HALL 17. PATTERSON.
(Oircuit Oourt, D. New Jersey. Maroh 8,1891.)
EXTltADITJON-W ARRANor.--IRREGULARITY 011 PROCElIlDINGS-TRIAt..
A fugitive from justice, extradited and convicted for the crime for which the warrant. of extradition shows he was surrendered, cannot defeat. execution of sen· tencebysetting up irregularities in the action of the foreign court which granted the warrant.
A statute fixing punishment, and providing that defendant'U on being convicted shall be punished" by imprisonment, does not require sentence to immediately follow conviction; and the time defendant remains in jail after conviction and before sentence, awaiting a decision on his pleas in bar to other indictments, will not be deducted from his term of imprisonment.
On Habeas Corpus. William 1': Johnson and H. N. Barton, for petitioner. E. R. Crane and John P. Stockton, Atty. Gen., for respondent.
GREEN, J. The facts in this case, as they appea'l.' on the petition: for the writ of habeas corpus, and in the return made by the respondent to the said writ, are these: In 1881 William A. Hall.. the petitioner, was chief clerk in the office of the comptroller of the city of Newark, in the state of New Jersey, and as such it was his duty to receive moneys paid in settlement of taxes duly levied and assessed as the same became due, and to keep a true account of the said receipta of moneys in the books of the comptroller, for that purpose provided; While acting in this capacity Hall committed the crime of forgery, as it was alleged; the felonious acts consisting-First, in the making, uttering, and passing a certain check or order for the payment of money upon the National State Bank of Newark, payable to the order of one William H. Winans, for the sum of $270; and, secondly, in the fraudulent alteration of the cash-book and accounts kept by him in the office of the comptroller of the city of Ne,vark, whereby an entry therein of $562.32 of cash received bybimfor taxes on the 18th day of March, 1881, was made to read and appear as $362.32. At theDecember term, 1881, of the court of oyer and' terminer held in and for the county of Essex, having jurisdiction of the crime of forgery, the grand inquest formally presented against Hall a bill of indictment, charging him with the forgery of the check. In the mean time Hall had become a fugitive from justice, having fled to Canada, and it therefore became necessary for proceedings in extradition to be had against him, that he might be brought back to New Jersey for trial. Accordingly, in due form of law, and pursuant to the treaty between the United States and Great Britain, ratified in 1844, relating to the extradition of persons charged with crime fleeing from one country to the other, such proceedings were begun, and were carried forward regularly, SO far as the arrest of Hall upon proper complaint of the agent of the United States, by the authorities in Canada, and the subsequent examination before the proper Canadiantribunal,to
· HALL V. PA'1'TERSON.
determine whether the offense charged 'against him waS of such a character .as would warrant his .extradition under the .provisions of the treaty referred to. When this preliminary examination had been in progress for some time, and before any judgment had been rendered in the matter, a new complaint was,made against Hall by the agent of the United States, before the proper court of justice in Canada, charging nim with the second act of forgery' hereinbefore referred to, to-wit, the ulteration of the figures of the cash-book of the comptroller, whereby the sum of $562.32, charged therein as having been received by Hall on the 18th of March, 1881, was made to read and appear .$362.32. Upon making the second complaint, the proceedings then in progress against Hall based upon the first complaint were formally abandoned, and the extradition proceedings were continued thenceforth as founded upon the second complaint only. The petitioner, Hall, resisted extradition strenuously. Able counsel were retained by him to secure, if possible, his release. Every objection to the proceedings tbat could be taken with any show of plausibility, or which could be suggested by ingenuity, was taken. Defeat before one court only inspired a more vigorous attack, by way of appeal, in a higher, but finally it was determined in the court of last resort, the high court of appeals of Ontario, that the proceedings under which Hall had been arrested and was held in cust.ody were regular, and in accordance with law, and that the offense lastly charged against him was of suoh nature that, under the treaty heretofore alluded to, he became liable to extradition, and a warrant of rendi. tion against him was accordingly ordered. That warrant with great particularity described the criminal act alleged to have been committed' by Hall, declares that it isftt and expedient that he be delivered up to justice, pursuant to the treaty in that behalf with the United States of America, and orders that the body of the said Hall shall be immediately delivered up to such person as may be authorized to receive him in the name and on behalf of the United States of America, to the end that he may be by such person, so authorized, held in custody, and taken to the said United States of America, in order that he may the1'e be made to answer according to law, and be tried for the crimes of which he so stands accused. The following is the statement in the warrant of the alleged crime, to answer to which Hall was rendered to the United States authorities: "That he. the said William A. Hall, did commit the crimes of forgery and utterance of forged paper within the jurisdiction of the United :states of· America, to-wit, at the city of Newark, inthe state of New Jersey. one of the United States of America, for that he, the said William A. Hall, on the eighteenth day of March, in the year of our Lord One thousand eight hundred and eighty-one, at the city: ·of Newark, aforesaid, did feloniously forKe a certain account and book of comptroller of the city of Newark, aforesaid, 'Witb intent to defraud by feloniously alld willfully altering. for a c.ertain purpose of fraud, tbe account ?f moneys received by the !laid comptroller on said eighteenth day of March afores,aid, at page number 271 of casb-bOok Kilf the said comptroller. from thesuInOf$562.32 to the sum of $362.32; and" also. for he, the' said WilliamA-. Hall, on the eighteenth day of v,45F.no.5-23
J'EDEBAL: lUilPORTJilR ,vol.
March, aforesaid. at the (1ity of afOl.'esaid, did knowing the same to 1>e forged, the aforesaid forged aCCouD,t and book, with intent to defraud."
, i ·
Under and by virtue of this warrant Hall was delivered by theCanadian ,authorities into the custody of one John T. River, who was duly authorized and commissioned by the president of the United States to receive him, and by him Hall waf' brought to .Newark, N. J., and delivered into the custody oithe proper offioer, to await his trial for the crimes for which he had been extradited. Such trial speedily followed the extradition. It resulted in a verdict of guilty against Hall, as he stood charged, and he was sentenced to imprisonment at hard labor in the state-prison for a term oilO years. The conviction was on the 19th day of May, 1883.· Sentence was pronounced on the 4th day of April, 1884, and the petitioner is now in confinement.undergoing tbatsentence. The petitioner claims that his confinement is illegal, and contrary.to law, and that he is entitled to his discharge therefrom; and to obtain that he has sued' out this writ of haheas CCyrp1L8. · He assigns two reasons for:his discharge: (1) That he was tried, convicted, and sentenced tbpuuishment for a crime different from that for which he had been rendered to this government. (2) That the longest term of im prisonment which'can be imposed upon one guilty of forgery is 10 years; that such'impmsonment is to be impose.d immediately upon conviction of the offense; ,that he was convicted May 19, .1883, but sentence was deferred until April 4, 1884, during which time he was in confinement in the common jail Of Essex county, so that the whole term of his imprisonment became 10 years and 11 months, and was therefore illegal, asuDwarrantedbyJaw; that he is entitled to have the 11 months of confinemetitin jail deducted· from the term of 10.years imposed, and, such.decluction being made, and the time allowed to be deducted by the law of New Jersey from a ,term of imprisonment for good behavior being also deducted, his term of imprisonment expires 011 the 4th day of March, 1891. 1. It is perfectly well settled that a defendant in criminal proceedings, extradited from a foreign country, can be. tried only for that offense with which he was charged in the extradition proceedings, and for which h!' was delivered up; and,if notttied for that,or if, he be tried and acquitted. he is,entitled to ha.ve granted to him a reasonable time in which he can be arrested and held to answer for any to leave the country other crime oommitted before extradition. U. S. v; Rauscher, 119 U. S· . Sup. Ct. Rep. 234.' . If, therefore, the'aUegation of. the petitioner were true he was triedjponvictea, and sentenced for a crime different or variantrrQm.thatfor which he was extradited, he would be entitled, undoubtedly, to' his discharge. But, unfortunately for him, thisallegation is not only not sustained,hut is wholly contradictecl, by the facts in this case;: . The return, tO,the ",fit oflutbea8 tmpu8'made by the as s:ates that .the 18 now held mcustody byblm\lnder and by of a Judgment and sentence of the court of oyer.aDd tl3rminer:of thecount1' of Essex, up9n
convictidnof the petition'er A copy of the bill of indictment upon which such- convictidl1 was ;had,and such sentence pronounced, is made a. part of 'the ret\!1rn!.!· Upon inspection of this in.' dictrtlent, it appears that the petitioner was therein and thereby charged, in, proper legaI phraseology..,. but· with a reduadanoo ofdictiol1 which forbids arepetitionofit in ipsi8Biniisverbis, lVith the crime of forgery, in this: that he fraudulently forged and 'altered accounts of moneys received by the comptroller:ofthe on the 18th day of March, 1881; for arrearsaLt&xJeS, as the same· Were upon page 271 of' cash-book Kof the said from the,sum' of 8562.32 to the sum of 8362.:32, and that ,the said act of fOl'gery was aCcomplished by altering and changiug ,the' figure 5 of the 6l1St sUm named to the figure 8.' so that it should appear 1188 in the second SUm mi.med. The indictment contains severd counts, but each count charges the crimeo! furgery, and in each count the criminal act is. declared to be the forgery and the alteration of the fignres;asjust stated. Risapparent thatfliis act of forgery which the bill ofindictment deals with is precisely the same act of forgery stated and particularized in the warrant of rendition. There can be no pretense that: the 'reference in the indictment istoti. criminal act variant in any degree from that act described in the wal'rant by arid under which Hall was surrendered, and for which act alone he was liable to be called to answer in that state which he left as a fugitive from justice. An inspection and comparison of the warrant and of the indictment is conclusive on this point. Such inspection and such comparison of the two documents result in a demonstration of identity of the crime charged ip eacb, respectively. Counsel for the petitioner ingeniously contended· upon the- 'argument that, as the proceedings in extradition were based originally upon the forgery of the check, all subsequent proceedings involVing a change in the complaint against Hall. and a substitution of the criminal act of altering the figures of a cash account for the previous criminal act of forging a check, were irregular and void, and therefore could not be made the basis of those proceedings which resulted finally in the actual extradition of the petitioner. But such contention cannot,be considered well grounded. The complaint of the petitioner is that his rights have been disregarded in being subjected toa trial upon a charge different from that alleged against him in Canada, and to answer which he was surrendered by the Canadian authorities. What WI18 the charge upon which he was thus surrendered? The very best evidence of the nature and character of that charge is to be found in the officialst&oomentthereof as made by the surrendering authorities in the warrant of surrender. The warrant speaks purposely on this subject in tones that cannot be misunderstood or contradicted. It expresses as well the conclusion of the foreign government as to the nature of the act chargetll1s its judgment of the ad visa bility and the duty of the surrender. 1'he great seal affixed thereto im· ports absolute verity of the statements. The surrender is made only because the act or acts alleged therein render the defendant actor liable tc extradition. '. There may have been many other acts, criminal in thei"
nature, objected against the defendant. . To him they are absolutely of no conseql,1ence. That act alonew:hich the surrend.ering government declares in)ts warrant of surrendeds within the purview of the treaty is the. a,ct w)lich has to be met and answered. To this petitioner, therefore, it. Dl$tters not what complainta·. were made against him in Canada; the vital platter with him is to'know what complaint was considered by the Canadian authorities as justifying his extradition. The warrant is the criterion as well as the meaj3ure of his peril.. Irregularities may have occurred in the proceedings by orin the manner in which he was brought within the custody of the law, but they do not avail him asa defense to the criminal act to answer which he was surrendered. The method in whicha. foreign .government may execute its own laws, or carry into effect its own treaties, does not conc.ern the government which obtains the extradition. There was no pretense of fraud or violence or malafides in conne9tiou with the arrest oi the petitioner in Canada. Had there been, it was open to him to show the one or the other' in the courts of Canada, claim his discharge. Now, since he has been surrendered to this. government, he cannot ·here, as a matter of defense to a crime, attack the method of his. surrender, and thereby seek to defeat justice. IMoore, Extr. § 204; Kelly v. State., 13 Tex. App. 158. . But the contention of the petitioneris not only unsound, but it has no groundwork of facts to rest upon. It is apparent he has forgotten the important fact that the original charge of a forgery of a check in the extradition proceedings was formally withdrawn and abandoned by the complain,antjl,. The return to the writ·of habeas corpus, as made by the respondent, states succinctly this abandonment, and the causes which led up to such.action,and'sets Qut in &temio the proceedings in extradition llnder the new complaint of forging .and altering the books of the comptroller, .aI\d charges that in· fact the petitioner was extradited under the latter charge. As, under the statute, he had aright to traverse the return if he saw fit, but has failed to exercise such right, the return must be taken as true and conclusive. Evans v. McEwen, 5 Crim. Law Mag. 747; People v.Protectory, 106 N. Y.. 604, 13 N. E. Rep. 435. 2. The second cause assigned .for the discharge of the petitioner from confinement is that, while the statute of New Jersey limits the term of imprisonment upon conviction for Jorgeryof 10 years, this petitioner, by reason of the delay in pronouncing of his sentence by the court. in which he was convicted I .during :which delay he was in confinement, will be kept in confinement atel1m of 10 years and 11 The facts are these: The defendant was convicted of the crime offorgery on the 19th day of May, 1883. .Hewasuot sentenced until the 4th day of April, 1884. In tl1emea.n· time he was in confinement in the common jail of Essex county. ,This delay in sentence was caused, it is sf;ated, by the interposition by the petitioner of special pleas in bar to indictments for embezzlement which been presented'8gainstbim, and which .so raised,. were by the Essex county court oLoyerand terminercertifieq to the supreme court of New Jersey for its advisory oprnion. It lsnot del}iedthat j immediately ,upon the rendition .()fits opin.·
LAWRENOE II. HO:LMES, BOOTH & HAYDEN.
ion by the supreme sentence was pronounced. .In. the mean time, however, tpe delay of 11 months had occurred. The words of the New Jersey-statute fixing the of forgery are: "And, on being thereot convicted, shaH be punished by fine not exceeding three thous!J,nd dollars, or imprisonment at hard labor for any term not exceeding ten years, or both." The insistment of the comisel for petitioner was that this statute made it imperative upon the court to pronounce sentence immediately upon conviction. But I do not think this construction statute is m¢ntainable. The 'words "and on being thereof convicted." mean, simply; that conviction of the crime is a condition pre· cedent to the infliction,ofpunishment, and do not refer to or limit the time in which the punishment is actuallY to be inflicted. As a term of imprisonment does not begin to run until the day when the sentence inflicting itispronounced1 sentelf,ce should not be unreasonably delayed. But if there be, for any cause, such delay., it is woolly within the discretion of the court pronouncing the sentence whether the iI;nprisomnent of the defendant should be deducted from the term of imposed or not. Such discretion is not able bYlDeans of a writ of habea8, corpus, as it wOl,lld not be reviewabll'l U!Jon a writ of error. The confinement of the petitioner in the coup.ty. jailafter,,qonviction and before sentence became no part of his statutory The object of such confinement was to insure his personal presence when the court of oyer and terminer was prepared to pronounce its jugglDent. He suffered it voluntarily, because, under the constitution and laws of New Jersey, he had the right to tender bail for his pres7 ence when wanted, and so regain his liberty. He chose the alternativE! of in confinement. He cannot now complain if his pefl,!onal liberty. '\Vas thereby restrained. Such restraint was lawful, and in due course of law. ThIJ motion to discharge the petitioner from confinement is refused, the petition is dismissed, and the petitioner is remanded to the custody oithe respondent, as keeper of the New Jersey state-prison.
Court, D.Oonnectieut. February 28,1891.)
PATENTS FOB INVENTIONS-MARKING UNPATENTlm ARTICLE.
Letters patent No. 162,184, April 20,1875, for a metallic paper fastener, were for a with a round button cap-shaped head, with folded ot struck-up edges, the whole made complete out of one piece of metal. Letters patent No. 286,143, October 2, 1883, consisted of a double-bladed shank with slightly dull rounded points, and a.section only of the 'l'"shaped shoulders was indented. The Second and third specifications called for a 1Detallic T-shaped fastener. having a folded head with indentations; and the same in combination witb a metal cap closed upon the folded, head. "HeW, that the ,patents did not embrace fasteners cons)stfng Qf it; double-bladed shank, and' T-shaped shouliJ,ers not indented. with a, button heaq ·maae'of a separate.piece of IIletal tightly placed on the shouldets. . . . .,