President of the United States v. Kelly
| Decision Date | 08 June 1937 |
| Citation | 19 F. Supp. 730 |
| Parties | PRESIDENT OF THE UNITED STATES, ex rel. CAPUTO v. KELLY, Marshal, et al. |
| Court | U.S. District Court — Southern District of New York |
Lewis Landes, of New York City, for relator.
Davis, Polk, Wardwell, Gardiner & Reed, of New York City (A. S. Edmonds, of New York City, of counsel), for French Republic.
The writ of habeas corpus is dismissed, and the relator, Gennaro Caputo, is remanded to the custody of the United States Marshal.
The relator in this proceeding is held in custody by the United States Marshal under an order of the United States Commissioner for the Southern District of New York, dated May 7, 1937 (to await the action of the State Department), in certain extradition proceedings which were instituted by the Consul General of the French Republic to have the said Gennaro Caputo, alias Jean Caputo, arrested and surrendered under the extradition treaty between that country and the United States of America.
The complaint in the extradition proceeding was made by the Assistant Consul General of the French Republic of the City of New York, pursuant to authority delegated to him by the Consul General and on receipt of a letter from the Embassy of the French Republic at Washington, D. C., requesting the arrest and detention of Gennaro Caputo, a fugitive from the justice of the French Republic. Said complaint was filed in this court, and on December 14, 1936, the United States Commissioner for the Southern District of New York issued a warrant under which the said Gennaro Caputo was taken into custody by the United States Marshal. The warrant contained the following recital: "Whereas, complaint on oath has been made to me charging that Gennaro Caputo, alias Jean Caputo, also alias Caputo Gennaro, is in the City, State and Southern District of New York as a fugitive from the justice of the French Republic, and charging said Gennaro Caputo, alias Jean Caputo, also alias Caputo Gennaro with having committed within the jurisdiction of the French Republic the crime of murdering one Marie Girére on January 14, 1923, at about eleven o'clock in the forenoon of that day, at Figuier de Cassis Street, Marseilles, France, and of assaulting with a deadly weapon with intent to kill one Sauveur Viola, and having been convicted of said crimes on January 31, 1924, at the Assizes Court, at Aix, District of Bouches de Rhone, France, and sentenced to death, said crimes being provided for by the Treaty or Convention for Extradition between the Government of the United States of America and the Government of the French Republic signed January 96, 1909 and proclaimed July 26, 1911, as set forth in the sworn complaint of Rene Tanquerey hereto attached."
Paragraph 4 of the complaint of the Assistant French Consul on which the warrant was issued states: "Upon information and belief, the said Gennaro Caputo, alias Jean Caputo, also alias Caputo Gennaro is a fugitive from the justice of the French Republic, having been charged with committing the crime of murdering one Marie Girére on January 14, 1923, at about eleven o'clock in the forenoon of that day, at Figuier de Cassis Street, Marseilles, France, and of assaulting with a deadly weapon with intent to kill one Sauveur Viola, and having been convicted of said crimes on January 31, 1924, at the Assizes Court, at Aix, District of Bouches de Rhone, France, and sentenced to death."
The complaint also contains the allegation that:
The annexed Appendix A is as follows:
After the arrest of Caputo on the warrant, a hearing was held before the United States Commissioner. 18 U.S.C. § 651 (18 U.S.C.A. § 651). At the termination of the hearing on May 7, 1937, the Commissioner rendered his decision as follows: "After carefully weighing the evidence and looking into the law in the premises I find that Gennéro Caputo, with various aliases, is the man mentioned in the warrant issued by the French Court at Marseilles, France; I further find there is probable cause to believe that he committed the crime mentioned in the said warrant, and he is remanded to the custody of the United States Marshal for the Southern District of New York to await the decision of the State Department of the United States Government."
On May 7, 1937, the Commissioner issued an extradition commitment in which it was "ordered that said defendant Gennéro Caputo, with aliases, be held to await the action of the Department of State and any order of court and that no bail fixed and that he be committed to the custody of the United States Marshal for the Southern District of New York, and by said Marshal duly committed to the custody of the Warden of the Federal Detention Headquarters, 11th, and West St., in the Borough of Manhattan, City of New York."
On May 10, 1937, the said Gennaro Caputo sued out a writ of habeas corpus in this court directed to the United States Marshal and returnable on May 13, 1937, at which time it was adjourned to May 18, 1937, and the hearing on the writ took place on that day. The return to the writ included some 260 pages of testimony and a number of exhibits that were offered in evidence at the hearing before the Commissioner.
In his petition for a writ of habeas corpus the said Gennaro Caputo contends that his detention and imprisonment are unlawful and improper and without legal warrant or authority, and in support thereof he advances nine reasons separately stated in nine subdivisions of paragraph sixth of his petition, dated May 10, 1937.
1. In the eighth subdivision of said paragraph relator contends that: "There was a material variance between the warrant of arrest and executive requisition of the French Republic." Relator does not mean the warrant of arrest signed by United States Commissioner Cotter. The brief submitted in relator's behalf refers to a warrant of arrest (Document No. 3 in Exhibit 1) issued January 25, 1923, by an examining magistrate in France against Jean Caputo for attempted murder and for having willfully inflicted blows and wounds. It is argued that said warrant is not in accord with the executive requisition herein (the petition of the Assistant Consul General of the French Republic dated December 14, 1936) which prayed for the arrest of the accused for the murder of Marie Girére and the assault with intent to kill one Sauveur Viola.
The extract from the records of the office of the clerk of the Court of Appeals of Aix-en-Provence (Bouches du Rhone), document No. 8 of Exhibit 1, recites the indictment of Caputo for the two crimes—homicide upon the person of Marie Girére, and attempt to commit homicide upon the person of Viola Sauveur — and then states the following: "The Court orders all the sheriffs or agents of the Police, upon demand, to bodily seize, carry and deliver said accused at the Court detention house annexed to the Court of Assizes, to which Court the accused is hereby referred."
This is the real order or warrant of arrest of the French court. It is dated June 28, 1923, and apparently was based upon the indictment of the accused in the French court for both crimes. The warrant of arrest referred to by petitioner, dated January 25, 1923, appears to be a preliminary warrant of arrest made by an examining magistrate and referred to only one crime. The executive requisition of the French Republic as set forth in the complaint of the Assistant Consul General in this extradition proceeding conforms to the arrest provisions of the order of the French court, dated June 28, 1923.
2. In subdivision sixth of paragraph sixth of relator's petition herein, it is urged that there "was lack of evidence of an indictment against your petitioner issued by the French Republic." In document No. 8 in Exhibit 1 there is a record of the decision dated June 28, 1923, of the Indictment Chamber (Chambre des Mises en Accusation) sending Caputo before the Court of Assize of Bouches-du-Rhone. Document No. 9 of Exhibit 1 is a copy of the judgment of the Court of Assize of Bouches-du-Rhone condemning Caputo by default (par contumance) to death. The following paragraphs are quoted from said judgment:
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