,.of bonds issued 'by. 'plli.,ititiff and the defendant will be required ;deliver up to the clel'kofthis court for cancellation. Judgment will be . rendered,andia herehydirected, in:favor of the plaintiff against the defendant for the sUm lOt 835,039, being the amount paid for said 768 coupons, withinterel;t thereot\. at the rate of 6 per cent. per annum from July 1, 1882, which is about the average date of payment. The setoffs allowed defendant will be credited on, and be dedllcted from, the amount of this judgment, and the plaintiff will have execution against . the defendant for the balance with costs of suit. To each and all of said findings and conclusions of law the defendant excepts. FOTHERINGHAM: v. ADAMS EXPRESS Co. et al.
(Oircuit Oourt, E. D. Mis.souri. E. D. April 12, 1888.)
1.. CoURT8---FEDERAL-FoLLOWING STATE ·LAWS· .The provisions 1· Rev. St. 1791·. 1794, providing that members of the grand jury may be compelled to disClose the names of wit· neSSes who have appeared before it, and the ovidence heard in the grand jury room, only(l) when it is necessary to show whether the testimony of a witness on the trial of an indictment. is consistent with or different from that given before the grand jury; and (2) when a person is on trial for perjury committed before: that body, establish much more thana rule of evidence. They are declaratory althe public policy of the state. and as such are binding On the federal courts sitting in the state. S. WITNESS-COMPETENCY-GRAND JURORS-MALICIOUS PROSECUTION. Under 1 Rev. St. Mo. 1879, 1791,1793,1794, relating to grand juries and their proceedings, 'a, member of that body can be called upon to disclose the . names of witnesses who have appeared before it, and the evidence heard in the grand jury room, only (1) when it isnecessary to show whether the testi· mony'of a witness on the trial of an indictment is consistent with or different from that given before the grand jury; and (2) when a person is on trial for perjury committed by him before that body.. Held, that the plaintiff, in an action for malicious prosecution, could not show by a member of the grand jury that found the· indictment at.the instigation of the defendant what tes· was given before that body at that time.
At Law. Action for malicious prosecution for causing the plaintiff to be indicted and proseCuted in the courts of the state for stealing $60,000. On the trial tlie plaintiff's counsel called one of the grand jurors, who had served on the grand jury by which the indictment was found, and proposed to show by him what testimony had been given before the grand jury when the indictment was found. C. P. J. D. Johnadn, Thoma8 B. Harvey, and Henry M. Bryan, for plaintiff. Martin, Laughlin Kern, for defendants. . THAYER, J. Bearing upon the question that was raised last evening, I read sections 1791, 1793, and 1794 of the Missouri Revised Statutes: l Section 1791: "Members of the grand jury may be required by any court to
whether the testimony of a witness examined before sucll jury is conlliReV. St. MO.'1879, c. 24,pp. 802, S03.
sistent with or different from the evidence given by such witness before such cuurt, andthey may be required to diSclose the testimony given before them byany person upon a complaint against person for perjury, or upon his trial for sochoffense." Section grand juror shall disclose any evidence given before the grand jury, nor the name of any witness who appeared before them, except when lawfully required to testify as a witness in relation thereto. * * * Any juror violating the prOVisions of this section shall be deemed guilty of a misdemeanor. " Section 1794: "In charging grand jUl'Ors, the court shall apprise them of the provisions of the last three sections in relation to disclosures, and in what cases and under what circumstances any disclosures mayor may not be made."
It might seem from a casual reading of section 1793 that a grand juror might be required to disclose testimony given before a grand jury whenever the court, before whom he is called to testify, requires him to do so. But in the case of Tindle v. Nichols, 20 Mo. 326, where these identical sections which I have just read were under consideration, it was held that the words "except when lawfully required to testify as a witness," as used in section 1793·.have reference to section 1791, and that grand jurors can only be lawfully required to testify as to matters which occurred before that body in the two instances mentioned in section That case was an action of slander, and the defendant in the case had proposed to show by grand jurors what 11 certain witness had stated before the grand jury. The court held that disclosures of that kind in such an action were prohibited, although offered to support a plea of justification. The case of Beam v. Lirtle, 27 Mo. 262, was, like the case now on trial, an action for malicious. prosecution, and it was held that a grand juror could not be called as a witness even to show that a certain person had testified as a witness before the grand jury. These cases are an authoritativeexposition of the meaning of the statute in question, and they have never been overruled or criticised. The case of State v. (frady, 12 Mo. App.361, does not impugn the authority of the two cases last cited to any extent, whether the point actually decided be considered or the reasoning of the court in arri:ving at its decision. In that case a motion had been filed to quash what purported to be a true bill of indictment on the ground that the grand jury had returned an indictment hearing any evidence whatever. It was very properly ruled that a grand juror might be called to establish that such was the case. The offer, it will be observed, was not to show what witnesses had testified before the grand jury, or what their testimony had been, but to show that no testimony whatever had been heard, and consequently that the indictment was a nullity, Rnd that it would be a vioJation oLlhe legal rights of .the accused to put him on trial on such a bill, inasmuch as the laws of the state require indictments to be based upon testimony produced before the grand jury. The same court which decided the case .ofState v. Graqy, in an earlier case, Zimmer v. McLaran, (digested, but not fuUy reported in 9 Mo. App. 591,) according to myrecollectiQn, distinctly affirmed the doctrine of Tindle v. Nuhols, that granil jurors could not be called upon in an action for malicious prosecutioll to disclose evidence that halJ, been given before the grand inquest. It must, accordingly, be taken
the settled law of this stata, AS construed by its highest court,that grand jurors can only be called upon to disclose the names of witnesses who appear before them, and the evidence heard in the grand room in two instances: First, when it is necessary to show whether the testimony of a given witness on a trial of an indictment is consistent with or different from that given before the grand jury; and, second. when a person is on. trial for perjury committed by him before the gra'nd jury. In all other cases the statute prohibits grand jurors from disclosing testimony or the names of witnesses. The case of Sharpe v. Johnston, 76 Mo. 669, contains nothing in opposition to this view. The court in that case was not considering the question now under consideration. Many cases will afford an bpportunity to enforce the rule laid down in the case of Sharpe v. Johnston. without invading the grand jury room. It was suggested last evening that even though the law of the state is as above declared, that it is not obligatory on this court, inasmuch as the statute simply declares a rule of evidence which is only binding on the state courts. I do not agree with that view. Ina certain sense the statute establishes a rule of evidence, but it is also declaratory of the public policy of the state with reference to proceedings had before grand juries impaneled in its own coutts. In the absence of an act of cbngress making such testimony as that now offered competent in this court, and requiring such evidence to be here heard in suits between privil.te parties, this court should be governed in its rulings upon the ad. missibility of such testimony by the laws in force in the state where its sittings are held. It would not be lawful, in my opinion, to permit the proceedings before a grand jury impaneled in one of the state courts to be inquired into and made public in this court, when the laws of the state expressly prohibit such investigation, and such disclosures in the state courts. The case of U. S. v. Farrington, '5 Fed. Rep. 343, which has also been cited as showing what the rule is elsewhere, it will be observed, was a decision in a federal court upon a motion to quash an indictment returned by a federal grand jury. That case did not involve any consideration of the question of ,the propriety or the power of the court in a; suit between private parties to require grand jurors impaneled in a state court to make disclosure of their proceedings in a federal court, in opposition to the laws of the state. The court in that case was ing with the proceedings of its own grand jury, and with the constitutional right of the accused to betried upon an indictment that had been properly ahd fairly found and returned. I will further add that nearly all thl:' decisions that have been cited from other states also arose on mo· tions made by the accused to quash an indictment that had been found in violation of the rights of the accused. But whatever the practice may be elsewhere, the rule in this state is well settled, and is regulated by a statute which determines under what circumstances grand jurors mayor may not be called upon to divulge testimony given before them. For the reasons before stated, I feel bound to respect the laws of the iltate on the subject, no matter what the practice may be elsewhere.
«(Jircuit Court, 8. D. New York. April 9, 1888.)
FORGERy-PRINTED 'l"HEATER TICKETS-EXTRADITION.
A printed theater ticket in the usual form, and, stamped upon its face with an inscription in the style of a seal setting out the name of the manager, in printed characters, is the subject of forgery at common law, and under the treaty of extradition between the United States and the republic of Mexico of December 11,1861, (12 Stat Large,1199;)"printing" being "writing" in the legal sense of that term, and a signature by impression from a stamp being a valid signature.
The fact that such a ticket expresses no consideration. and contains no promise to. admit the holder to the performance for which the ticket is sold, does n()treuder it void upon its face. It is. "if genuine, the foundation ofa legal liability. " and so is the subject of forgery. .
API'LICATION DOCUMENTARY EVIDENClill-
EXTRADITION - INTERNATIONAL AUTHENTICATION.
Where the documentary evidence submitted on the hearing of an application for extradition is not acco.mpanied by a certificate of the principal diplomatic or consular officer of the United States resident in the requiring country. stating clearly that it is properly and legally authenticated so as toerititIe it to be received in evidence in support of the same criminal charge in the tribunals of that country, as required by the act of congress of August 3, 1882, (22 St. at Large. 215.) oral proof that the authentication is proper may be given before the commissioner by an expert; and one who has served as a judge and practiced law for 32 years, in the requiring country, is an expert for such purpose;
Habeas corpus in re the application for the extradition of George Benson, alias Charles Bourton, (tlias Mayer, under the provisions of the treaty of exttadition between the United States and the republic of Mexico of December 11, 1861. The application and the arrest were made under the fir$t and second articles of that treaty, which, so far as they affect this proceeding, are as follows: "Article 1.. It IS agreed that the contracting parties shall, on requisition made in their name, through the medium oftheir respective diplomatic agents. deliver up to justice persons, who, being accused of the crimes enumerated in article t,hird of the present treaty, committed within the jurisdiction of the requiring party, shall seek an asylum. or shall be fOllnd within the territories of the other: provided, that this shall be done only when the fact of the com,mission of the crime shall be so established as that the laws of the country, in which the fugitive or the person so accused shall be found, would justify his or her apprehension and commitment for trial if the crime had been there committed." "Art. 3. Persons shall be so delivered np who shall be charged. according to the provisions of thiS treaty, with any of the following crimes, whether as principals, accessories, or accomplices, to-wit: * forgery, . including thl"forging or making, or knowingly passing or putting in circulation, counterfeit coin or bank-notes, or other paper current as money, with intent to defraud an)' person or persons," etc. 12 St. at Large, pp.1200, 1201.
Thealltlglj.tions of the complaint were briefly as follows: That;Henry.E. Abbey was, in 1886, engaged in the business of manager of theatrical and operatic and concert troupes and companies; that there was in the City of Mexico at said time a theater known as the "Teatro Nacional,"