EX:i>ARTE COY.
911
ing to do with it. Such, we understand, has been the uniform ruling of the land department, and that mode of determining the lateral extent of the grant is the only practicable one. It follows from the views expressed that the demurrer to the complaint must be overruled, and the defendant required to answer; and it is so ordered.
DEADY,J., (concurring.) I concur in the conclusion of the learned circuit justice that, on the facts stated in the complaint, the plaiptiff is the owner of the premises, and entitled to the possession thereof, for the reason that his grantor, the Northern Pacific RlLilWay Company, at and before the date of the conveyance to him, had constructed the sec.tion of its road opposite to the premises, and the same had been accepted by the United Sta.tes. After !luch construction and acceptance, whether the grant to the Northern Pacific is construed as an agreement to convey the land, ora'grant to take effect when and as fast as any 25 miles of the road is completed, or asa. grant of the legal title, coupled With a .the power of alienation of the land, until the same is,earned by the legal title was in the .plaintiff's grantor, and. the.patent.to which. it was entitled may be deemed to have issued. ' As wasJsaidby me in U. S. v. Ordway, 30 Fed. Rep. 35: .. When the right to any odd section within the limits of the grant has finall, vested in tJile corporation, by reason of the construction and acceptance of any portioll,pf tberoad, the, same will relate back to the time offil(iJ.S ,the initiative step in the proCess of complying'!ith map ofgenera,l the act;an<.\the patent to which the corporationiB then entitled may,forall practical be deemed to have issued." ,
As to all the other points covered by opj.J)ion of the court, I fully concur inbpth the conclusions and thereasons'given in support of them.
,& parte COY. (District Oourt,
w: D.
November CORPtl'S.
1.
EXTRAbl'i'ION-TRIAL FOR DIFFER.ENT
In application for a writ of habea8 corpm 'on the ground of illegal deten· tioD, relator stated that he was extradited from the republic of :M:e:lj:ico on the' charge of the murder of, 8. L. Elder and BQIl Elder, and on no other char/{e;; that in those caseshe.1lad been admitted to bail. but that he was now held;lDc confinement by thesberiff of Bexar county, Texas, on the charge of the of one Jackson; and that, by the provisions of the extradi· tion treaty, be is protected from arrest on 'any other charge than the one upon which he was extradited. Held, that relatol' has the right to claim exemption from' trial ufon any other charge than those mentioned in the extrAdition proceedings.
See note
at end
of case.
912 2.
FEDERAL REPOnTER.
SAME-ARREST ON DIFFERENT CHABGB-WAIVER OF PRtvILEGE·
.A, person illegally tried for another crime than that for which he was extradited, cannot waive his privilege of exemption under t4e nrovisions of the extradition treaty. . HABEAS CORPUS CONCURREN'f
'8.
The state courts have concurrent jurisdiction with the United States courts in cases where a person is illegally tried for another offense than that for . which he was extradited. and where there is no reason to doubt the intention court to of an extradition treaty the United for habeas C01'PU8 underthe extradition treaty States court will refer to the action of the state cauh'll.l '
SAME'..J.ARREST ON DIFFERENT CHARGE J,Ull3lllHCTJ,ON OF STATE
The folloWing
<,I":.
for Writ of Habea8 OorZ)1.l$. is the petition as filed: I
r'jthe Hon. E. B. Turner, Judge of the United States DiBt1'ictOourtfor ·Western District of Te':1Jas, -Bitting in Open Session at Ban Antonio, ;1!ea;as.:. Juan Coy, would that he is ofhis liperty by Nat Lewis, sheriff ,of Bexar county, Texas, '_ by ,virtue ofll.n orqer of cOIDtI)itmentissued out ofthedistricteourt of Wiison county, Texafj,tl:te'Hon. GEORGE presidihg, at the June term of 'said court, A. D: '1887, a copy of which order is hereto attached and made a parthereofiiand:lIlarked "Exhibi,t B;"wherefore .heprays for your honor's most gracious w'rit of habeas corpUs, that the .cause.of his detention may ,be inquired in,to.;a,nd"i;hat he maybe fromsaiq restraint, as hels in law entitled .. .' .. '., ' , about the sixth day of October; 1886, " a resident of the republic of Mexico, and not a resident Texas, nor of the tTnite<l, States of and while peti. tignerwas pursuing his daily avocations and business in said republic of Mexico,'Uewasby force and and by virtue of an extradition warrant issued by the authorities of the republic of Mexico, which extradition ,WllS ,based upon, the requisition oithe extraditiQnagent In and for the county 'of Webb and sta:teof Texas. in the United States of America, for all such purl>0ses; and with all such powers, ail are' conferred on him by law; and which said requisition bears date on or about the second day of October, 1886; that, being so arrested by virtue of said extradition warrant, petitioner was forcibly removed from the republic of Mexico, and against his will transported into the said county of Webb and state of Texas. where lie was delivered to the sheriff of said Webb county, who transported petitioner to Bexar county, Texas; that he has ever since been held in Close confinement. a part of the time in Kames county, a part of the time in Wilson county, and the balance of the time in Bexar county, where he is no)V held. That the requisition upon which he was extradited as aforesaid was based upon the allegation that petitioner was,charged before D. B. HULLER. just\ce ." of the peace of said Kames county. ,Texas, with the. murqer of one J. L. El'der' and Bud Elder; that the said affidavit, charging this petitioner with the "'murder of J. L. Elder and Bud Elder, was made and sworn to bv 1. R. Gmves, ".wh() was then lind there county of Karnes county, ;re"xas, and peti· . .tionera,vers that pis arrest and extraQltioh was for the murder of J. L. Elder and. for the sole purpose of piacing and :UudElqer,anq for no otiler this petitioner on trialfor the murder of said J. 1.. Elder andBud Elder. And .,' 'petitioner would show that he stands inqlcted:in the district court of Witt
De
IThe federal and state courts have concurrent jurisdiction in extradition proceedings. parte Brown, 28 Fed. Rep. 653; In re Roberts, 24 Fed. Rep. 132.
EX PARTE COY.
913
county for the murder of said J. L. Elder and Bud Elder upon two separate indir.tments; that he applied for and obtained bail in said two cl\lles-in the B,um of $5.000 in the one case, and $2,500 in the other-from the Honorable H. CLAY PLEASANTS; judge of the Twenty-Fourth judicial district, (a copy of the order is hereto attached, and marked "D,") and that petitioner has prepared and eXf'cuted the necessary bonds in said two cases in conformity with the oruer of said district judge, and that the sheriff of Bexar county has approved the same, and that petitioner would be now discharged upon said bail were not for the charge of murdering one James Jackson on the twenty-seventh dayuf June, 1886, in the county of Wilson, Texas. And petitioner would respectfully show that he now stands charged in the district court of Wilson, by indictment, of the murder of James Jackson on the twenty-seventh day of June, .d. D. 1886, and that he is here and now illegally restrained of his liberty by the said Nat Lewis, by virtue of the order aforesaid. based upon the charge of the murder of James Jackson on the twenty-seventh of June, 1886, aforesaid, and in met the said James Jackson was killed in Wilson county on the twenty-seventh June, 1886; and thereafter at the December term of the district court of Wilson coupty, 1886, and in the month of December of said year, your petitioner was indicted for the murder of said James Jackson in Wilson county, charging tbe offense to have been committed on the twentyseventh June, 1886. Petitioner would respectfully show that he was extradited on the sixth day of October, 1886, that the requisition for such extradition was on the second of October, 1886, and that the warrant of extradition issued 011 the sixth October, 1886,-which was long subsequent to the twentyseventh June, 1886, the day and date of the killing of James Jackson, and for which your petitioner is now restrai:ned of his liberty. Petitioner would show that he was extradited for the murder of J. L. Elder and Bud Elder, and not for the murder of the said James Jackson; that by the treaty between the United States and the republic of Mexico, it is provided that parties extradited shall only be tried for the particular offense named in the extradition warrant; that the charge of the murder of James Jackson was not embraced or mentioned in the extradition warrant. upon which this petitioner was arrested, nor III the affidavit, in the requisition for said extradition warrant by which this petitioner was arrested. And petitioner avers that he has never been extradited upon the. charge of the murder of said James Jackson. and his trial thereon would be in violation of the rights of this petitione" and of the supreme law of this land, viz., the treaty between the United States and the republic of Mexico, and would be in bad faith to the republic of Mexico. which has never delivered this petitioner, or consented to deliver him, to ansWer the charge of the murder of James Jackson. Attached hereto marked "Exhibit A" are certified copies of the proceedings of the extradition of the petitioner. and verified translations thereof, which are made part and parcel of this petition. Petitioner further avers that un the eleventh inst. he applied to the Hon. GEORGE MCCORMICK, judge of the Twenty-Fifth judicial district of the state of Texas; for a writ of habeas COlpUS to procure his discharge from custody on account of said charge of the murder of said James Jackson,setting up the treaty stipnlations between the government of the U. S. of America and the republic of Mexico, .and alleging that he has not been extradited for said offense. and is therefore entitled to his said discharge. That said writ was granted, returnahle befure said judge on the fifth day of December next, sitting in the district court of Wilson county, Texas; but being desirous of a more speedy hearing, and the question being a federal question exclusively to be considered, said application, and filed his sworn abandonment of petitioner said application wit.h the clerk of the district court of Wilson county On the nineteenth day of Noyember, 1887, the said application and the said judge's
v.H2F.no.14-58
914
FEDERAL REPORTER.
order thereon being thereto filed with said clerk" with direction to issue the writ prayed for,-a copy ofWbich writing, abandoning said application, is hereto attached and made apart hereof, marked C." Premises considered, petitioner prays that your honor direct the writ prayed for to issue, commanding the said Nat Lewis to produce forthwith the body of your petitioner before your honor, and that, upon the hearing thereof, your petillioner be discharged from custody, and that he have a reasonable time to return to the republic of Mexico after the final disposition of the said charges against him .for the murder of J. L. Elder and the said Bud Elder, before he shall be arrested on the said charge of the said James Jackson. TEEL & HATTON. CHARLES H. MAYFIELD. E. R. LANE., ' L. S. LAWHORN. BROWN & BEASLY. JAttys. for Petitioner. I, Juan Coy', being duly sworn, do say upon oath that the allegations contained in the foregoing petition are true to the best of my belief. JUAN S. COY, Petitioner. Sworn tp anl1subscribed befqre me this twenty-second day of November, A. D.1886. ' W. (1. SAMuELS, Notary Public, Bexar county. flndorsed:] No. 850. Em pm·teJuan Coy. Application for the writ of habeas corpus to Hon. E. B. Turner. Cited November 22, 1887. W. C. ROBARD, Clerk. The following is the statement of facts as agre!J<l upon: case: (1) That for thirty years the petitioner, Coy, has been a citizen of Texas. (2) Tfllttin October, 1886, he was indicted intwo cases for murder, committed in¥arnes county, 'fexas, September 6,1886. (3) That upon said from the republic of Mexico on October 6, charges he was he was on December l,1886,in1886. (4) That in dicted for the murder of James Jackson, committed June 27, 1886, therein. (5) On the first' two charges he :was admitted to bail, but was not released by reason of his arrest and detention under the charge from Wilson county. He gave the required' bail in the said first. two cases, which was duly approved, an,d'he Is only now detainM under the charge from Wilson county, for which he has never been extradited, and on which charge he was never arrested until after his extradition on said two first-named charge!!. (6) That no application was ever made for Coy's extradition on the Wilson county charge. (7) That when Coy was arrested for extradition he was residing in New Laredo, in the republic of Mexico, just across the Rio Grande river, within two miles of Texas; where he had been for two weeks without departuretherefrom. (8) That the charges of murder in Karnes county, and that one preferred against him in Wilson county, are of equal degree, being each for murder in the first degree. (9) That at December term, 1886, of the district court of Wilson county, the petitioner,' Coy', was dUly arraigned on the indictment for said charge of murder, committed hi said cotirity, and was duly tried, upon a plea of not guilty, before the district court and a dulyqualified jury there; that a mistrial was the result of this proceeding.. (10) That he did not interpose in said trial a plea to the jurisdiction 'Of the state court on any ground; that he did not,nordid his counsel, as theyclaitn, know for what case he had been extradited, but thought he had been kidnaped. It was only after the testimony had 'been introduced that they learned that he had been extradited iti'the Karnes county cases, and not in the Wilson couJ;lty case. (11)' That he is now restrained llnder and by virtue of the (12) That, On the eleventh day' of this process exhibited by Sheriff month, (November,) he (Coy}siIed out a writ of habeas corpus before DisIt is·herebyagreed that the following are sUbstantially all the facts of this
915
trict .Tudge MOCoRMICK, setting up the same grounds for his release UpOD which he relies here; that the writ was granted by said district judge, and the case set fOI=. hellring at Floresville, Wilson county, next Monday, December 5th, at which time and place the said district court will be in regular session, and where and when the said sheriff, by order of said court, is commanded to produce the body of Coy, together with his authority for his restraint, etc.; that Coy, in said district court, on the nineteenth instant, filed his declaration, and his motion of abandonment of said application, as per exhibit attached to his petition filed in this case, and paid the costs incident to said proceeding up to said date; that no order has yet been taken in said c'ourt on said declaration and motion. (13) 'fhat since the said mistrial in Wilson county tbe said Coy has formally filed and raised by plea the questions herein presented as to the jurisdiction of said state court growing out of bis detention without extradition in said case, which has not been passed on by said court. (14) That aU the pleadings and exhibits filed in this case, or or referred to therein, may be referred to as evidence, sub. ject to all legal exceptions, etc., that may be raised thereto. (15) That the republic of Mexico has in no way interposed objections to the trial of Coy on the WIlson county charge, or to Texas exercising jurisdiction over him in the proceedings complained of by Coy, so far as known or heard of by the parties hereto, or by Coy himself; nor do we know that said republic knows of his proposed trial in Wilson county. Gemge Pll8chal, Dist. Atty., A. J. Evans,'and Mr. Bogg, Atty. Gen. of Texas, for defendant. ' Teel& Hatton, L. Lawhorn, Mr. Maufield, and Brown & Bell8ly, for relator, Juan Coy. TURNER, J. On the twenty-second inst. the relator presented his application for a writ of habell8 corpua on the alleged ground that he was unlawfully restrained of his liherty by the sheriff of Bexar county, Texas. The petitioner, in brief, stated that the relator had been extradited from the republic'of Mexico upon the charge of the murderof S. L. Elder and Bud Elder, and for no other or different offense; that he has been admitted to bail in said cases, but that he is now restrained of his liberty upon a charge 9f the murder of one James Jackson; that, having been extradited upon the charge of the murder of the two Elders, he is protected from arrest for any other or different offense than those for which he was extradited; that he had instituted for his release by applying to the Honorable JUdge MCCORMICK, district judge of the state of Texas,for a writ of habeas CO'I"pU8, but that he had abandoned his suit thus instituted, and had paid all costs incident thereto. These are, in brief, the facts stated in the application presented to me during the 'present sitting of this court, and upon that showing I directed the writ to issue, which was accordingly done. Under the statement of facts thus presented there can be no doubt but that relator has the right to,claim exemption from trial upon any other charge than those mentioned in the extradition proceedings; and, inasmuch as the question arises under a treaty with our sister republic, the federal court has jurisdiction to issue the writ, and inquire into the cause of detention, and to discharge the relator from such confinement, if the facts in the case, when fully made known, show that justice and law require it.· The question
916'
of the right, of this court so to act is conceded; the propriety of such action in this case is challenged and seriously questioned. It is claimed, Ilnd justly claimed, that the state courts have concurrent jurisdiction with the federal courts, and that that comity whicI! does, and of necessity must, exist between the federal and state courts, would suggest the propriety of a careful exercise, of that power by the federal courts when the relator is held by virtue of state authority, unless it should be made manifest that the state courts might reasonably be regarded as unwilling to ob'lerve the treaty stipulations referred to as the supreme law of the land. The agreed statement of facts shows that relator was extradited upon the charge of the murder of the two Elders only. The statement further shows that relator had dismissed his suit or action taken with a view to his release by Judge MCCORMICK, and had paid all the costs incident thereto. This he might lawfully do, and that left his case the same as if he had, made no application to the state judge for the writ of habeas corpus. 'the statement of facts further shows that the Wilson county case, that was tried, resulted in a mistrial upon the charge of the murder of James Jackson, and that he (relator) has since said trial filed in the state court, where that indictment is pending, his plea to the jurisdiction or right of theatate court to proceed to try him upon that charge, because not embraced in the extradition procE'edings. That the state courts. have concurrent jurisdiction with this court in the premises is conceded; and that, if relator does not obtain his release therein, he may remove the case ultimately into the supreme court of the United States, and there secure immunity from trial upon the charge of the murder of James Jackson until opportunity be given him to return to Mexico, wbere be sought asylum. Tbequestion presents itself to this court, not as one of the abstract right to release, but whether the exercise of that rigbt, under the facts of this case, would be the exercise of a soun.ddiscretion, considering the comity tbat does and should exist between the federal and state courts. Tbere is nothing in evidence before me tending to sbow tbat tbe state judge will disregard the obligations of treaty stipulations, and treat them other than the supreme law of the land, and, upon tbe same showing made here, discharge tbe relator from detention and trial. upon the charge of the murder of James Jackson until he shull have had reasonablA time to return to Mexico. To assume that it will not, in advance, is to distrust tbe integrity of the state court. If it shall transpire that state cQurL shall be remiss in the discharge of a duty devolving upon it with reference to questions arifling under the constitution of the United States, treaty stipulations, or the laws of congress, the federal courts will still be accessible. See Ex parte Royall, 117 U. S. 241 et seq., 6 Sup. Ct. Rep. 734, and cases there cited. See, also, U. S. v. Rauscher, 119 U. S. 409, 7 Sup. Ct. Rep. 234, and case there cited; Blandford v. State, 10 Tex. App. 627. The views thus expressed avoid the necessity of recurring to another point strenuously urged here with apparent earnestness, viz., the proposition that the relator has waived his immunity from punishment for other offenses not embraced in the extradition proceedings. If it were
917
true that the only question involved related to how Mr. Coy should be treated we might listen with propriety to what might he said upon that point. Mr. Coy, while entitled to all the benefits of the law in his favor, is not a very impOJ1tant factor in considering this question. This government has entered into solemn treaty stipulations with Mexico with reference to refugees from justice. These stipulations are, by a declaration of the constitution of the United States, the supreme law of the land, state constitutions and laws to the contrary notwithstanding. These stipulations this government cannot forget, nor can it justi(y their violation, without justly incurring the contempt of the civilized world; and yet we are seriously told that Mr. Coy has waived this binding obligation on the part of the United States, and has canceled the right of Mexico to expect the government of the United States to keep its plighted faith. This is not all; the political authorities of the. United States have made the declaration to the world, contained in section .5275, Rev. St., which reads as follows: "When any person is delivered by any foreign government to an agent of the United States, for the purpose of being brought within the the United States, and tried for any crime of which he is duly accused, the president shall have power to take all necessary measures for the transportation and keeping of such accused person, and for his security against lawless violence, until the final conclusion of his trial for the crime or offenses specified in the warrant of extradition, and until the final discharge from custody or imprisonment for or on account of such crimes or offenses, and for a reasonable time thereafter. and may employ snch portion of the land or naval forces of the Unitt'd States, or of the militia thereof, as may be necessary for the ing and protection of the accused." And again we are gravely told that Mr. Coy has relp,ased the governfrom this solemn declaration by a waiver. Was Mr. Coy a part of the treaty stipulations with Mexico? Is Mr. Coy able to bind and unbind the government from its duties and obligations towards other nations by any act that he can perform? The statement of the proposition discloses its absurdity. The relator will be remanded to the custody of the sheriff of Bexar -county, trusting and confiding in the intelligence, virtue, and wisdom (If the state courts for such action as law and pride of country shall demand. NOTE. EXTRADITION-FoR ONE OFFENSE-TRIAL FOR AXOTHER. Independent of treaty stip1.llations, no obligation of public duty re,ffi upon a nation to surrender fugitives from justice to the country whose laws they have violated, anrl the general rule is that a person whose extradition has been obtained cannot be held to answer for any -other crimeothan the one for which he was surrendered, until reasonable opportunity has been given him, after his release or trial upon the charge for which he was extradited. to return to the country from whose asylum he taken. U. S. v. Rauscher, 7 Sup. Ct. Rep. 234. This rule is recognized in People v. Gray. (Cal.) 5 Pac. Rep. 240, a -case arising under the treaty with Mexico, and in cases arising under the extradition treaty with Great Britain. Ex parte Hibbs, 26 Fed. Rep. 421; U. S. v. Watts, 14 Fed. Rep. 130. But see dissenting opinion in the case of U. S. v. Rauscher, suprll. With regard to extradition between the states, it ill held.that in the application of the rnle above .cited no distinction is t.o be made between interuational a'id interstate extradition. In re Cannon, (Mich.) 11 N. W. Rep. 280. But in Harland v. Territory, (Wash. 'r.) 13 Pac. Rep. 453, it is held that the comitx of the states, with regard to extradition, is exercised with more liberality than that which characterizes the relations between foreign nations,
918
FEDERAL
and that a man may be tried for a slightly dl.fferent offense from the. one for which he was extradited, there being to suggest fraud. A.nd in Wi800nsin the court holds that a tuan who has been extradited on the charge of 'the commission of a particular crime"Bnd, on trial, acquitted. may be immediately rearrested for an entirely ditferent offense, without being allowed a chance to return to the state trQIn )"18 was extradited. State v. Stewart, 19 N. W. Rep. 429.
THE MARININ.
READ V.THE MARIN IN. (aU-cult aourt, B. D. New York.
November 11, 1887.)
I.
SHIPPING-DAMAGE TO CARGO-SALE-CONDUCT OF.
A damaged cargo of licorice root, consisting of 2,112 bundles, was Bold by the libelant at auction. A.t the sale only 250 bundles were exposed to inspection. But one bidder was called as a witness in the proceedings against the vessel.for damages, and he refused to give the name of the person for whom he made the bid. The purchaser who bought the entire lot was present at the hearing before the commissioner, but he was not put upon the stand.. The extent of the injury to the cargo was involved in a sharp conflict of testimony. There was no dispute as to the market value of good licorice at the time of the sale.' Held, that the sale, so conducted, did not supply a fair criterion of value, and that the conclusions of the district judge and the commissioner as to the libelant's damages would not be revised on appeal, their correctness <lepending wholly upon the credibility of the witnesses examined before them. SAME-DAMAGE TO CARGO-SALE-ExpENSES.
2.
Expenses incident to the auction ilale of a damaged cargo, and for the servo ices of experts employed by the libelant, are not elements of damage against the vessel. .
In Admiralty. On appeal from district court, 28 Ft:d. Rep. 6M t modified. Lorenzo U710, for claimants. Josiah Hyland, for libelant. WALLACE, J. The libel in this case was filed to recover damages for alleged injuries to a cargo of licorice. root, consisting. of 2,112 bundles, consigned to the libelant, arising in the course of transportation and .unloading of the cargo. This appeal presents only a question of fact as to the extent of the injuries, and the consequent damages sustained by the libelant. This question has been considered by the judge of the district court and by the commissioner to whom, by the interlocutory that court, it was referred to ascertain and report the damages. The question of tact is involved in a sharp conflict of testimony, and this court cannot .undertake to revise the conclusions of the distnct judge and. of the commissioner, the correctness of which depends wholly upon the credibility of the witnesses examined before them. The libelant relies with great con· fidence upon the effect of the sale of the licorice root at auction, as showing the extent of the injuries by showing its then commercial value, there