Wright v. Henkel, 190 U.S. 40 (1903)
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Wright v. Henkel
No. 661
Argued April 28-29, 1903
Decided June 1, 1903
190 U.S. 40
APPEAL FROM THE CIRCUIT COURT OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF NEW YORK
Syllabus
1. The general principle of international law in cases of extradition is that the act on account of which extradition is demanded must be a crime in both countries.
2. As to the offence charged in the case, this applicable treaty embodies that principle in terms by requiring it to be "made criminal by the laws of both countries."
3. If the offence charged is criminal by the laws of the demanding country and by the laws of the the United States in which the alleged fugitive is found, it comes within the treaty and is extraditable.
4. Bail cannot ordinarily be granted in extradition cases, but it is not held that the Circuit Courts may not in any case, and whatever the special circumstances, extend that relief.
Whitaker Wright applied to the Circuit Court of the United States for the Southern District of New York for writs of habeas corpus and certiorari on March 20, 1903, by a petition which alleged:
(1) That he was a citizen of the United States, restrained of his liberty by the Marshal of the United States for the Southern District of New York, by virtue of a warrant dated March 16, 1903, issued by Thomas Alexander,
United States Commissioner for the Southern District of New York, and Commissioner duly authorized by the District Court of the United States for the Southern District of New York, and also Commissioner appointed under the laws of the United States concerning the extradition of fugitives from the justice of a foreign government under a treaty or convention between this and any foreign government,
which warrant was couched in these terms:
Whereas, complaint has been made on oath under the treaty between the United States and Her Majesty, the late Queen of Great Britain and Ireland, concluded and signed at Washington, on the 9th day of August, 1842, and of the supplementary treaty between the same high contracting parties, signed July 12, 1889, before me, Thomas Alexander, one of the commissioners appointed by the District Court of the United States for the Southern District of New York, and also commissioner especially appointed to execute the acts of Congress, entitled "An Act for Giving Effect to Certain Treaty Stipulations Between This and Foreign governments for the Apprehension and Delivering up of Certain Offenders," approved August 12, 1848, and of the several acts amendatory thereof, that one Whitaker Wright did heretofore, during the month of October, in the year 1899, and in the month of December, 1900, in the City of London, in that part of the United Kingdom of Great Britain and Ireland called England, and within the jurisdiction of his said Britannic Majesty, commit the crime of fraud as a director of a company, to-wit, did heretofore, in the month of October, in the year 1899, and in the month of December, 1900, at the City of London aforesaid, then being a director of a certain body corporate, to-wit, the London & Globe Finance Corporation, unlawfully make, circulate, and publish certain reports and statements of accounts of the said corporation, which were false, the said Whitaker Wright then well knowing the said reports and statements to be false, with intent thereby to deceive and defraud the shareholders or members of the said corporation; that the said Whitaker Wright is a fugitive from justice of the Kingdom of Great Britain and Ireland, and is now within the territory of the United States; that the crime of which the said Whitaker Wright has so as aforesaid been guilty is an offense within the treaty between the United States and Great Britain.
(2) That the warrant was issued on a complaint by His Britannic Majesty’s consul general at the port of New York, as follows:
First. That one Whitaker Wright did heretofore and in the month of December, 1900, in the City of London, in that part of the United Kingdom of Great Britain and Ireland called England, and within the jurisdiction of his said Britannic Majesty, commit the crime of fraud as a director of a company, to-wit, did heretofore and in the month of October, in the year 1899, and in the month of December, 1900, at the City of London, aforesaid, then being a director of a certain body corporate, to-wit, the London & Globe Finance Corporation, unlawfully make, circulate, and publish certain reports and statements of accounts of the said corporation which were false, the said Whitaker Wright then well knowing the said reports and statements to be false, with intent thereby to deceive and defraud the shareholders or members of the said corporation.
Second. That the said Whitaker Wright is a fugitive from the justice of the Kingdom of Great Britain and Ireland, and is now within the territory of the United States.
Third. That the crime of which the said Whitaker Wright has so as aforesaid been guilty is an offense within the treaty between the United States and Great Britain.
Fourth. That deponent’s information and belief are based upon messages received by cable from his Majesty’s Secretary of State for Foreign Affairs, one of the said messages stating that a warrant had been issued in England for the apprehension of the said Whitaker Wright for the offense herein charged and directing deponent to apply for a provisional warrant, under the treaty for extradition, between the United States and Great Britain.
That deponent has, since the apprehension of the said Whitaker Wright yesterday, cabled to His Majesty’s said foreign secretary for fuller details as to said crime, and an answer is directly expected, but that the said Whitaker Wright may be detained, pending the arrival of such information, deponent asks for a provisional warrant herein.
(3)
That the aforesaid complaint states no facts which create jurisdiction for the issuance of the aforesaid warrant, and for the detention of your petitioner; that it does not state any facts which show that your petitioner has been guilty of any offense within the provisions of any extradition treaty between the United States of America and the United Kingdom of Great Britain and Ireland.
(4) That he had duly objected to the continuance of any proceedings under the complaint and warrant on the ground that the commissioner had no jurisdiction; but his objections had been overruled, and the commissioner had adjourned the proceedings until March 30, 1903.
(5) That, on March 18, 1903, he presented to the commissioner an application to be admitted to bail pending the proceeding, and, in support of the application, filed with the commissioner the affidavit of his attending physician, which was to the effect that petitioner was suffering from bronchitis and a severe chill, which might develop into pneumonia, and that the confinement tended greatly to injure his health and to result in serious impairment, but that the commissioner denied the application on the ground that no power existed for admitting petitioner to bail;
(6) That the cause of imprisonment was the charge and the refusal to admit to bail.
(7) That the imprisonment and detention were illegal, and the warrant void, the complaint stating no jurisdictional facts to warrant imprisonment and detention. That the denial of the right to give bail constitutes a violation of the Eighth Amendment of the Constitution, and section 1015 of the Revised Statutes, and of the common law of the United States, and constitutes a deprivation of liberty without due process of law.
The writs prayed for were granted, and, after hearing, dismissed and the application to be admitted to bail denied, March 30, the opinion being filed March 25, and copy of final order served March 28. The case was then brought to this Court by appeal.
At the argument, it was made to appear that, on March 31, His Majesty’s consul general at New York made a new complaint, which reiterated the original charge, with some amplification, and added that Wright
did also, at the times and places aforesaid, then being a director and manager of said company or corporation aforesaid, with intent to defraud, alter and falsify books, papers, and writings belonging to the said company or corporation, and made and concurred in the making of false entries, and omitted and concurred in omitting material particulars in books of account and other documents belonging to the said company or corporation, and did also at the times and places aforesaid, then being a director of the said company or corporation as aforesaid, alter and falsify books, papers, and writings, and made and was privy to the making of false and fraudulent entries in the books of account and other documents belonging to the said company or corporation, with intent to defraud and deceive shareholders and creditors of said company or corporation, and other persons.
It was further stated:
That deponent’s information and belief are based upon a certified copy of a warrant, issued by one of his Majesty’s justices of the peace for the City of London, for the apprehension of the said Whitaker Wright for the offense herein first enumerated, and a certified copy of the information and complaint of the senior official receiver in companies liquidation (acting under the order of the high court of justice) and the depositions of Arthur Russell and John Flower in support thereof, upon the application for a summons against the said Whitaker Wright, and the depositions of George Jarman and Harry Gerald Abrahams, on which information and complaint and depositions the said warrant was granted for the apprehension of the said Whitaker Wright,
etc. Copies of these papers accompanied the complaint, and reference was made to cable messages from the Secretary of State for Foreign Affairs.
On this complaint, a warrant was issued and the accused arraigned before the commissioner, and it was thereupon stated that the demanding government would abandon all further proceedings under the complaint of March 16, and consented to the discharge of the prisoner from the arrest thereon. The commissioner held that, as the proceedings under the previous warrant had been carried into the circuit court, he was without power to discharge the prisoner under that warrant. Subsequently, the order of the circuit court dismissing the writs of habeas corpus and certiorari and remanding the prisoner was brought to the commissioner’s attention, but counsel for the prisoner stated that papers were being prepared for the purpose of removing the case to the Supreme Court. The commissioner ruled that, pending such proceedings, he must decline to dismiss the complaint and discharge the prisoner.
Article X of the Treaty of 1842, 8 Stat. 572, 576, reads as follows:
It is agreed that the United States and Her Britannic Majesty shall, upon mutual requisitions by them, or their ministers, officers, or authorities, respectively made, deliver up to justice all persons who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asylum, or shall be found, within the territories of the other:
Provided 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 apprehension and commitment for trial if the crime or offense had there been committed, and the respective judges and other magistrates of the two governments shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges or other magistrates, respectively, to the end that the evidence of criminality may be heard and considered, and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive. The expense of such apprehension and delivery shall be borne and defrayed by the party who makes the requisition, and receives the fugitive.
Article I of the Treaty of 1889, 26 Stat. 1508, is:
The provisions of the said tenth article are hereby made applicable to the following additional crimes:
1. Manslaughter, when voluntary.
2. Counterfeiting or altering money; uttering or bringing into circulation counterfeit or altered money.
3. Embezzlement; larceny; receiving any money, valuable security, or other property, knowing the same to have been embezzled, stolen, or fraudulently obtained.
4. Fraud by a bailee, banker, agent, factor, trustee, or director or member or officer of any company, made criminal by the laws of both countries.
5. Perjury, or subornation of perjury.
6. Rape; abduction; child-stealing; kidnapping.
7. Burglary; housebreaking or shopbreaking.
8. Piracy by the law of nations.
9. Revolt, or conspiracy to revolt by two or more persons on board a ship on the high seas, against the authority of the master; wrongfully sinking or destroying a vessel at sea, or attempting to do so; assaults on board a ship on the high seas, with intent to do grievous bodily harm.
10. Crimes and offenses against the laws of both countries for the suppression of slavery and slave trading.
Extradition is also to take place for participation in any of the crimes mentioned in this convention or in the aforesaid tenth article, provided such participation be punishable by the laws of both countries.
Sections 83 and 84 of chapter 96, 24 and 25 Victoria, are as follows:
83. Whosoever, being a director, manager, public officer, or member of any body corporate or public company, shall, with intent to defraud, destroy, alter, mutilate, or falsify any book, paper, writing, or valuable security belonging to the body corporate or public company, or make or concur in the making of any false entry, or omit or concur in omitting any material particular in any book of account or other document, shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable at the discretion of the court, to any of the punishments which the court may award as hereinbefore last mentioned.
84. Whosoever, being a director, manager, or public officer of any body corporate or public company, shall make, circulate, or publish, or concur in making, circulating, or publishing, any written statement or account which he shall know to be false in any material particular, with intent to deceive or defraud any member, shareholder, or creditor of such body corporate or public company, or with intent to induce any person to become a shareholder or partner therein, or to entrust or advance any property to such body corporate or public company, or to enter into any security for the benefit thereof, shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable at the discretion of the court, to any of the punishments which the court may award as hereinbefore last mentioned.
Section 75 provided for a liability, on conviction of the misdemeanor therein mentioned,
at the discretion of the court, to be kept in penal servitude for any term not exceeding seven years and not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement.
Section 166 of the Companies’ Act of 1862, 25 and 26 Vict. c. 89, provides:
If any director, officer, or contributory of any company would up under this act destroys, mutilates, alters, or falsifies any books, papers, writings, or securities, or makes or is privy to the making of any false or fraudulent entry in any register, book of account, or other document belonging to the company, with intent to defraud or deceive any person, every person so offending shall be deemed to be guilty of a misdemeanor, and, upon being convicted, shall be liable to imprisonment for any term not exceeding two years, with or without hard labor.
Section 514 and subdivision 3 of section 611 of the New York Penal Code read as follows:
SEC. 514.
Other cases of forgery in the third degree. A person who either (1) being an officer or in the employment of a corporation, association, partnership, or individuals, falsifies, or unlawfully and corruptly alters, erases, obliterates, or destroys any accounts, books of accounts, records, or other writing, belonging to or appertaining to the business of the corporation, association, partnership, or individuals; . . . is guilty of forgery in the third degree.
SEC. 611.
Misconduct of officers and employees of corporations. A director, officer, agent, or employee of any corporation or joint stock association who: . . . (3) knowingly concurs in making or publishing any written report, exhibit, or statement of its affairs or pecuniary condition, containing any material statement which is false; . . . is guilty of a misdemeanor.
Section 525 provides: "Forgery in the third degree is punishable by imprisonment for not more than five years."
By section 15, it is provided:
A person convicted of a crime declared to be a misdemeanor, for which no other punishment is specially prescribed by this code, or by any other statutory provision in force at the time of the conviction and sentence, is punishable by imprisonment in a penitentiary or county jail for not more than one year, or by a fine of not more than five hundred dollars, or by both.
By the Extradition Act of Great Britain of 1870. 33 and 34 Vict. c. 52, it is provided that:
A fugitive criminal shall not be surrendered until the expiration of fifteen days from the date of his being committed to prison to await his surrender.
The accused is, on committal, to be informed of this, and "that he has a right to apply for a writ of habeas corpus." If he is not surrendered and conveyed out of the United Kingdom
within two months after such committal, or if a writ of habeas corpus is issued, after the decision of the court upon the return to the writ, it shall be lawful for any judge of one of Her Majesty’s superior courts at Westminster,
on notice, to order him to be discharged unless sufficient cause is shown to the contrary.
The first schedule contained a list of crimes, which includes:
Fraud by a bailee, banker, agent, factor, trustee, or director, or member, or public officer of any company, made criminal by any act for the time being in force.
By section 5273 of the Revised Statutes, Title LXVI, Extradition, it is provided that, whenever any person committed under the title or any treaty "to remain until delivered up in pursuance of a requisition," is not so delivered up and conveyed out of the United States within two calendar months after such commitment, he may be discharged by any judge of the United States or of any state, on notice, unless sufficient cause is shown to the contrary.
Section 5270 is as follows:
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, 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.