The United States vs. Richard B. Caldwell and others., January 3, 1871.

The United States vs. Richard B. Caldwell and others.

United States circuit court, southern district of New York.

Benedict, J.:

This case comes before the court upon a demurrer to the plea. The prisoner has been indicted for the offense of bribing an officer of the United States.

To this indictment the defendant pleads that this court ought not to take cognizance of the offense in the indictment, because that at the time when he was arrested and brought within the jurisdiction of this court he was a resident of Prescott, in the province of Ontario, Dominion of Canada, and was brought into the jurisdiction of this court on a charge of forgery, under the provisions of the treaty between Her Britannic Majesty and the United States of America, commonly called the Ash burton treaty, ratified August 9, 1842, providing for the extradition of persons charged with certain offenses; that the offense specified in said indictment is not one of the offenses mentioned in the said treaty, and this court has no jurisdiction in the premises. To this plea the Government demurs, and thus the question is raised whether the facts set forth in the plea are sufficient to oust this court of jurisdiction to try the defendant for an offense otherwise conceded to be within its cognizance.

On the part of the defense reliance is placed upon sending cases in the tribunals of this State, which furnish, it is claimed, a support to the proposition of the defense that this court has jurisdiction of the person of the prisoner for a single purpose only, namely, his trial for the crime for which he was extradited.

The cases referred to are all civil cases, wherein the service of the warrant of arrest set aside by the court on motion, because it appeared that the plaintiff in the action had resorted to fraud to procure the presence of the defendant within the territorial jurisdiction of the court in order that he might cause his arrest. Such cases do not furnish a rule applicable in criminal prosecution, nor do I find any case where a warrant of arrest of a person charged with crime at the instance of the people has been set aside because of deceit practiced to bring the accused within the reach of the warrant.

But if the same rule were applicable in criminal prosecutions and in civil actions, and if the question here arose upon a motion to set aside the arrest instead of a plea to the jurisdiction, I am of opinion that the relief could not be granted, for the reason that the person of the prisoner is not within the jurisdiction of the United States by virtue of any warrant issued out of this or any court. The prisoner was brought within the jurisdiction of the United States by virtue of a warrant of the executive authority of a foreign government upon the requisition of the executive department of the Government of the United States, and while abuse of extradition proceedings and want of good faith in reverting to them doubtless constitute a good cause of complaint between the two governments, such complaints do not form a proper subject of investigation in the courts, however much those tribunals might regret that they should have been permitted to arise.

To hold otherwise would, in a case like the present, permit a person accused of crime to put the Government on trial for its dealings with a foreign power. In the present case there is hardly room for the charge that the extradition proceedings against the accused were in bad faith, inasmuch as the records of this court show an indictment duly found against the accused for the crime, by reason of which his extradition was granted; but whether extradited in good faith or not, the prisoner, in point of fact, is within the jurisdiction of the court, charged with a crime therein committed, and I am at a loss for even a plausible reason for holding upon such a plea as the present that the court is without jurisdiction to try him.

The question appears to me to be not one of jurisdiction of the court, but rather of privilege of the accused from arrest, and I cannot say that the fact that the defendant was brought within the jurisdiction by virtue of a warrant of extradition for the crime of forgery affords him a legal exemption from prosecution from other crimes by him committed.

I may add that the case of Hulborne, which so far as I know is not reported, probably affords a precedent for the action of the Government in the present case.

Hulborne was delivered by the Government of the United States to the government of Great Britain upon a charge of forgery, when the facts out of which the charge arose were proved before commissioners.

The ground taken in his behalf was that the crime committed was not forgery, but embezzlement.

The commissioner held otherwise, and the prisoner was extradited, but upon arrival in Great Britain he was there indicted and convicted of embezzlement upon the same facts which had been claimed before the commissioners to show forgery. That case, therefore, presented the point now taken here, but whether it was taken upon the trial in Great Britain I do not know. I do not, therefore, refer to the case as an authority, but simply notice it as perhaps a precedent.

The demurrer must be held to be well taken, but the defendant has leave to withdraw his plea and enter a plea of not guilty.

A copy.