In re Strauss

• Citation: 126 F. 327
• Decision Date: 25 November 1903
• Docket Number: 25.
• Parties: In re STRAUSS.
• Court: U.S. Court of Appeals — Second Circuit

126 F. 327

In re STRAUSS.

No. 25.

United States Court of Appeals, Second Circuit.

November 25, 1903

Max J Kohler, for appellant.

Robert S. Johnstone, for appellee.

COXE Circuit Judge (after stating the facts as above).

The question of jurisdiction, though discussed to some extent in the briefs need not be considered, for the reason that it was conceded at the argument that the District Court had full jurisdiction in the premises. It is also unnecessary to consider the legality of the magistrate's commitment for the reasons stated in the appellant's brief as follows:

'The first commitment, by Magistrate Pool, is spent by its own terms, the 30 days mentioned therein and in the New York Statute (Code Cr. Proc. Sec. 830), having expired, and the commitment being by its terms superseded by the Governor's warrant; accordingly, the first writ of habeas corpus and the commitment sought to be reviewed by it, are, it would seem, only material now, in connection with our claim that the Governor's warrant is illegal null and void, for the reason that it was issued at a time when his hands were stayed, by the pendency of the first habeas corpus proceedings, by reason of the express terms of section 766 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 639).'

The controversy must, therefore, be confined to the second writ allowed August 29th upon the petition filed being the validity of the Governor's warrant.

Conceding the power of the United States courts to interfere in interstate extradition proceedings, it is a power which should be exercised with the utmost caution and only in cases of urgency where the error is plain and the necessity for federal intervention obvious. Whitten v. Tomlinson, 160 U.S. 231, 16 Sup.Ct. 297, 40 L.Ed. 406; Ex parte Royall, 117 U.S. 241, 6 Sup.Ct. 734, 29 L.Ed. 868; Ex parte Brown (D.C.) 28 F. 653; In re Huse, 79 F. 305, 25 C.C.A. 7, and cases cited.

It was only necessary, as a condition precedent to the issuing of the Governor's warrant, to establish two propositions, first, that the appellant was substantially charged with crime against the laws of Ohio, and, second, that he was a fugitive from the justice of that state; the first is a question of law, the second is a question of fact. Roberts v. Reilly, 116 U.S. 80, 6 Sup.Ct. 456, 47 L.Ed. 657.

The principal criticism of the papers certified to the Governor is that no indictment was included among them and that a verified complaint or affidavit before a committing magistrate of Ohio was insufficient to confer jurisdiction upon the Governor, for the reason that an accused person cannot in this manner be charged with an infamous crime. This contention seems to be sufficiently answered by the statute, which, in language as plain as it was possible for the lawmakers to adopt, expressly provides that the demanded person may be charged with crime either in an indictment 'or an affidavit.'

Section 5278 of the Revised Statutes (U.S. Comp. St. 1901, p. 3597) is as follows:

'Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state or territory, to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime,' etc.

That an indictment is the best evidence to prove that a person has been charged with crime is, of course, conceded, but Congress recognized the fact that exigencies frequently arise where it is impossible to procure an indictment in time to prevent the escape of the offender, and hence provided the alternative method of procedure.

If the statute had said that an indictment was an indispensable prerequisite in all cases of treason or felony and that the use of an affidavit must be confined solely to crimes not infamous, there would be force in the appellant's contention. But the statute does not so provide and the argument by which it is sought to sustain the contention that it does, is too attenuated and refined to commend itself to the judgment of the court.

The case of Virginia v. Paul, 148 U.S. 107, 13 Sup.Ct. 536, 37 L.Ed. 386, relied on by appellant, arose under a different statute and has little application to the present controversy.

The precise point now urged seems never to have been decided or even considered, which, in view of the innumerable times the statute has been under review, is somewhat significant.

That the charge can properly be made by affidavit appears to have been assumed and the courts have uniformly construed the statute according to its plain purpose and intent. Thus in Ex parte Reggel, 114 U.S. 643, 5 Sup.Ct. 1148, 29 L.Ed. 250, the defendant was charged, by indictment it is true, with the same crime as the appellant-- obtaining goods by false pretenses-- and the court, at page 649, 114 U.S., page 1152, 5 Sup.Ct., 29 L.Ed. 250, says:

'Under the act of Congress, it became the duty of the Governor of Utah to cause the arrest of Reggel, and his delivery to the agent appointed to receive him, when it appeared: 1. That the demand by the executive authority of Pennsylvania was accompanied by a copy of an indictment, or affidavit made before a magistrate, charging Reggel with having committed treason, felony, or other crime within that state, and certified as authentic by her Governor. 2. That the person demanded was a fugitive from justice.'

See, also In re White, 55 F. 55, 5 C.C.A. 29; Kingsbury's Case, 106 Mass. 223; 2 Moore on Extradition, § 546.

We think the papers presented to the Governor state an offense against the laws of Ohio. The affidavit is open to criticism in several particulars, but there can be no doubt that it fairly informs the accused of the nature of the charge against him. Technical precision is not required in a proceeding before a committing magistrate.

The Ohio statute provides that any person who obtains from another anything of value, by any false pretense, with intent to defraud shall be guilty of an offense which, if the value of the property be $35 or more, is punishable by imprisonment. It is only important to inquire whether...