m RE In
BENSON.
649
Te BENSON.
«(Jircuit Court, 8. D. New York. April 9, 1888.)
1.
FORGERy-PRINTED 'l"HEATER TICKETS-EXTRADITION.
A printed theater ticket in the usual form, and, stamped upon its face with an inscription in the style of a seal setting out the name of the manager, in printed characters, is the subject of forgery at common law, and under the treaty of extradition between the United States and the republic of Mexico of December 11,1861, (12 Stat Large,1199;)"printing" being "writing" in the legal sense of that term, and a signature by impression from a stamp being a valid signature.
S. SAME.
The fact that such a ticket expresses no consideration. and contains no promise to. admit the holder to the performance for which the ticket is sold, does n()treuder it void upon its face. It is. "if genuine, the foundation ofa legal liability. " and so is the subject of forgery. . API'LICATION DOCUMENTARY EVIDENClill-
8.
EXTRADITION - INTERNATIONAL AUTHENTICATION.
Where the documentary evidence submitted on the hearing of an application for extradition is not acco.mpanied by a certificate of the principal diplomatic or consular officer of the United States resident in the requiring country. stating clearly that it is properly and legally authenticated so as toerititIe it to be received in evidence in support of the same criminal charge in the tribunals of that country, as required by the act of congress of August 3, 1882, (22 St. at Large. 215.) oral proof that the authentication is proper may be given before the commissioner by an expert; and one who has served as a judge and practiced law for 32 years, in the requiring country, is an expert for such purpose;
Habeas corpus in re the application for the extradition of George Benson, alias Charles Bourton, (tlias Mayer, under the provisions of the treaty of exttadition between the United States and the republic of Mexico of December 11, 1861. The application and the arrest were made under the fir$t and second articles of that treaty, which, so far as they affect this proceeding, are as follows: "Article 1.. It IS agreed that the contracting parties shall, on requisition made in their name, through the medium oftheir respective diplomatic agents. deliver up to justice persons, who, being accused of the crimes enumerated in article t,hird of the present treaty, committed within the jurisdiction of the requiring party, shall seek an asylum. or shall be fOllnd within the territories of the other: provided, that this shall be done only when the fact of the com,mission of the crime shall be so established as that the laws of the country, in which the fugitive or the person so accused shall be found, would justify his or her apprehension and commitment for trial if the crime had been there committed." "Art. 3. Persons shall be so delivered np who shall be charged. according to the provisions of thiS treaty, with any of the following crimes, whether as principals, accessories, or accomplices, to-wit: * forgery, . including thl"forging or making, or knowingly passing or putting in circulation, counterfeit coin or bank-notes, or other paper current as money, with intent to defraud an)' person or persons," etc. 12 St. at Large, pp.1200, 1201.
*
Thealltlglj.tions of the complaint were briefly as follows: That;Henry.E. Abbey was, in 1886, engaged in the business of manager of theatrical and operatic and concert troupes and companies; that there was in the City of Mexico at said time a theater known as the "Teatro Nacional,"
650 and that in September. 1886, said Abbey engaged the same for the purpose ot giving operas and concerts therflinfo):'ol}e month from December 15.1886, to ,Tl1nuary 5, 1887, and deposited the sum of $500, on account of rent: that said Abbey, on or a\>out D,ec,ember 1, 1886, advertised said operas and concerts in the City of "that there'upon said George Benson, alias Charles Bourton, alias Mayer, being in the City of Mexico in the republic of Mexico, did, on or the day of December, 1886, at the City of Mexico, in the reo public of ,Mexico aforesaid. and within the jurisdiction tbereof,with intent todefrllttdllhlq'Henry E. divers tben and there residing in the City of Mexico in the republic of Mexico, and the public of the republic of Mexico, fraudulently, felonio\lsly,'and wickedly fall;lely make and forge and utter, knowing it to be fOl'ged, an instrument or writing purporth.g to be the act of another, by which certain rights and property,were purported to have been, ,created, in that, at the time aud place aforesaid, the said George Benson, aUa.; Charles Bourton, alias Mayer, did forge tbe name and signa;ture oqhe"aidHeury E. AbbeytQ, a certain ticket of admission toone of said operas or concerts about to be given lis 'aforesaid in the said TeatroNacional. ,Wherein and}Vherllby the said ;ij:enryE. Abbey purpOrted in consideration ()f a certain sum ot money to admit the bolder of said ticket tos,aid opera or concert; 'bywbic1l false making ,the said Henry E. Abbey was pllrporte(1 to be bound and Bifeoted'in hispropertj"andhy whicb false making an obtigation part: of Said Henry E. Abbeyto'admit the holder of said ticket to said i purported t()' }:reated j and tbe said alias ticket to a certain, the City of Me;Xico, ,whp tbllreupon paid to aaid George Bensoll, aliasCharles,Bourton, aliaS Mayer. the c.onsideration. denlanded by hi\ll for the same; thatby:said false lUaking;and forging as afl,)resaid, divers persons then and there residing in the City of Mexico and the said Henry E.,4-bbey were prejUdiced in their rights and property." The ticki::ts of which the [email protected] alleged were, save as to date and .1()cation ofaeats, all in one or 'the other of the following forms; " ' TeatroNacional. Melina Patti. ... ' Henry E. ,Abbey Company. First Boxes. Number. Great 'reatra Nacional. . , Teatl'o Nacional. 'Adelina Patti. . Patti. Henry E. Abbey Company."· Henry E. Ahliey Company. First Boxes. These tickets were all stamped upon their fa.ce :withthe following ill· 8criptionin the form ofa seal: . . , , ,Einpreasa . Patti. January' 4, 1887. ,; Mexico. Hel)1'y E. Abbey· . ThereIntor was arrested in'the, city of New York January 14, 1888, and sued olit this writ. ,
Peter Mitch'ell, forrelator. " , "Forgery, at t'be common law,ls the false making, or materiaIlY'altel'ing, , with to defraud; of any Writing whieh, if geouine,rnight apparently be ·of legalsllfficiency, or the foundation of a legal liability." 2;Bish. Crim. Law, (7th'Eit) §'52i)j 1 Barb. Crim.Law;(3d,Ed.) 173;4B1. Carom. Alis.
651 Prin.Crim.'Law; 8 Chit. Cnm. Law, 1022" "Eorg611Y, is 'the fa18e making or alteration of any written instrumentw.heteby anotherroay be prejudiced, with, intent to deceive and defraud." 2 East, P.,G. 840. "Forgery, at com· man law, has been defined as 'the fraudulent, making or alteration of a writ· ing to the prej udice of another man's right,' Ol' more, recently as 'a false maldng malo animo of any written instrument for the purpose of fraud and deceit;' the word' making' in this last definition being considered as every alteration of or addition to a true instrument." 2 Russ. Crimel:l, §§ 708, 709. It is manifest that this ticket is a false token, and not a forgery at commo,n law, as the following cases will clearly demonstrate: King v. Jones, 1Leach, 204-206; Rew v. Mitchell, Fost. Cr. Lawi119-121; Rew v. Pateman, Russ. & R. 455; Re'.» v. Moffatt, 1 Leach, 431; Reg. v. Closs, l.Dears. & B. Cr. Cas. 460, (1858;) In 1'e Windsor, 10 Cox, Crim. Cas. 121; In 1'e Tully; 20 Fed. Rep. 812-818; Re,g. v. White, 2 Car. & K. 404. "The, rule established by the adjudication in this state, [New York,] and after a thorough consideration of the question is that if the instrument be in valid on its face it cannot be the subject of forgery, because it has no legal tendency to effect a fraud." Cun-, ninghamv. People,4 Hun, 457; Peoplev. Shall, 9 Cow. 778; Peoplev. [I'itch, 1 Wend. 198; ,People v. Wilson,6 Johns. 320; People v. Stearns, 21 Wend. 409; People v. Harrison, 8 Barb. 560; People v. Mann, 75 N. Y. 484; 2 Bish. Crim. Law, (7th Ed.) § 546; 1 Whart. Crim. Law, (9th Ed.) § 696; Com. v. Ray. 3 ,Gray, 441; Reg. v. Boult, 2 Car. & K. 604; State v. Humphreys, 10 Humph. 442; Com. v. AyeI', 8 Cush.151; Steph. Dig. Crim. Law. p. 288. art. 336. 'fo claim that the printed name of "Henry E. Abbey Company," in circular form, is a forgery of a private seal is far-fetched reasoning. A seal at common la w' is an impression upon wax, wafer, or some other tenacious substance, capable of being impressed. Warren v. Lynch, 5 Johns. 21:19; 3 Co. lust. 169; Brooke, Abr. "Faits," 17,30; Barns v. Smith, 2 Leon, 21; Meredith v. Hinsdcile, 2 Caines, 362; Foundel'y v. Hove1/, 21 Pick. 417; Repert. mot Sceau; Bank v. Croft, 3 McCord, 523; Bimy v. Haines, 5 Whart.563. It appears that the Penal Code, under which the complaint was formulated in Mexico, was not adopted until several years after the ratification of the treaty of. December 11, 1861. There is no evidence, therefore, tending to show that tbe relator committed the crime of forgery according to any Mexican law, which was in force at the time the treaty went into effect.
S. MalJ,et-Prevost and De Laney Nwoll, for respondents. In extradition proceedings "the complaint nped not be drawn with the for. mal precision and nicety of an inrhctment for final trial, but it should set forth the subl:ltantial and material features of the offense." In r'e Henrich, 5 Blatchf,414; Spear, Ext. 250; l13ish.Crim. Proc. 231; Peop?e v. Hicks, 15 Payne v. Barnes, 5 Barb; 465; In 1'e Herres, 33 Fed. Rep. 165. Barb. The fabrh:ated ticket was the subject of forgery at common law. 4 Bl. Oomm., 24: 3 Co. lnst. 169; Rex v. Coogan, 2 East p. C. 853; Rex Y. Taylpr, Id. 653; Rex v. Jones, 1 Leach, 360; Rew v. Pal'kes, 2 Leacb, 775; 2 Buss. Crimes, 709; 2 Bish. Crim. Law,§ 523; 1 Whart. Cnm. Law, 653,6$0, 682; 8 Chit. Crim. Law, p. 1021:1; Barb. Crim. Law, (2d Ed'.) pp.114, 115. '. 11. is enough if the instrument was calculated to defraUd. 1 Whitrt. Crim; Law. §§ 694,745; Grant &: Hoppers' Oases, 2 City H. Rec.142. When awritirig, like a tht"atre ticket, is so mcomplete in form as to leave it uncertain in law. whl'lther it is valid, it may be shown to be valid by averment and proof extrinsic fact.s. 2 ;Bish. Urilll. Law, § 537; 1 Whart. Crim. Law. §740;:f\,,rchb. Crim. Pl'. 574,oote; Rex V. Martin, 1 M9ody, Cr. Cas. 483; Reilf mlln, Car. & P. 180; Rew v. Vaughan, Id. 276; Rex v. Boardman','2 M<lOOl & R. 151; 1lee, also, People v. Harrison, 8 Barb. 560; Oam. Y.OQaooll'o,120 Mass. 367. Tbatthe ticket; and the name of Henry E. Abbey Btampedupon
652
FEDERAL REPORTER.
it, was printed instead of written does not affect the question, for forgery may be committed by printing as well as by writing. 2 Bish. Orim. Law, §§ 525, 527; Peoplev. Rhoner,4 Park. Crim.R.166; 1 Whart. Crim. Law, § 675: Com. v. Ray, 3 Gray, 441; R&V v. Smith, Dears & B. Or. Oas. 567: R&V v. Rinaldi, 9 Oox, Crim. Cas. 891; Chit. Cont. (10th Amer. Ed.) 72; Sahneide1' v. Nor· "is,2 Maule & S.286: Wheeler v. Lynde, 1 Allen, 402. Section 5 of the act of congress of August 3, 1882, (22 U. S. St. 215,) provides "that in all cases where any depositions, warrJ.uts, or other papers, or copies thereof, shall be offered in evidence upon the hearing of any extradition case nnder title 66 of the Revised Statutes of the United States, such depositions, warrants, Dnd other papers, or the copies thereof, shall be received and admitted as evidence on such hearing for all the· purposes of such hearing, if they shall be properly and legally authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped: and the certificate of the principal diplomatic or consular officer of the United States,l'esident in such foreign country, shall be proof that any deposition, wanant, or other paper or copies thereof, so offered, are authenticated in the manner reqUired by this act. The certificate provided for by the act is conclusive proof on the question of authentication: but it is not the only proof that may be offered upon that point. Authentication in regard to original be made by oral proof given here. In re FowleI', 18 Blatchf. 437,4 Fed. Rep; 303; Inre McPhun, 30 Fed. Rep. 57: In 1'e Waage, 15 .b'ed. Rep. 865, 16 Fed. Rep. 333, and 21 Blatchf. 300, For the purpose of proving the law of Mexico in relation to the authentication of copies of original documents, and the admissibility of these as evidence of the crime of forgery in the tribunals of .Mexico, the prosecution offered in evidence copies of the Penal Code of MeXico and of the Code of Criminal Procedure. These copies were furnished by the consul general of Mexico at New York, were taken from his of. fice, and purport to be issued by the authority of the government of Mexico. Under the provisions of those Codes, the copies attached to the application for the extradition of the relator are declared to be admissible in evidence solely by virtue of their being public instruments and irrespective of the nature of their contents. This view of the law is supported by the testimony of the experts examined onthe subject.'rheseexperts were John W. :Poster, a lawyer by profession, who had been minister from the United States to Mexico for many years, and Ignacio Alas, sometime a judge of the superior court of Mexico, and for 32 years a member of the bar of that country. Their testimony was to the effect that the papers in question were properly and legallyauthenticated so as to entitle them to be received by the tribunals of Mexico as evidence of the crime of forgery. LACOMBE,J.· 1. The first point rllised by the relator is that the ater.ticket which is the subject of the charge was wholly printed,and not written. Counsel cites from Blackstone, Bishop, Best, and Russell definitions of the crime offorgery at common law, which describe it as the false etc., of a writing or a written instrument. It was elementary la w, however, long before Blackstone's day, that printing is writing in the legal sense of the term, and an instrument, the words of which are printed either wholly or in part, is equally valid with an instrument by a pen. Signature by impression from a stamp was no doubt ir.frequent When its useby Mr. Crawford, secretary of the treasury, was approved, but the necessities of modern business have made it a commOri practice, and of its validity under the common law there can be no doubt. IT.idelaw dictionaries of BurrilLan.d Abbott under word "writingj" 2 Bl.
IN
RE BENSON.
653
Comm. 297j lOp. Atty. Gen. 670j Saunder80n v. Jack8on, 3 Esp. 180j Same v. Same, 2 Bos. & P. 238j Cla80n v. Bailey, 14 Johns. 490j Hen· shaw v. Fosler, 9 Pick. 812j and cases cited on the argument. 2. The relator next contends that forgery at common law cannot be predicated of such a ticket as this because it did not contain a contract. There was no consideration expressed in it, nor did it contain any prom· ise. The very definitions, however, which he cites under his first point speak of the written instrument as one which, "if genuine, might1Lpparently be of legal efficacy, or the foundation of a legal liability," or "by which may be'prejudiced." It is not necessary that the subject of forgery be shown to be a complete executory contract expressing a consideration. Instruments of evidence by which a contract is proved may be forged just as well as the contract itself if wholly expressed in writing. See opinion of Judge BRowN, in this circuit, in ReTully, 20 Fed. Rep. 812. There isa line of authorities, many of which are cited by the relator, which hold that where the forged instrument purports to be a contract, and is void on its face, it is not the subject of forgery. Thus, in King v. Jones, 1 Leach, 204, the bogus bank-note was void on its face. It would not have been a bank-note if genuine, and no outside testimony could have made it such. In Re Mitchell, Fost. Cr. Law, 119, the forged order was held not to be an order within the terms of the special statute under which the prisoner was indicted. Here, as relator contends the case must be decided by the rules of the common law. In Rex v. Paternan, Russ. & R. 455, the bogus instrument was unsigned, and therefore, if genuine, did not purport to be a promissory note. In King v. Moffatt, 1 Leach, 431, the bill of exchange, if real, would not have been valid becaufle it failed to comply with statutory requirements. No evidence could make it valid. In Queen v. Clo88, 1 Dears. & B. Cr.. Cas. 460, the court merely held that a picture was not a document or writing. In Re Windsor, 10 Cox, Crim. Cas. 121, the prisoner was discharged because the false entries which he made did not purport to be made by another. In People v. Savage, 5 N. Y. Crim. Rep. 543, where defendant was charged with forging and altering a pawn ticket, the conviction was reversed because the district attorney and the court were apparently satisfied with the soundness of the contention of prisoner's counsel that by the Penal Code of York, under which the trial was had, the definition of forgery is much narrower than at common law. In People v. Martin, 36 Hun, 462, the railroad bonds were unsigned, and the same was the case in Ounningham v. PeClple, 4 Hun, 457. In People v. Hech, 1 Wend. 198, the prisoner altered the date of an order drawn by him, accepted, paid, and theretofore returned him. In People v.. Wilson, 6 Johns. 320, the bank-note being for less than one dollar, its circulation was forl;Jidden by statute. In PeClple v. Harrison, 8 Barb. 560, the acknowledgment was defective on its face. In People v. Mann, 75 N. Y. 484, the prisoner, a county treasurer, signed his own name to the obligation. Conviction was reversed because the instrument did not purport to be the act of another. It was false assumption of authority, not forgtry. It moreover, well settled by authority that where. the
forgeq is, not void on, its face" but only:incom)illete or uncer.. taiu, may be introduced showing its validity. Such an incomplete instrument may 1;>e the subject of forgery., . There is nothing upon the :fil,ce ,of these tickets ,Which proclaims them void. They are in the usut\l form of such instruments which. do notor¢linarily COlltainthe expression of a consideration, ,or a dis,tinct expressed in words to admit, the holder. NQne the less the of them, if genuine, would find .them of legal efficacy if, the being given, they were arbit,rarlly refused admission, and came ,into court to enforce to the numerous authorities in support of their rights. In these propositions cited in the complainant's brief it will be sufficient to refer ,to People,v. Stearm, 21 Wend. 409; Com. ,v. Ayer, 3 Cush. 151; McCrea v. Marsh, 12 Gray, 211; Drew v. Peer, 93 Pa. St. 234; Wood v. & W. 838; Ta,ylerv. Waters,7 Tau,nt.374; Burton v. Scherpj, 1 Allen, J33; Magoverning v. Staples, ,7 Lans. 145. , 3. The,reffltor contends that the evidence submitted was by a certificate of the principal diplomatic or consular not ol;licer of the United States resident in Mexico, stating clearly that it is properly and legally authenticated, So as to entitle it to be received in evin SUPP(ilrt (>f the same criminal charge by 'the tribunals of Mex,ieo.The certificates are undoubtedly defective, but Judge Br,ATOHFORD, .in, Re Fowler, 18 Blatchf.437, 4 Itep. 303, held that authentication play by oral proof given here. See, also, Inre McPhun, 30 FecI. Rep. 57 ; In re Wadge, 15 F,ed. Rep. 364, 16 Fed. Rep. 332. The evidence in support of the certificates in this case, whieh was given by the witness .Alas, .was. under the rules laid down in these cases, competent and I!\lfficient. ' ,
THE SEA WITCH.· TEBO ". THE SIl:A WTTOff.
(DiBtrict Court, 8. D. J'
New
York. March 22, 1888.)
,The yacht Sea Witch was owned by one W., who had authorized B. to pro, cure ber ,ssle. D. in turn employed a yacht broker, and negotiations were had tor 8 sale to oheF. About July let B. 's authority was revoked by W., who, on the Sd of Jllly, made an.inforlUal written instrument or sale to claim· arit. B. and, the broker; however, continued their negotiations with F., and , about. the 8th of July came to ,a 'Verbal agreement with him for a sale, after which the broker, at F.'s request,ordered libelant to doc8ulking on the yacht: The verbal agrljementbetween F. and the broker never ratified by the owner, and the work on the'vessel was stopped by claImant. Specill· , cations were filed to secure the lien, and this lihelfiled to enforce it. H/$(d, , ,that the repairs were mllde without the authority of the owner or agent. '.;/1' anyone authorized to charge them; no lien 'was therefore created 04 sel, and the libel should be dIsmissed.
LIENB-REpAIRB-":AuTHORITY OF OWNER OR AGERT-STAT& STATUTES.. ',. ·
,
! ' I
Reported.by'Edw. G., Benedict, Esq., of the New York. Dar.
