Paul Charlton v. James Kelly

• Citation: 229 U.S. 447,57 L.Ed. 1274,33 S.Ct. 945
• Decision Date: 10 June 1913
• Docket Number: No. 232,232
• Parties: PAUL CHARLTON, as Next Friend of Porter ter Charlton, Appt., v. JAMES J. KELLY, Sheriff of Hudson County, New Jersey, et al
• Court: United States Supreme Court

229 U.S. 447

33 S.Ct. 945

57 L.Ed. 1274

PAUL CHARLTON, as Next Friend of Porter ter Charlton, Appt.,

v JAMES J. KELLY, Sheriff of Hudson County, New Jersey, et al.

No. 232.

Argued April 18, 1913.

Decided June 10, 1913.

This is an appeal from a judgment dismissing a petition for a writ of habeas corpus, and remanding the petitioner to custody under a warrant for his extradition as a fugitive from the justice of the Kingdom of Italy.

The proceedings for the extradition of the appellant were begun upon a complaint duly made by the Italian vice-consul, charging him wiht the commission of a murder in Italy. A warrant was duly issued by the Hon. John A. Blair, one of the judges of New Jersey qualified to sit as a committing magistrate in such a proceeding, under § 5270, Revised Statutes (U. S. Comp. Stat. 1901, p. 3591). At the hearing, evidence was produced which satisfied Judge Blair that the appellant was a fugitive from justice, and that he was the person whose return to Italy was desired, and that there was probable cause for holding him for trial upon the charge of murder, committed there. He thereupon committed the appellant, to be held until surrendered under a warrant to be issued by the Secretary of State. A transcript of the evidence and of the findings was duly certified as required by § 5270, Revised Statutes, and a warrant in due form for his surrender was issued by the Secretary of State. Its execution has, up to this time been prevented by the habeas corpus proceedings in the court below and the pendency of this appeal.

The procedure in an extradition proceeding is that found in the treaty under which the extradition is demanded, and the legislation by Congress in aid thereof. Thus, article 1 of the treaty with Italy of 1868 [15 Stat. at L. 629] (vol. 1, Treaties, Conventions, etc., of the United States, 1910, p. 966), reads as follows:

'The government of the United States and the government of Italy mutually agree to deliver up persons who, having been convicted of or charged with the crimes specified in the following article, committed within the jurisdiction of one of the contracting parties, shall seek an asylum or 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 or her apprehension and commitment for trial, if the crime had been there committed.'

One of the crimes specified in the section following is murder.

By article 5 it is provided that:

When, however, the fugitive shall have been merely charged with crime, a duly authenticated copy of the warrant for his arrest in the country where the crime may have been committed, or of the depositions upon which such warrant may have been issued, must accompany the requisition as aforesaid. The President of the United States, or the proper executive authority in Italy, may then issue a warrant for the apprehension of the fugitive, in order that he may be brought before the proper judicial authority for examination. If it should then be decided that, according to law and the evidence, the extradition is due pursuant to the treaty, the fugitive may be given up according to the forms prescribed in such cases.'

That article was amended by the additional treaty of 1884 (vol. 1, Treaties and Conventions, p. 985) by a clause added in these words:

'Any competent judicial magistrate of either of the two countries shall be authorized, after the exhibition of a certificate signed by the Minister of Foreign Affairs [of Italy] or the Secretary of State [of the United States], attesting that a requisition has been made by the government of the other country to secure the preliminary arrest of a person condemned for or charged with having therein committed a crime for which, pursuant to this convention, extradition may be granted, and on complaint duly made under oath by a person cognizant of the fact, or by a diplomatic or consular officer of the demanding government, being duly authorized by the latter, and attesting that the aforesaid crime was thus perpetrated, to issue a warrant for the arrest of the person thus inculpated, to the end that he or she may be brought before the said magistrate, so that the evidence of his or her criminality may be heard and considered; and the person thus accused and imprisoned shall from time to time be remanded to prison until a formal demand for his or her extradition shall be made and supported by evidence, as above provided; if, however, the requisition, together with the documents above provided for, shall not be made, as required, by the diplomatic representative of the demanding government, or, in his absence, by a consular officer thereof, within forty days from the date of the arrest of the accused, the prisoner shall be set at liberty.' [24 Stat. at L. 1002.]

Messrs. R. Floyd Clarke and William D. Edwards for appellant.

[Argument of Counsel from pages 451-456 intentionally omitted] Mr. Pierre P. Garven for appellees.

Statement by Mr. Justice Lurton:

Mr. Justice Lurton, after making the foregoing statement, delivered the opinion of the court:

A writ of habeas corpus cannot be used as a writ of error. If Judge Blair had jurisdiction of the person of the accused and of the subject-matter, and had before him competent legal evidence of the commission of this crime with which the appellant was charged in the complaint, which, according to the law of New Jersey, would justify his apprehension and commitment mitment for trial if the crime had been committed in that state, his decision may not be reviewed on habeas corpus. Terlinden v. Ames, 184 U. S. 270, 278, 46 L. ed. 534, 541, 22 Sup. Ct. Rep. 484, 12 Am. Crim. Rep. 424; Bryant v. United States, 167 U. S. 104, 42 L. ed. 94, 17 Sup. Ct. Rep. 744; McNamara v. Henkel, 226 U. S. 520, 57 L. ed. ——, 33 Sup. Ct. Rep. 146.

By a stipulation filed in the case for the purpose of this review, it is agreed that the evidence presented to Judge Blair of the murder with which the accused was charged, and of his criminality, was sufficient to meet the treaty and statutory requirements of the case, and the errors assigned in this court, questioning its legality and competency, as well as those as to the alleged absence of a warrant or deposition upon which such warrant was issued, have been withdrawn. But neither this stipulation, nor the withdrawal of the assignments of error referred to, is to affect any of the matters raised by other objections pointed out in other assignments.

The objections which are relied upon for the purpose of defeating extradition may be conveniently summarized and considered under four heads:

1. That evidence of the insanity of the accused was offered and excluded.

2. That the evidence of a formal demand for the extradition of the accused was not filed until more than forty days after the arrest.

3. That appellant is a citizen of the United States, and that the treaty, in providing for the extradition of 'persons' accused of crime, does not include persons who are citizens or subjects of the nation upon whom the demand is made.

4. That if the word 'person,' as used in the treaty, includes citizens of the asylum country, the treaty, in so far as it covers that subject, has been abrogated by the conduct of Italy in refusing to deliver up its own citizens upon the demand of the United States, and by the enactment of a municipal law, since the treaty, forbidding the extradition of citizens.

We will consider these objections in their order:

1. Was evidence of insanity improperly excluded?

It must be conceded that impressive evidence of the insanity of the accused was offered by him and excluded. It is now said that this ruling was erroneous. But if so, this is not a writ of error, and mere errors in the rejection of evidence are not subject to review by a writ of habeas corpus. Benson v. McMahon, 127 U. S. 457, 461, 32 L. ed. 234, 236, 8 Sup. Ct. Rep. 1240; Terlinden v. Ames, 184 U. S. 270, 278, 46 L. ed. 534, 541, 22 Sup. Ct. Rep. 484, 12 Am. Crim. Rep. 424; McNamara v. Henkel, 226 U. S. 520, 57 L. ed. ——, 33 Sup. Ct. Rep. 146. In the McNamara Case, certain depositions had been received for the prosecution over objection. This court said that there was legal evidence on which to base the action of the commissioner in holding the accused for extradition, irrespective of the depositions objected to.

But it is said that the act of 1882 (22 Stat. at L 215, § 3, chap. 378, U. S. Comp. Stat. 1901, p. 3594), requires that the defendant's witnesses shall be heard. That section is most inartificially drawn. It reads as follows:

'That on the hearing of any case under a claim of extradition by any foreign government, upon affidavit being filed by the person charged, setting forth that there are witnesses whose evidence is material to his defense, that he cannot safely go to trial without them, what he expects to prove by each of them, and that he is not possessed of sufficient means, and is actually unable to pay the fees of such witnesses, the judge or commissioner before whom such claim for extradition is heard may order that such witnesses be subpoenaed; and in such cases the costs incurred by the process, and the fees of witnesses, shall be paid in the same manner that similar fees are paid in the case of witnesses subpoenaed in behalf of the United States.'

The contention is that the effect of this provision is to give the accused the right to introduce any evidence which would be admissible upon a trial under an issue of not guilty. To this we cannot agree. The prime purpose of the section is to afford the defendant the means for obtaining the testimony of witnesses, and to provide for their fees. In no sense does the statute make relevant, legal, or competent evidence which would not have been competent before the statute upon such a hearing. True, the...