Lascelles v. State

Citation16 S.E. 945,90 Ga. 347
PartiesLASCELLES v. STATE.
Decision Date23 August 1892
CourtSupreme Court of Georgia

Syllabus by the Court.

1. The rule that a fugitive from justice, surrendered for trial by a foreign country under treaty stipulation, cannot, after his extradition, be tried for an offense not embraced in the demand or application on which he was surrendered, does not apply to fugitives from justice fleeing from one state of the American Union to another, and surrendered on demand under the provisions of the constitution of the United States. These latter may be tried for any offense committed by them in the state to which they are returned, though the offense may have been committed before the demand and surrender, and though it be not the particular offense on account of which they were brought back for trial.

2. By the act of February 26, 1877, (Code, § 4649,) a nolle prosequi may be entered by the solicitor general in any criminal case, with the consent of the court, after an examination of the case in open court. This being so, the consent of the court is conclusive upon the validity of a nolle prosequi which the court has allowed the solicitor general to enter before putting the accused on trial. The latter, when arraigned upon a bill of indictment subsequently found and returned by the grand jury for the same act or offense, cannot, by plea in abatement or motion to quash draw in question the rightful disposition of the former bill by nol. pros.

3. A plea in abatement to a bill of indictment, or a motion to quash the bill, is not sustainable, which sets up that a member of the grand jury that found the bill was related by affinity to the prosecutor, within the fourth degree, his wife being a second cousin of the prosecutor. Such relationship, according to the settled law, belongs to the same class of causes of challenge as does the fact of service by the juror on a previous trial or investigation of the same case or matter in controversy.

4. Several counts, each charging forgery,--one by falsely and fraudulently making a bill of exchange in a fictitious name another by fraudulently obtaining a sum of money by color of the same bill, (alleging it to be drawn in a fictitious name,) another for fraudulently obtaining a sum of money by color of the same bill, and another for falsely and fraudulently uttering the same bill, (the last two counts however, not alleging the bill to be drawn in a fictitious name,)--may be joined in the same bill of indictment, all the offenses being felonies, and offenses of the same nature, according to the Code, §§ 4453, 4455, 4450; and at the trial the state would not, as matter of law, be bound to elect on which particular count or counts it would rely for a conviction.

5. On the counter showing, taken in connection with the showing for a continuance, there was no abuse of discretion by the presiding judge in denying the application, and no error appears in admitting in evidence the facts constituting the counter showing; most of them consisting of acts and declarations by the prisoner himself, which were inconsistent with the good faith of his showing, and those which consisted of declarations by others not being separately objected to on the ground that they were hearsay.

6. On a trial for forgery, representations by the accused calculated to make an impression that he was a person of wealth and respectability, some of the representations being made to one of the persons afterwards defrauded by the forgery, and some of them to the brother of that person,--the brother being the medium of introduction between the accused and one of the members of the firm defrauded,--are admissible in evidence on behalf of the state; there being facts and circumstances in evidence tending strongly to prove the falsehood of the representations. The fact that the accused pretended to write to his father for a large sum of money, and caused an envelope addressed to the person he said was his father to be mailed, which envelope, on being afterwards returned, unopened, by due course of mail, was found on examination to contain nothing but a blank piece of paper, is admissible in evidence, together with the envelope and piece of paper.

7. When a man assumes not only a name which is not his own, but the relationship of son to another, who has no such son, and in that name draws a bill of exchange, and passes it, for value, to a person who believes he is dealing with a genuine, and not a fictitious, son of the alleged parent, the name, as to that transaction, is fictitious: and, under section 4453 of the Code, the bill is one drawn in a fictitious name, and the drawer is guilty of forgery.

8. Designedly obtaining money with intent to defraud, by color of a bill of exchange drawn in a fictitious name, is a felony, under section 4455 of the Code; such a bill being embraced in the words, "any counterfeit letter or writing made in any other person's name, or fictitious name."

9. The evidence warranted the verdict, and there was no error in not granting a new trial on any one of the grounds contained in the motion therefor.

Error from superior court, Floyd county; J. W. MADDOX, Judge.

Sidney Lascelles was convicted of forgery, and brings error. Affirmed.

W. W. Vandiver, Ewing & Crosby, Dean & Smith, Seaborn & Moses, Wright C. Rowell, and J. W. Fair, for plaintiff in error.

W. J. Nunnally, Sol. Gen., W. S. McHenry, and J. Branham, for the State.

LUMPKIN J.

1. The plaintiff in error was convicted of forgery. He had been indicted, under the name of Walter S. Beresford, as a common cheat and swindler, and for larceny after trust, and upon the indictments for these offenses requisitions were issued upon the governor of New York, and the accused was arrested in that state, in compliance with the requisitions, and delivered to the officer appointed in behalf of this state to receive him, who brought him here, and delivered him to the sheriff of the county where the indictments had been found. While in jail, where he had been kept continuously from the time he was placed there under the charges made in these indictments, an indictment for forgery was found against him, based upon the same transaction as the charge of cheating and swindling, and he was thereupon convicted. By his motion to quash the indictment, and by his plea in abatement, he made the objection that it was unlawful to try him for an offense not charged in the extradition proceedings, without first allowing him an opportunity to return to the state from which he had been surrendered. We think this objection was properly overruled. No such limitation upon the right of trial as that contended for is to be found in the constitution and laws of the United States or of this state. That such a limitation exists in cases of extradition from foreign countries has been determined by the supreme court of the United States in the case of U.S. v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, and it was contended that the doctrine of that case is applicable to this. In our opinion, the reasons which control in cases of foreign extradition do not apply where the fugitive is surrendered, under the provisions of the federal constitution, by the authorities of one state of the Union to those of another. In the first place, the limitation which exists in cases of foreign extradition is matter of express law. By the act of congress of March 3, 1869, c. 141, § 1, as construed in the Rauscher Case, it is provided that the accused shall be tried only for the crime specified in the warrant of extradition, and shall be allowed a reasonable time to depart out of the United States before he can be arrested or detained for another offense. It is significant that congress, while thus careful to secure to the fugitive the right of return in cases of extradition from a foreign country, has made no such provision with reference to persons surrendered from one state of the Union to another. Moreover, the mutual rights and obligations of foreign governments with respect to extradition are defined usually by treaties, in which the agreement to surrender extends, not, as in the case of the states, under the federal constitution, to every offense against the laws of the demanding state, but only to certain offenses specified in the treaty; and this, according to the views announced in the Rauscher Case, is equivalent to the exclusion of the right to try for other offenses, or for an offense other than that for which the fugitive was surrendered. In that case the crime for which the accused was tried was not only a different one from that for which he was surrendered, but was not one of those specified in the treaty. The treaty being, under our constitution, a part of the law of the land, it was held to be the duty of the courts to take cognizance of it, and enforce it, as such, although in the particular case the foreign government had not asserted its rights in the premises.

When we go back of the express law on the subject, and consider the matter independently of the statute referred to, or of the obligations assumed by treaty, it will be found that the right of the person extradited to return to the country from which he was surrendered is based upon the right of that country to afford asylum to the fugitive, and to refuse to give him over to another except upon such terms as it may see fit to impose. It is well settled that the criminal himself never acquires a personal right of aslyum or refuge anywhere. Such right as he may have in this respect grows entirely out of the rights of the government to whose territory he has fled. It matters not, so far as the right to try him is concerned, that he may have been abducted while in another state, and brought back illegally, and against his will, to ...

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