Henry Pettit v. Thomas Walshe

• Decision Date: 02 May 1904
• Docket Number: No. 563,563
• Citation: 194 U.S. 205,24 S.Ct. 657,48 L.Ed. 938
• Parties: HENRY C. PETTIT, United States Marshal for the District of Indiana, Appt. , v. THOMAS WALSHE
• Court: U.S. Supreme Court

194 U.S. 205

24 S.Ct. 657

48 L.Ed. 938

HENRY C. PETTIT, United States Marshal for the District of Indiana, Appt.,

v THOMAS WALSHE.

No. 563.

Argued April 6, 1904.

Decided May 2, 1904.

Mr. Charles Fox for appellant.

[Argument of Counsel from pages 205-208 intentionally omitted] Messrs. Ferdinand Winter and Addison C. Harris for appellee.

[Argument of Counsel from Pages 208-210 intentionally omitted] Mr. Justice Harlan delivered the opinion of the court:

This is a case of extradition. It presents the question whether a commissioner specially appointed by a court of the United States under and in execution of statutes enacted to give effect to treaty stipulations for the apprehension and delivery of offenders, can issue a warrant for the arrest of an alleged criminal, which may be executed by a marshal of the United States, within his district, in a state other than the one in which the commissioner has his office. It also presents the question whether a person arrested under such a warrant can be lawfully taken beyond the state in which he was found, and delivered in another state before the officer who issued the warrant of arrest, without any preliminary examination in the former state as to the criminality of the charge against him.

By the 10th article of the treaty between the United States and Great Britain, concluded August 9th, 1842, it was provided that upon mutual requisitions by them, or their ministers, officers, or authorities, respectively made, they shall '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.' But by the same article it was 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.' 8 Stat. at L. 572, 576.

A supplementary treaty between the same countries, concluded July 12th, 1889, provided for the extradition for certain crimes not specified in the 10th article of the treaty of 1842 and 'punishable by the laws of both countries;' and, also, declared that the provisions of the above article 'shall apply to persons convicted of the crimes therein respectively named and specified, whose sentence therefor shall not have been executed. In case of a fugitive criminal alleged to have been convicted of the crime of which his surrender is asked, a copy of the record of the conviction, and of the sentence of the court before which such conviction took place, duly authenticated, shall be produced, together with the evidence proving that the prisoner is the person to whom such sentence refers.' 26 Stat. at L. 1508, 1510.

By an act of Congress, approved August 12th, 1848, chap. 167, and entitled 'An Act for Giving Effect to Certain Treaty Stipulations Between This and Foreign Governments for the Apprehension and Delivering Up of Certain Offenders,' it is provided (§ 1): 'That in all cases in which there now exists, or hereafter may exist, any treaty or convention for extradition between the government of the United States and any foreign government, it shall and may be lawful for any of the justices of the Supreme Court or judges of the several district courts of the United States—and the judges of the several state courts, and the commissioners authorized so to do by any of the courts of the United States, are hereby severally vested with power, jurisdiction, and authority, upon complaint made under oath or affirmation, 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 enumerated or provided for by any such treaty or convention—to issue his warrant for the apprehension of the person so charged, that he may be brought before such judge or commissioner, to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient by him to sustain the charge under the provisions of the proper treaty or convention, it shall be his duty to 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 said treaty or convention; and it shall be the duty of the said judge or commissioner to issue his warrant for the commitment of the person so charged to the proper gaol, there to remain until such surrender shall be made.' '§ 6. That it shall be lawful for the courts of the United States, or any of them, to authorize any person or persons to act as a commissioner or commissioners, under the provisions of this act; and the doings of such person or persons so authorized, in pursuance of any of the provisions aforesaid, shall be good and available to all intents and purposes whatever.' 9 Stat. at L. 302.

And by § 5270 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 3591)—omitting therefrom the proviso added thereto by the act of June 6th, 1900, chap. 793, 31 Stat. at L. 656 (U. S. Comp. Stat. 1901, p. 3591), which applies only to crimes committed in a foreign country or territory 'occupied by or under the control 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.' See also § 5273 (U. S. Comp. Stat. 1901, p. 3596).

In the sundry civil appropriation act of August 18th, 1894, will be found the following clause: 'Provided, That it shall be the duty of the marshal, his deputy, or other officer, who may arrest a person charged with any crime or offense, to take the defendant before the nearest circuit court commissioner or the nearest judicial officer having jurisdiction under existing laws for a hearing, commitment, or taking bail for trial, and the officer or magistrate issuing the warrant shall attach thereto a certified copy of the complaint, and upon the arrest of the accused, the return of the warrant, with a copy of the complaint attached, shall confer jurisdiction upon such officer as...