Oteiza v. Jacobus
| Decision Date | 23 May 1890 |
| Citation | 10 S.Ct. 1031,34 L.Ed. 464,136 U.S. 330 |
| Parties | OTEIZA v. JACOBUS et al |
| Court | U.S. Supreme Court |
Louis S. Phillips, for appellant.
Emmet R. Olcott, for appellees.
By section 12 of article 2 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 St. 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 St. 177,) section 12 of article 2 of the convention of January 5, 1877, was amended to read as follows: '(12) The embezzlement or criminal mal versation of public funds committed within the jurisdiction of one or the other party by public officers or depositaries.' On the 2d 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 ployment of the kingdom of Spain, at Havana, hd c harge of the public funds and moneys belonging to the kingdom of Spain, namely, the pureau 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 wrongfully and feloniously embezzied 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 fied 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 appreheusion 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 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 Fed. Rep. 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 cone, quence of his official action; that he therefore obtained charge of such moneys by virtue of his office, and there upon 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 8, 'Of the crimes of public employes in the discharge of their duties,' and of chapter 10 therein, entitled 'Malversation of public funds,' and reads 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...
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