Collins v. Loisel

• Decision Date: 29 May 1922
• Docket Number: No. 672,672
• Parties: COLLINS v. LOISEL, U. S. Marshal
• Court: U.S. Supreme Court

259 U.S. 309

42 S.Ct. 469

66 L.Ed. 956

COLLINS

v LOISEL, U. S. Marshal.

No. 672.

Argued April 28, 1922.

Decided May 29, 1922.

Messrs. Guion Miller and Edgar Allan Poe, both of Baltimore, Md., for appellant.

Mr. Robert H. Marr, of New Orleans, La., for appellee.

Mr. Justice BRANDEIS delivered the opinion of the Court.

This is the second appeal by Collins in this case. The first was dismissed in Collins v. Miller, 252 U. S. 364, 40 Sup. Ct. 347, 64 L. Ed. 616, for want of jurisdiction. There the earlier proceedings and the nature of the controversy are fully set forth. After our decision the case was again heard by the District Court on the same record and the same evidence, and on October 25, 1921, judgment was entered. By that judgment the writ of habeas corpus was granted, so far as the commitment was based on charges of obtaining property by false pretenses from Pohoomull Bros. and from Ganeshi Lall & Sons, and as to these commitments the court discharged Collins. But as to the commitment based on the charge of obtaining property by false pretenses from Mahomed Ali Zaimal Ali Raza the court dismissed the application for habeas corpus and remanded Collins to the custody of Loisel, the marshal. The British consul general acquiesced in this judgment. Collins appealed from so much thereof as recommitted him to the custody of the marshal. As the judgment below was final and disposed of the whole case, we now have jurisdiction. It is insisted, on several grounds, that the committing magistrate was without jurisdiction, and that consequently the appellant should have been discharged.

First. Collins contends that the affidavit of the British consul general does not charge an extraditable offense. The argument is that the affidavit charges cheating merely; that cheating is not among the offenses enumerated in the extradition treaties; that cheating is a different offense from obtaining property under false pretenses, which is expressly named in the treaty of December 13, 1900 (32 Stat. 1864); that to convict of cheating it is sufficient to prove a promise of future performance which the promisor does not intend to perform, while to convict of obtaining property by false pretense it is essential that there be a false representation of a state of things past or present. See State v. Colly, 39 La. Ann. 841, 2 South. 496. It is true that an offense is extraditable only if the acts charged are criminal by the laws of both countries. It is also true that the charge made in the court of India rests upon section 420 of its Penal Code, which declares:

'Whoever cheats and thereby dishonestly induces the person de ceived to deliver any property to any person * * * shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine'¹

—whereas section 813 of the Revised Statutes of Louisiana declares:

'Whoever, by any false pretense, shall obtain, or aid and assist another in obtaining, from any person, money or any property, with intent to defraud him of the same, he shall, on conviction, be punished by imprisonment at hard labor or otherwise, not exceeding twelve months.'

But the affidavit of the British consul general recites that Collins stands charged in the Chief Presidency Magistrate's Court with having feloniously obtained the pearl button by false pretenses; and the certificate of the secretary to the government of India, which accompanies the papers on which Collins' surrender is sought, describes the offense with which he is there charged as 'the crime of obtaining valuable property by false pretenses.' The law does not require that the name by which the crime is described in the two countries shall be the same; nor that the scope of the liability shall be coextensive, or, in other respects, the same in the two countries. It is enough if the particular act charged is criminal in both jurisdictions. This was held with reference to different crimes involving false statements in Wright v. Henkel, 190 U. S. 40, 58, 23 Sup. Ct. 781, 47 L. Ed. 948; Kelly v. Griffin, 241 U. S. 6, 14, 36 Sup. Ct. 487, 60 L. Ed. 861; Benson v. McMahon, 127 U. S. 457, 465, 8 Sup. Ct. 1240, 32 L. Ed. 234; and Greene v. United States, 154 Fed. 401, 85 C. C. A. 251. Compare Ex parte Piot, 15 Cox, C. C. 208. The offense charged was, therefore, clearly extraditable.

Second. Collins contends that the evidence introduced was wholly inadmissible. That particularly objected to on this ground is the warrant of arrest and copies of prima facie proceedings in the Court of the Chief Presidency Magistrate, Bombay, which accompanied the affidavit of the British consul general. The consul general for the United States in Calcutta had certified that these papers proposed to be used upon an application for the extradition of Collins 'charged with the crime of obtaining valuable property by false pretenses alleged to have been committed in Bombay' were 'properly and legally authenticated, so as to entitle them to be received in evidence for similar purposes by the tribunals of British India, as required by the Act of Congress of August 3, 1882.' That act (chapter 378, § 5, 22 Stat. 215, 216 [Comp. St. § 10116]), declares that 'depositions, warrants, and other papers, or the copies thereof' so authenticated, shall be received and admitted as evidence for all purposes on hearings of an extradition case if they bear 'the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country.' One argument of Collins is that the admissibility of evidence is determined, not by the above provision of the act of 1882, but by section 5271 of the Revised Statutes (Comp. St. § 10111), which provided only that copies of foreign depositions shall be admitted when 'attested upon the oath of the party producing them to be true copies,' and which did not provide for the admission of 'warrants or other papers,' and that, on these grounds, copies both of the Indian documents and of certain London depositions should have been excluded, since neither the consul general at Calcutta, the Secretary of the Embasst at London, nor the British consul general at New Orleans, could attest that the papers were true copies. But section 6 of the act of 1882 expressly provides for the repeal of so much of section 5271 as is inconsistent with earlier provisions of that act; and under section 5 thereof the admissibility of papers is not so restricted.

Another argument of Collins is that the Indian documents were not properly authenticated, because they were certified to by the consul general at Calcutta, and not by the consul at Bombay, where the offense charged is alleged to have been committed. The 'foreign country' here in question is India, not Bombay; and we may, in this connection, take judicial notice of the fact that the consul general of the United States who is stationed at Calcutta is the principal diplomatic or consular officer resident in that country and who he is. Compare York & Amryland Line R. R. Co. v. Winans, 17 How. 30, 41, 15 L. Ed. 27; Keyser v. Hitz, 133 U. S. 138, 146, 10 Sup. Ct. 290, 33 L. Ed. 531. The papers were, therefore, properly authenticated and were admissible. Compare In re Behrendt (C. C.) 22 Fed. 699; In re Charleston (D. C.) 34 Fed. 531; In re Orpen (C. C.) 86 Fed. 760.

Third. Collins contends that the evidence introduced did not support the charge of obtaining property by false pretenses. The papers introduced tended to prove that Collins obtained the pearl button from the jewelers as a result of his representing that he was a wealthy man; that he was a partner in William Collins & Sons Company of Glasgow and London; that he was a colonel in the Howe Battalion of the Royal Naval Division and was then on six months' leave; that he had a right to draw on Messrs. E. Curtice & Co., 8 Clarges street, London, the draft of £1,700 which he gave the jewelers; and that this was a firm of bankers. The papers tended to prove also that all these representations were false to Collins' knowledge. It is clear that evidence to this effect, if competent and believed, would justify a conviction not only for cheating, but also of obtaining property under false pretenses. State v. Tessier, 32 La. Ann. 1227; State v. Jordan, 34 La. Ann. 1219; State v. Will, 49 La. Ann. 1337, 22 South. 378; State v. Seipel, 104 La. 67, 28 South. 880. The contention of Collins is that the evidence established only a broken promise or, at most, commonlaw cheating. It was not the function of the committing magistrate to determine whether Collins was guilty, but merely whether there was competent legal evidence which, according to the law of Louisiana, would...