Cohn v. Jones

• Decision Date: 03 April 1900
• Citation: 100 F. 639
• Parties: COHN v. JONES, Warden.
• Court: U.S. District Court — Southern District of Iowa

100 F. 639

COHN v. JONES, Warden.

United States District Court, S.D. Iowa, Central Division.

April 3, 1900

Charles L. Powell, for petitioner.

Milton Remley, Atty. Gen., and John McLennan, Co. Atty., for defendant.

SHIRAS District Judge.

From the petition and the amendment thereto filed in this case it appears that the petitioner, Charles Cohn, is now confined in the Iowa state penitentiary at Ft Madison under a sentence pronounced by the district court of Iowa for Polk county, he having been found guilty of the crime of burning a store building situated in Polk county Iowa. It further appears that, in order to subject the petitioner to the jurisdiction of the district court of Polk county, and put him upon trial, it became necessary to extradite the petitioner from Canada, and to that end an information, duly sworn to, was laid before John J. Halloran a justice of the peace in Des Moines township, Polk county, and a warrant of arrest was issued thereon. Based upon these proceedings, an application in due form, through the president of the United States, was made to the Canadian authorities for the extradition of the petitioner under the terms of the treaty between Great Britain and the United States, known as the 'Ashburton Treaty,' signed August 9, 1842, and the supplementary convention of March 25, 18901890 (26 Stat. 1508). The order of extradition having been given by the Canadian authorities, the petitioner was brought back to Iowa, and, an indictment being found against him in the district court of Polk county, he was put upon trial before a jury, convicted, and sentenced to imprisonment for the period of eight years in the state penitentiary. He now seeks to obtain a release from this imprisonment on the ground that he was indicted, tried, and found guilty of an offense other and different from that for which he was extradited; that it is settled by the decision of the supreme court of the United in the case of U.S. v. Rauscher, 119 U.S. 407, 7 Sup.Ct. 234, 30 L.Ed. 425, as well as by the express provisions of the supplementary convention of March 25, 1890, that a person extradited under the treaties between Great Britain and the United States can be tried only for the offense charged against him in the extradition proceedings, the court being without jurisdiction to put him upon trial for any other crime. By article 111 of the convention of March 25, 1890, it is declared that:

'No person surrendered by or to either of the high contracting parties shall be liable or be tried for any crime or offense, committed prior to his extradition, other than the offense for which he was surrendered, until he shall have had an opportunity of returning to the country from which he was surrendered.'

Prior to the adoption of the supplementary convention of 1890, the supreme court, in an opinion handed down December 6, 1886, in the case of U.S. v. Rauscher, 119 U.S. 407, 7 Sup.Ct. 234, 30 L.Ed. 425, had considered this general question in a case arising under the Ashburton treaty, and held the rule to be that a person extradited 'shall be tried only for the offense for which he is charged in the extradition proceedings, and for which he was delivered up; and that, if not tired for that, or after trial and acquittal, he shall have a reasonable time to leave the country before he is arrested upon the charge of any other crime committed previous to his extradition. ' The ruling in this case, and the provisions of article 111 of the convention of 1890, clearly sustain the contention of petitioner that a person extradited cannot be rightfully placed upon trial for any offense other than that with which he was charged in the extradition proceedings, and therefore the main question for consideration is whether in fact the petitioner was tried and convicted for an offense other than that for which he was surrendered by the Canadian authorities. When placed upon trial in the state court, the petitioner in that court presented this question, denying the jurisdiction of that court to try him for the crime charged in the indictment to which he was required to plead; but the court overruled the objection, and it is now strenuously urged in argument by the attorney general, appearing for the respondent, that the remedy open to the petitioner is by an appeal from the ruling of the trial court to the supreme court of the state, and from thence, if need arises, to the supreme court of the United States. It is well settled that a writ of habeas corpus must not be used to serve the purposes of a writ of error, but it is equally well settled that the writ may be granted in cases wherein it appears that the state court had no jurisdiction over the person of the defendant, or of the crime charged in the proceedings before it. Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717; Ex parte Royall, 117 U.S. 241, 6 Sup.Ct. 734, 29 L.Ed. 868; In re Frederich, 149 U.S. 70, 13 Sup.Ct. 793, 37 L.Ed. 653. These cases, and others that might be cited, declare the rule to be that in cases wherein the trial court, whether state or federal, has jurisdiction over the person and the crime charged in the proceedings, relief against alleged errors can only be had by a writ of error; but in cases wherein it is alleged that the trial court is without jurisdiction over the person of the defendant or over the crime charged, then the writ of habeas corpus may be availed of, it being then discretionary with the court or judge from which the writ is sought to determine whether the party complaining should be left to seek his remedy by a writ of error, or whether the circumstances are such as to justify granting relief through the issuance of the writ of habeas corpus. In the opinion given in Re Frederich, supra, it is said:

'It is certainly the better practice, in cases of this kind, to put the prisoner to his remedy by writ of error from this court, under section 709 of the Revised Statutes, than to award him a writ of habeas corpus. For under proceedings by writ of error the validity of the judgment against him can be called in question, and the federal court left in a position to correct the wrong, if any, and at the same time leave the state authorities in a position to deal with him thereafter, within the limits of proper authority, instead of discharging him by habeas corpus proceedings, and thereby depriving the state of the opportunity of asserting further jurisdiction over his person in respect to the crime with which he is charged.'

In cases, however, in which the facts are such that the state court is without jurisdiction, and cannot rightfully proceed against the party, the supreme court has originally entertained proceedings in habeas corpus, and has affirmed the action of the trial courts in granting relief in that mode of procedure. In re Loney, 134 U.S. 372, 10 Sup.Ct. 584, 33 L.Ed. 949; In re Neagle, 135 U.S. 1, 10 Sup.Ct. 658, 34 L.Ed. 55; Ohio v. Thomas, 173 U.S. 276, 19 Sup.Ct. 453, 43 L.Ed. 699. If it be true that the petitioner in this case was tried for an offense other and different from that for which he was surrendered by the Canadian authorities, then it is clear that the state court had not jurisdiction over his person, and the whole proceedings based upon the indictment are void, and of no effect. In the opinion delivered in U.S. v. Rauscher, supra, after demonstrating the proposition that under extradition treaties of the nature of that between Great Britain and the United States a person extradited can be tried only for an offense named in the treaty, and upon which the extradition proceedings were had, the court hen proceeds to consider the remedy open to the party if he is wrongly put upon trial for an offense other than that for which he was extradited, stating its views as follows:

'This remedy is by a writ of error from the supreme court of the United States to the state court which may have committed the error. The case being thus removed into that court, the just effect and operation of the treaty upon the rights asserted by the prisoner would be there decided. If the party, however, is under arrest, and desires a more speedy remedy in order to secure his release, a writ of habeas corpus from one of the federal judges or federal courts, issued on the ground that he is restrained of his liberty in violation of the constitution or a law or a treaty of the United States, will bring him before a federal tribunal, where the truth of the allegation can be inquired into, and, if it be well founded, he will be discharged.'

In Cosgrove v. Winney, 174 U.S. 64, 19 Sup.Ct. 598, 43 L.Ed. 897, the facts were that Cosgrove was charged with larceny of a boat and her appurtenances...