In re Grin

• Decision Date: 18 December 1901
• Docket Number: 13,180.
• Parties: In re GRIN.
• Court: U.S. District Court — Northern District of California

112 F. 790

In re GRIN.

No. 13,180.

United States Circuit Court, N.D. California.

December 18, 1901

George D. Collins, for petitioner.

Horace G. Platt, for Paul Kasakevitch, Russian imperial consul at San Francisco, acting for and on behalf of the demanding government herein, the empire of Russia.

MORROW Circuit Judge.

Extradition proceedings for the surrender of the petitioner herein were instituted on behalf of the empire of Russia, under the provisions of the treaty of 1893 between the United States and Russia, charging the petitioner with the crime of embezzlement, committed under the following circumstances: On the 6th day of March, 1901, Simeon Ivanow Grin, a Russian Subject, was residing in the city of Rostov on the Don, the empire of Russia, and was in the employ of the representatives of the firm of E. L. Zeefo & Co., an export corn-trading concern doing business in that city. On that day Grin was instructed with the sum of 25,000 roubles in Russian money, in his capacity as clerk, by one of said representatives of the firm of Zeefo & Co., and instructed to deliver the said money to the administration of the Vladikavkaz Railroad, in said city. Grin did not deliver the money as directed, but appropriated the whole amount to his own use, and immediately absconded from the empire of Russia to the United States locating in the city and county of San Francisco, state of California. On October 8, 1901, the mandate of the secretary of state of the United States was issued to the officers given jurisdiction of extradition proceedings, under section 5270 of the Revised Statutes, directing the arrest of Grin upon the charge of embezzlement, and that a warrant should issue for his surrender to the empire of Russia, pursuant to treaty stipulations between that country and the United States, if, upon the proper proceedings, sufficient evidence of his guilt was produced. This mandate was presented to the United States district judge for the Northern district of California on October 16, 1901, together with the complaint of the Russian imperial consul stationed at San Francisco. The said judge thereupon issued a warrant for the apprehension of said Grin, in accordance with the terms of said mandate; ordering Grin to be brought before the said court. This warrant was directed to the United States marshal for the Northern district of California. The prisoner was not found within that jurisdiction, and on October 17, 1901, a second warrant was issued by said district judge for the apprehension of the said Grin, directed to the United States marshal of any district of California. This warrant provided for the bringing of the prisoner before Hon. E. H. Heacock, a commissioner of said court. On the same day a special order was made by said court authorizing the said commissioner to discharge all the duties and exercise all the powers which may be performed by a justice of the supreme court, or a circuit or district judge, under section 5270 of the Revised Statutes. The prisoner was arrested under this warrant in the Southern district of California, and brought before the said commissioner, when the usual proceedings were had. On November 23, 1902, the said commissioner certified to the secretary of state the record of such proceedings; also that he deemed the evidence produced sufficient to sustain the charge in the said complaint under the provisions of the extradition treaty and convention between the United States and Russia; and that he had therefore issued his warrant for the commitment of the said Grin to the custody of the United States marshal until proper orders were received from the president of the United States for his surrender to the proper officers of the Russian government. The said Grin thereupon petitioned this court for a writ of habeas corpus and for a writ of certiorari to the said commissioner requiring him to certify to this court the record, proceedings, and evidence, and his authority by virtue of which he assumed to issue and did issue a warrant of commitment against the petitioner. The petition was granted, the writs issued and obeyed, and the matter has been fully submitted to the court.

The petitioner alleges a want of jurisdiction in the commissioner to act herein, and sets forth certain alleged technical defects in the extradition papers. He contends that, if guilty at all, it is of the crime of larceny, and not embezzlement, as charged, and that for these reasons he should be discharged. The contention of want of jurisdiction in the commissioner to hear and determine this case is based upon the fact that the complaint was not presented to the commissioner, and the warrant of arrest was not issued by him; and it is urged that in issuing the warrant, and making the same returnable before the commissioner, the district judge exceeded his power.

Section 5270 of the Revised Statutes of the United States provides:

'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; and he shall issue his warrant for the commitment of the person so charged to the proper jail, thereto remain until such surrender shall be made.'

The statute does not declare in mandatory terms that any special method of procedure shall be pursued after the issuance of the warrant upon the complaint. It merely designates the officers to whom the complaint may be presented, and who may hear and determine the sufficiency of the evidence to sustain the charge, under the provisions of the treaty or convention. The treaty provides specially that the surrender of criminals from either country to the other, 'upon mutual requisitions and according to their respective regulations and procedure,' '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. ' It is clear that neither the statute nor the treaty intended that other than the usual method or procedure in the preliminary examinations of criminal charges should be followed. The complaint in this case was presented to the United States district judge, who then issued a warrant returnable before him. The fugitive was not found within his district, but was located in the Southern district of the state. A second warrant for his arrest was then issued by the same judge, but made returnable before the commissioner, presumably for the convenience of the business of the court and the expedition of the matter in question. The United States district court for each judicial district is authorized by law 'to appoint such number of persons, to be known as United States commissioners, at such places in the district as may be designated by the district court, which United States commissioners shall have the same powers and perform the same duties as are now imposed upon commissioners of the circuit courts. ' Section 19 of the act of May 28, 1896 (29 Stat. 184.) Section 627 of the Revised Statutes, which was then in force, provided that each circuit court 'may appoint, in different parts of the district for which it is held, so many discreet persons as it may deem necessary, who shall be called 'commissioners of the circuit courts,' and shall exercise the powers which are or may be expressly conferred by law upon commissioners of circuit courts. ' By section 727 of the Revised Statutes, commissioners of the circuit courts were vested with authority 'to hold to security of the peace and for good behaviour in cases arising under the constitution and laws of the United States, as may be lawfully exercised by any judge or justice of the peace of the respective states, in cases cognizable before them. ' By section 1014, commissioners of the circuit court were vested with the power to arrest, imprison, or bail offenders for any crime against the United States, agreeably to the usual mode of process against offenders in such state; that is, the state wherein the offender may be found. The powers here given to commissioners of the circuit court, and which have been succeeded to by the commissioners of the district court, practically comprehend all preliminary examinations in criminal cases; the commissioner acting as an arresting, examining, and committing magistrate under the jurisdiction of the United States district court. In U.S. v. Berry (D.C.) 4 Fed. 779, 780, the court had occasion to consider the relation of the commissioner to the court in the performance of his official duties as an examining magistrate. The court said:

'It is plain that commissioners are but officers of the court, to whom are committed some of the duties which must otherwise be performed by the court itself, or the judge thereof. The exigencies of the public service demand that speedy inquiry shall be made into all criminal charges, in order that offenders may be

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