Grin v. Shine, 187 U.S. 181 (1902)

Grin v. Shine

No. 303

Submitted November 3, 1902
Decided December 1, 1902
187 U.S. 181

APPEAL FROM THE CIRCUIT COURT OF THE UNITED

STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA

Syllabus

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 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 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.