Ex parte Yordi

• Decision Date: 05 February 1909
• Citation: 166 F. 921
• Parties: Ex parte YORDI.
• Court: U.S. District Court — Western District of Texas

166 F. 921

Ex parte YORDI.

United States District Court, W.D. Texas, Austin Division.

February 5, 1909

In order to abbreviate the proceeding as much as possible, and to save costs and expenses, the following written stipulation was entered into between counsel for the respective parties:

'United States v. Pablo Yordi, alias Ernesto R. Almada

Urquijo.

'Held for Extradition by W.D. Howe, U.S. Commissioner.

'It is hereby stipulated and agreed by and between the petitioner, represented by his attorneys of record, and the United States attorney for the Western district of Texas representing the United States of America, and the attorneys representing the United States of Mexico, that the United States marshal for the Western district of Texas holds in custody the said petitioner to await the action of the proper authorities of the United States of America under an order of extradition issued by W.D. Howe, United States commissioner for the Western district of Texas at El Paso, with authority in extradition cases, and by a mittimus issued to the said United States marshal commanding him to receive and keep the said defendant in his custody until further extradited to the United States of Mexico by the proper authorities of the United States of America, or until discharged by due course of law;

'And it is further stipulated and agreed by and between the parties represented by their attorneys of record as aforesaid in said cause that the production by the United States marshal of the body of the petitioner on January 29, A.D 1909, before the District Court of the United States now in session at Austin, Texas, be and is hereby waived, and it is further stipulated and agreed by and between all the parties in this case represented by their attorneys of record that the said marshal now holds the said petitioner in custody under the order of the said United States Commissioner W.D. Howe and the mittimus issued thereunder by the said United States commissioner as aforesaid, and hereby waive a formal return being made by the said United States marshal in obedience to said writ of habeas corpus and it is further hereby stipulated and agreed that the mittimus, complaint, warrant, motion to quash the complaint, and judgment of United States commissioner as set out in the petition for writ of habeas corpus are true and correct copies of the originals.

And it is further agreed that the petitioner makes no point as to the sufficiency of the evidence; that being a matter we are satisfied cannot come before the court. It is further agreed by the petitioner that the crimes stated in the complaint are extraditable offenses under the existing treaty between the United States and Mexico if the complaint is sufficient to give the court jurisdiction.

'It is further stipulated and agreed by and between the prosecution and defense that at the time of the hearing before United States Commissioner W.D. Howe it was agreed that the complaint in this case was made by A. V. Lomeli Mexican consul, solely upon information and belief, and that he had no actual or personal knowledge of the commission of any offense. This applies to each and every count of the complaint, and that his intention was to make them all upon information and belief. It is further, however, agreed that at the time of making the complaint the said A. V. Lomeli Mexican consul, had before him the record and depositions of the witnesses of the Republic of Mexico, properly certified to, as subsequently introduced, which said record and depositions are hereto attached, marked 'Exhibit A,' and made a part of this agreement.

'It is further agreed by counsel as follows: There were three complaints made against the petitioner. The first was made by the assistant United States attorney, which is immaterial. The second was made by the Mexican consul, A. V. Lomeli, Esq., and the third was made by the Mexican consul, Mr. Lomeli. Upon the hearing under the first complaint made by Mr. Lomeli, a copy of which is hereto attached marked 'Exhibit B' and made a part hereof, the record and evidence contained in Exhibit A were before Commissioner Howe, and the same record and evidence were before Commissioner Howe at the hearing upon the second complaint, the one now under consideration.'

Upon an inspection of the foregoing stipulation it will be noted that three complaints were made against Yordi, as follows: The first was made by the assistant United States attorney, and the second and third by Mr. A. V. Lomeli, consul of the republic of Mexico, residing at El Paso. The first was dismissed, and, upon the present hearing, may be disregarded as being altogether immaterial. A hearing was had before the United States commissioner upon the second, and at this hearing a voluminous record of some 40 typewritten pages, containing the orders and proceedings, including the depositions of witnesses, had before the criminal judge at Guadalajara, Mexico, was introduced in evidence. Before the conclusion of this hearing, the proceeding was dismissed upon motion of counsel for the Mexican government because the proofs introduced failed to support the allegations of the complaint. To make the matter clear the complaint charged the forgery as follows:

'That he has reasonable and credible information, which information he believes to be true and correct, and he charges that heretofore, to wit, on or about the 27th day of April, 1908, in the state of Jalisco, in the United States of Mexico, the said Ernesto R. Almada Urquijo, alias Pablo Yordi or Yardi, did commit the crime of forgery, in this: That without lawful authority, and with intent to injure and defraud, the said Ernesto R. Almada Urquijo, alias Pablo Yordi or Yardi, did then and there willfully and fraudulently make a certain false instrument in writing, purporting to be the act of another, to wit, purporting to be the act of J. A. Heap, manager, and Adolph Edler, cashier, of the Bank of Sonora, at Guaymas, a corporation engaged in the banking business at Guaymas, in the state of Sonora, in the United States of Mexico, which said false instrument is to the tenor as follows: No. 3902.-- Guaymas, April 27th, 1908. The National Park Bank of New York. Pay to the order of Ernesto R. Almada Urquijo, Thirty Thousand no/100 dollars. $30,000.00. Bank of Sonora. Branch of at Guaymas.

"(Signed) J. A. Heap, Manager,

"Adolph Edler, Cashier.'

'On the back: 'Pay to the order of the Bank of Jalisco, value received. Guadalajara, 5/26/08. (Signed) Ernesto R. Almada Urquijo.'

'Complainant charges that the said Ernesto R. Almada Urquijo, alias Pablo Yordi or Yardi, did then and there commit the crime of forgery by signing to said instrument the names of J. A. Heap, manager, and Adolph Edler, cashier, of the said Bank of Sonora, for the purpose of unlawfully collecting the amount of money named therein for himself, and that he so fraudulently and unlawfully and without the consent of the said J. A. Heap, manager, and Adolph Edler, cashier, did sign their names to said instrument or bank check, as aforesaid.'

The proof disclosed that the signatures of Heap, manager, and Edler, cashier, were genuine, and it is alleged that the forgery consisted in altering the check drawn by Heap and Edler for the sum of $107 by changing the check as to the number, date, and payee, and by raising the amount from $107 to $30,000. Thereupon the proceeding was dismissed, and Mr. Lomeli made a second complaint, containing several counts, by virtue of which the hearing now under consideration was had.

The following motion was made by counsel for the petitioner to quash this complaint: 'Because said complaint is made by A. V. Lomeli, Mexican consul, on alleged reasonable and credible information, which information he believes to be true and correct, and said complaint does not set out the source of the information of the said A. V. Lomeli, nor the facts upon which he bases his belief or the grounds of affiant's belief; that the said charges contained in said complaint do not purport to be made on the personal knowledge of the said A. V. Lomeli. ' The motion was overruled, and at the hearing the record from Mexico, mentioned above and referred to in the stipulation of counsel as Exhibit A, was again introduced in evidence, and the following order was passed by the commissioner:

'First. That the complaint is insufficient in the first count for the reason that the charge therein is made on information and belief, and it is therefore ordered that, as to said count, the said defendant be, and he is hereby, discharged.

'Second. And, further, that, as to the second count, there is no evidence that the said defendant committed the crime of forgery in the Republic of Mexico as alleged, and he is therefore discharged upon said second count.

'Third. And the commissioner finds that there is probable cause to believe the defendant, Ernesto R. Almada Urquijo, alias Pablo Yordi or Yardi, guilty of the offense of uttering a forged instrument in the state of Jalisco, United States of Mexico, on or about the 26th day of May, 1908, and that there is also probable cause to believe that said defendant, Ernesto R. Almada Urquijo, alias Pablo Yordi or Yardi, committed the offense of obtaining money by means of false device in the state of Jalisco, United States of Mexico, on the 26th day of May, 1908, as alleged in the complaint. It is therefore the order of the commissioner that said Pablo Yordi be discharged upon the offense alleged in the first and second counts of the complaint filed herein, but that said defendant, Ernesto R. Almada Urquijo, alias Pablo Yordi or Yardi, be held for extradition to the republic of Mexico upon the charges alleged in the third and fourth counts of said complaint,

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