Commonwealth v. Wright

• Decision Date: 23 January 1893
• Citation: 158 Mass. 149,33 N.E. 82
• Parties: COMMONWEALTH v. WRIGHT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 149

33 N.E. 82

COMMONWEALTH v. WRIGHT et al.

Supreme Judicial Court of Massachusetts, Dukes County.

January 23, 1893

COUNSEL

G.C. Travis, Asst. Atty. Gen., for the Commonwealth.

Cummings & Higginson, for defendants.

OPINION

FIELD C.J.

This is an indictment for an assault and battery. In the first count the defendants are charged with an assault and battery upon William H. Proctor, and in the second with an assault and battery upon Peter Nelson. We infer that the defendants were found guilty upon both counts, although this does not appear in the papers before us. The exceptions recite that "at the trial it was claimed by the defendants, and admitted by the commonwealth, (subject to all objections as to the competency of the evidence,) that the defendants were brought from Newport, in the state of Rhode Island, where they resided, to Edgartown, in said Dukes county, upon the requisition of the governor of Massachusetts upon the governor of Rhode Island, wherein they were charged with assault with intent to kill upon the said Proctor and Nelson. The defendants claimed, and asked the court to rule, that they could not be tried upon the present indictment, but only for the offense for which they were extradited, and that they should be discharged. The court declined so to rule, and to discharge the defendants, and ruled that the offer of proof was incompetent in bar of the prosecution of the defendants. The defendants objected and excepted to the above ruling and refusal to rule." The copy of the complaint before the trial justice which has been sent to us, and on which the defendants were bound over for trial by the superior court contains one count only; and it is for an assault with dangerous weapons upon William H. Proctor, with intent to kill and murder him, he being then a member of the district police, engaged in the execution of the duties of his office as the defendants knew. There is no charge of an assault of any kind upon Nelson. We suppose that this is the complaint on which the requisition was founded, although the exceptions recite that the assault described in the requisition was with intent to kill "said Proctor and Nelson." We have not been furnished with a copy of the requisition. An assault with a dangerous weapon, with intent to murder, is punishable "by imprisonment in the state prison, not exceeding twenty years." Pub.St. c. 202, § 23. It is therefore a felony. Id. c. 210, § 1. A simple assault and battery is a misdemeanor. Upon an indictment for an assault with intent to murder, a defendant can be convicted of a simple assault; and it is conceded in this case that both the indictment and the complaint were supported by the same evidence, and were intended to include the same acts of the defendants. If the complaint, however, contained no charge of an assault upon Nelson, then the defendants have been tried for an assault not included in the complaint. The contention of the defendants is that they could not be tried for any other crime, committed before they were surrendered, than that for which they were demanded, according to the decision in U.S. v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, as no opportunity was afforded them to return to Rhode Island after they were delivered up on the requisition, except on their recognizance to appear in the superior court and to abide the order and sentence of that court. The contention is that the law is the same in extradition between the states of the United States as between the United States and foreign nations. The first contention of the attorney general is that, by proceeding to trial upon a plea of not guilty, the defendants have waived any such defense. It is true that, if the defendants were entitled to be discharged from arrest upon the indictment under the rule of U.S. v. Rauscher, this is not strictly a defense to the indictment. An indictment could properly have been found against the defendants while they were in the state of Rhode Island, and they could properly be tried on this indictment at any time when they could be lawfully arrested, and held to answer to it. They might voluntarily come within this commonwealth, and be arrested here, or be brought here for trial by a requisition for the identical crime charged in the indictment. The defendants could not be entitled to a verdict and judgment of not guilty on this indictment because they had been unlawfully held in arrest to answer to it, and thus be thereafter free from any prosecution for the offense by pleading this judgment in bar of another prosecution. If the facts and the law are as the defendants contend, they were entitled to be discharged from custody until they had had a reasonable opportunity to return to Rhode Island. This question, we think, could properly have been raised by a motion or petition to the court; and if the facts had been disputed by the commonwealth, we think that it was for the court to find the facts. In some cases a special plea has been allowed, but it seems to us that, in the nature of things, it is not strictly a plea to the indictment, but an application to the court to be discharged from custody, which should be tried and determined by the court in much the same manner as a similar application on a writ of habeas corpus. See U.S. v. Rauscher, 119 U.S. 407, 7 S.Ct. 234; Ex parte McKnight, (Ohio,) 28 N.E. 1034; Blandford v. State, 10 Tex.App. 627; Com. v. Hawes, 13 Bush, 697; State v. Vanderpool, 39 Ohio St. 273; U.S. v. Watts, 8 Sawy. 370, 14 F. 130.

We deem it unnecessary to determine, however, whether the defendants have seasonably and properly taken this objection, because we are of opinion that the law is not as the defendants contend. The decision in U.S. v. Rauscher, ubi supra, rests upon the construction of the treaty of 1842 between Great Britain and the United States, and of the statutes of the United States passed to carry into effect treaties or conventions of extradition with foreign countries, now found in Rev.St.U.S §§ 5270, 5272, and 5275. Before this decision the government of the United States had demanded of the government of Great Britain the extradition of Ezra D. Winslow, and the correspondence of the two governments had disclosed that they did not agree upon the construction to be put upon the treaty of 1842. A full account of this discussion is found in 1 Moore on Extradition, (section 150 et seq.,) and in Spear on the Law of Extradition, (2d Ed., p. 163.) The result of the controversy was that the United States refused to give any assurance to the British government that Winslow, if surrendered, would not be tried for other offenses than those specified in the demand for extradition, without first giving him an opportunity to return to Great Britain; and therefore Great Britain, in accordance with her own statutes concerning extradition, refused to surrender him. The crimes charged against Winslow were not offenses against the laws of the United States, but against the laws of the commonwealth of Massachusetts. One ground on which the secretary of state of the United States refused to give the assurance required by Great Britain was that "neither the president, nor any officer of the federal government, has power to control or to dismiss the prosecution in Winslow's case, or in any case where the offense is against the laws of one of the states, and could not give any stipulation or make any arrangement whatever as to the offenses for which he should be tried when returned to the justice of the state against whose laws he may have offended." 1 Moore, Extr. p. 199. The treaties of the United States, and the statutes of the United States passed to carry such treaties into effect, are the law of the land, and are binding upon all state courts, as well as upon the courts of the United States. If it were only a violation of good faith on the part of the United States to procure the extradition of fugitive criminals from a foreign country on a charge of one crime, and then to try them for another, this would not enable the criminal to procure his discharge by the court, as a matter of right; but the president of the United States, through the attorney general, might, if he saw fit, direct a discontinuance of any such prosecution in the courts of the United States. It was, however, to say the least, doubtful whether the president had any power whatever over prosecutions in state courts for offenses against the laws of the state. It was thus possible for the state authorities to involve the government of the United States in serious controversies with foreign nations, unless it was the law of the land that an alleged criminal surrendered by a foreign country, charged with one crime, could not be tried for another, in any court, without first having had an opportunity afforded him to return to the place from which he had been surrendered. This consideration had some weight with the supreme court of the United States in U.S. v. Rauscher. The principal grounds of the opinion of the majority of the court in that case were that the treaty of 1842 did not include all crimes, but only certain specified crimes; that no duty of delivering up fugitive criminals rests upon a foreign nation, except by convention, and that the language of the treaty implied that criminals should not be surrendered except for the crimes specified; that the explicit language of section 5275 of the Revised Statutes of the United States, viz. that "the president shall have power to take all necessary measures for the transportation and safe-keeping of such accused person, and for his security against lawless violence, until the final conclusion of his trial for the crimes or offenses specified in the warrant of extradition, and until his final discharge from custody or...