In re Benson

• Decision Date: 09 April 1888
• Citation: 34 F. 649
• Parties: In re BENSON.
• Court: U.S. District Court — Southern District of New York

34 F. 649

In re BENSON.

United States Circuit Court, S.D. New York.

April 9, 1888

Habeas corpus in re the application for the extradition of George Benson, alias Charles Bourton, alias Mayer, under the provisions of the treaty of extradition between the United States and the republic of Mexico of December 11, 1861. The application and the arrest were made under the first and second articles of that treaty, which, so far as they affect this proceeding, are as follows:

'Article 1. It is agreed that the contracting parties shall, on requisition made in their name, through the medium of their respective diplomatic agents, deliver up to justice persons who, being accused of the crimes enumerated in article third of the present treaty, committed within the jurisdiction of the requiring party, shall seek an asylum, or shall be found within the territories of the other: provided, that this shall be done only when the fact of the commission of the crime shall be so established as that the laws of the country, in which the fugitive or the person so accused shall be found, would justify his or her apprehension and commitment for trial if the crime had been there committed. ' 'Art. 3. Persons shall be so delivered up who shall be charged, according to the provisions of this treaty, with any of the following crimes, whether as principals accessories, or accomplices, to-wit: * * * forgery, including the forging or making, or knowingly passing or putting in circulation, counterfeit coin or bank-notes, or other paper current as money, with intent to defraud any person or persons,' etc. 12 St.at Large, pp. 1200, 1201.

The allegations of the complaint were briefly as follows:

That Henry E. Abbey was, in 1886, engaged in the business of manager of theatrical and operatic and concert troupes and companies; that there was in the City of Mexico at said time a theater known as the 'Teatro Nacional,' and that in September, 1886, said Abbey engaged the same for the purpose of giving operas and concerts therein for one month from December 15, 1886, to January 5, 1887, and deposited the sum of $500, on account of rent; that said Abbey, on or about December 1, 1886, advertised said operas and concerts in the City of Mexico; 'that thereupon said George Benson, alias Charles Bourton, alias Mayer, being in the City of Mexico in the republic of Mexico, did, on or about the 1st day of December, 1886, at the City of Mexico in the republic of Mexico aforesaid, and within the jurisdiction thereof, with intent to defraud said Henry E Abbey and divers persons then and there residing in the City of Mexico in the republic of Mexico, and the public of the republic of Mexico, fraudulently, feloniously, and wickedly falsely make up and forge and utter, knowing it to be forged, an instrument or writing purporting to be the act of another, by which certain rights and property were purported to have been created, in that, at the time and place aforesaid, the said George Benson, alias Charles Bourton, alias Mayer, did forge the name and signature of the said Henry E. Abbey to a certain ticket of admission to one of said operas or concerts about to be given as aforesaid in the said Teatro Nacional, wherein and whereby the said Henry E. Abbey purported in consideration of a certain sum of money to admit the holder of said ticket to said opera or concert; by which false making the said Henry E. Abbey was purported to be bound and affected in his property, and by which false making an obligation on the part of said Henry F. Abbey to admit the holder of said ticket to said opera or concert was purported to be created; and that thereupon the said George Benson, alias Charles Bourton, alias Mayer, sold said ticket to a certain person in the City of Mexico, who thereupon paid to said George Benson, alias Charles Bourton, alias Mayer, the consideration demanded by him for the same; that by said false making and forging as aforesaid, divers persons then and there residing in the City of Mexico and the said Henry E. Abbey were prejudiced in their rights and property.'

The tickets of which the forgery was alleged were, save as to date and location of seats, all in one or the other of the following forms:

Teatro Nacional.

Adelina Patti.

Henry E. Abbey Company.

First Boxes. Number.

Teatro Nacional. Great Teatro Nacional.

Adelina Patti. Adelina Patti.

Henry E. Abbey Company. Henry E. Abbey Company.

First Boxes.

These tickets were all stamped upon their face with the following inscription in the form of a seal:

Empressa

Patti.

January 4, 1887.

Mexico.

Henry E. Abbey.

The relator was arrested in the city of New York January 14, 1888, and sued out this writ.

Peter Mitchell, for relator.

'Forgery, at the common law, is the false making, or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal sufficiency, or the foundation of a legal liability.' 2 Bish.Crim.Law, (7th Ed.) § 523; 1 Barb.Crim.Law, (3d Ed.) 173; 4 Bl.Comm. 247; Alias.

Prin. Crim. Law; 3 Chit.Crim.Law, 1022. 'Forgery is the false making or alteration of any written instrument whereby another may be prejudiced, with intent to deceive and defraud.' 2 East, P.C. 840. 'Forgery, at common law, has been defined as 'the fraudulent making or alteration of a writing to the prejudice of another man's right,' or more recently as 'a false making malo animo of any written instrument for the purpose of fraud and deceit; the word 'making' in this last definition being considered as every alteration of or addition to a true instrument.' 2 Russ.Crimes, §§ 708, 709. It is manifest that this ticket is a false token, and not a forgery at common law, as the following cases will clearly demonstrate: King v. Jones, 1 Leach, 204-206; Rex v. Mitchell, Fost. Cr. Law, 119-121; Rex v. Pateman, Russ. & R. 455; Rex v. Moffatt, 1 Leach, 431; Reg. v. Closs, 1 Dears. & B.Cr.Cas. 460, (1858;) In re Windsor, 10 Cox, Crim.Cas. 121; In re Tully, 20 F. 812-818; Reg. v. White, 2 Car. & K. 404. 'The rule established by the adjudication in this state, (New York,) and after a thorough consideration of the question is that if the instrument be invalid on its face it cannot be the subject of forgery, because it has no legal tendency to effect a fraud. ' Cunningham v. People, 4 Hun, 457; People v. Shall, 9 Cow. 778; People v. Fitch, 1 Wend. 198; People v. Wilson, 6 Johns. 320; People v. Stearns, 21 Wend. 409; People v. Harrison, 8 Barb. 560; People v. Mann, 75 N.Y. 484; 2 Bish.Crim.Law, (7th Ed.) § 546; 1 Whart.Crim.Law, (9th Ed.) § 696; Com. v. Ray, 3 Gray, 441; Reg. v. Boult, 2 Car. & K. 604; State v. Humphreys, 10 Humph. 442; Com. v. Ayer, 3 Cush. 151; Steph. Dig. Crim. Law, p. 288, art. 336. To claim that the printed name of 'Henry E. Abbey Company,' in circular form, is a forgery of a private seal is far-fetched reasoning. A seal at common law is an impression upon wax, wafer, or some other tenacious substance, capable of being impressed. Warren v. Lynch, 5 Johns. 239; 3 Co.Inst. 169; Brooke, Abr. 'Faits,' 17, 30; Barns v. Smith, 2 Leon, 21; Meredith v. Hinsdale, 2 Caines, 362; Foundry v. Hovey, 21 Pick. 417; Repert. mot Sceau; Bank v. Croft, 3 McCord, 523; Biery v. Haines, 5 Whart. 563. It appears that the Penal Code, under which the complaint was formulated in Mexico, was not adopted until several years after the ratification of the treaty of December 11, 1861. There is no evidence, therefore, tending to show that the relator committed the crime of forgery according to any Mexican law, which was in force at the time the treaty went into effect.

S. Mallet-Prevost and De Lancy Nicoll, for respondents.

In extradition proceedings 'the complaint need not be drawn with the formal precision and nicety of an indictment for final trial, but it should set forth the substantial and material features of the offense. ' In re Henrich, 5 Blatchf, 414; Spear, Ext. 250; 1 Bish.Crim.Proc. § 231; People v. Hicks, 15 Barb. 158; Payne v. Barnes 5 Barb. 465; In re Herres, 33 F. 165. The fabricated ticket was the subject of forgery at common law. 4 Bl.Comm. 24; 3 Co.Inst. 169; Rex v. Coogan, 2 East P.C. 853; Rex v. Taylor, Id. 653; Rex v. Jones, 1 Leach, 366; Rex v. Parkes, 2 Leach, 775; 2 Russ.Crimes, 709; 2 Bish.Crim.Law, § 523; 1 Whart.Crim.Law, §§ 653, 680, 682; 3 Chit.Crim.Law, p. 1023; Barb. Crim. Law, (2d Ed.) pp. 114, 115. It is enough if the instrument was calculated to defraud. 1 Whart.Crim.Law, §§ 694, 745; Grant & Hoppers' Cases, 2 City H.Rec. 142. When a writing, like a theatre ticket, is so incomplete in form as to leave it uncertain in law, whether it is valid, it may be shown to be valid by averment and proof of extrinsic facts. 2 Bish.Crim.Law, § 537; 1 Whart.Crim.Law, § 740; Archb. Crim. Pr. 574, note; Rex v. Martin, 1 Moody, Cr.Cas. 483; Rex v. Houseman, 8 Car. & P. 180; Rex v. Vaughan, Id. 276; Rex v. Boardman, 2 Moody & R. 151; see, also, People v. Harrison, 8 Barb. 560; Com. v. Costello, 120 Mass. 367. That the ticket, and the name of Henry E. Abbey stamped upon it was printed instead of written does not affect the question, for forgery may be committed by printing as well as by writing. 2 Bish.Crim.Law, §§ 525, 527; People v. Rhoner, 4 Park.Crim.R. 166; 1 Whart.Crim.Law, § 675; Com. v. Ray, 3 Gray, 441; Rex v. Smith, Dears & B. Cr. Cas. 567; Rex v. Rinaldi, 9 Cox, Crim.Cas. 391; Chit. Cont. (10th Amer. Ed.) 72; Schneider v. Norris, 2 Maule & S. 286; Wheeler v. Lynde, 1 Allen, 402. Section 5 of the act of congress of August 3, 1882, (22 U.S.St. 215,) provides 'that in all cases where any depositions, warrants, or other papers, or copies thereof, shall be offered in evidence upon the hearing of any extradition case under title 66 of the Revised Statutes of the United...