Gayon v. Carthy

• Decision Date: 01 March 1920
• Docket Number: No. 540,540
• Citation: 252 U.S. 171,64 L.Ed. 513,40 S.Ct. 244
• Parties: GAYON v. McCARTHY, U. S. Marshal, et al
• Court: U.S. Supreme Court

252 U.S. 171

40 S.Ct. 244

64 L.Ed. 513

GAYON

v McCARTHY, U. S. Marshal, et al.

No. 540.

Argued Jan. 6, 1920.

Decided March 1, 1920.

Mr. Wm. S. Bennet, of New York City, for appellant and plaintiff in error.

Mr. Assistant Attorney General Stewart, for appellee and defendant in error.

Mr. Justice CLARKE delivered the opinion of the Court.

The appellant, Gayon, was indicted in the Southern district of Texas for conspiring (section 37 of the Criminal Code [Comp. St. § 10201]) with one Naranjo, of San Antonio, Texas, and with one Mendoza, of Laredo, Texas, about January 1, 1919, to hire and retain Foster Averitt, a citizen of the United States, to go to Mexico, there to enlist in military forces organized in the interest of Felix Diaz, then in revolt against the government of Mexico, with which the United States was at peace, in violation of section 10 of the Criminal Code, as amended May 7, 1917, 40 Stat. 39, chapter 11 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10174).

Gayon was arrested in New York, and, after a full hearing before a commissioner of the United States, was held subject to the order of the District Court for his removal to Texas.

Thereupon, by petition for writs of habeas corpus and certiorari, the case was removed to the District Court for the Southern District of New York, and, upon a hearing on a transcript of the evidence before the commissioner, that court discharged the writ of habeas corpus and entered an order that a warrant issue for the removal of the appellant to Texas. An appeal brings this order here for review.

The principles and practice applicable to this case are abundantly settled. Greene v. Henkel, 183 U. S. 249, 261, 22 Sup. Ct. 218, 46 L. Ed. 177; Beavers v. Haubert, 198 U. S. 77, 24 Sup. Ct. 605, 48 L. Ed. 882; Hyde v. Shine, 199 U. S. 62, 84, 25 Sup. Ct. 760, 50 L. Ed. 90; Tinsley v. Treat, 205 U. S. 20, 27 Sup. Ct. 430, 51 L. Ed. 689; Haas v. Henkel, 216 U. S. 462, 475, 30 Sup. Ct. 249, 54 L. Ed. 569, 17 Ann. Cas. 1112; Price v. Henkel, 216 U. S. 488, 490, 30 Sup. Ct. 257, 54 L. Ed. 581; Hyde v. United States, 225 U. S. 347, 32 Sup. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614; Brown v. Elliott and Moore v. Elliott, 225 U. S. 392, 32 Sup. Ct. 812, 56 L. Ed. 1136; Henry v. Henkel, 235 U. S. 219, 35 Sup. Ct. 54, 59 L. Ed. 203.

Of many errors assigned only two are argued, viz: That the court erred in holding: (1) That the acts committed by the appellant 'of which there was any evidence before the commissioner' constituted a crime under section 10 of the Penal Code, and (2) that the evidence before the commissioner showed probable cause for believing the defendant guilty of the crime charged in the indictment.

By these assignments of error the correct rule of decision is recognized, that if there was before the commissioner or District Court evidence showing probable cause for believing the defendant guilty of having conspired with Naranjo or Mendoza, when either was in the Southern district of Texas, to hire or retain Averitt to go to Mexico to enlist in the insurgent forces operating under General Diaz against the Mexican government, the order of the District Court must be affirmed.

The evidence before the commissioner, carried to the District Court, may be summarized as follows:

The government introduced the indictment and, with the admission by Gayon that he was the person named therein, rested. This established a prima facie case in the absence of other evidence. Tinsley v. Treat, 205 U. S. 20, 31, 27 Sup. Ct. 430, 51 L. Ed. 689, and cases cited.

Thereupon the testimony of the accused and of one Del Villar was introduced by appellant, and that of Averitt by the government, which we condense into narrative form:

For five years before the arrest, Del Villar, a political exile from Mexico, had maintained offices in New York, from which he had conducted a systematic propaganda in the interest of Felix Diaz and against the Mexican government.

The accused, Gayon, is a Mexican citizen, and during several administrations prior to that of Carranza had served as consul for the Mexican government at Roma, Texas, and at other places within and without the United States. For about two years he had been secretary to Del Villar and for some time prior to his arrest was in the joint service and pay of Del Villar and General Aurelio Blanquet, the latter then in Mexico serving with the forces of Diaz.

Naranjo was editor and publisher of a newspaper at San Antonio, Texas, called 'Revista Mexicana' (Mexican Review), which was opposed to the established Mexican government and favorable to the revolutionists operating in the interest of Diaz.

On December 12, 1918, Gayon wrote from New York to Naranjo at San Antonio to secure an advertisement in the Review for 'my work 'El General Blanquet," saying, 'There are some reasons that you may know in the next few days why I want a big circulation of the book,' asking if he might send some copies to be sold at the newspaper office, and concluding, 'I will await your letters hoping to give you good news in my next letter.'

On December 23, 1918, Gayon wrote Naranjo, addressing him as 'My dear Friend,' and saying that he had received his letter of the 18th instant. In this letter a discussion of the sale of his book 'El General Blanquet' is followed by comment on the activities of other persons, in which he discourages new projects and urges joining 'with the National Union Committees,' which he states had already passed the embryonic state and now constitute a reality. He concludes:

'God grant us, now that we are on the threshold of success, we may leave aside our obstinate custom of projecting, and go ahead to produce results exclusively.'

On January 14, and again on January 21, 1919, he addressed Naranjo as 'My dear Friend' and discussed further advertising and circulating of his book.

This correspondence makes it clear enough that Gayon, although in New York, in December, 1918, and January, 1919, was in close association with Naranjo, and that the two were actively engaged in promoting opposition to the established Mexican government.

On January 5, 1919, Foster Averitt, an American citizen, whose home was in Texas, called at the office of Gayon, and what passed between them is derived from the testimony of the two, as follows:

Averitt had recently resigned from the United States Naval Academy at Annapolis and, being without employment, says that he called at the office of Gayon, for the purpose of securing, if possible, a position in Mexico or Central America as an engineer. He...