A writ of habeas corpus in a case of extradition cannot perform
the office of a writ of error.
If the commissioner has jurisdiction of the subject matter and
of the person of the accused, and the offense charted is within the
terms of a treaty of extradition, and the commissioner, 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 of the commissioner cannot
be reviewed by a circuit court or by this Court on habeas corpus
either originally or by appeal.
In § 5 of the Act of August 3, 1882, c. 378, 22 Stat. 216, the
words "for similar purposes" mean "as evidence of criminality," and
depositions, or other papers, or copies thereof, authenticated and
certified in the manner prescribed in § 5, are not admissible in
evidence on the hearing before the commissioner on the part of the
accused.
Petition for a writ of habeas corpus. The Writ Was denied, from
which judgment the petitioner took this appeal. The case is stated
in the opinion.
Page 136 U. S. 331
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
By section 12 of Article II of the convention between the United
States and the Kingdom of Spain for the extradition of criminals,
concluded January 5, 1877, and proclaimed February 21, 1877, 19
Stat. 94, it was provided that persons should be delivered up
according to the provisions of the convention who should have been
charged with or convicted of any of the following crimes: "12. The
embezzlement of public funds, committed within the jurisdiction of
one or the other party, by public officers or depositaries."
By a supplemental convention between the United States and the
Kingdom of Spain concerning extradition, concluded August 7, 1882,
and proclaimed claimed April 19, 1883, 22 Stat. 177, section 12 of
Article II of the convention of January 5, 1877, was amended to
read as follows:
"12. The embezzlement or criminal malversation of public funds
committed within the jurisdiction of one or the other party by
public officers or depositaries."
On the second of January, 1890, Miguel Suarez Guanes, the consul
general of Spain at the City of New York, duly recognized as such
by the President of the United States, filed a complaint, on his
own oath, before Samuel H. Lyman, a duly authorized United States
Commissioner for the Southern District of New York, charging that
one Luis Oteiza y Cortes, the secretary or clerk of the bureau of
public debt of the Island of Cuba at Havana, and an officer in the
employment of the Kingdom of Spain at Havana, had charge of the
public funds and moneys belonging to the Kingdom of Spain, namely,
the bureau of public debt of the Island of Cuba at Havana; that in
December, 1889, the said Luis Oteiza y Cortes (who will hereinafter
be called Oteiza) at Havana, and within the jurisdiction of the
Kingdom of Spain, in the course of his said employment, had in his
possession, as such clerk or secretary, a large amount of public
bonds or certificates of indebtedness of the Kingdom of Spain,
belonging to the public debt of the Island of Cuba and being a part
of the public funds of the Kingdom of Spain, and that Oteiza at
that time at Havana
Page 136 U. S. 332
wrongfully and feloniously embezzled bonds or certificates of
indebtedness belonging to the said public debt of the Island of
Cuba of the value of $190,000, and converted the same to his own
use, and also the coupons of other government bonds, of the value
of $500,000, and the stub-books thereof. The complainant therefore
charged Oteiza with the crime of embezzlement of bonds or
certificates of indebtedness of the said public debt of the Island
of Cuba, committed at Havana, and further stated that Oteiza had
fled to the United States, and that criminal proceedings had been
begun in Havana against him for such embezzlement, and asked for a
warrant for his apprehension under the above-named two conventions,
that evidence of his criminality might be heard by the
commissioner, and that if, on the hearing, the evidence should be
deemed sufficient to sustain the charge, a warrant might issue for
his surrender. In the course of the proceedings before the
commissioner, this complaint was amended by adding the words "or
criminal malversation" after the word "embezzlement" wherever it
appeared in the complaint.
On the 2d of January, 1890, a warrant was issued by the
commissioner, reciting the complaint, and stating that Oteiza was
charged by it "with having committed the crime of embezzlement or
criminal malversation of public funds within the jurisdiction of
the Kingdom of Spain," and that such crime was enumerated and
provided for by the two conventions before mentioned. The warrant
was directed to the marshal or any deputy, and commanded that
Oteiza be apprehended and brought before the commissioner in order
that the evidence of his criminality might be heard. Oteiza was
arrested, and evidence in the matter on both sides was heard by the
commissioner. On the 13th of March, 1890, the commissioner
certified that on the examination and the hearings which had been
had, he deemed the evidence sufficient to sustain the charge, and
that he committed the accused to the custody of the marshal, to be
held until a warrant for his surrender should issue according to
the stipulations of the treaty, or he should be otherwise dealt
with according to law.
On the 14th of March, 1890, a writ of habeas corpus to
Page 136 U. S. 333
bring the body of Oteiza before the Circuit Court of the United
States for the Southern District of New York, directed to John W.
Jacobus, the Marshal of the United States for the Southern District
of New York, and to the warden of the jail, and a writ of
certiorari to the commissioner, to transmit the proceedings to the
said circuit court, were allowed by Judge Lacombe. These writs were
returnable on the 28th of March, 1890. The case was heard by Judge
Lacombe in the circuit court,
In re Cortes, 42 F. 47, and
on the 18th of April, 1890, that court made an order discharging
the writ of habeas corpus. Oteiza has appealed to this Court.
In his opinion in the matter, which forms part of the record,
Judge Lacombe arrives at the conclusion that either the coupons
alleged to have been abstracted by Oteiza were public funds or
that, by discharging the functions of his office falsely and with
corrupt intent, he had got possession of certain moneys which were
public funds, paid out by the Spanish Bank of the Island of Cuba,
which would not have passed from the possession of that bank to his
own possession except as a consequence of his official action; that
he therefore obtained charge of such moneys by virtue of his
office, and thereupon converted them to his own use; that his acts
were therefore within the terms of article 401 of the Spanish Penal
Code of Cuba, which is a part of Title VII, "Of the crimes of
public employees in the discharge of their duties," and of chapter
10 therein, entitled "Malversation of public funds," and reads as
follows:
"Art. 401. A public officer who, having charge of public effects
or funds by virtue of his office, takes or allows others to take
the same shall be punished as follows,"
etc., and that like acts are made punishable by section 5438 of
the Revised Statutes of the United States, and by section 165 of
the Penal Code of New York. The judge also refers to the warrant of
arrest issued against Oteiza in Cuba, as specifically stating the
offense which it was claimed he had committed. From that warrant it
appears that the complaint against Oteiza in Cuba was for having
committed the crime of "embezzlement of public funds" as a public
officer.
We are of opinion that the order of the circuit court
refusing
Page 136 U. S. 334
to discharge Oteiza, must be affirmed. A writ of habeas corpus
in a case of extradition cannot perform the office of a writ of
error. If the commissioner has jurisdiction of the subject matter
and of the person of the accused, and the offense charged is within
the terms of a treaty of extradition, and the commissioner, 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 of the
commissioner cannot be reviewed by a circuit court or by this Court
on habeas corpus, either originally or by appeal.
In the case of
Benson v. McMahon, 127 U.
S. 457,
127 U. S.
461-463, which was an appeal to this Court from an order
of a circuit court of the United States denying a discharge to a
prisoner on a writ of habeas corpus issued by that court to a
United States marshal in a case of extradition where a United
States commissioner had held the accused by a final commitment,
this Court, speaking by MR. JUSTICE MILLER, said:
"Several questions in regard to the introduction of evidence
which were raised before the commissioner, some of them concerning
the sufficiency of the authentication of papers and depositions
taken in Mexico and as to the testimony of persons supposed to be
expert in the law of that country regarding the subject, are found
in the record which we do not think require notice here. The writ
of habeas corpus, directed to the Marshal of the Southern District
of New York, does not operate as a writ of error. . . . The main
question to be considered upon such a writ of habeas corpus must be
had the commissioner jurisdiction to hear and decide upon the
complaint made by the Mexican consul? and also was there sufficient
legal ground for his action in committing the prisoner to await the
requisition of the Mexican authorities? . . . We are of opinion
that the proceeding before the commissioner is not to be regarded
as in the nature of a final trial, by which the prisoner could be
convicted or acquitted of the crime charged against him, but rather
of the character of those preliminary examinations which take place
every day
Page 136 U. S. 335
in this country before an examining or committing magistrate for
the purpose of determining whether a case is made out which will
justify the holding of the accused, either by imprisonment or under
bail, to ultimately answer to an indictment or other proceeding in
which he shall be finally tried upon the charge made against him.
The language of the treaty which we have cited above explicitly
provides that"
"the commission of the crime shall be so established as that the
laws of the country in which the fugitive or the person so accused
shall be found would justify his or her apprehension and commitment
for trial if the crime had been there committed."
"This describes the proceedings in these preliminary
examinations as accurately as language can well do it. The act of
Congress conferring jurisdiction upon the commissioner or other
examining officer, it may be noted in this connection, says that if
he deems the evidence sufficient to sustain the charge under the
provisions of the treaty, he shall certify the same, together with
a copy of all the testimony, and issue his warrant for the
commitment of the person so charged."
In the present case, article 1 of the convention of January 5,
1877, provides that the surrender of the accused
"shall take place only 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 apprehension and
commitment for trial, if the crime or offense had been there
committed."
In the opinion in
Benson v. McMahon, supra, the court
proceeds:
"We are not sitting in this court on the trial of the prisoner,
with power to pronounce him guilty and punish him or declare him
innocent and acquit him. We are now engaged simply in an inquiry as
to whether, under the construction of the act of Congress and the
treaty entered into between this country and Mexico, there was
legal evidence before the commissioner to justify him in exercising
his power to commit the person accused to custody, to await the
requisition of the Mexican government."
Without discussing the questions raised in the present case, it
is sufficient to say that we concur in the views of Judge
Lacombe.
Page 136 U. S. 336
The only point raised on behalf of Oteiza which we deem it
important to notice is his offer to introduce in evidence before
the commissioner, on his own part, certificates, made by public
officers in Cuba, as to the existence of certain facts, and also
certain copies of papers, and certain
ex parte depositions
in writing taken in Cuba before a notary public, all of which were
sought to be made evidence under certificates made by the consul
general of the United States at Havana, certifying that the papers
were properly and legally authenticated so as to entitle them to be
received
"in the tribunals of Cuba as evidence in defense of a charge of
embezzlement, and as evidence in defense of said charge upon a
preliminary hearing before a committing magistrate, and as evidence
in defense of said charge in an extradition proceeding upon a
hearing before a competent magistrate, and especially as evidence
in all the cases enumerated, where said charge of embezzlement is
made against Don Luis de Oteiza y Cortes."
It is supposed that these documents were admissible in evidence
by virtue of the provisions of section 5 of the Act of August 3,
1882, c. 378, 22 Stat. 216, which reads as follows:
"SEC. 5. That in all cases where any depositions, warrants, or
other papers, or 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, 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 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."
We are of opinion that section 5 of the Act of August 3, 1882,
applies only to papers, or copies thereof, which are offered in
evidence by the prosecution to establish the criminality of the
person apprehended, and that it does not apply to documents
Page 136 U. S. 337
or depositions offered on the part of the accused, any more than
did the provisions of § 5271 of the Revised Statutes, either as
originally enacted or as amended by the Act of June 19, 1876, c.
133, 19 Stat. 59.
This view was held by Judge Brown in the District Court for the
Southern District of New York in March, 1883, in
In re
Wadge, 15 F. 864. In that case, the commissioner had refused
to adjourn the proceedings before him in order to enable the
accused to procure depositions from England to establish an alibi.
Judge Brown considered the Act of August 3, 1882, and held that
while it was the duty of the commissioner, under section 3 of that
act, to take such evidence of oral witnesses as should be offered
by the accused, the statute did not apply to testimony obtained
upon commission or by deposition, adding that so far as he was
aware, there was no warrant, according to the law or the practice
before committing magistrates in the State of New York, for
receiving testimony by commission, or by the depositions of foreign
witnesses taken abroad, and that all the provisions of the law and
the statutes contemplated the production of the defendant's
witnesses in person before the magistrate for examination by him.
The order dismissing the writ of habeas corpus in that case was
affirmed by the circuit court, held by Judge Wallace, in
In re
Wadge, 16 F. 332. He said:
"The depositions and proofs presented a sufficient case to the
commissioner for the exercise of his judicial discretion, and his
judgment cannot be reviewed upon this proceeding. He is made the
judge of the weight and effect of the evidence, and this Court
cannot review his action when there was sufficient competent
evidence before him to authorize him to decide the merits of the
case."
In the case of
In re McPhun, 30 F. 57, in the Circuit
Court for the Southern District of New York before Judge Brown in
March, 1887, on a habeas corpus in an extradition case, it was held
that the words "for similar purposes" in the fifth section of the
Act of August 3, 1882, must receive the same construction they had
received under the Act of June 22, 1860, c. 184, 12 Stat. 84, which
was that
Page 136 U. S. 338
they meant "as evidence of criminality," and that the same
construction had been given to similar words in prior statutes,
citing
In re Henrich, 5 Blatchford 414, 424, and
In re
Farez, 7 Blatchford 345, 353. We concur in this view.
Since the close of the oral argument, we have been furnished
with a printed brief on the part of the appellant, which we have
examined, but we do not deem it necessary to make further
observations on the case.
The order of the circuit court is
Affirmed.