In re Adutt

Decision Date18 April 1893
Citation55 F. 376
PartiesIn re ADUTT.
CourtU.S. District Court — Northern District of Illinois

A Moses, for petitioner.

John C Richberg, for Austrian Government.

JENKINS Circuit Judge.

The petitioner, upon complaint of the consul, at Chicago, of the Austria-Hungary government, was, by the United States commissioner, committed to the custody of the marshal to await the action of the executive upon demand of the Austria-Hungary government for his extradition, upon the charge of forgery. He thereupon sued out this writ of habeas corpus to obtain his discharge, and a writ of certiorari to the commissioner to bring up the proceedings before him.

Many objections were raised by the petitioner, at the hearing, to the jurisdiction of the commissioner, and to the regularity of the proceedings before him, but I deem it necessary to consider only the following: First, that there is no evidence in the record of any demand or requisition made by the government of Austria-Hungary upon the government of the United States of America for the extradition of the prisoner second, that the treaty with that government covers only the crime of forgery, and not the offense of uttering forged paper; third, that the crime of forgery, as known to the law of Austria-Hungary comprehends only the falsification of public obligations, and not the forging of commercial paper; fourth, that the offense with which he is charged at Vienna is 'fraud by means of forgery;' fifth, that the complaint to the commissioner does not state that Mr. Claussenius, the Austria-Hungary consul, in preferring the complaint, acted in the capacity of the representative of his government; sixth, that the complaint is defective and void as to jurisdiction, in that it does not set forth the particulars of the commercial paper alleged to be forged.

The office of a writ of habeas corpus is not to correct irregularities; is not to reverse the decision of the commissioner because of some incompetent evidence admitted; is not to review his decision upon the weight and sufficiency of the testimony. This court can only inquire as to the jurisdiction of the commissioner over the subject-matter, and whether there was legal evidence before him, supporting the judgment.

The first objection presents a question which has vexed the courts and executive department of the government for many years. I need not here enter into a recital of the conflicting decisions upon this point, except to say that it would seem to have been decided against the petitioner in Re Kaine, 14 How. 103, and in Benson v. McMahon, 127 U.S. 457, 8 S.Ct. 1240. It would, I think, in the protection of individual liberty, be more seemly to require that the initiative of proceedings for extradition should rest with the government of the United States, upon demand of a foreign government, than that they should be allowed to be instituted by a consul of a foreign government without authorization of our own government, and would also, I think, better comport with the dignity of the government, and of judicial proceedings, but I feel concluded by the decisions to which I have referred, and am therefore unable to sustain this objection.

The second objection-- that the crime of uttering forged paper is not comprehended in the term 'forgery'-- is, I think, not maintainable. The common-law definition of forgery does include the utterance of forged paper.

The third objection-- that the crime of forgery, as known to the law of Austria-Hungary, comprehends only the falsification of public obligations, and not the forging of commercial paper-- is, I think, not maintainable. The term 'forgery,' as used in the treaty, should have, so far as this government is concerned, its common-law definition, as it was undoubtedly used in that sense. The law of the Austria-Hungary government, as expounded by Mr. Ziesler, does not indicate that 'forgery' includes only the falsification of public documents. There is designated in its law the crime of falsification of public documents, and there would also seem to be the crime of falsification of private documents, treated in the Criminal Code of that country as...

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4 cases
  • Austin v. Healey, 1996
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 21, 1993
    ...briefs with references to "subject matter jurisdiction," neither claim affects the extradition court's jurisdiction, see In re Adutt, 55 F. 376, 379 (C.C.Ill.1893) (defect in extradition complaint is "not a matter going to the jurisdiction of the [magistrate] to entertain the complaint"); S......
  • In re Grin
    • United States
    • U.S. District Court — Northern District of California
    • December 18, 1901
    ... ... offense are fully comprehended therein, and inform the ... accused of the offense with which he is charged. People ... v. Potter, 35 Cal. 110; Johnson v. People, 113 ... Ill. 90; State v. Heaton, 81 N.C. 542; In re ... Roth (D.C.) 15 F. 506; In re Adutt (C.C.) 55 F ... (2) The ... complaint is made upon oath before a United States ... commissioner, and his seal as such commissioner is attached ... Section 5270, Rev. St., does not specify the officers who may ... administer the oath upon complaints in extradition ... proceedings, ... ...
  • Ex parte Sternaman
    • United States
    • U.S. District Court — Northern District of New York
    • December 24, 1896
    ... ... escape. That the petitioner was fully informed of the charge ... against her is beyond dispute. She appeared with counsel and ... the long investigation was concluded without objection that ... the complaint failed in particularity. The case of In re ... Adutt, 55 F. 376, is authority for the proposition that ... in such cases the commissioner may, upon objection by the ... defendant, make the complaint more definite and certain ... 'That is,' says the court, 'a matter for the ... commissioner acting within his jurisdiction, and not a matter ... ...
  • In re Orpen
    • United States
    • U.S. District Court — Northern District of California
    • April 11, 1898
    ... ... mandate was unnecessary to initiate proceedings before the ... committing magistrate, and it was sufficient if it appeared ... by the proceedings that the complaining witness was acting ... for the foreign government. To the same effect are In re ... Mineau, 45 F. 189, and In re Adutt, 55 F. 376, ... and the proceedings in Benson v. McMahon, 127 U.S ... 457, 8 Sup.Ct. 1240. In the present case it sufficiently ... appears that the consul general is acting for and on behalf ... of the British government in prosecuting the complaint ... against the accused ... The ... ...

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