Ex parte Davis, 6548.

• Decision Date: 11 January 1932
• Docket Number: No. 6548.,6548.
• Citation: 54 F.2d 723
• Parties: Ex parte DAVIS.
• Court: U.S. Court of Appeals — Ninth Circuit

54 F.2d 723 (1931)

Ex parte DAVIS.

No. 6548.

Circuit Court of Appeals, Ninth Circuit.

December 14, 1931.

Rehearing Denied January 11, 1932.

M. W. Conkling, of San Diego, Cal., for petitioner.

Samuel W. McNabb, U. S. Atty., and Harry Graham Balter, Asst. U. S. Atty., both of Los Angeles, Cal., for respondent.

Before WILBUR and SAWTELLE, Circuit Judges, and JAMES, District Judge.

WILBUR, Circuit Judge.

The petitioner was arrested on a warrant issued by the United States commissioner charging him with being a fugitive from justice from Mexico. The complaint upon which he was arrested alleged that he had committed the crime of murder in Mexicala, immediately across the boundary line between Mexico and the United States. The hearing was held before the commissioner, and eyewitnesses testified to the circumstances of the killing. It appears from the evidence that on the 3d day of February, 1931, the petitioner stabbed one Pressley and fled across the border into Calexico. Pressley, the victim of the stabbing, was also taken across the boundary line, where he died on March 17, 1931.

The commissioner held that there was probable cause to believe that Davis had wantonly murdered Pressley. While we do not go behind his certificate on a writ of habeas corpus to determine the correctness of his conclusions, it may be said that the evidence shows probable cause.

In addition to the testimony of eyewitnesses, evidence was introduced before the commissioner to show the institution of proceedings in Mexico charging the petitioner with the killing of Pressley. We will refer to these proceedings more in detail later; it being sufficient at this time to say that under our statute. (Rev. St. § 5270 18 USCA § 651) it was unnecessary to introduce this evidence. Grin v. Shine, 187 U. S. 181, 23 S. Ct. 98, 47 L. Ed. 130; Desmond v. Eggers (C. C. A.) 18 F.(2d) 503; Fernandez v. Phillips, 268 U. S. 311, 312, 45 S. Ct. 541, 69 L. Ed. 970; Yordi v. Nolte, 215 U. S. 227, 30 S. Ct. 90, 54 L. Ed. 170. It is clear from the foregoing decisions that, where the evidence before the commissioner showed probable cause to believe that the petitioner had committed an extraditable offense within the jurisdiction of Mexico and had fled to this country, it was the duty of the commissioner to direct that the petitioner be held for extradition. The question of the sufficiency of the charge in Mexico was not before the commissioner for his consideration except as it might tend to show whether or not the petitioner had committed an extraditable crime. Subsequent to the order of the commissioner, the Secretary of State, upon requisition therefor by the republic of Mexico through diplomatic channels, issued his writ or warrant of extradition. While in the custody of the respondent for extradition under the writ issued by the Secretary of State, petitioner applied for writ of habeas corpus to the United States District Court for the Southern District of California. The writ was issued, and, after due consideration, the petitioner was remanded to the custody of the marshal. Petitioner thereupon applied to the District Judge for the allowance of an appeal from said order, which was denied, whereupon petitioner filed his petition for a writ of habeas corpus with the Senior Circuit Judge of this court, and the writ was granted. It was claimed at the time the petition was filed that, unless the writ was issued, the petitioner would be immediately transferred to Mexico for trial, and that no other remedy to prevent the execution of the writ was adequate. Upon this petition and these representations the writ was issued and made returnable before this court.

Since the submission of this case for decision, the district attorney has filed with the clerk a notice of a motion for an order vacating the order making the writ herein returnable before the Circuit Court of Appeals and asking that the writ be made returnable before the Senior Circuit Judge who ordered its issuance. This application is based on a decision of the Supreme Court, Carper v. Fitzgerald, 121 U. S. 87, 7 S. Ct. 825, 30 L. Ed. 882. We think it is unnecessary to await the hearing of such motion or to consider the propriety of the order making the writ returnable before the Circuit Court of Appeals. The two judges who sat with the Senior Circuit Judge concur with him in this opinion, and it is obviously appropriate that the matter be considered by the court rather than by an individual judge. The point is advanced after argument and submission, and should not delay our decision. We concur, however, with the proposition advanced by the district attorney that the better practice is for this court to consider the validity of the imprisonment of the petitioner upon a direct appeal from the order of the District Court in the habeas corpus proceeding. Where the District Judge declines to allow an appeal, an application for such allowance and for writ of supersedeas should be made to this court, or to a judge thereof, and can be presented as speedily and readily as an original petition for a writ of habeas corpus. We shall require this method of procedure in the future, unless special circumstances are presented which in our opinion justify the issuance of a writ of habeas corpus by us.

Appellant contends that the offense charged against him in the Mexican court is that of manslaughter and not murder. Perhaps, in view of the fact that the American Ambassador certified upon the proceedings that the offense charged is manslaughter we should accept this construction of the complaint in the Mexican courts as correct. We are satisfied, however, from an examination of the statutes quoted in the proceedings, that the offense "homocidio," charged in the complaint filed in the Mexican court, does not charge a crime of murder in the sense used in the treaty. The word "homocidio" is defined in the Mexican statutes, and the complaint above referred to makes special reference to section 963 of those statutes, which is shown by the translation thereof to include any unlawful killing of a human being and perhaps justifiable homicide as well. The first question then is, Can a fugitive from justice be extradited under the treaty with Mexico where the offense charged in the Mexican court is manslaughter and the extraditable offense is defined in the treaty as "murder." In view of the fact that the word "murder" in the treaty is followed by words which qualify its meaning, we quote the provision thereof as follows: "Article 2. Persons shall be delivered up, according to the provisions of this convention, who shall have been charged with, or convicted of, any of the following crimes or offenses: 1. Murder, comprehending the crimes known as parricide, assassination, poisoning and infanticide." 31 Stat. 1819.

A similar treaty with San Salvador, containing substantially the same phraseology, was construed by Judge Morrow of the United States District Court, afterwards a member of this court, as covering murder in the first and second degree. In re Ezeta, 62 F. 972, 994. In view of the similarity of the treaties we quote therefrom as follows:

"The defendants admit that they shot at and killed Tomas Canas, but they justify their action on the ground of self-defense. It is claimed by them that Tomas Canas had been traitorous to his trust as an officer under Gen. Antonio Ezeta, and that he had surrendered, that very morning, the soldiers, ammunition, and military accouterments under his command; that when he came up to Ezeta he appeared to be somewhat intoxicated; that he exclaimed to Gen. Ezeta, `General, Manuel Rivas wants your head!' that thereupon he seized Gen. Ezeta by the throat, and also made a movement as if to draw his revolver; that Cienfuegos made an attempt to prevent Canas from drawing his revolver; that Gen. Ezeta immediately drew his revolver, and fired one shot at Canas, and Cienfuegos followed with three other shots; that Canas half turned his horse, and fell on the roadside, where he was left by Gen. Ezeta and his staff. It is objected that the facts proven do not, in any view, tend to establish the crime of murder, as defined by the treaty and the law of Salvador. In article 3 of the treaty the crime of murder is defined as follows: `Murder, comprehending the crimes designated in the penal codes of the contracting parties by the terms homicide, parricide, assassination, poisoning, and infanticide.' It is contended that `homicide, parricide,' etc., must amount to the crime of murder, to come within the treaty, — in other words, that the extraditable offense is limited to the crime known in our law as `the killing of a human being, with malice aforethought,' — or, if we look to the law of Salvador, we must still find the facts sufficient to bring the case within the offense amounting to murder under the law of that republic. The Penal Code of Salvador provides as follows:

"`Article 360. Murder is homicide committed with premeditation, and under any one of the following circumstances: First, with perfidy or breach of trust; second, for a price, or promise of reward; third, by means of flood, fire, or poison. The crime of murder will be punishable with the penalty of death.

"`Article 361. Homicide. He who kills another with premeditation, and without any of the circumstances enumerated in the preceding article, or under some one of said circumstances, and without premeditation, will be punished with the penalty of imprisonment at hard labor. In any other case, the penalty of imprisonment at hard labor shall be imposed on the offender.'

"It is contended that the facts here proven do not show the circumstances constituting murder, within the meaning of the law of Salvador, and therefore the accused cannot be extradited for that offense, and that, if the facts be held to bring the case within section 361 of the Penal Code of Salvador, still the accused cannot be extradited, for that is not the crime known...