Charles Neely v. William Henkel

• Citation: 45 L.Ed. 448,180 U.S. 109,21 S.Ct. 302
• Decision Date: 14 January 1901
• Docket Number: No. 387,387
• Parties: CHARLES F. W. NEELY, Appt. , v. WILLIAM HENKEL, United States Marshal for the Southern District of New York
• Court: United States Supreme Court

180 U.S. 109

21 S.Ct. 302

45 L.Ed. 448

CHARLES F. W. NEELY, Appt.,

v WILLIAM HENKEL, United States Marshal for the Southern District of New York.

No. 387.

Argued December 10, 11, 1900.

Decided January 14, 1901.

Messrs. John D. Lindsay and De Lancey Nicoll for appellant.

Assistant Attorney General Beck for appellee.

Mr. Justice Harlan delivered the opinion of the court:

By § 5270 of the Revised Statutes of the United States it is provided:

'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.'

This section was amended by Congress June 6th, 1900, by adding thereto the following proviso:

'Provided, That whenever any foreign country or territory, or any part thereof, is occupied by or under the control of the United States, any person who shall violate, or who has violated, the criminal laws in force therein, by the commission of any of the following offenses, namely: Murder, and assault with intent to commit murder; counterfeiting or altering money; counterfeiting certificates or coupons of public indebtedness, bank notes, or other instruments of public credit, and the utterance or circulation of the same; forgery or altering, and uttering what is forged or altered; embezzlement or criminal malversation of the public funds, committed by public officers, employees, or depositaries; larceny or embezzlement of an amount not less than one hundred dollars in value, burglary, defined to be the breaking and entering by night-time into the house of another person with intent to commit a felony therein, and the act of breaking and entering the house or building of another, whether in the day or night time, with the intent to commit a felony therein; the act of entering or of breaking and entering the offices of the government and public authorities, or the offices of banks, banking houses, savings banks, trust companies, insurance, or other companies, with the intent to commit a felony therein; perjury or the subornation of perjury; rape; arson; piracy by the law of nations; murder, assault with intent to kill, and manslaughter, committed on the high seas, on board a ship owned by or in control of citizens or residents of such foreign courntry or territory and not under the flag of the United States or of some other government; malicious destruction of or attempt to destroy railways, trams, vassels, bridges, dwellings, public edifices, or other buildings, when the act endangers human life, and who shall depart or flee, or who has departed or fled, from justice therein to the United Statcs, or to any Territory thereof, or to the District of Columbia, shall, when found therein, be liable to arrest and detention by the authorities of the United States, and on the written request or requisition of the military governor or other chief executive officer in control of such foreign country or territory shall be returned and surrendercd, as hereinafter provided, to such authorities for trial under the laws in force in the place where such offense was committed. All the provisions of sections fifty-two hundred and seventy to fifty-two hunderd and seventy-seven of this title, so far as applicable, shall govern proceedings authorized by this proviso: Provided further, That such proceedings shall be had before a judge of the courts of the United States only, who shall hold such person on evidence establishing probable cause that he is guilty of the offense charged: And provided further, That no return or surrender shall be made of any person charged with the commission of an offense of a political nature. If so held such person shall be returned and surrendered to the authorities in control of such foreign country or territory on the order of the Secretary of State of the United States, and such authorities shall secure to such person a fair and impartial trial.' 31 Stat. at L. 656, chap. 793.

On the 28th day of June, 1900, a warrant was issued by Judge Lacombe of the circuit court of the United States for the southern district of New York commanding the arrest of Charles F. W. Neely, who, 'being then and there a public employee, to wit, finance agent of the department of posts in the city of Havana, island of Cuba, on the 6th day of May in the year of our Lord one thousand nine hundred, or about that time, having then and there charge of the collection and deposit of moneys of the department of posts of the said city of Havana, did unlawfully and feloniously take and embezzle from the public funds of the said island of Cuba the sum of $10,000 and more, being then and there moneys and funds which had come into his charge and under his control in his capacity as such public employee and finance agent, as aforesaid, and by reason of his said office and employment, thereby violating chapter 10, article 401, of the Penal Code of the said island of Cuba,—that is to say, a crime within the meaning of the said act of Congress approved June 6th, 1900, as aforesaid, relating to the 'embezzlement or criminal malversation of the public funds committed by public officers, employees, or depositaries." The warrant directed the accused to be brought before the judge in order that the evidence of probable cause as to his guilt could be heard and considered, and, if deemed sufficient, that the same might be certified, with a copy of all the proceedings, to the Secretary of State, that an order might issue for his return and surrender pursuant to the authority of the above act of Congress.

The warrant of arrest was based on a verified written complaint of an assistant United States attorney for the southern district of New York.

On the same day and upon a like complaint a warrant was issued against Neely by the same judge, commanding his arrest for the crime of having unlawfully and fraudulently, while employed in and connected with the business and operations of a branch of the service of the department of posts in Havana, Cuba, between July 1st, 1899, and May 1st, 1900, embezzled and converted to his own use postage stamps, moneys, funds, and property belonging to and in the custody of that department, which had come into his custody and under his authority as such employee, to the amount of $57,000, in violation of §§ 37 and 55 of the Postal Code of Cuba.

Neely having been arrested under these warrants, application was made by the United States for his extradition to Cuba. The accused moved to dismiss the complaints upon various grounds. That motion having been denied, the case was heard upon evidence. In disposing of the application for extradition, Judge Lacombe said: 'In the opinion of this court, the government has abundantly shown that there is probable cause to believe that Neely is guilty of the offense of 'embezzlement or criminal malversation of the public funds,' he being at the time a 'public officer,' or 'employee,' or 'depositary.' Such an offense is obnoxious to the Penal Code in force in Cuba, article 401 of which provides that 'the public employee who, by reason of his office, has in his charge public funds or property, and who should take (or consent that others should take) any part therefrom, shall be punished,' etc. There is no merit in the contention that this article applies only to persons in the public employ of Spain. Spain having withdrawn from the island, its successor has become the 'public' to which the Code, remaining unrepealed, now refers. The suggestion that under this Penal Code no public employee could be prosecuted or punished until his superior had heard the case and turned the offender over to the criminal law for trial is matter of defense, and need not be considered here. The evidence shows probable cause to believe that the prisoner is guilty of an offense defined in the act of June 6th, 1900, and which is also a violation of the criminal laws in Cuba, and upon such evidence he will be held for extradition.' But it was further said: 'Two obstacles . . . now exist. He [the accused] has been held to bail in this court upon a criminal charge of bringing into this district government funds embezzled in another district. He has also been arrested in a civil action brought in this court to recover $45,000, which, it is alleged, he has converted. When both of these proceedings have been discontinued the order in extradition will be signed. This may be done on August 13th at 11 A. M.'

Subsequently, August 9th, 1900, Neely presented in the court below his written application for a writ of habeas corpus, and prayed that he be discharged from restraint in the extradition proceedings. He claimed on various grounds that the act of June 6th, 1900, under which he was arrested, detained, and...