FEDERAL REPORTER.
In the second place, it is a significant observation that in Wall's the authority of Com. v. Fox is denied, on the express ground that in that case the judges found that the statute made the enlistment absolutely illegal. It does not indeed appear that the authority of that case would have been followed if it could not have been distinguished; but it seems extremely probable that the case would have been distinctly overruled if the judge, on consideration of McNulty's Case. had deliberately determined to announce the doctrine here contended for on behalf of the military authorities. It seems to me that the effect of the statute is to make the enlistment absolutely void. and that it must be so held on the application of any person who is not estopped from setting up the prohibition. In this case. the application being made b0th by Baker and by his father. I do not find it necessary to decide whether he could be dison his own application alone. My conclusion is that the enlistment is void as to the father, and must be so held on his application. It follows that Baker was not "duly enlisted." that he could not commit the crime of desertion, and that the court-martial cannot retain jurisdiction under the pending charges. He will therefore be discharged.
In re (Oircuit Court, W. D.
MILLER.
February 18, 1885.)
Habeas Corpus. J. T. Maffett and Wm. R. Blltir, for petitioner.
E. A. Montooth, contra. ACHESON, J. The petitioner claims his discharge on the ground that he is unlawfully held in custody in violation of the tenth article of the treaty of 1842 between the governments of the United States and Great Britain. Briefly, the facts of the case are these: The petitioner was convicted of burglary in the court of oyer and terminer of Clarion county. Pennsylvania. and thereupon was sentenced on August 23. 1881, to undergo an imprisonment for the period of sevon years in the WestArn Penitentiary of Pennsylvania, to which prison he was duly committed. In December, 1881, he escaped therefrom and fled to Canada. Burglary not being an extradition crime.
IN BE HILLEB.
33
informations were made in January, 1882, in said county of Clarion, against the petitioner, charging ,him with robbery and assault with intent to commit murder, and under extradition proceedings had on these charges he was surrendered on March 11, 1882. He was then taken back to the Western Peuitentiary of Pennsylvania, where he has since been held. Bills of indictment against him on the said charges of robbery and felonious assault were ignored by the grand jury of Clarion county on 17,1883. The petition alleges that said informations were gotten up by the penitentiary authorities as a mere pretext to secure the petitioner's surrender, to the end that they might seize and imprison him on his conviction for burglary. The return of the warden of the penitentiary sets up, as his authority for holding the petitioner. his commitment to the penitentiary by the court of oyer and terminer of Clarion county under his conviction and sentence for burglary. The application for the petitioner's discharge proceeds upon the theory that the treaty between the United States and Grear Britain secures to the extradited person immunity from detention for any crime other than that upon which the surrender is made; or, at least, exemption from detention for any offense not within the treaty. Now, it is indeed true that it has been held by Judge HOFFMAN, in U. S. v. Watts, 14 FED. REP. 130, and by the supreme court of Kentucky, in Com. v. Hawcs, 13 Bush; 697, that an extradited person under this treaty cannot be tried for any offenses other than extradition crimes; and in Statc v. Vanderpool, 39 Ohio St. 273, the supreme court of Ohio carried the doctrine of exemption still further, holding that the extradited person could be put on trial only for the particular offense for which he had been surrendered. Upon these adjudications, which, on account of the eminence of the judges and courts pronouncing them, are certainly entitled to great respect, the petitioner's counsel confidently rely as establishing a principle applicable to and decisive of this case. But then, on the other hand, in U. S. v. Caldwell, Blatch£. 131, and U. S. v. Lawrence, 18 Blatch£. 295, it was held by Judge BENEDIOT (who gives most cogent reasons for the conclusion) that extradition proceedings do not by their nature secure to the person surrendered for one crime immunity from prosecution for other offenses, whether within the treaty or not; and he distinctly ruled that no such immunity is conferred by the treaty now under consideration. A like determination was reached by the court of appeals of New York in Adriance v. Lagmvc, 59 N. Y. 110, where an extradited person, surrendered by the government of France under treaty stipulations, was arrested on civil process. 'l.'he question whether the treaty of 1842 between the United States and Great Britain prohibits the trial of the extradited person for an offense not specified in the proceedings or named in the treaty, must, therefore, be regarded as still open, while the precise question now before me, it would seem, is altogether new. If the treaty affords v.23F,no.1-3
34
FEDERAL nEPORTEU.
immunity he claims, it is by mere implication, for assuredly it does not in express terms confer on extradited persons any immunity whatsoever. It provides that the respective governments; upon requisition made and upon satisfactory evidence of the alleged criminality, shall "deliver up to justice" all persons who, beingcharged with any of seven specified cl'imes, (of which burglary is not one,) committed within the jUl"isdiction of either, shall seek an asylum or be found within the territories of the other. There is, however, no provision in the treaty guarantying to the extradited' person the right to leave the demanding country after his trial for the offense for which he was surrendered, in case of acquittal, or, in case of his conviction, after his endurance of the punishment therefor. Nor is there any express limitation upon the causes of his detention. Indeed, as to his disposition after his sUl"render the treaty is altogether silent. The high contracting parties might have provided for a surrender upon conditions, but they have not seen fit to do so. Whence; then, springs the petitioner's supposed immunity? Upon what sound principle can the demand of this convicted criminal, to be set at liberty before the expiration of his sentence, be allowed? Clearly, an offender can acquire no rights against the claims of justice by flight to a foreign jnrisdiction, (State v. Brewster, 7 Vt. 118; Dow's Case, 18 Pa. St. 37;) and eXtradition treaties are not made in the interest of fugitive criminals. In the absence, then,of express stipulation imposing restraints upon the receiving government, it seems to me the intention is not to be imputed to the parties to the to exempt the surrendered fugitive from deserved punishment tor an offense (regarded by the laws of both countries as a gross crime) of which he had previously been duly convicted. It may have been open to the petitioner, when before the Canadian courts, to show that the e1tradition proceedings were not prosecuted in good faith. But, having been surrendered, it is not for him to raise that question before the tribunals of his own country. Ad·riance v. Lagrave, Dow's Case, supra.
I am of opinion that the petitioner's complaint, that he is in custody in violation of the treaty under which he was extl'adited, is groundless. Hence his discharge must be denied; and it is 80 ordered.
UNITED STATES V. VAN 'VLIET.
85.
UNITED STATES V. VAN VLIET.
(District Court, E. D. Michigan.
February 23, 1885.)
REp 641, REVERSED. The right to prosecute for a violation of Rev. St. I 5485, in demanding and receiving a greater compensation for services in procuring a pension than is allowed by law, when the offense was committed prior to the act of July 4, 1884, is saved by section 13 of the Revised Statutes. The case of U. S. v. Vall Vliet, 22 FED. REP 641, reversed. 2. SAME-DEMURRER TO INFORMATION-MISTAKE OF LAW. If a demurrer to a valid information be sustained under a mistaken view of the law, and the judgmenh is afterwards reversed, the defendlln. may be l"ear· rested, and put upon his plea to the merits.
On Rehearing of Demurrer to Information. Defendant was prosecuted by information of the district aUorney for a violation of Rev. St. § 5485, in demanding and receiving a greater compensation for his services and instrumentality in prosecuting certain claims for pensions thau was allowed by law. A demurrer was interposed, upon the ground that the law fixing the compensation for such services had been repealed, and hence that there could be no conviction. This demurrer was sustained, and the dis· trict attorney moved for a rehearing. S. M. Cutcheon, Dist. Atty., for the United States. 1. 1'. Cowles, for defendant. BROWN, J. Upon the original argument I sustained this demurrer, upon the ground that the act of 1878, fixing the amount which pension agents were entitled to charge for their services, had been repealed by the act of July 4, 1884, without saving the right to prosecute for offenses committed prior to the repealing act. U. S. v. Van Vliet, 29 FED. REP. 641. Since then my attention has been called to section 13 of the Statutes, which enacts that "the repeal of any stat· ute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide; and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty,forfeiture, or liability." This section escaped the notice both of court and counsel. I consider it a complete answer to the demurrer. It was at one time doubted whether it applied to criminal prosecutions, but the Cl1se of U. S. v. Ulrici, 3 Dill. 532, and U. S. v. Barr, 4 Sawy. 254, have apparently put the question at rest. The case of U. S. v. Tynen, 11 Wall. 88, was decided in view of the law in force before the act of February 25, 1871, which first contained this section, was passed. There is no legal objection to the rearrest of the defendant. constitutional provision, that no person shall "be subject for the sam' offense to be twice put in jeopardy," has no application until a jury
