IN RE KELLER.
The equity of the petitioner's case is strong. He rendered the services in question in the same manner in which he had rendered similar services for a long period of time, for which he had always been paid by the government. No intimation was conveyed to him that his employment was considered irregular. His services were accepted in behalf of the government, and his bills allowed by the district attorney; and then, atter receiving the benefit of the services, the government refuses to pay him anything because the district attorney had not, before employing him, obtained from the attorney general authority so to do. If it weJ:e necessary. such authority in the district attorney, in this instance, could easily be implied from the course of dealing with the petitioner in paying bills incurred by the former district attorney. But it is not necessary. In my opinion the district attorney was not bound to apply to the attorney general for authority to employ the petitioner; and whe!), in the absence of any direction from the attorney general, he did employ the petitioner, and accept his services in behalf of the United States, be thereby rendered the United States liable to pay the reasonable compensation for those services, which the petitioner now claims. As says the supreme court in the case already referre,d to:
"There may be cases in which, the services having been rendered, a COIl)pensati,on may be made within the discretion of the head of the department; and in that, case the court and jury will do, not what an auditor was authorized to do, but what the head of the department should have done in sanctioning an equitable allowance." .
My opinion is, therefore, that the petitioner is entitled to the relief he
law, required by the statute to be made, is filed with this opinion.
A statement of facts as found by me, and of my conclusions of .
(Di8trict (JOWl't. D. Minnesota. November 20, 1888.;
Under Rev. St. Wis. §4418, providing for the punishment of an employe a private person or corporation who, being intrusted with the care, custody, or possession of property. Shall embezzle or fraudulently convert the same, and section 4667 providing that in a prosecution for embezzlement a general allegation of the embezzlement of a sum of money. without the particulars being given, shall be sufficient, an affidavit alleging that defendant, as affiant's employe. had the care, custody, 'and possession of a named sum of affiant's money. which he embezzled and fraudulently converted to his own use, without affiant's consent, authorizes the governor of another state to which defendant has fled from Wisconsin to grant a warrant for his extradition, .
TO BEFORE MAGISTRATE.
affidavit, laying the venue as "State of Wisconsin, Municipal Court,'Citv and County of Milwaukee," and certified as "Sworn to before me, J. M., Clerk , of the Muuicipal Court, " complies with the act of c(jngress providing that &D affidavit upon which a requisition may be granted shall be sworn to before "a magistrate. II . , "
Such an affidavit, charging the crime directly and positively, is not vitiated the conclusion, "as said deponent verily believes."
SAME-FuGITIVE FROM J U S T I C E . . .
Though a resident of the siate where found, if defendant is accused of a crime in another state, of which he has never been a resident, he ml1Y be extradited. '
On Petition for Habeaa Ctlrpus. Petition for habeas corpus by Siegmund Keller, who was under the custody of the sheriff of Ramsey county, Minn., by virtue of a warrant issued by the governor. Keller was arrested on a requisition by the governor of Wisconsin, to answer a charge of embezzlement. The affidavit upon which the requisition was made alleged that said Keller, as the servant and employe of A. Blade, Son & Co., "did have the care, custody, and possession of a certain sum of money, to-wit, the sum of 8702.19, of the moneys of said A. Blade, Son & Co., and the said money did then and tqere and while he was so employed, as aforesaid, feloniously embezzle and fraudulently convert to his own use, without the consent . of his said employers,A.Blade, Son & Co., contrary to the statute in such case made and provided, and against the peace and dignity of the state of Wisconsin, as said deponent verily believes, and prays that the said Siegmund Keller may be arrested and dealt with according to law." H. Williams, for petitioner· . J. J. Egan, Co. Atty., and James a. Markham, contra.
J., (orally.) . In the case of Siegmund KeUer, before me nnder writ of habeas cm'puB, after due consideration, I have arrived at a. decision which I am prepared to render this morning. The case arises under sections 5278, 5279, Rev. S1. U. S. The case is important in two respects: Important to the prisoner, who is deprived of his liberty for the purpose of being transported out of the jurisdiction of the state of Minnesota. It is important to the state of Wisconsin, seeking to exercise a constitutional right, claiming that the party who is arrested has t1l.ejurisdiction Qf the state of Wisconsin, and committed a crime has fled from justice, and has sought refuge in a foreign or another jurisdiction. If the governor oithe state of Wisconsin has conformed to the laws of congress passed for the purpose of enforcing a constitutional right, no court can become a barrier to the exercise of that right. It is a duty imposed 'upon the governor of the state in which the fugitive is found to obev the demands of the executive of the state in which the crime is alleged to have been committed, and, by warrant, arrest the party for the purpose of being delivered up and removed to that state. Section 5278 '()f the Revised Statutes reads as follows: . "Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state or tell'itoryto which such person has fled, and produces a copy of an intlictment 'found,oran aflidavit made before a magistrate of any state or territory, charg· thilperson demanded with having committed treason, felony, or other authentic 'by the governor magistrate of the state
or territory from whence the person so charged has fled. it shall be the dlityof tbeext'cutive authority of the state or territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authorities making such demands, or to the agent appointed to receive the fugitive, and to cause the fugitive of such to be delivered to such agent when he shall appear." There is another provision, in regard'to the time when the agent should appear, and the costs and expenses, which are not important in this case. On the 17th of November, or 16th of November, a petition was presented to me at chambers by the accused, stating that he was illegally deprived of his liberty; that he was held under an illegal warrant, issued by the governor of Minnesota upon a pretended requisition of the governor of Wisconsin, which requisition and accompanying papers are invalid and void under the constitution and laws of the Unit States, and d that said accompanying papers matters that are false in fact, and upon which the authority to issue a requisition is based; and that your petitioner is illegally and unlawfully detained, and is not a fugitive from justice. A sheri ff of the county of Ramsey, who had charge of the prisoner, made his return to the writ, setting up the warrant of the governor of the state of Wisconsin, and alleging that it was the warrant wbich he claimed justified hini in holding the pri,soner. To that return an answer has been made, and a traverse, in which the petitioner avers that the requisition of the governor of the stnte of Wisconsin was illegally, granted by him; and virtually, in substance, that the demand of the governor of Wisconsin upon the governor of the state of Minnesota was not in accordance with the law of the state of Wisconsin prescribing the manner in which the governor of the state of Wisconsin should make a demand for the delivery of prisoners alleged to be fugitives from justice, ' and charged with the commission of crime in that state. Also that the affidavit which accompanied the requisition of the governor of the state of Wisconsin was not such an affidavit, or made before the persondesignated by the act of congress. which I have just read to you, (section 5278 of the Revised Statutes;) and also putting in issue the allf'gation iuthe warrant that the prisoner is a fugitive from justice, that he has fled frOin the state of Wisconsin to the state of Minnesota, within the meaning of the act of congress. On the hearing, certain evidence offered before the attorney general of the state of Minnesota. proceeding in conformity"with the laws of the state of Minnesota, passed for the purpose of expediting and aiding the delivery of fugitives from justice, and his final decision upon Which the governor acted, is read. Two questions are presented for determination; one a question of law, and the other a question of fact. I will consider the question oilaw first. An attack is made upon the affidavit which accompanied the papers presented with the requisition or demand to the governor of Minnesota, and it is claimed, in the first place, that this affidavit was not made before a magistrate. The warrant of the governor of the staie recited the fact that the requisition had been made by the governor of the state of Wisconsin, based upon the affidavit made before a magistrate, charging that the' ae-
cusedhad committed the crime of embezzlement, specifying that it was Eimbezzlement of money· The affidavit. charging the commission of the ddme within the city of Milwaukee, reads as follows: , "State of Wisconsin, Municipal Oourt, Oity and Oounty of Milwattkee. Alexander 1. Blade, being duly sworn, OIl oath complains to the municipal court of Milwaukee county that Siegmund Keller, on or about the 1st day of October, 1888, at said city of Milwaukee, in said county, was then and there the clerk, servant, and employe of A. Blade, Son & Co., and he, the said Siegmund Keller, not being then and there an apprentice, nor a persoll under We age of16 years, and while he was so employed, did [and so forth.] Subscribed and sworn to before me this 7th day of November, 1888. ALEXANDER 1. BLADE. JULIUS MEIZELWICH, Clerk of the Municipal Court." This affidavit is certified, by the governor of the state of Wisconsin, in his requisition, to be an authentic copy. It also has the certificate of. th:6, clerk of the municipal court that it is a copy of the original on file ip that court. I sayan attack has been made upon this affidavit that it is nottakell before a magistrate, as prescdbed I:>y the act of congress. Upqq its face the affidavit appears to ,have been taken in the municipal c.o,urt; ,the oath being administered by the clerk of the court, who, at tpeb,ottoU,l, stll.tes that fact. The oath was administered in theIllUcourt by the clerk. The presumption, is that it was made beofficer of that court, for, by the supplement to the of the state of Wisconsin, § 2499, the municipal court of the city ,ami coUqty of Mil waukee as 4eretofore established is continued. :6y,previous stltt\jltes the municipal court was provided for. It was enacted t11at this court shall be a court of record, and have a clerk; and this was done, the expense of the city of Milwaukee. The municipal c\lurt of a judge, who shall be elected as provided for in this act, and a clerk of the court. And upon the fhce of these papers it appears that this; ll,f+]q.avit was taken in the municipal court, made before tM in pre/lence of the presiding officer or magistrate. ,. Before" of." The oath being administered, as certified to by, pf the court, in criminal proceedings for embezzlement in the CqlUt by law Qaving cognizance and jurisdiction of such offenses, it seems tome attack upon the affidavit must fail· . :!tis p.rged, 1>econdly, that the affidavit is insufficientin substance, upd doe!,! qot ,specMy the crime of embezzlement. By the statutes of Wisconsin the crime of embezzlement by an employe of a conversion of money to the use of any person other than the owner,-is punishable. , Section 4418 of the Revised Statutes ofthe Wisconsin provides for the punishment, in the first place; of:!1ll agents, or employes of the state or any corporation, telegraph company, bank, or any other corporation, who sJ:utH or custody, by virtue of his office Qr, emplqy111ent, or be intrusted with the safe keeping or investment for lIlent pf any, ;1l1,Cmeyol' fund belonging to or under the control of ,the, state or other corporation; and in additipn, proderk, attorney, messenger, empl()ye, orSerVlU,l,t qf
any private person or corporation, with the exception of persons under 16 years of age, and who, by virtue of his employment, shall be intrusted with the safe keeping and disburse:ment, investment or payment of any money, or shall have the care, custody, or possession of, or shall be intrusted with the safe keeping, carrying, sale, or deliveryof any goods, wares, 'merchandise, and so forth, or any other propelty or thing which is the subject of larceny, belonging to any other person or association, and so forth, if he shall embezzle or fraudulently convey to his own use, or to the use of any other person except the owner thereof, he shall be punished, declared guilty of embezzlement. It is a crime particularly defined by the statutes of the state of Wisconsin. But it is claimed that theaffidavit does not specify particularly enough the offense of embezzlement, so as to warrant a commitment by the justice of the peace, even if it was conceded that the l\llegation in the complaint may be true. That is the extent to which the claim is made. Certainly, if a, crime is substantially charged in this affidavit, ·if the crim,e of embezzlement or conversion ofpl"operty to the use of an employe or the use of any other person without the consent of the employer, and fraudulent <louversion of that property is alleged, it to be Certainly it would be sufficient under the law oJ t11e state of Wisconsin, jf it was so alleged in an information; and the same allegation, made in the same forul Or substallce in the ,affidavit, must be held good. Under section 4667 it is held that "in ,any prosec,ution for the offense of emb.ezzling the money, cbecks, drafts,. bills of exchange, or other security for money of any person, by a clerk. agent, or servant ()f suchpersoll; it shall be sufficient to allege, generlllly, in the indictment'or information an embezzlement of money to a certain amount, without specifying any particulars of such embezzlement." So that a general allegation in the language and form of this affidavit, in an indictment or information under the IlJ,w of the state of Wisconsin, would he a good information and good indictment. A very significant provision is inserted also in section 4742: "Any statute relating to the form. substance, or amendment of indictmepts and informations, the statement of the offense therein, anu the evidence thereunder, soJar as applicable. shall apply to complaints. amendments, and trials 'in criminal cases before justices of the peace." ' And by the law creating'the municipal court ofMilwaukee tha.t couit is endowed with all the authority which had been given to the peace in the city of Milwaukee, where any justice was prohibited from exercising criminal jurisdiction in that city; I,l.U the criminal jurisdiction being thrown on the municipal court. So it must be conceded, in that respect, the charge or allegation of the offense is certainly within the terms of thE} section prescribing the form and substance of, indictments and,ayerments charging offenses , . But it is stated that the complaint is defective under the WiecOllsin :$tatutes, for the reaso.n that the verification il'l0111y on belief. Qrdinarily,a question of pleading is to be. determined; QY the court in whic,h the is Ipade. .!fitis concedEld thllt thiE! (;9urt Clin construe this
ing and reject it, stili I think it isnoUaulty. It is a statement ofa, fact which the. deponent, in testifying to; verily believes to he tr'ue.'A man swears'to what he believes to be true; and, when he states a fact'lmder oath,·he says he verily. believes it to be true.. I do not thinkit is faulty on that account. I think this affidavit is sufficient. The requisition is in due form, and the only other question to be considered is one of fact, which is put in evidence here, that the petitioner is not a fugitive from justice. In other words, that he has committed the crime in the state of Wisconsin, and fled to the state of Minnesota. Before the governor, or at least the attorney general, who is a.uthorized by the laws of the state of Minnesota to examine into allegations of this character when a party is arrested on a requisition from the governor of any other state as a fugitive from justice, there was evidence on that question. The issue was raised in that investigation, and testimony was taken, which appear in the papers certified to, and introduced before me. There was evidence upon that .faCt before the governor. I think the warrant itself would have been sufficient without any such evidence, so far as this court was concerned, where the governor in his warrant states or certifies that the party is a fugitive from justice. It would raise a prima facie case which must be overthrown by the petitioner when he makes that issue before a court on the habeas corpus. That is the ruling announced in a case in the supreme court of the United States, (Roberts v. Reilly, 116 U. S. 9.5, 6 Sup.Ot; Rep: 291.) Now, what was that evidence betore the governor? 1 have read it over oare£ully,'-1 have read it over very carefully,-and, if it is correctly reported,.it seems to me that there cannot be any question but that there was sufficient evidence before the governor by which he might determine that the petitioner Was a resident ofthe city of Milwaukee, for he speaks of going home every two months; that is, he calls his home, in the connection in which the testimony was given, Milwaukee. Hesays, however, in that investigation; although he may not have been correctly reported, that St. Paul WIlS his home. He had boarded here. He visited only occasionally the Milwaukee house. But there was evidence also going to show that he had registered at various points,-taken before me here,-registered in the city of St. Paul as "Siegmund Keller, Milwaukee,Wisconsin;" regil:itered in Red Wing and Hastings,-evcry place that he had been in out of the state of Wisconsin, or even in the state of Wisconsin; and in Milwaukee, he had registered himself as a resident of the city of Milwaukee, in the state of Wisconsin. Now, it seems to me that was certainly sufficient to justify the governor in coming to a concll1sionon that question, having determinf'd, as he did, that the petitioner was a fugitivefrom justice. It is not necessary that I should determine that he was a in ·Wisconsin, and had committed a crime there, and had fled to avoid prosecution; That is not necessary. If it appeared 13implythat he was charged with a crime committed by him in the state of Wisconsin; and that, when he was to be brought to justice for that crime he waS found outside of that jurisdiction,and in the state of 'Minnesota, I think it il:l sufficient·. The suvreme court of the United
UNITED STA.TES '11. LEVA.LLY.
States holds so. If a citizen of. the E\tate of Minnesota should into the state of Wisconsin, and commit a crime in the state of Wisconsin intentionally, and afterwards, when prosecution was initiated against him, was found in the state of Minnesota, I take it that the state of Wisconsin would be justified in demanding him, and that the governor of Minnesota would send the prisoner back as a fugitive from justice, having committed a crime in another state. That appears to be this case. The petitioner admits in his testimony that on the 16th day of September he ,vas in the state of Wisconsin, and in the city of Milwaukee 14 days before the exact date specified in this affidavit. The affidavit charges him with the commission of this crime of embezzlement on or about the 1st day of October. It might have been committed six months before that, 'or a year before that. The laws of the state of Wisconsin provide that, in regard to crimes of this character; proof can be offered showing that the offense had been committed six months afterwards. within the time alleged in this indictment or affidavit. That is the law of this state. I cannot tU,rn now to the section, but thatisthe law. And certainly the crime does not outlaw within two years; but, if the prisoner is not taken by surprise, and knows what the charge is, and it is substantially charg'ed 'in the affidavit, he cannot complain that the person who made thE:l affi,davit was not specific in the very day in fixing the time. I think there can be no question-in my own mind there is none, at least-that these papers are conformable to the act of congress, that the obligation im. posed upon the governor of the state by these papers and the requisition ofthE:lgovernor of Wisconsin under the act of congress required him to arrest th,e partyfor the purpose of delivering him up for rell10val to the state of Wisconsin. Having come to thaJ, determination, the pro,ceedings'of habeaa cOrpus are discharged, and'the petitioner remanded.
An appealhaa been taIr.en. to the circuit court of the United States , : .i. '
UNITED STATES '11. LEVALLY
November 17, 1888.)
INDICTMENT AND INFORMATION-FINDING'AND F:rnmQ-i-CRwINAL LAW-ARREST OF JUDGMENT.
Where the foreman of the grand jury wrote his name in blank across the back of a bill of indictment, under the proper date, without more, and no findby the grand jury was either reduced to writing or publicly announced in .court, after plea of not guilty, trial, and conviction, held, that judgment must be arrested for want of a finding. '
Indictment for Passing Counterfeit Coin. ment. William A. Stone, for the motion.
On motion in arrest of judg-