Grin v. Shine

181

Syllabus.

No. 303. Submitted November 3,1902.-Decided December 1, 1902.

Extradition treaties should be faithfully observed and interpreted with a view to fulfilling our just obligations to other powers, without sacrific- ing the legal or constituJtional rights of the accused. Technical non- compliance with formalities of criminal procedure should not be allowed to stand in the way of the discharge of the international obligations of this Government.

1. Section 5270 of the Revised Statutes is satisfied if the commissioner before

whom the warrant requires, the person arrested to appear has been spe- cifically authorized to act in extradition proceedings on the same day the waryant is issued, and the oath to the complaint need not necessarily be taken before a commissioner specially authorized' to act in extradition proceedings; but the judge issuing the warrant may act upon a complaint sworn to before a United States commissioner authorized generally to take affidavits.

2. The District Judge may make the warrant teturnable directly before a

commissioner who upon the same day is specially designated to act in ex- tradition proceedings.

It ieed not necessarily be made before himself.

3. Under a statute punishing embezzlement of property which has come

under thd control or care, of the defendant by virtue of his employment as clerk, agent, or servant, it is sufficent to allege that the defendant while so employed embezzled money entrusted to, and receivc by, him in his capacity as clerk, etc.

A complaint in extradition need not set forth the crime with the particu- It is sufficient if it fairly, apprises the party of

larity of an indictment. the crime with which he is charged.

4. A complaint is not defective because it does not use the word "fraudu-

in referring to the defendant's action in embezzling the money implies a fraudulent intent;

lently" entrusted to him. The *word "embezzle" the addition of the word "fraudulently" would be mere surplusage._

5. Anorder made by an officer in'Russia, purporting to act as an examining

magistrate, and reciting the fact of defendant's flight and ordering hin .to be brought before an examining magistrate, which is evidently de- signed to secure the apprehension of the accused and his production before an examining magistrate, although not in. the form of a warrant of arrest as used in this country, is a sufficient' compliance with the provision of the treaty which requires an authenticated copy of the warrant of arrest

-

Statement of the Case.

or of some other equivalent judicial document issued by a judge or mag- istrate of the demanding government. Furthermore, Congress not hav- ing required by section 5270 the production of a warrant of arrest by the foreign magistrate, has waived that requirement of the treaty.

6. The suffidiency of evidence properly certified under section 5 of the act of

August 3, 1882, 22 Stat. 216, to establish the criminality of the accused for the purposes of extradition, cannot be reviewed upon habeas corpus (following In re Otezza, 136 U. S. 330).

7. Where depositions and other documents in the record are certified by

the proper officer, as required by the act of August 3, except that the cer- tificate says that the papers "are properly and legally authenticated so as to entitle them to be received and admitted as eidence for similar pur- poses by the tribunals of Russia," the language being a literal conforma- tion to the statute, adding only the words italicized, the introduction of those worls does not invalidate the certificate.

8. Under section 5270 the complaint may be made by any person peting

under authority of the demanding government having knowledge of the facts. The accused, however, can only be surrended upon the requisition made by the foreign government through the diplomatic agent or superior consular officer, and this may be made entirelyindependently of thepro- ceeding before the magistrate, and the certificate of the Secretary of State that such demand has been made does not have to be produced before the warrant can be issued.

9. Where a cheque is delivered to a clerk with instructions to draw money

from th6 bank, take it to the railway, and forward it to another city, lie obtains possession of both the cheque and the" money honestly and with the consent of his principal, and if he subsequently converts the money to his use, it is prima facte a case of embezzlement and not of larceny, within the definitions of both crimes under the laws of California, and while there might be a question for a jury in n Russian court to pass on, it is sufficient in proceedings here if aprimafacie case of embezzlement is made out.

THIs was an appeal from a ]udgment of the Circuit 10ourt for the Northern District of California, dismssing a writ of habea co2pus sued out by Grin, and remanding him to the custody of ,, 4he defendant, marshal for the Northern District of California, zvbo held him' under a mittimus issued by a commissioner in certain proceedings under a treaty with the Emperor of Russia .28 for the extradition of criminals, proclaimed June 5, 1893.

Star. 1071.

These proceedings were begun by a complaint of Paul Kosa- kevitch, Russian consul at the city of San Francisco, stating in substance that on March 6, 1901, Grin, a Cossack of the Don

Opimon of the Court.

and a Russian subject, in the employment of the firm of E. L.

Zeefo & Co., doing business in the city of Rostov, on the river Don, in the Empire of Russia, embezzled the sum of 25,000 roubles, "entrusted to and received by" him in his capacity as "clerk" of such firm, and that he had subsequently absconded and taken refuge in San Francisco, that he had been indicted in Russia for the embezzlement of the money, and that a man- date had been issued by the Department of State in Washing- ton directing the necessary proceedings to be had in pursuance of the.laws of the United States, in order that the evidence of this criminality might be heard and considered. The complaint was sworn to before George E. Morse, United States commis- sioner, with the usual power to take affidavits, but not specially authorized by any court of the United States to take proceed- ings in extradition., that upon such complaint the judge of the District Court for the Northern District of California issued a warrant of arrest, and directed that petitioner, when arrested, should be brought before E. H. Heacok, Esquire, United States commissioner, for examination and further proceedings, that, at the time such warrant was issued, lleacock was not author- ized to take jurisdiction of extradition proceedings, and that the evidence before him failed to show that the petitioner had committed the crime of embezzlement.

Several other defects in theoextradition proceedings are set forth in the petition, and so far as they are, deemed material appear hereafter in the opinion.

Upon a hearing upon this petition the Circuit Court made an order remanding the petitioner to the custody of the marshal, and an appeal was thereupon taken to this court. Are G r, 112 Fed. Rep. 790.

iMv, George D Collins for appellant.

.M'" Richard Bayne and .

IT G Platt for the Russian government.

MR. TuSTIcE BRoww, after making the foregoing statement, delivered the opinion of the court.

Opinion of the Court.

We shall only notice -such alleged defects in the extradition proceedings as are pressed upon our attention in the briefs cdf counsel. While these defects are of a techmcal character, they are certainly entitled to respectful and deliberate consideration.

Good faith toward foreign powers, with which we have entered into treaties of extradition, does not require us to surrender persons ctarged with crime in violation of those well-settled principles of cqriminal procedure which from time immemorial, have characterized Anglo-Saxon jurisprudence. Persons charged with crime in foreign countries, who have taken refuge here, are entitled to the same defences as others accuted of crime within our own jurisdiction.

We are not prepared, however, to yield our assent to the suggestion that treaties of extradition. are invasions of the right of political habitation within our territory, or that every in- tendment in proceedings to carry out these treaties shall be in favor of the party accused. Such treaties are rather exceptions ,to the general right of political asylum, and an extension of ,our immigration laws prohibiting the introduction of persons convicted-of crimes, 18 Stat. 477, by providing for their depor- tation and return t6" their own country, even before conviction, ,when their sur'render is demanded in the interests of public justice. There is such a general acknowledgment of the ne- cessity of such treaties that of late, and slice the facilities for the escape of criminals have so greatly increased, most civilized powers have entered into conventions for the mutual surrender ,of persons.4harged with the most- serious non-political crimes.

These treaties should be faithfully observed, and interpreted with a view to fulfill our just. obligations to other powers, without sacrificing the legal or constitutional rights of the ac- cused.

In the construction and carrying out of such treaties the or- dinary technicalities of criminal proceedings are applicable only to.a limited extent. Foreign powers :are not expected to be versed in the niceties of our crimihal laws, and~proceedings for, a surrender are not such as put in issue, the life or liberty of; the accused. They simply demand of him that he shall do what all good citiiens are required, and ought to be-willing, to

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185 ,

do, viz., submit themselves to the laws of their country Care should doubtless be taken that the treaty be not made a pretext for collecting private debts, wreaking individual malice, or forcing the surrender of political offenders, but where the proceeding is manifestly taken in good faith, a technical non- compliance with some formality, of criminal procedure should not be allowed to stand m the war of a-faithful discharge of our obligations. Presumably at least, no injustice is contem- plated, and a.proceeding which may'have the effect of reliev- ing the country from the presence of. one whQ is likely to threaten the peace and good order of the community, is rather to be welcomed than discouraged.

1. The first assignment of error is that the commissioner

had no jurisdiction over the case, inasmuch as at the time'the warrant of arrest was issued he had not been authorized- to act, in extradition procgedings by any of the courts of the United States under Re4. Stat. sec. 52TO, which, reads as follows

"-S o. 5270. Whenever there is a, treaty or- convention for extradition between the government of the United States and any foreign government, any justice of the Supreme Court, cir- cuit judge, district, judge, commissioner, 'authorized so to do- by any of' the courts of the United States, or judge of a court. of record of general jurisdiction of any State, may, upon complaint made muder oath, charging any person found within the limitq of any State, District, or Territory, with having committed with- in the jurisdiction of' any such foreign government any of the crimes provided for by such treaty or convention,.issue his war- rant for the apprehension of the person so charged, that he may -be brought bqfore such justice, judge,, or commissioner, to the -end that the evidence of criminality may be heard and consid- ered.

If, on such hearing, he deems the evidence sufficient to. sustain the charge under the provisions of the proper treaty or convention, he shall certify the same, together -with -a copy, of all the -testimony taken 'before him, to the Secretary of State, thai.a warrant may issue upon the requiisition of'the proper au- thorities of such foreign government, for the surrender of such person, according tQ the stipulations -of the treaty or conven-

Opinion of the Court.

tion, and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made."

Under this section it is plain, first, that the commissioner must be specially authorized to act iu extradition cases, second, that a complaint must be made under oath charging the crime, third, that a warrant must issue for the apprehension of the person, fourth, that he must be brought before such justice, judge or commissioner to the end that the evidence of crimi- nality may be heard and considered, fifth,,that the commissioner shall certify the evidence to the Secretary of State, that a war- rant may issue for the surrender. There is certainly no require- ment here that the commissioner shall 15e authorized to act before he Assumes to act, and in this case there is no evidence that he assumed to act until 'after October 17, 1901, when he was specially appointed for that purpose. The day upon which the petitioner was brought before the commissioner, Heacock, does not appear, but his commitment is dated November 19, 1901. The warrant upon which he was arrested was issued Oc- tober 11, thbe day upon which the commissioner was specially authorized to act.

It is true that a warrant of arrest can only issue under sec. 5270 upon a complaint made under oath, but there is no requirement that the oath shall be taken before a commissioner authorized to act in extradition proceedings, or even before the judge or commissioner, who issues the warrant of arrest. While we are bound, to gave the person accused the benefit of every statutory provision, we are not bound to import words into the statute which are not found* there, or to say that the judge issuing the warrant may not receive an oath taken before a commissioner authorized generally to take affidavits. There is no evidence that Mr. Morse, who took this complaint, was not a United States commissioner appointed under the act of May 28, 1896, '29 Stat. 140, 184, and the fact that he sgns his name as such, and that he was recognized as such by the Circuit Court in this It is true proceeding, is suffidient evidence of hig authority the district judge, who issued this warrant of arrest, might him- self have adminitered the oath, but-lhe was equally at liberty

Opinion of the Court.

to act upon a complaint sworn to before a United States com- missioner.

2. Nor did the district judge, who issued the warrant, exceed

his powers in making it returnable before a commissioner, who upon the same day was specially designated to act in extradition proceedings.

It is true that the statute provides, sec. 5270, that the person before whom the complaint is made may "issue his warrant for the apprehension of the person so charged, that he may be brought before 8uch. justice, judge, or commissioner, to the end that the evidence of criminality may be heard and considered , " but the practice in this ds in other proceedings of a criminal or qua8i criminal nature has been to make the war- rant returnable before the magistrate issuing the warrant, or some other magistrate competent to take jurisdiction of the proceedings.

In the case of _Henrow, 5 Blatchf. 414,the con- plaint'was made before Commissioner White, was laid before Mr. Justice Nelson of this court, whoissued his warrant return- able before himself or Commissioner White. No objection was made to the proceedings for tins reason, though the case was vigorously contested upon other grounds, notably because the warrant was executed without the limits of the district, and within the State of Wisconsin. The fact that the point was not made in the case certainly indicates that it was not considered by counsel to be even a plausible ground for quashing the pro- ceedings.

The commissioner is in fact an adjunct of the court, possessing independent, though subordinate, judicial powers of his own.

If the district jidge, acting under sec. 5270, had made the war- rant returnable before himself, there could be no doubt of its legality, and in such case, upon the return'of the warrant with the prisoner in custody, he might refer the case to the com- missioner to examine the witnesses; hear the case, and report his conclusions to the court for its approval.

If he could do that, we see no objection to his referring the case directly to the commissioner by making the warrant returnable before him, inasmuch as the latter possesses the same power with respect to the extradition of criminals as the district judge himself.

It may be said that technically the warrant should be made re-

Opinion of the Court.

turnable before the magistrate issuing it, but where it is made returnable before. another officer, having the same power and jurisdiction to act, we do not think it is fairly open to criticism.

This practice is by no means unknown under the criminal' laws of the several States. Thus in Commonwealth v O'Con- nellZ, 8 Gray, 464, it was held that a mere grant of "exclusive jurisdiction" to a. police court over certain offences, did not ex- clude the authority of justices of the peace to receive complaints and issue warrants returnable before that court. To the same effect are Commonwealth v Pdindar, 11 Metc. 539, Com- monwealth v' Roar'k, 8 'Cush. 210, Commonwealth v WTolcott, -110 Massachusetts, 67;, Hendee v. Taylor, 29 Connecticut, 448.

No objection seems. to have bden taken to the proceedings before the commissioner upon the ground that he did not issue the warrant, and as he was fully vested with authority to act in extradition'cases we do not think the fact that the -judge, for the convenient dispatch of businessi made his warrant-re- turnable before such commissioner can be made available upon 'a -writ of }habea& copuos.

3. 'The eighth assignment of error turns upon the sufficiency

of the -charge of embezzlement. The first article 6f the ex- tradition treaty with Russia of June 5, 1893, 28 Stat. 10'1, after providing for the mutual surrender of fugitive criminals from one country to another, declares that "this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found; would justify his-or her apprehension and commit- ment for trial if the crime or offence had been there com- mitted." We do not deem it necessary to iniqmre whether the include a definition of the words ".evidence of criminality" crime charged or to determine by what law the elements of the crime-of embezzlement are fixed. Moore on Extradition, see. 344. As the petitioner has sought to apply the definition of embezzlement kiven in the law of California as likely to be mbstfavorable to. himself, -and the prosecution has assented to this view, we assume for the, purposes of thi case that this is the definition contemplated by the treaty

Section 508 of the Penal Code of California is as follows.

Opinion of the Court.

"E very clerk, agent, or servant of any person who fraudu- lently appropriates to his own use, or secretes with a fraudulent intent to appropriate to his own use, any property of another which has come into his control or care by virtue of his em- ployment as such clerk, agent, or servant, is guilty of embezzle- ment."

Objection is made to the complaint upon the ground that there is no allegation that the money embezzled came into his control or care "by virtue of his employment" as such clerk, the allegation being that Grin was employed as clerk; that while so employed the money was entrusted to and received by him "in his capacity as clerk," as aforesaid. Whatever might be the force of, an objection to an indictment that it does not set out in the exact language of the statute' the fact that, the money came into his possession by virtue of his employ- nient, we think that the complaint, in this particular is clearly It is a general principle of criminal law that the sufficient. complaint need not set forth- the crime with the particularity of an indictment, and that it is sufficient, if it fairly apprises the party of the crinie of which he is charged. If there be any distinction at' all between an allegation that money came into the possession of a person by vartue ofhis employment as clerk, and in his. capacity as clerk, it is too -shadowy to .be made a matter of exception to the complaint.

4. Equally unfounded is it that the complaint is defective

because it does not use the word "fraudulently," the allega- tion being "that the accused 'vrongfully, unlawfully and fe- loniously appropriated said money" As the word "em- bezzled" itself implies, fraudulent conduct "on the part of the, person receiving the money, the addition of the word "fraud- ulent" would not enlarge or restrict its -signification.. Indeed, it is impossible for a person to 'embezzle the money of another without committing a fraud upon him. _he definition of the is given by Bouvier as "the fraudulent word "embezzlement" appropriation to one's own use of the money or goods entrusted In City v. Randall, 54 California, to one's care by another."

408, a complaint that defendant did "wilfully, unlawfully, and feloniously embezzle and convert" certain securities to his

, Opimon of the Court.

own use, was. held to be a sufficient compliance with see. 1426 of the Penal *Code, -requiring the offence charged to be set forth "with such particulars of time, place, person, and prop- er~y as to enable the defendant to understand distinctly the character of the offence complained of, and to answer the complaint." The complaint in this case differs from that only in the substitution of the word "wrongfully" for the word ,, wilfully," aiid we think it is clearly sufficient. As the word implies a fraudulent intent, the addition of. the word "fraudulently" -Reeves v State, 95 Alabama, 31, United States v Zancaster, 2 McLean, 431, Sate v Wo,; 34: La. Anm. 11S3, State v TT'roson, 21 Nevada, 419, State v Combi, 17 Kansas, 136. We express no opinion as to whether it would be necessary in an indictment.

is mere surplusage.

embezzle"

5. It is further insisted that the treaty requires an authenti-

cated copy of the warrant-of arrest or of some other eqmvalent judicial document, issued by a judge or magistrate of the foreign government duly authorized so to do, and that there is no such process in the record as a warrant of arrest or its It is true that art. VI of the treaty provides that equivalent. "when the person- whose surrender is asked shall be merely charged with the comnssion of an extraditable crime or of- fence, the application- for extradition shall be accompanied by an authenticated copy of the warrant of arrest or of some other equivalent judicial document issued by a judge or a magistrate duly authorized to- do so." But it can hardly be expected of us that we.should become conversant with the criminal laws of IRussia, or with the forms of warrants of arrest used for the apprehension, of criminals. The clause is satisfied by the- pro- duction of an equivalent document. On examination of the -record we find a certified copy of an order by one purporting to act as an examining magistrate, and reciting that "having investigated the prelimiiary examination concerning the accu- sation of the Cossack, Simeon Grin," and that "as he is hiding* under a false name, and, as is seen ftom his letters, is looking out for means to prevent his arrest and the finding out of his address by the authorities, his temporal place of residence being known at present," pursuant to art. Z89 -of the Criminal

1 191

Opinion ofthe Court

Code of Procedure, "he is ordered to be brought to the city- of Rostov on the Don, in order to be placed at the disposi- tion of the examining magistrate of the Taganrog Circuit Court." This order purports not only to be signed, but sealed by the examining magistrate. Okladnykh, and -while it is in this not in the form of a warrant of arrest as used country, it is evidently designed to secure the apprehension of the accused, and his production before an examimng magistrate. This seems to us a sufficient compliance with the 'treaty., If not a warrant of arrest it is an eqivalent judicial to document, issued by a judge or magistrate authorized do so.

But there is another consideration in this connection which should not be overlooked. While the treaty contemplates the production of a copy of a warrant of arrest or other equivalent document, issued by a magistrate of the Russian .Empire,'it is within the power of Congress to dispense With this requirement, and we think it has done so by Rev Stat. sec. 5270, herenbe- fore cited. The treaty is undoubtedly obligatory upon both powers, and, if Congress should prescribe additional formalities than those required by the treaty, it might. become the subject of complaint by the Russian government and of further nego- tiations. But notwithstanding such treaty, Congress has a per- fect right to provide for the extradition of criminals in its own wav, with or without a treaty to that effect, and to declare that foreign criminals shall be surrendered upon such proofs of criminality as it may judge sufficient. Cast o v .Do U aze, 16 Fed. Rep. 93. This appears to have been the object of sec. 5270, which is applicable to all foreign governments- with which we have treaties of extradition. The requirements of that section, as already observed, are simply a complaint under oath, a warrant of arrest, evidence of criminality sufficient to sustain the charge under the proyisions of the proper treaty or convention, a certificate by the magistrate of such evidence and his conclusions thereon, to the Secretary of State. As no men- tion is here made of a warrant of arrest, or other eqmvalent document, issued by a foreign magistrate, we do not see the necessity of its production. This iS one of the requirements of

Opmion of the Court.

the treaty which. Congress has intentionally waived. Moore on Extradition, sec. 70.

the complaint sets forth that criminal proceedings have been instituted in Russia, and that Grin had been therein "indicted" for embezzlement, no indictment has ever been found, and that no other evidence It is obvious that the word of criminality can be received. "indictment," as it appears in this complaint, was used in the general sense of charged or accused by legal proceedings, and not in the technical sense of an indictment as here understood.

An indictment is a technical word peculiar to Anglo-Saxon ju- risprudence, and implies the finding of a grand jury To give it the construction contended for would require us to kmow what an indictment was under the laws of Russia and to inspect it, at least so far as to ascertain the charge for which the con- viction of the accused- is sought. No indictment was necessary to be produced under this complaint, the proceeding being governed by section 5 of the act of August 3, 1882, 22 Stat.

216

"That in all cases where any depositions, warrants, or other papers or copies thereof shall be offerod-in evidence upon the hearing of any extradition case under Title sixty-six of the Revised Statutes of the United States, (secs. 5270 and'5271,) such depositions, warrants, and other papers, or the copies thereof, shall be received and admitted as evidence on such hearing for all the purposes of such hearing, if they shall be properly and legally authenticated so as to entitle them to be received for similar, purposes by the tribunals of thd foreign country from which the accused party shall have escaped, and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that any-deposition, warrant or other paper or copies thereof, so offered, are authenticated in -the manner required by this act."

The sufficiency of such evidence to. establish the criminality of the accused for the purposes of extradition cannot be re- i re Lus Oteiza, 136 U S. 330. viewed upon habeas corpus.

7. It is further insisted that the depositions and other docu-

193

Opinion of the Court.

ments which appear in the record have not been properly and legally authenticated. The certificate of the ambassador in that connection is that these papers "are properly and legally au- thenticated so as to entitle them to be received and admitted as evidence for similar purposes by the tribunals of- Russia." As this is a literal conformation to the above-statute, adding only the words, "as evidence," itis difficult to see m what respect If we were .to hold that a pertificate in the lan- .it is deficient. guage of the statute were insufficient, the certifying- officer would be at once embarked upon a sea of-speculation as to the proper form of such certificate, and would be utterly without a guide in endeavoring -to ascertain what the requirements of the lw were in that particular. All that was decided in the caser of Lum Oteiza, 136 U. S. 330, in this connection. was that dep- ositibns and other papers authenticated and certified as re- quired by the act, were not admissible on the part of the accused.

The introduction of the words "as evidence" does not vitiate the certificate. We find it difficult to conceive any other pur- pose for which such depositions could be used except as evi- dence of criminality.

8. No evidence was required that the Russian consul had

authority to make the complaint. All that is required by It may sec. 5270 is that a complaint shall be made under oath. be made by any person Actng under the authority of the for- eign government having knowledge of -the facts, or, in' the ab- sence of such person, by the official representative of the for- eign government based upon depositions in his possession, although under the first article of the treaty the accused can only be 8-urendred upon a "requisition" of the foreign gov- ernment, and by art. VI such requisition must be made, by the " diplomatic agent of the demanding government," and in case of his absence from the seat of government, by the "superior, It is true that art. VII of the treaty pro- consular officer." vides that it "sha ll be lawful for any competent judicial au- thority of the United States, upon production of a certificate issued by the Secretary of State, stating that request has been made by the Imperial Government of Russia for the provisional arrest of a person convicted or accused of the commission therein

VOL. cLxxxviI-13

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of a crime or offence extraditable under this convention, and -upon complaint, duly made, that such criine or offence has been so committed, to issue his warrant for the apprehension of such person," 'and in this case it appears by the certificate of the Acting Secretary of State that application was made in due form by the charg6 d'affaires of Russia accredited to tns gov- ernment, for the arrest of Grin, alleged to be a fugitive from the justice of Russia. This, however, was entirely independent of the proceedings before the magistrate, which might have been instituted by any person making a complaint under oath and acting by the permission or authority of the Russian gov- ernment. While art. VII undoubtedly contemplates a prior certificate of the Secretary of State, the language of the article is merely permissive, and does not compel the production of such certificate before the warrant can be issued.

It might readily happen that the foreign representative-might have no knowledge of the facts necessary to be embodied in a complaint, and have no documentary evidence then at hand to In such case if a complaint could not be made by prove them. a private person, having knowledge of the facts, the surrender might easily be defeated by the flight of the accused.

r

It was formerly held that a requisition from the demanding government was necessary to be produced before the commis- , 32 Fed. Rep. 583, but the opin- sioner could act, Tnrei e ion in this case was reversed by Mr. Justice Brewer on appeal to the Circuit Court, who held that no preliminary requisition was necessary, as extradition could not be consummated with- out action by the executive in the last instance, and that the authority of the foreign government to act need not appear m the complaint, if it were made to appear in the examination before the commissioner, or elsewhere in the proceedings.

Bearing in mind the frequent necessity for immediate action in case the whereabouts of the accused is ascertained, the delay necessary to procure a preliminary requisition might often re- sult in the defeat of justice.

In .Katne's case, 14 How 103, 129, this court was nearly equally divided upon the question whether a preliminary man- So long as Mr. Jus- date from the executive was necessary

Opinion of the Court.

tice Nelson, who thought such mandate necessary, remained upon the bench his opinion was followed in the Second Circuit, In re Henawh, 5 Blatch. 414, In re Farez, 7 Blatch. 34, 45, but since that time a different view has been taken of the ques- tion. In re.Aaccdonne, 11 Blatch. 79 In re Thomas, 12 Blatch.

370. Judge Lowell's opinion accorded with the later,-and, as

we think, the sounder view, -7n re Feley, 2 Lowell, 339. See also Be2von N. .Mcfaon, 127'U S. 457.

9. It is again objected that the facts set forth in the-record

show that defendant, if guilty at all, is guilty of larceny and not of embezzlement, and that as the laws of California. make a clear distinction between embezzlement and larceny, he can- not be held for one crime upon proof of his guilt of the other.

The charge set forth in the complaint is that Zeefo, one of the members of the firm of- E. L. Zeefo & Co., entrusted and de- livered a cheque for the money to Grin, who subsequently re- ceived the money from the bank to take it to the Yladikavkaz Railway Company, by which it was to be taken to Novorosseesk, and upon the same day absconded. Upon these facts it is in- sisted that the defendant had nothing more than the bare cus- tody, as distinguished from the possession of the money, and therefore could not and did not embezzle it, but stole it.

.

By section 503 of the Penal Code of California "embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted," and by section 508, "every clerk, agent, or servant of, any person who fraudulently appropriates to his any property of another which has come own use into his control or care by virtue of his employment as such clerk, agent, or servant, is guilty of embezzlement." As Grin was clerk of the firm, and as the money was delivered to him in his capacity as clerk for 'a special purpose, it certainly came into his control or care. We do not care to inquire into the soundness of the distinction made in some of the older. cases between the custody and possession of property, because under the section above quoted nothing more is necessary to consti- tute embezzlement than that the party charged should have the control or care of the money

The cases in California upon this subject are decisive. Thus,

Opinion of the Court.

in E vparte Hedky, 31 California, 108, where the agent of an express company, authorized to draw telegraphic cheques on his principal for money to be used in the principal's business, but not to draw individual cheques, drew certain cheques as agent for money to be used in his private business, and the principal paid the money to the drawee, it was held to amount to a re- ceipt of the money of the principal by the agent "in the course It was further held that, in order to con- of his employment." viet one of embezzling money of his principal, it was necessary to establish four propositions First, that the accused was an agent, second, that he received money belonging to his princi- pal, third, that he received it in the course of his employment, fourth, that he converted it to his own use with intent to steal In People v Tomlinson, 102 California, 19, a recent the same. case upon the same subject, the law of California was summed "Where one honestly receives the possession of up as follows goods upon a trust, and after receiving them fraudulently con- verts them to his own use, it is a case of embezzlement.

But, where the possession has been obtained through a trick or device, with the intent, at the time the party receives it, to con- vert the same to ls own use, and the owner of the property parts merely with the possession and not with the title, the offence is larceny"

These cases are strictly in line with that of -Moore v United Sates, 160 U. S. 268, in which we held that "embezzlement is the fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has It differs from larceny in the fact that the lawfully come. original tking of the property was lawful, or with'the consent of the owner, while in larceny the felonious intent must have existed at the time of the taking."

The cases relied upon by the petitioner are of the -latter de- scription. Thus in People v Abbott, 53 California, 284-, defend- ant was instructed by a bank to purchase silver for its account, and, to provide him with funds, the bank certified and delivered him a cheque drawn by him on the bank. He did not purchase It was the silver, but used the cheque for his own purposes. held that, if he took the custody of the certified cheque with

KNIGHTS TEMPLARS' INDEMNITY CO. v. JARMAN. 197

'Syllabus.

the intention of stealing it, he was guiltylof larceny The ques- In People v Raschke, 73 tion was treated as one for the jury California, 378, it was held that if one, through false represen- tations, obtains the possession of personal property with the consent of the owner, but without a change of the general title,, he is.guilty of larceny, upon subsequently converting the same. to his own use, if he had the felonious intent to steal the prop- erty at the time the possessionxiyas obtained. The authority of In the case under consideration, these cases is not questioned. a cheque was delivered to the petitioner with instructions to draw the money from the bank, take it to the railway station, to be forwarded to another city The facts show that he ob- tained possession of both the cheque and the money, honestly, and with the consent of his principal, and -subsequently con- verted it to-his own use. Puzma fame, at least, this makes a case of embezzlement, and if there were m fact an original in- tent to steal, that is a question for a jury in a Russian court to It is sufficient for the purposes of this proceeding pass upon.

that apmmezfaci case of embezzlement is made out.

This disposes of all the questions made in the brief, and the judgment of the Circuit Court is

-Afflmed.

No. 48. Argued October 17, 902.-Decided December 8, 1902.

1. That section of the Revised Statutes of Missouri declaring that in all suits

upon policies of life insurance it shall be no defence that the insured committed suicide, applies not only to cases where the insured takes his own life voluntarily and in full possession of his mental faculties, but to all cases of self-destruction by the insured, whether sane or insane, un- less he contemplated suicide at the time he made his application for .the policy.