IN RE ROWE.
Item 15. 34. The charges under this heading are disallowed. The certified copies of indictments and lists of jurors and witnesses should have been handed by the clerk to the counsel for the accused. Such papers are not of a kind requiring the service thereof to be made by a marshal. If he served them, his act would be that of a private meso senger, and his return would not be evidence of service. Such judgment may be entered as is proper, in accordance with this decision.
In re ROWE. (Circult Court of Appeals, Eighth Circuit.
October 26, 1896.)
ExTRADITION-TRIAL FOR DIFFERENT OFFENSE-EMBEZZI,EMENT. One R. WIlS extradited from Mexico, upon an information charging
that he had counseled and advised another to commit the crime of embezzlement of pUblic moneys, and upon affidavits tending to prove the facts alleged, which were found by the Mexican authorities to show the commission of the crime, and that there were suspicions that R. was an accomplice in its commission sufficient to justify his arrest and trial. After his return to the state of Iowa, from which he had fled, R. was indicted for embezzlement, as a principal; the statute of the state (McOlain's Ann. Code, § 5699) having abrogated the distinction between principals and accessories, and making all concerned in the commission of a crime alike principals. Being held for trial under this indictment, R. applied for his discharge on habeas corpus. Held, that he was not held for trial for an offense different from that for which he was extradited. The existence of a technical defect In an information or Indictment does not make It no information or indictment at all; nor does the finding of a new indictment, to remedy a technical defect in a former one, charge another or different offense, so as, in either case, to prevent the trial, on a good indict· ment, of a defendant who has been extradited from Ii foreign country on the defective one.
SAME-DEFECTIVE INDICTMENT-NEW INDICnIEKT.
Appeal from the Circuit Court of the United States for the Southern District of Iowa.
Chester W. Rowe was treasurer of Poweshiek county, Iowa, and embezzled Ii large amount of the public moneys, and fled the state in company with his brother, Richard R. Rowe, the appellant. 'l'hereupon the following information was filed b2fore H. F. MOlton, a justice of the peace of the county: "State of Iowa, Poweshiek County-ss. "In Justice Court, before H. F. Morton, .1. P. "The State of Iowa vs. Richard Rowe. Information. "The defendant is accused of the crime of embezzlement, for tbat, on the 20th day of April, 1895, in the township of Jackson, county and state aforesaid, one Ohester W. Rowe was treasurer of Poweshiek county, Iowa, and a public officer. and, as such county treasurer and public officer, was then and there charged with the collection, safe-keeping, and disbursement of the public money; and that the said Chester W. Rowe, as such county treasurer and public officer, did then and there have in bis possession and under his control, for safe-keeping and disbursement, public money amounting to and of the value of thirty thousand dollars, ;which said money was received by said Chester W. Rowe, and came into his hands, and under his control, as such public officer and county treasurer;
77 FEDBRAL REPOR'l'ER.
and that the said Chester W. Rowe did then and there willfully, unlawfully, feloniously embezzle and convert to his own use the sUIlf of thlrtY.thousand dollars of the public money received by him, the said Chester W. RowEl, as such county treasurer and public officer as aforesaid, which said money was then and there. of· the amount and value of thirty thousand dollars, and llelonged to and was the property of Poweshiek county, Iowaj and that the said Richard Rowe, was then and there concerned In the commission of said public offense, to wit, embezzlement, in that the said defendant was present with the said Chester W. Rowe, at the office of the treasurer of. county, Iowa, a short time before the commission of said public offense, and did then and there counsel and advise the commission of said public offense, and that the said defendant of the state of Iowa with the said Ohester W. Rowe, and is now engaged in business with the said Chester W. Rowe, under an assumed and fictitious name, at the city of Mexico, in the republic of Mexico,-contrary to the form of the statutes in such cases made and provided, against the peace and dignity of the state of Iowa. W. F. Allen. "State of Iowa, Poweshiek County-ss.: "I, W. F. Allen, being duly sworn, depose and say that the statements in the above information are true, as I verily believe. W. F. Allen. "Subscribed in my presence, and before me sworn to, by W. F. Allen, this 19th day of JUly, 1895. H. F. Morton, Justice of the Peace." The usual warrant for the arrest of the defendant was issued by the justice, and delivered to the sheriff of the county, who made return thereon that the de·' fendant was not within the state. Upon the presentation to the state department of a duly-certified copy of this information, together with numerous affidavits tending to prove that Chester W. Rowe had embezzled over $30,000 of the public moneys of the county, and thllt Richard Rowe aided and abetted such embezzlement, and that they had, both fied to the city of Mexico, where they had assumed fictitious names, and were doing business under the firm name of Rose Bros., at2 Plateros, No.2, MeXico, application was made by that department to the Mexican government for the extradition of Richard Rowe as a fugitive from justice, and the president appointed William Farmer Forsee agent of this govern· ment to receive Rowe from the Mexican authorities, and bring him to this country, and surrender him to the authorities of the state of Iowa. Upon due proceedings had for that purpose, Rowe was arrested in the city of Mexico, taken before the proper MexIcan judge, who, after proper inquiry, reported the testimony to the department of foreIgn affairs for that government, and held Rowe to await the disposition of the case by that department. On the 7th of November, 1895, the MexIcan government issued the follOWing warrant of extradition: (Translation.) "Department of Foreign Affairs, MeXico, Nov. 7, 1895. "Mr. Minister: Referring to the note, which on the 1st of last October I addressed to Mr. E. C. Butler, secretary of that legation, then charge d'affairs ad Interim, I have the honor to inform your excellency that the judge who has under consideration the case instituted against Chester Rowe for embezzlement com· pleted the investigations regarding Richard Rowe, who is accused of complicity In the same crime, and has placed him at the disposition of this department, with testimony of the case instituted against his brother Chester, so that the proper decision be rendered relative to the demand for the extradltlon of said Richard Rowe. This department has examined the documents in connection with said demand, as well as the investigations for information in said suit concerning Richard Rowe. Resulting from the examination thereof, that the crime imputed to Chester is proved, and that there exist suspicions that Richard is his accomplice, which would be sufficient for his legal arrest and trial in Mexico, had the crime been committed here, in accordance with the second clause of article 1 of the extradition treaty in force between this republic and the United States of America, the president has decreed that the said Richard Rowe be delivered to the United States of America for his consignment to the competent authority who is to try him, in compliance with the demand for extradition presented to this depart· ment by that legation, under date of June 30th, ultimo. To-day I issue to the governor of the federal district the orders necessary to the end that said Richard
Rowe be delivered to Mr. William F. Forsee, who Is commissioned to receive him, a.nd all aid which he may solicit be given him, for the safety of the prisoner. I renew to your excellency the assurance of my high regards. "[Signed] Ignacio Mariscal "To His Excellency, Matt. W. Ransom." In pursuance of the authority contained In this warrant, Rowe was brought back, by the agent appointed for that purpose, to Poweshiek county, Iowa, where he was Indicted for the same ofl'ense set out In the Information and affidavits upon which he was extradited. He demurred to the Indictment, and the demurrer was sustained, upon the ground that the Indictment did not state that the money embezzled was "unaccounted for." 1.'he Information filed before the justice, and the affidavits submitted to the Mexican government upon which the warrant of extradition was granted, contained the same technical defect. The case was submitted to another grand jury, and a second indictment returned, which remedied the defect In the first, and described the ofl'ense with technical accuracy. In default of ball the defendant was committed to await his trial on this Indictment. Thereupon the defendant applied, successively, to the court In which the indictment was pending, to the supreme court of the state, and to the circuit court of the United States for the Southern district of Iowa, to be discharged from custody, and to have It adjudged that he was not triable for the ofl'ense charged In the last indictment, because, as he alleged, it was not the ofl'ense for which he was extradited. The courts mentioned severally denied his petition, and from the judgment of the circuit court of the United States denying his petition he appealed to this court. The following are the sections of the Iowa statute having any bearing on the case: "5214. Embezzlement by Public Officers. If any state, county, township, school, or municipal officer, or officer of any state institution, or other public officer within the state, charged with the collection, safe keeping, transfer, or disbursement of public money, falls or refuses to keep in any place of deposit that may be provided by law for keeping such money, until the same is withdrawn therefrom upon warrants Issued by the proper officer, or deposits such money in any other place than In such safe, or unlawfully converts to his own use In any way whatever, or use by way of investment in any kind of property, or loan without the authority of law any portion of the public money intrusted to him for collection, safe keeping, transfer or disbursement, or converts to his own use any money that may come into his hands by virtue of his office, shall be guilty of embezzlement to the amount of so much of said money as Is thus taken, converted. Invested, used, loaned, or unaccounted for, and, upon conviction thereof, he shall be Imprisoned In the penitentiary not exceeding five years and fined in a sum equal to the amount of money embezzled; and, moreover, is forever after disqualified from holding any office under the laws or constitution of this state." McClain's Ann. Code Iowa, c. 4, § 5214. "5699. Principal and Accessory. The distinction between an accessory before the fact and a principal, is abrogated, and all persons concerned In the commission of a public ofl'ense, whether they directly commit the act constituting the ofl'ense, or aid and abet its commission, though not present, must hereafter be indicted, tried and punished as principals." McClain's Ann. Code Iowa, c. 16, § 5699. The articles of the treaty with MeXico, on the subject of extradition of fugitives from justice, having any relation to this case, read as follows: "Article 1. It Is agreed that the contracting parties shall, on requisition made in their name,. through the medium of their respective diplomatic agents, deliver up to justice persons who, being accused of the crimes enumerated in article third of the present treaty, committed within the jurisdiction of the requiring party, shall seek an asylum, or shall be found within the territories of the other: provided, that this shall be done only when the fact of the commission 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." "Article 3. Persons shall be so delivered up 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: ;\Iurder, * * * embezzlement of
77 FEDERAL REPORTER,
Section 5275 of the Revised Statutes of the United States declares: "Whenever any person is delivered by any foreign government to an agent of the United States, for the purpose of being brought within the United States and tried for any crime of which he is duly Recused, the president shall have power to take all necessary measures for the transportation and safe keeping of such accused person, and for his security against lawless violence, until the final conclusion of his trilll for the crimes or offenses specified In the warrant of extradition, and until his final discharge from custody or Imprisonment for or on account of such crimes or offenses, and for a reasonable time thereafter, and may employ such portion of the land or naval forces of the United States, or of the militia thereof, as may be necessary for the safe keeping and protection of the Recused."
J. T. Allensworth, for appellant. W. R. Lewis, opposing. Before CALDWELL, SANBORN, and THAYER, Circuit Judges. CALDWELL, Circuit Judge, after stating the case as above, delivered the opinion of the court. . The first contention of the petitioner is that, under the laws of Iowa, DO one but an officer charged with the safe-keeping of public moneys can commit the crime of embezzlement of such moneys. It is said that there can be no accessory before the fact to such an offense; that section 5699 of the Iowa statute, which abrogateiil the distinction between an accessory before the fact and a principal, does not apply to one who aids and abets the embezzlement of public moneys by the official custodian thereof; and that the petitioner is therefore guilty of no offense whatever. By the common law, all accessory ('annot be tried without his own consent before the principal, and, if the principal is acquitted, both must be acquitted, and there can be no conviction on an indictment charging him as principal. Dr. Wharton, in his work on Criminal Law, observes that the obstructions of justice caused by these subtleties have long beel! deplored; and while, in several states of the American Union it is already provided by statute that accessories before the fact are to be proceeded against as principals, in other states and in England the change will probably not be long delayed. 1 Whart. Cr. Law, § 205. These subtle distinctions between a principal and an accessory before the fact at common law, which were a fruitful of the miscarriage of criminal justice, were abrogated by section 5699 of the Iowa statute; and in that state one who aids and abets the commission of a crime is in the same category with one who actuully commits the offense. They are both principals. But we are spared the necessity of any extended discussion of the question whether the indictment under which the petitioner now held charges an offense against the laws of the state of Iowa. The court of that state denied the petitioner a writ of habeas corpus, asked for on the distinct ground, among others, that the indictment charged no offense against the laws of that state. In making that decision, the court necessarily passed upon this question adversely to the contention of the petitioner, and the judgment of that court is conclusive on the question in this court.
The next contention of the petitioner is that he is being held fO!' trial for an offense different from that for which he was extradited. It is settled by the judgment of the supreme court in the case of U. S. v. Rauscher, 119 U. S. 407, 7 Sup. Ot. 234, as well as by the provisions of section 5275 of the Revised Statutes of the United States, that, under the treaty with Mexico, the petitioner is exempt from trial for any other offense than that specified in the warrant of extradition until he has had a reasonable time to depart out of the United States. Is the petitioner held for trial for an offense different from that for which he was extradited? The information and affidavits laid before the Mexican authorities, and upon which that govern· ment acted in granting the warrant of extradition, stated in plain and unambiguous language the facts constituting the offense with which he is charged in the pending indictment. The indictment states the acts constituting the offense with more technical verbiage, but it describes the same offense described in the information and affidavits upon which the Mexican government was asked to, and did, surrender the petitioner, with the addition of a single technical averment, which will be noticed presently. The treaty provides for the surrender of the fugitive "when the fact of the commission 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." The Mexican government is the best judge of its own laws, and the warrant of extradition issued by the department of foreign affairs of that government recites "that the crime imputed to Chester is proved, and that there exist that Richard is his accomplice, which would be sufficient for his legal arrest and trial in Mexico, had the crime been committed here." The Mexican government doubtless used the term "accomplice" out of abundant caution, and to remove any ground for the technical objection that is here made, which is. in effect, that the petitioner cannot be indicted and tried as a principal because he was extradited to be tried as an accessory before the fact, and that he cannot be tried as an accessory before the fact because the Iowa statute abrogates the distinction between a principal and an accessory. But the petitioner was not surrendered to answer as an accessorv before the fact, or as a principal, but as an accomplice. An accomplice is defined to be:
"One who is concerned in the commission of a crime. The term, in its fullness. includes in its meaning all persons who have been concerned in the commission of a crime. all particeps criminis, whether they are considered, in strict legal propriety, as principals In the first or second degree, or merely as accessories before or after the fact." Bonv. Law Diet. tit. "Accomplice,"
It is obvious, therefore, that the petitioner was extradited to answer for the nart he played in the commission of this particular crime of embezzlement, whether it was as a principal or as an accessory befOre the fact. The third article of the treaty provides for the extradition of persons charged with the crimes therein mentioned, "whether as principals, accessories, or accomplices." The petitioner was a fugitive from the justice of the laws of the state of Iowa. By
'" FEDERAL REPORTER.
the law of tliat state, where one embezzles public money, and another aids and abets the commission of the offense, they are both equally guilty of the crime of embezzlement; so that the offense with which the petitioner is charged is within the very letter of the treaty which provides for the extradition of persons charged with the crime of "embezzlement of public moneys," whether he is a principal or accessory, and the warrant of extradition, as we have seen, uses a term sufficiently comprehensive to include a principal as well as an acces!!Ory. The t':!chnical defect in the information describing the offense, heretofore referred to, is the omission of the words "unaccounted for." In ,the case of State v. Brandt, 41 Iowa, 593, the supreme court decided that the word "or," preceding the words "unaccounted for," in section 5214, should be read "and," and that an indictment under that section which did not allege the money embezzled was "unaccounted for" was bad on demurrer. But this decision does not sup· port the contention of the petitioner, which is, in substance, that:
"An insufll.cient inl'onnatlon is equivalent to no Information. Without an Intormation, there is no charge. Any charge is different ,from no charge. Theretore, if the petitioner Is tried at all, it wlll be on a charge tor which he is not extradited."
It is too late in the day for this kind of logic to meet with any favor in the courts. Such subtle reasoning is no longer admitted to obstruct the course of justice. It would result in refining all common sense out of the law, and in the adoption of rules too tech· nical and minute for the social conduct of men. If the petitioner had been tried and convicted in the district court on the first indictment, he could not have been discharged from imprisonment under that conviction on a writ of habeas corpus. The judgment might have been reversed, for error, by an appellate court exercising supervisory jurisdiction over the district court, but it would not have been void, or subject to collateral attack; and the reason is that the court had jurisdiction of the party and the offense. Errors in law, however numerous and gross, committed by the trial court in a case within its can only be reviewed by appeal or writ of error in the court exercising supervisory or appellate jurisdiction over the trial court in the particular case. The writ of habeas corpus cannot be made to perform the office of a writ of error or appeal. Ex parte Ulrich, 43 Fed. 661; Ex parte Watkins, 3 Pet. 193, 7 Pet. 568; Ex parte Lange, 18 Wall. 163; Ex parte Parks, 93 U. So 18; Ex parte Siebold, 100 U. S. 371; Ex parte Curtis, 106 U. S. 371, 1 Sup. Ct. 381; Ex parte Carll, 106 U. S. 521, 1 Sup. Ct. 535; Ex parte Yarbrough, 110 U. So 651, 4 Sup. Ct. 152; Ex parte Crouch, 112 U. S. 178, 5 Sup. Ct. 96; Ex parte Bigelow, 113 U. So 328, 5 Sup. Ct. 542; Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935; Ex parte Harding, 120 U. S. 782, 7 Sup. Ct. 780; In re Lane, 135 U. So 443, III Sup. Ct. 760; In. re Wight, 134 U. S. 136, 10 Sup. Ct. 487; In re Nielsen, 131 U. S. 176, 9 Sup. Ct. 672; In re Coy, 127 U. S. 731 756 8 Sup. Ct. 1263. ' , It does not follow, therefore, that an information or an indictment which is bad on demurrer is necessarily no information or indict-
ment at all. There is a "\'Vide difference between a technical error or omission in setting out the facts essential to constitute the offense,' such as existed in the information and first indictment in this case, and no information or indictment. In the former case, if the suffi· ciency of the information or indictment is not challenged,. or even if it is challenged and the court holds it good, the court may proceed to try the defendant, and if he is convicted, he can obtain no relief the writ of habeas corpus; whereas, in the latter case the court has no jurisdiction to try him for any offense, and, the judgment be· ing void, the defendant may avail himself of the writ of habeas cor· pus. Nor is the contention tenable that, when a demurrer to an indictment is sustained for a technical defect such as existed in this case, a second indictment, which conforms with technical accuracy to the requirements of the statute, charges another or a different offense. They b9th charge the same offense, though one of them does not charge it with sufficient technical accuracy to withstand the attack of a demurrer. We entertain no doubt of the correctness of the judgment of the circuit court, but, if we did, we would not, on the facts disclosed in this record, discharge the petitioner, but would, in the exercise of the discretion with which we are invested, let the case take its regu· lar course in the state court, and leave the petitioner to his remedy by writ of error from the supreme court of the state, and thence, if he was so advised, from the supreme court of the United States. "While," says Mr. Justice Harlan in delivering the opinion of the supreme court in Re Wood, 140 U. S. 278, 289, 11 Sup. Ot. 738, 742, "the courts of the United States have power, upon habeas corpus, to inquire into the cause of the detention of anyone claiming to be reo strained of his liberty in violation of the constitution or laws or treaties of the United States, it was not intended by congress that they should, by writs of habeas corpus, obstruct the ordinary admin· istration of the criminal laws of the states, through their own trio bunals. 'Where,' this court said in Ex parte Royall, 117 U. S. 241, 252, 253, 6 Sup. Ot. 734, 741, 'a person is in custody, under process from a state court of original jurisdiction, for an alleged offense against the laws of such state, and it is claimed that he is restrained of his liberty in violation of the constitution of the United States. the circuit court has a discretioJ!. whether it will discharge him upon habeas corpus in advance of his trial in the court in which he is in· dieted; that discretion, however, to be subordinated to any special circumstances requiring immediate action. When the state court shall have finally acted upon the case, the circuit court has still l>. discretion whether, under all the circumstances then existing. the accused, if convicted, shall be put to his writ of error from the high. est court of the state, or whether it will proceed by writ of habeas corpus summarily to determine whether the petitioner is restrained of his liberty in violation of the constitution of the United States.' And we will add that, after the final disposition of the case by the highest court of the state, the circuit court, in its discretion. may put the party who has been denied a right, privilege, or immunity claim· ed under the constitution or laws of the United States to his writ
77 FEDERAL REipORTER.
of error from this court, rather than interfere by writ of habeas cor· pus. These principles have special application where,as in the present case, there is no pretense that the statute under which the prosecution of the appellant was conducted is repugnant to the con· stitution or laws of the United States." The judgment of the circuit court is affirmed.
WONG FONG v. UNITED STATES. (Circuit Oourt of Appeals, Ninth Oircuit. No. 2\)7.
October 6, 1896.)
In proceedings under the act of November 3, 19\)3 (28 Stat. 7), for the deportation of a Chinese person, it was admitted that on. August 1. 1893, he was a merchant, as defined by the statute. On that day the store he and his partner occupied was destroyed by fire, and in the following November he ieft for China, returning to California in May, 1895. The evidence showed that. before leaving, the firm had rebuilt and restocked the store, and that, on returning, defendant resumed his connection with the business, which, the partner testified, had always been retained. Held, sufficient evidence to show that defendant had not lost the character of merchant, although there was no direct testimony that his name appeared in partnership articles or partnership accounts; nor was his status affected by the fact that he also conducted a gardening enterprise with Chinese labor. his own work being supervisory only. 71 Fed. 283, reversed.
In Error to the District C()urt of the United States for the South· ern District of Oalifornia. George P. Phibbs, for plaintiff in error. George J. Denis, for defendant in error. Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.
GILBERT, Circuit Judge. By this writ of error it is sought to review the judgment of the district court for the Southern. district of California ordering the deportation of the plaintiff in error, upon the ground that he is a Chinese laborer unlawfully within the United States. It was stipulated between the parties upon the trial that prior and up to the 9th day of November, 1893, the plaintiff in error had for 16 years resided continuously in the state of California, but that upon said date he departed for Ohina, and that he returned to the United States on the 27th of May, 1895; that for a period of 7 years preceding and up to the 1st day of August, 1893, he was a merchant, as defined by the act of congress of the United 8tates passed November 3,1893, being chapter 14 of volume 28 of the United States Statutes at Large, and that during said period he was not a laborer; that on the 1st day of August, 1893, the store in which he carried on his business as a merchant in Oalifornia was destroyed by fire; that after the passage of the act of congress of November 3, 1893, there was no office open within the state of California at which he could register, and no such office was open until after the 1st day of Janu-