Hatfield v. Guay, 3165.

• Decision Date: 05 January 1937
• Docket Number: No. 3165.,3165.
• Citation: 87 F.2d 358
• Parties: HATFIELD v. GUAY, U. S. Marshal, et al.
• Court: U.S. Court of Appeals — First Circuit

87 F.2d 358 (1937)

HATFIELD v. GUAY, U. S. Marshal, et al.^*

No. 3165.

Circuit Court of Appeals, First Circuit.

January 5, 1937.

Allie J. Connor, of Manchester, N. H. (John J. McDonald, of Washington, D. C., on the brief), for appellant.

Daniel F. McCormack, of Boston, Mass. (Edward H. Lockwood, of New York City, on the brief), for appellees.

Before, BINGHAM, WILSON, and MORTON, Circuit Judges.

BINGHAM, Circuit Judge.

This is an appeal from a judgment or decree of the federal District Court for New Hampshire, in a habeas corpus proceeding brought to secure the discharge of the petitioner held on extradition proceedings for delivery to Canada. On January 5, 1935, the British Consul General at Boston subscribed and swore to a complaint before United States Commissioner Barnard of New Hampshire, alleging that Hatfield was a fugitive from justice of the Province of Ontario in the Dominion of Canada; that the crimes charged in the complaint were included in existing treaties of extradition between the United States and the British government; and, in separate counts, two distinct and separate offenses were set out.

Following a hearing, the Commissioner found in favor of the complainant; and on the twentieth day of March, 1935, made a report to the Secretary of State setting out the proceedings had before him in the matter, including a specific finding that there was sufficient evidence to sustain the charges and that he had ordered Hatfield committed to abide the order of the Secretary.

Thereafter Hatfield instituted the above-mentioned habeas corpus proceeding to secure his discharge. The District Judge issued certiorari to bring up the Commissioner's record, and after hearing dismissed the petition and remanded the petitioner. This appeal was then taken.

The charge in the first count was: "That on or about March 18, 1931 at Ottawa, Province of Ontario, in the Dominion of Canada and within the jurisdiction of His Britannic Majesty, one Freeman Hatfield did then and there fraudulently, by false pretenses obtain certain moneys, the property of His Britannic Majesty in the right of the Dominion of Canada, being in the amount of * * * ($71,276.72) by falsely representing that a vessel, known as the `Gypsum Queen,' was sunk on the high seas by the submarine of an enemy of His Britannic Majesty, whereby and because of which fact the Canadian Government was alleged to be indebted to and owing to him the said Hatfield, the sum of $71,276.72; whereas in truth and in fact the said representations to the said Government were false and fraudulent, and were known to be false and fraudulent when made by the said Hatfield; that the said Government relied upon such false pretenses and such false and fraudulent representations and because of such pretenses and such representations paid or caused to be paid on account of and in payment of such alleged indebtedness on or about March 18, 1931 moneys of His Britannic Majesty as aforesaid to the said Hatfield in the sum of $71,276.72; whereby because of said false pretenses and representations the said Hatfield then and there obtained property capable of being stolen, to wit, the said moneys in the said sum of $71,276.72 with the intent to defraud the Canadian Government."

The second count charged: "That on or about March 18, 1931 at Ottawa, in the Province of Ontario and Dominion of Canada and within the jurisdiction of His Britannic Majesty, the said Freeman Hatfield did then and there commit the crime of larceny by the theft or stealing of the sum of * * * ($71,276.72) the same then and there being the property of His Britannic Majesty in the right of the Dominion of Canada."

The Blaine-Pauncefote Convention of 1889 (26 Stat. 1508) between the United States and Great Britain added to the list of offenses named in article 10 of the Webster-Ashburton Treaty of 1842 (8 Stat. 576) the crime of larceny. Subdivision 3 of article 1 of that Convention reads:

"3. Embezzlement; larceny; receiving any money, valuable security, or other property, knowing the same to have been embezzled, stolen, or fraudulently obtained."

In the treaty between the respective governments, known as the Hay-Pauncefote Treaty of December 13, 1900 (32 Stat. 1864) there were added further crimes to the list for which extradition could be had including therein the crime of false pretenses. Subdivision 11 of article 1 of that treaty reads as follows:

"11. Obtaining money, valuable securities or other property by false pretenses."

In the District Court the above provisions of these treaties were regarded as in force between the two governments at the time the complaint in this case was brought on January 7, 1935. But previous to that time a treaty between the two governments, known as the Dawes-Simon Extradition Treaty of December 22, 1931 was ratified on August 4, 1932, the eighteenth article of which provided that the treaty should "come into force ten days after its publication." 47 Stat. 2122-2127. This treaty, on the part of the United States, was published by the Proclamation of the President on the ninth day of August, 1932. It was not published by Great Britain until June 14, 1935, and became of force June 24, 1935. But even after the Treaty of 1931 came into force, by its eighteenth article, article 10 of the Treaty of 1842, the Convention of 1889, the Supplementary Convention of 1900, and the Supplementary Convention of 1905 (34 Stat. 2903) were to remain effective as to the Dominion of Canada until it "shall have acceded to the present treaty in accordance with Article 14," which authorized His Britannic Majesty to "accede to the present Treaty on behalf of any of his Dominions." Article 14. The accession was to be brought about by "notice to that effect given by the appropriate diplomatic representative of His Majesty at Washington," and the Treaty of December 22, 1931, was to become effective, as to Canada, from the date of such notice. We are informed that Canada has not yet acceded to the treaty. This being so the Treaty of 1931 has not become effective between the United States and Canada. It may be said, however, that article 3 of the Treaty of 1931 allows extradition for larceny (article 3, subd. 16) and also for the crime of "obtaining money, valuable security, or goods, by false pretences" (article 3, subd. 18). It therefore is of little consequence in this case whether the Treaty of 1931, rather than the prior treaties, was in force at the time the complaint was presented to the Commissioner, unless the Treaty of 1931 may contain provisions favorable to Hatfield that the earlier treaties did not.

The Commissioner, in his final mittimus and report to the Secretary of State found specifically that there was sufficient evidence of probable cause to sustain the charges of the crimes of false pretenses and larceny by theft and stealing under the provisions of existing extradition treaties, and his final order committing Hatfield to the custody of the jailer and the keeper of said jail at Manchester, to abide the order of the Secretary of State, included findings that the person arrested was the one demanded, and that he was a fugitive from justice, if there was evidence from which his identity could have been found and that he was a fugitive from justice. It is not claimed that there was no evidence in support of the last two matters.

It is not contended that the crimes of larceny and obtaining money by false pretenses are not specifically named in existing treaties between Canada and the United States. The contentions are (1) that, if the crime of obtaining money by false pretenses is an extraditable offense under existing treaties, the evidence is not such as to warrant a finding of probable cause that Hatfield committed the crime of obtaining money by false pretenses; (2) that the evidence is not sufficient to warrant a finding of probable cause that he committed the crime of larceny in Canada; and (3) that the crime of larceny, as generally understood in this country and included under that term in existing treaties, has not existed in Canada since 1892, either in name, or in the incidents or elements constituting larceny.

The offense of false pretenses charged in the first count is a crime both under the laws of New Hampshire (Pub.Laws N.H. 1926, c. 387, § 1) and of Canada (Canadian Criminal Code, §§ 404, 405).

Section 1, chapter 387 of the New Hampshire statute, so far as here material, reads as follows:

"1. False Pretenses. If any person, with intent to cheat or defraud, shall, * * * by means of any false pretense or false token * * * wrongfully obtain any money or other property, * * * he shall be fined not more than five hundred dollars, or imprisoned not more than seven years."

The corresponding sections of the Criminal Code of Canada are:

"404. A false pretense is a representation, either by words or otherwise, of a matter of fact either present or past, which representation is known to the person making it to be false, and which is made with a fraudulent intent to induce the person to whom it is made to act upon such representation."

"405. Everyone is guilty of an indictable offense and liable to three years' imprisonment who, with intent to defraud, by any false pretense, * * * obtains anything capable of being stolen. * * *"

It being a crime to obtain money by false pretenses under the laws of both New Hampshire and Canada and an extraditable offense under the existing treaties between the respective governments, the only question remaining with reference to the extradition of Hatfield under the first count is whether the evidence was such as warranted the finding by Commissioner Barnard that probable cause existed for believing that Hatfield, on the 18th of March, 1931, by false pretenses obtained money from the Canadian government, under circumstances showing that a crime was committed there, knowing that his representations were false and upon which the...