Levy v. Splain, 3332.

• Decision Date: 02 June 1920
• Docket Number: 3332.
• Parties: LEVY v. SPLAIN, United States Marshal.
• Court: U.S. Court of Appeals — District of Columbia Circuit

267 F. 333

LEVY v. SPLAIN, United States Marshal.

No. 3332.

United States Court of Appeals, District of Columbia.

June 2, 1920

Submitted April 5, 1920.

Appeal from the Supreme Court of the District of Columbia.

J. B Stein, of Washington, D.C., for appellant.

J. E Laskey, U.S. Atty., and Morgan H. Beach, Asst. U.S. Atty both of Washington, D.C., for appellee.

SMYTH Chief Justice.

Barnett Levy, the appellant, was indicted by the grand jury of the commonwealth of Massachusetts for having conspired on the 1st day of January, 1918, with several persons named, to steal the property of divers persons unknown to the grand jurors.

Pursuant to the requisition of the Governor of Massachusetts, Levy was arrested in this District by United States Marshal Splain, as a fugitive from the justice of that state, upon a warrant issued by Mr. Justice Bailey, Acting Chief Justice of the Supreme Court of the District of Columbia. While in the custody of the marshal, for the purpose of being turned over to the agent of the commonwealth of Massachusetts, a writ of habeas corpus was sued out of the Supreme Court of the District to test the validity of his detention. After a hearing, it was adjudged that he was legally held, and he was remanded to the custody of the marshal.

In the petition for the writ several grounds were alleged for the discharge of the prisoner; but, as there is no claim that the extradition papers were not regular on their face, there is but one question open for investigation, namely, whether or not Levy was in Massachusetts at the time the crime charged was committed. The extradition papers prove prima facie that he was, and the burden is on him to establish the contrary. These rules of decision in extradition cases are firmly bedded in our law, and need no further discussion. Ellison v. Splain, 49 App.D.C. 99, 261 F. 247; Biddinger v. Commissioner of Police, 245 U.S. 128, 135, 38 Sup.Ct. 41, 62 L.Ed. 193.

The evidence shows without doubt that Levy was not in Massachusetts on the 1st day of January, 1918, and the court below so found. He was there in September, 1917, and again about the middle of January, 1918. On the 8th day of June, 1918, the indictment was returned. The trial court, in disposing of the case, said:

'Under the law here, as in Massachusetts by statute, * * * the fact that this conspiracy was laid on the 1st day of January, 1918, is not binding upon the prosecution there, and it would not be here. You can show that the crime was committed any time within three years from the finding of the indictment. Nothing more is required in extradition than is required on the trial of an indictment.'

A similar view was urged by counsel for the state in Hyatt v. People ex rel. Corkran, 188 U.S. 691, 711, 23 Sup.Ct. 456, 459 (47 L.Ed. 657); but the court refused to adopt it, saying:

'In the case before us it is conceded that the relator was not in the state at the various times when it is alleged in the indictments the crimes were committed, nor until eight days after the time when the last one is alleged to have been committed. That the prosecution on the trial of such an indictment need not prove with exactness the commission of the crime at the very time alleged in the indictment is immaterial. The indictments in this case named certain dates as the times when the crimes were committed, and where in a proceeding like this there is no proof or offer of proof to show that the crimes were in truth committed on

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