Ex parte La Mantia

• Decision Date: 10 June 1913
• Docket Number: 60.
• Citation: 206 F. 330
• Parties: Ex parte LA MANTIA.
• Court: U.S. District Court — Southern District of New York

206 F. 330

Ex parte LA MANTIA.

No. 60.

United States District Court, S.D. New York.

June 10, 1913

Daly Hoyt & Mason, of New York City, for Italian government.

William Michael Byrne, of New York City, for alien.

Kenneth M. Spence, Asst. Dist. Atty., of New York City, for the United States.

WARD Circuit Judge.

The Italian ambassador asked for the extradition under the treaty of 1868 between the United States and Italy of one Giovanni Di Lorenzo, charged with having committed an extraditable offense, viz., murder, October 30, 1908, at San Lorenzo Italy. He presented to the commissioner documents certified by the American ambassador at Rome under section 5 of the act of 1882, which show clearly that the murder specified was committed; that Giovanni Di Lorenzo was charged with committing it after a preliminary judicial inquiry in substance like the indictment of a grand jury, which resulted in the issuance of a warrant for his arrest and detention for trial on the charge, in the court of assize at Palermo.

The certificate of the American ambassador is not in the language of the statute, as would seem to be the proper course. It states that the documents are authenticated 'so as to entitle them to be received in evidence for similar purposes by the tribunals of the courts of the United States of America, as required by the act of Congress of August 3 1882. ' It should have stated that the documents were entitled to be so received by the courts of the kingdom of Italy. No objection, however, was made on this ground, and I mention it only to call attention to the importance of obtaining proper certificates in these cases. The expression 'for similar purposes' means as evidence of criminality. In re Luis Oteiza y Cortes, 136 U.S. 330, 337, 10 Sup.Ct. 1031, 34 L.Ed. 464. I am of opinion that upon such evidence as these papers disclose a magistrate here would be justified in committing Giovanni Di Lorenzo if charged with having committed the offense in this country, which is the degree of proof required by article 1 of the treaty.

The complaint states, and counsel for the prisoner contends, that he was tried and convicted in contumaciam. There is no evidence of conviction in the documents certified from Italy. What they show is that September 3, 1910, the criminal court of Palermo held a preliminary inquiry into the charge, which resulted in a finding, called sentence, that Giovanni Di Lorenzo should be tried for it in the court of assize of Palermo, and a warrant of arrest issued on September 10th in pursuance of that sentence. It would, however, make no difference whether there had been subsequently a conviction in contumaciam, because for the purposes of this proceeding it would be treated only as a charge of crime. Ex parte Fudera (C.C.) 162 F. 591.

Counsel for the prisoner insists upon various constitutional privileges, which I think apply only to prisoners held for trial here. The act of 1882 defines the papers which may be received in evidence as to the commission of a crime in a foreign country, if authenticated in the manner prescribed. However, the prisoner has had in substance everything that the constitutional privileges involve. The fourth amendment to the Constitution of the United States provides that no person shall be seized except upon a warrant issued 'upon probable cause supplied by oath or affirmation. ' The documents forwarded from Italy conform to this requirement. They establish abundant probable cause. There are statements from a number of persons to the effect that a quarrel took place between Di Lorenzo, his son Salvatore, and his brother-in-law La Fata, on the one side, and two of Di Lorenzo's creditors and their attendants, on the other as to the possession of certain empty wine casks; that in this quarrel two of the latter faction were shot to death; that Di...