the
customhouse, all relative to importations;" that the head person in
charge of the office
"was Eduardo Ramirez, who had full power to act from the owner
of the business, Cerilo Ramirez; that up to three years ago,
Alberto Masarenas kept the accounts of the house, since then he did
not know who had, but that the cash accounts, he understands, were
kept by Mr. Escobara."
Ignacio Escobara had testified before, but he would not ratify
his former testimony in all respects, he said, because it was given
"under the belief that his gratitude towards his
Page 215 U. S. 403
employer compelled him to do so," and that, after mature
consideration, he realized that he was not required "to tell an
untruth in a proceeding which may stain his honor, and for that
reason he was disposed to tell the truth." And he testified that,
from the beginning of the proceeding against Messrs. Campello, he
noticed the greatest uneasiness, excitement, and fear in Eduardo
Ramirez, Luis Bartning, and Cerilo Ramirez; from that time they
began to prepare themselves,
"fearing to become involved in the same manner as Messrs.
Campello and associates; that he plainly noticed the attitude of
the above gentlemen and the danger in which they were."
He further testified that "he saw and noticed their conduct, as
well as listening to their conversation," and that
"the manner of preparing themselves consisted in making up
packages of correspondence and documents carefully selected and
packed in a wooden box which stood in a patio or court during the
day and disappeared at night without"
his knowing what became of it; that he was under the impression
that it was taken to the American side, not being able to tell
"from whom he heard it in the office of the firm," but he believed
that he "heard it said there in conversation."
He further testified that the books of account and the copy
books of statement of expenses "appeared and disappeared
successively, being carried to and fro by Bartning personally, who
was the bookkeeper;" that at the beginning of Campello's
investigation, Alleo confessed to him that the house was very much
involved in the same manner as were Messrs. Campello; that the
person in charge of all transactions was Manuel Ramirez; that
Bartning is the brother-in-law of Ramirez,
"with whom he is strongly tied in business; the head of the
institution is Cerilo Ramirez, who commands as supreme principal
and owner of the establishment, and as such daily attends said
office, watching carefully the affairs and progress of the house;
during the absence of Cerilo his brother Eduardo directs the house,
and is recognized by all as second chief, and as Cerilo was tried
for smuggling, and his signature is not
Page 215 U. S. 404
accepted in customhouse dealings, all official documents are
signed by Eduardo Ramirez in his own name, or through an agent
representing himself in the documents as a customhouse broker."
He testified further that he
"was told from the beginning that the cause of fear of Cerilo
Ramirez and his associates in the present case proceeded from a
fraud committed by them upon the federal treasury in like manner as
that committed by Messrs. Campello -- that is, by false and forged
manifests of the weight of car loads of wheat imported by said
house one year ago."
The record shows that Cerilo Ramirez, "being present for the
purpose of undergoing a suppletory confrontation with Ignacio
Escobara," and with "that of said Ramirez," referring apparently to
some deposition or statement made by himself, which is not in the
papers, stated that he was "absent from Nogales, living in Lower
California, and for that reason could not have been present after
the detention of Campello," and stated further that he was
"therefore ignorant of what disposition had been made of the
books of account, correspondence, and documents of the
establishment of 'C. Ramirez,' to which Escobara"
referred. He denied that he was recognized as agent of the
house, and said that
"if he left the name of C. Ramirez in the business, it was with
the object of not impairing the credit of the house, and on account
of his brother being concerned . . . which business he transferred
to his brother Eduardo, without executing in this case any special
instrument."
And he denied having had "previous knowledge of the fraud upon
the federal treasury."
Manuel Ramirez was also put in "suppletory confrontation" with
Escobara, whose testimony was read to him, as was that of C.
Ramirez, and being "apprised of the discrepancies of both
depositions," said that what Escobara said was "not exact" when he
said that he, Ramirez, was "in collusion with the other, Messrs.
Ramirez, in trying to conceal the books and correspondence of the
business." The rest of his testimony is as follows:
"He does not know where they (the books and
Page 215 U. S. 405
correspondence) are, and says that their chief was Mr. Eduardo
Ramirez, ignoring (?) to date if the payment has been made in full
of the duties upon the importation of wheat, because his duties
were only to draw the papers for the importation through the
customhouse."
He was called upon a second time to testify, and he was asked if
he personally copied the tickets or memoranda of the weight of the
cars of wheat from the sheets in which the employees of the
railroad noted the weight of bundles. He answered that sometimes he
did, but not in the present case, he did not remember; that his
brother, Eduardo Ramirez, attended to the loading and giving of
weights, but that he, in his brother's absence, would sometimes
attend to this branch. Aud further that he could not explain the
discrepancy between the weights of the bundles in question and
those shown in the respective books of the railroad company.
It appears that the frauds upon the revenue charged to E.
Ramirez amounted to $11,944.95. The depositions were taken in
proceedings instituted in Mexico under its laws as the basis for an
application for the extradition of Eduardo Ramirez, and were
attested by the officers of the tribunal to whom the case was
assigned, and that tribunal, after citing the applicable law and
its conclusion, and considering that "the
corpus delicti
of fraud against the federal treasury and undue use of private
seals" had been proved, and that it constituted forgery under the
laws of Mexico, and was within the provisions of the treaty between
that country and the United States, concluded as follows:
"Let a petition issue with the proper evidence to the Secretary
of State and Foreign Affairs, so that, through the conduct of the
diplomatic agents accredited in the neighboring Republic, steps be
taken for the extradition of Eduardo Ramirez, and obtaining the
same, to place at the disposal of this tribunal."
Appellant was commissioned by the Mexican ambassador as a proper
person to present to the authorities of the United States of
America a copy of the warrant of arrest in the
Page 215 U. S. 406
United States of Mexico, and of the depositions upon which the
warrant was issued, and, as agent of Mexico, to "receive the said
Eduardo Ramirez from the proper authorities of the United States of
America." We shall not further quote the papers, as there is no
question but that requisition had been duly made for the
extradition of Ramirez. The evidence before the district judge
consisted of the depositions, together with oral testimony that
they would be admissible in evidence in the courts of Mexico, and,
in addition, the ambassador to Mexico and the
charge
d'affaires certified that they were
"properly and legally authenticated, so as to entitle them to be
received for similar purpose by tribunals of Mexico, as required by
the act of Congress of August 3, 1882."
There is also in the record a paper headed,
"statement of the weight of the car loads of wheat imported by
Eduardo Ramirez, made by this federal tribunal by virtue of the
data shown in the books of the railroads,"
and a large number of exhibits.
The district judge committed Ramirez to the custody of the
United States Marshal for the Territory of Arizona, to abide "the
order of the President of the United States of America in the
premises." The writ of habeas corpus under review was then issued
by the supreme court of the territory and appellee discharged from
custody. It was ordered, however, that, if an appeal should be
taken to this Court, he should be remanded to the custody of the
marshal, to be released upon giving bail in the sum of $25,000,
under the provisions of Rule 34. Bail was subsequently given, and
the appellee discharged from custody.
The supreme court of the territory expressed the view that the
writ of habeas corpus could not be made to perform the office of a
writ of error, and that therefore if the district judge had
jurisdiction of the subject matter and of the accused, and the
offense charged was within the terms of the treaty of extradition,
and there was before him
"competent legal evidence on which to exercise his judgment as
to whether
Page 215 U. S. 407
the facts are sufficient to establish the criminality of the
accused for the purposes of extradition, such decision cannot be
reviewed on habeas corpus."
The court cited
Ornelas v. Ruiz, 161 U.
S. 502,
161 U. S. 508,
and
Bryant v. United States, 167 U.
S. 104. And considering further the extent of a court's
power of review over the judgment of the committing magistrate upon
the facts, said, "but such court is not to inquire whether the
legal evidence of facts before the commission was sufficient or
insufficient to warrant his conclusion," citing
In re
Stupp, 12 Blatchf. 501;
Ornelas v. Ruiz, supra, and
Terlinden v. Ames, 184 U. S. 270. The
cases cited establish the propositions expressed by the court, but
the learned courts application of them to the facts of this record
is challenged. The court expressed the opinion that all of the
conditions of commitment were established, except that there "was
no competent legal evidence of the fact of forgery itself of the
documents in question." That is, that there was no legal evidence
of the forgery of what are called in the complaint "railroad wheat
certificates" and "tickets" in the depositions of the witnesses. We
are unable to agree to this conclusion. They were either forged or
issued by mistake, and the supposition of a mistake is precluded by
the evidence. The books of the railroad showed the true weights;
the mistake or forgery was in the certificates or tickets. Exclude
the former, and forgery is established. If a mistake was made, it
is certainly strange that it should have escaped notice until the
Mexican treasury had been defrauded of $11,944.94. Besides, the
reparation for a mistake was payment of the amount in default, not
by flight from the accusation of forgery and crime. Then too, ample
opportunity was given in Mexico to explain the certificates, but
explanation was not attempted. It was not attempted in Arizona, and
from these negative circumstances, as well as from the positive
testimony of the witnesses, it certainly cannot be said that there
was substantially no evidence to justify the judgment of the
commissioner that a crime had been committed, and as little can
it
Page 215 U. S. 408
be said that there was not probable cause to believe that the
accused had committed it. We have set out the evidence somewhat
fully. It shows that the Mexican treasury was defrauded by the
"House of Ramirez" of $11,944.94, and that appellee was "second
chief" of the house, and the one to whom C. Ramirez had transferred
it. It appears therefore that he was the principal, if not the
only, beneficiary of the fraud. It is true that Manuel Rosas and
Francisco Enriquez, the customhouse revisers, stated that they
received the "tickets" from Manuel Ramirez; but, from the testimony
of the latter and other evidence, it may be reasonably concluded
that accused acted in conjunction with him, in fact prepared and
directed the whole affair. It is certainly not out of the bounds of
reason to suppose that he who was benefited by the fraud contrived
and executed it, and not his subordinate or employee. It is,
however, objected that there is no evidence in the record "tending
in any way to prove that any of the alleged certificate were forged
or altered or changed by any person whatsoever." Indeed, it is
asserted by the appellee
"that the evidence, so far as it proves or tends to prove
anything, proves that the certificates were genuine certificates,
issued by G. W. Bowman, chief of the station of the Sonora
Railroad."
To complete these contentions, a reference is made to the
complaint, in which it is alleged that the certificates, in order
to appear authenticated, purported to show that they were signed,
sealed, or stamped by the railroad, containing the words "gross
weight, tare, net weight," and initialed with the letters "G.W.B.,"
and, if so worded and initialed, would have been so authenticated
as to have shown true weight of the wheat in the cars. There is no
evidence, it is said, of these allegations, or that it was the duty
of the customhouse officer to accept any so-called weight
certificates as evidence of the true weight of the wheat to be
imported. It is probable that the supreme court of the territory
yielded to these contentions, and that they were the basis of its
decision that there was no legal evidence before the commission of
"facts tending
Page 215 U. S. 409
to prove the commission of the offense charged; to-wit, the
crime of forgery."
We, however, cannot concur in these contentions, and, without
going over the evidence to show a precise or technical adaptation
of it to the allegations, it is enough to say that we think the
evidence shows not only that a crime was committed, but shows its
character and by whom committed with sufficient certainty and
strength to satisfy the statute, and to justify the order of the
commissioner committing the accused to await the action of the
Executive Department.
It is further contended that the statements of Rosas and
Enriquez were unsworn to, and because unsworn to were not
admissible in evidence; that,
"under the common law and the law of Arizona, the unsworn
statement of no witness is competent upon a preliminary hearing
before a committing magistrate,"
and would not justify a commitment for trial in Arizona. It is
hence contended that it was not sufficient to justify the
extradition of the appellee.
In re Ezeta, 62 F. 972;
In re McPhun, 30 F. 57;
Benson v. McMahon,
127 U. S. 457, are
adduced to sustain the contention. The answer to the contention is
that the statute providing for extradition makes the depositions
receivable in evidence, and provides that their sufficiency to
establish the crime shall be such as to create a probability of the
commission by the accused of the crime charged against him. This is
the principle announced by the cases cited by the appellee.
Other contentions are made, but we do not think that they need
special mention.
Order reversed and the cause remanded with directions to
proceed in accordance with this opinion.