Collier v. Vaccaro

• Decision Date: 17 June 1931
• Docket Number: No. 3067.,3067.
• Citation: 51 F.2d 17
• Parties: COLLIER, United States Marshal, v. VACCARO.
• Court: U.S. Court of Appeals — Fourth Circuit

51 F.2d 17 (1931)

COLLIER, United States Marshal, v. VACCARO.

No. 3067.

Circuit Court of Appeals, Fourth Circuit.

June 17, 1931.

Albert F. Flint, of Boston, Mass., and Huntington Cairns, of Baltimore, Md., for appellant.

Stanley E. Hartman, Asst. U. S. Atty., of Baltimore, Md., for appellee.

Before PARKER and NORTHCOTT, Circuit Judges, and WATKINS, District Judge.

PARKER, Circuit Judge.

This is an appeal from an order entered in a habeas corpus proceeding discharging one Sarro Vaccaro from the custody of the United States marshal for the district of Maryland. Vaccaro was arrested under an extradition warrant procured by the British Consul at Baltimore on complaint of the Canadian government, charging him with having committed the crimes of murder, kidnapping, and larceny within the Province of Quebec. A hearing was had before a commissioner specially appointed for the purpose, and Vaccaro was committed on the charges of murder and kidnapping but not on the charge of larceny. He then sued out a writ of habeas corpus and, upon a hearing before the District Judge, was discharged on the ground that the evidence before the commissioner was not sufficient to sustain the commitment. From the order discharging him the marshal has appealed.

The facts are fully stated in the opinion of the court below reported in 38 F.(2d) 862, and need not be repeated in detail. Vaccaro was an informer working with one Mertz, a narcotic agent of the United States government. He and Mertz had been operating in Canada under an arrangement entered into between the American and Canadian authorities and were endeavoring to secure evidence as to the operations of a smuggling ring supposed to be headed by one R. A. Price. They had made contact with Price and had arranged with him and one Bilodeau to deliver certain narcotic drugs in the United States. On the day fixed for the delivery, Vaccaro and Mertz went with Bilodeau to West Stewartstown, Vt., where the drugs were delivered and Bilodeau placed under arrest. Price, fearing to accompany them into the United States because of his having been deported for prior violations of law, had left them at an inn or "line house" on the border, near Canaan, Vt., where he was awaiting their return.

After Bilodeau had been placed under arrest, he agreed to return to the line house with Vaccaro and Mertz and assist them in enticing Price across the national boundary line. All three accordingly returned and engaged Price in conversation, but Bilodeau, instead of helping to entice him across the line, warned him that Vaccaro and Mertz were officers and attempted himself to escape from them. Mertz thereupon shot Bilodeau, and Vaccaro forcibly arrested Price and brought him into the United States. There is quite a dispute as to where the shooting of Bilodeau and the arrest of Price occurred, but there was substantial evidence that both took place in Canada; and the learned judge below held that the commissioner was justified in so finding. He thought, however, that there was no sufficient evidence to connect Vaccaro with the killing of Bilodeau by Mertz and that Vaccaro was justified in arresting Price and bringing him across the boundary into the United States.

We agree with the judge below in his conclusion as to the charge of murder. Assuming without deciding that Mertz was guilty of murder in the slaying of Bilodeau, we do not think that there is any evidence that Vaccaro in any way aided or abetted Mertz in the slaying. The fact that Vaccaro was present, that he was armed, that he told Mertz to get Bilodeau and not let him get away — none of these things when considered in the light of the surrounding circumstances is any evidence that Vaccaro counseled, aided, or otherwise participated in the slaying of Bilodeau. Vaccaro and Mertz were cooperating in a perfectly lawful enterprise, the detection and apprehension of men engaged in crime. And to fasten criminal liability upon Vaccaro for the slaying of Bilodeau, it is necessary to show that he stepped aside from the lawful enterprise in which he was engaged and participated in or abetted unlawful conduct of Mertz which resulted in Bilodeau's death. We do not think that there is any substantial evidence of this sort in the record. Even if what Vaccaro did amounted to counseling Mertz to make an arrest in Canada which he had no right to make, there is nothing to show that he had anything to do with the shooting of Bilodeau or that he had reason to anticipate that Mertz would shoot him to prevent his escape.

We think that the learned judge erred, however, with respect to the kidnapping charge. At common law kidnapping is "the forcible abduction and carrying away of a man, woman, or child from their own country and sending them to another." 4 Black Com. 259; Sutton v. State, 122 Ga. 158, 50 S. E. 60; 35 C. J. 903. In Canada it is defined by section 297 of the Criminal Code (Rev. St. of 1927, vol. 1, ch. 36, sec. 297), which provides:

"Every one is guilty of an indictable offense and liable to twenty-five years imprisonment who, without lawful authority,

"(a) kidnaps any other person with intent * * *

"(11) to cause such other person to be unlawfully sent or transported out of Canada against his will."

Kidnapping is an extraditable offense under the provisions of the Webster-Ashburton Treaty of 1842 (article 10, 8 Stat. 572, 576 see Treaty of 1899, art. 1, 26 Stat. 1508), provided there is such evidence of criminality as according to the laws of the place where the fugitive is found would justify his commitment for trial if the crime had been there committed. Turning then to the statutes of Maryland, we find that, just as in Canada, the common-law crime of kidnapping has been denounced by a statute (Bagby's Annotated Code of Maryland 1924, vol. 1, art. 27, § 316) which provides: "316. Every person, his counsellors, aiders or abettors, who shall be convicted of the crime of kidnapping and forcibly or fraudulently carrying or causing to be carried out of this State any person with intent to have such person carried out of this State, shall be sentenced to the penitentiary for not more than twenty-one years."

There is evidence to support the contention of the Canadian government that Vaccaro forcibly arrested Price in Canada and forcibly carried him across the boundary into the United States. Even if he had the right to make the arrest in Canada for crime committed in his presence, he had no right to carry Price forcibly out of Canada and into the United States; and, if he did so, he violated the statute against kidnapping. To arrest a man for crime is one thing; to carry him out of his country and away from the protection of the laws of his domicile is another and very different thing. An arrest may be made upon a warrant...