Biddle v. United States

• Decision Date: 28 October 1907
• Docket Number: 1,463.
• Citation: 156 F. 759
• Parties: BIDDLE v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

156 F. 759

BIDDLE v. UNITED STATES.

No. 1,463.

United States Court of Appeals, Ninth Circuit.

October 28, 1907

Edwin H. Lamme and Francis Ellis, for appellant.

Robert T. Devlin, U.S. Atty., and Benjamin L. McKinley, Asst. U.S Atty.

Before GILBERT, Circuit Judge, and DE HAVEN and HUNT. District Judges.

DE HAVEN, District Judge.

This is an appeal by the defendant from a judgment of the United States Court for China, by which he was convicted of the crime of obtaining money under false pretenses, and sentenced to imprisonment for the term of one year in the jail at Shanghai.

It is claimed by the appellant: First, that the court below was without jurisdiction to try him for such alleged crime because the act of obtaining money or goods by false pretenses was not an offense at common law, and is not made a crime by the laws of the United States; and, second, that the evidence was not sufficient to warrant his conviction.

1. The United States Court for China was created by Act June 30 1906, c. 3934, 34 Stat.pt. 1, p. 814 (U.S. Comp. St. Supp. 1907, p. 797), and by section 1 of that act was given 'exclusive jurisdiction in all cases and judicial proceedings whereof jurisdiction may now be exercised by United States consuls and ministers by law and by virtue of treaties between the United States and China, except in so far as the said jurisdiction is qualified by section two of this act. ' Section 4 of the same act provides:

'The jurisdiction of said United States court, both original and on appeal, in civil and criminal matters, and also the jurisdiction of the consular courts in China, shall in all cases be exercised in conformity with said treaties and the laws of the United States now in force in reference to the American consular courts in China, and all judgments and decisions of said consular courts, and all decisions, judgments, and decrees of the United States court, shall be enforced in accordance with said treaties and laws. But in all such cases when such laws are deficient in the provisions necessary to give jurisdiction or to furnish suitable remedies, the common law and the law as established by the decisions of the courts of the United States shall be applied by said court in its decisions and shall govern the same subject to the terms of any treaties between the United States and China.'

The law in relation to the jurisdiction of consular courts at the date of the passage of the act creating the United States Court for China is found in section 4086 of the Revised Statutes (U.S. Comp. St. 1901, p. 2769), and is as follows:

'Jurisdiction in both civil and criminal matters shall, in all cases, be exercised and enforced in conformity with the laws of the United States, which are hereby, so far as is necessary to execute such treaties, respectively, and so far as they are suitable to carry the same into effect, extended over all citizens of the United States in those countries, and over all others to the extent that the terms of the treaties, respectively, justify or require. But in all cases where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, the common law and the law of equity and admiralty shall be extended in like manner over such citizens and others in those countries.'

The United States, by its treaty with China, acquired extraterritorial jurisdiction in civil controversies between its citizens residing in China, and in respect to all crimes committed by its citizens residing there, and Congress, in the statutes above referred to, provided tribunals to exercise such jurisdiction, 'in conformity with the laws of the United States,' and when these laws 'are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies,' then in accordance with the common law. The object of the treaty and the intention of Congress, in creating the United States Court for China, in so far as that court is given criminal jurisdiction, was to throw around American citizens residing or sojourning in China, and there charged with crime, the beneficent principles of the laws of the United States relating to the trial of persons charged with crime-- the rules of evidence, the presumption of innocence, the degree of proof necessary to convict, the right of the accused to be confronted with witnesses against him, exemption from being compelled to criminate himself, etc. But, while securing to them these privileges, the statute at the same time, made them subject to punishment for acts made criminal by any law of the United States, or for acts recognized as crimes under the common law.

This brings us to the consideration of the question whether obtaining money or goods by false pretenses is an offense which may be thus punished, if committed by an American citizen in China. This particular kind of cheating was not a crime under the ancient common law. It was first so declared in the year 1757 by St. 30 Geo. II, c. 24. Bishop on Criminal Law (3d Ed.) vol. 2, Sec. 392. 'Under this statute for the first time the crime ceased to depend on the particular kind of pretense used; the statute being couched in terms broad enough to include the use of any false pretense whatever, although, as will appear later, the judges, in construing the statute, excepted certain classes of pretenses from it. It was this statute that created the crime now commonly known as obtaining goods under false pretenses. Several statutes have been enacted in England since the statute of 30 Geo. II to supply defects found therein, but its general provisions, in so far as they defined the crime, remain unchanged.' 19 Cyc. 387.

If the statute of 30 Geo. II, and those amendatory of it, which were in force at the date of the separation of the American colonies from the mother country, are to be considered as a part of the common law to which Congress referred in the enactment above quoted, the jurisdiction of the court over the offense of obtaining money under false pretenses would be undoubted; and we are of opinion that in making the common law applicable to offenses committed by American citizens in China, and the other countries with which we have similar treaties, Congress had reference to the common law in force in the several American colonies at the date of the separation from the mother country, and this included not only the ancient common law, the lex non scripta, but also statutes which had theretofore been passed amendatory of or in aid of the common law. Thus Mr. Bishop, in his work on Criminal Law (section 155) says:

'The rule is familiar to the legal profession that colonists to an uninhabited country carry with them the laws of their mother country, as far as applicable to their new situation and circumstances; and that, in their new home, the laws thus taken with them, whether in the mother country they were written or unwritten, are regarded as unwritten, or common law.'

And in the second edition of Cooley's Constitutional Limitations, (page 25), the author of that great work says:

'The colonies also had Legislatures of their own, by which laws had been passed which were in force at the time of the separation, and which remained unaffected thereby. When therefore they emerged from the colonial condition into that of independence, the laws which governed them consisted: First, of the common law of England, so far as they had tacitly adopted it as suited to their condition; second, of the statutes of England, or of Great Britain, amendatory of the common law, which they had in like manner adopted; and, third, of the colonial statutes. The first and second constituted the American common law, and by this in great part are rights adjudged and wrongs redressed in

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