In re Mitchell

• Decision Date: 30 June 1909
• Citation: 171 F. 289
• Parties: In re MITCHELL.
• Court: U.S. District Court — Southern District of New York

171 F. 289

In re MITCHELL.

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

June 30, 1909

Littlefield & Littlefield, for petitioner.

Charles Fox, for the Canadian Government.

HAND District Judge.

In this case the petitioner applies for bail under special circumstances. He has been arrested on extradition papers which have been issued from Canada and under which he is charged with what, in the state of New York, would be larceny. A warrant has been issued by Commissioner Alexander and he is at present in the Tombs prison awaiting the final determination upon his extradition. The warrant was issued against him Thursday, June 24th, which was just upon the eve of a trial in the Supreme Court of the state of New York, in this county, in which he is the plaintiff and the moving parties in the extradition proceedings are the defendants. The trial commenced on the 25th, and I then issued a habeas corpus ad testificandum, upon which he appeared in court on the 25th and testified. The suit involves a very large sum of money; indeed, from the papers, I understand that it involves all the fortune of the prisoner. The application is made to enlarge him upon bail for the reason that at present he is entirely unable to consult with his counsel and prepare for the remainder of the trial, which will consume, probably, the 28th, 29th, and 30th days of June. The application is opposed by the Canadian agent with much vigor, who contends that I have not the power to grant bail in such cases. My understanding of Wright v. Henkel, 190 U.S. 40, 23 Sup.Ct. 781, 47 L.Ed. 948, is that the existence of the power was distinctly affirmed by the Supreme Court. The court at the same time clearly indicates its judgment that the power should be exercised only in the most pressing circumstances and when the requirements of justice are absolutely peremptory; but still I cannot read that opinion without recognizing that the court understood the power to exist.

The petitioner also relies upon Pettit v. Walshe, 194 U.S. 205, 24 Sup.Ct. 657, 48 L.Ed. 938, which construed the proviso of the sundry civil act of 1894 (Act Aug. 18, 1894 c. 301, 28 Stat. 416 (U.S. Comp. St. 1901, p. 717)) as applying to extradition cases.

I do not, however, interpret that proviso or the opinion as indicating that the Supreme Court in any sense meant to do more than say that section 5270 of the Revised Statutes (U.S Comp. St. 1901, p. 3591) was modified pro...