It will be seen that there is quite a difference between the crime charged in the information and the crime charged in the warrant of committal. The reason is that under the treaty conspiracy is not an extradition crime. It was therefore necessary to find, in the evidence adduced, another crime than that of conspiracy so as to justify the surrender of the fugitive. The question then to be decided is the following: Does the evidence adduced by the United States disclose any other offense than that of conspiracy? Unless the prosecution can show positively that Browne was convicted of another crime than that of conspiracy he cannot be surrendered and must be liberated. If the question were one of fact as to whether the evidence be sufficient to establish a prima facie case of guilt, the doubt would be against the petitioner, according to a well-established rule. But in the present case, the fugitive is not an accused person, but a convicted person. 1. Was the petitioner an agent of the United States? I am satisfied, from the evidence and authorities cited, that he was. 2. Is conspiracy to defraud a fraud by itself? Conspiracy to defraud might be a fraud against the law as all offenses against the law are, but it cannot be construed as being the offense of fraud as contemplated by the statutes and even at common law. More especially it is not the fraud with which the petitioner is specifically charged. Several persons may have entered into a combination or agreement to commit a fraud, and may be found guilty of conspiracy although the fraud was not committed. It is manifest then that a conviction of conspiracy to defraud may be arrived at without including the conviction of fraud. It is sufficient under our own law that the conspirators be proven to have had the intention of committing a fraud, without it being necessary that the fraud be accomplished. Under the United States statute, besides the combination or agreement arrived at by the conspirators, it is necessary that an over act, either innocent or criminal, to effect the object of the conspiracy be proved to complete the proof of the conspiracy. Upon this proposition there is no disagreement. Now, the specific charge of fraud against the petitioner is not of having committed a fraud by committing a conspiracy to defraud. I must then come to the conclusion on this point that a conviction of conspiracy to defraud is not a prima facie evidence of fraud. 3. What is the fraud charged against the defendant? As I have already stated, the warrant of committal is for having, while being a trustee and agent of the United States, defrauded the United States. An important variance between the crime charged in the information and the crime charged in the warrant of committal does not vitiate the proceedings. As long as the charge alleges fraud, and that the evidence adduced is sufficient to establish it, it matters not whether the information and warrant of committal are exactly in the same terms or not. Technical objections of that kind are not to be considered under the treaty of extradition. The specific fraud charged against the defendant in the information is, that the petitioner has been found guilty by the Circuit Court of the United States of America for the Southern District of New York for having, before and on the 30th day of July, 1901, at the city of New York, while an agent and officer of the United States of America, defrauded the United States of large sums of money then legally due and to become due to the United States, and which should have been paid by Abraham S. Rosenthal and Martin L. Cohn to the said United States as duty upon divers importations of dutiable goods, wares, merchandise, into the United States from foreign countries. The petitioner has really been accused of having been found guilty of having committed a fraud rather than of being guilty of it. This is the variance which exists between the information and the warrant of committal. It matters not, in my opinion, whether the petitioner is an accused person or a convicted person. If prima facie evidence of the offense having been committed is produced, it is sufficient to warrant the surrender of the fugitive either as an accused person or as a convicted one. 4. What is the evidence offered by the United States to establish the accusation of fraud or the conviction of fraud? First. An indictment laid before the Circuit Court in New York: for conspiracy to defraud. Second. A verdict of guilty rendered on that indictment. Third. A sentence, condemning the accused as having been found guilty of conspiracy to defraud, to two years' imprisonment at Sing Sing, and to pay a fine of $10,000. There were also other documents and certificates produced which it is not important to mention. Objection has been made to the authenticity of the documents and to the regularity of the proof of the trial. I hold that these objections cannot be maintained. There is really only one debatable question in this case, which is the following: Is the production of the indictment, verdict, and sentence for conspiracy to defraud sufficient to establish the commission of the fraud? The indictment, after alleging the conspiracy, alleges overt acts to effect the object of the conspiracy. These overt acts are set out in five different counts. Each of these overt acts may amount to a fraud; the three first ones are charged against Rosenthal and Cohn, and the two last are against Browne, the fugitive. To obtain a verdict for conspiracy to defraud, it was only necessary to prove one of them; one of the overt acts committed either by Rosenthal or Cohn, coupled with the proof of the conspiracy or combination entered into by the conspirators, was sufficient to warrant a verdict even against Browne for conspiracy to defraud. These overt acts are stated in the indictment to enable the accused to prepare themselves to meet the charge, and they are only necessary on the part of the accuser to complete the proof of conspiracy; they are not any essential part of the conspiracy, but an element of proof required to establish that the conspiracy became a living, active combination. Even an overt act, innocent in itself, would be sufficient to complete the proof of conspiracy. Even if the two last counts, which are directed against Browne alone, had been omitted, he would have been convicted of conspiracy to defraud; that is, he could have been convicted of conspiracy to defraud, without the evidence of any fraud committed by him. The proposition of the party demanding extradition is that a general verdict, as in this case, means that all the counts have been proven, whilst the petitioner sustains the contradictory proposition. It remains a question of law and practice. On this point we have the evidence of experts on both sides. Mr. Kalish, the expert of the petitioner, contends that when a party is tried for conspiracy under section 5440 of the Revised Statutes of the United States and convicted he is tried for and convicted of the conspiracy alone; the conviction is for the conspiracy and not for the overt acts. The evidence of Messrs. Smith and Lloyd is to the effect that the verdict means that all the overt acts mentioned in the five counts have been proven. The proposition sustained by Mr. Kalish is much more rational and logical; it is well complemented by his arguments and supported by several decisions of the United States Supreme Court, which is the tribunal of highest and final jurisdiction in that country. On the other hand, the authorities and precedents cited by Messrs. Smith and Lloyd m i are not to the point. None of the cases cited are analogous to the present one. Mr. Kalish enunciated the proposition that if there was an attempt to try the accused upon the overt acts charged in the indictment for conspiracy in the same trial it would be a nullification of the Constitution. of the United States, which guarantees to every person charged with a crime the right to be informed of the nature and cause of the accusation. The overt act is not the accusation is not the charge — but the con spiracy alone is the accusation. This proposition is also supported by precedents. The accused, even if convicted of conspiracy under section 5440, could not plead autrefois convict on a subsequent indictment charging the commission of the overt act. The United States very possibly could have brought here the witnesses heard before the Circuit Court of New York or any other witnesses cognizant of frauds committed by the fugitive, but they did not choose to do so. They have rested upon their insufficient and illegal evidence. I have come to the conclusion that there is no legal prima facie evidence of the petitioner having committed any fraud for which he could be surrendered. I may add that my conclusion and the petitioner's proposition is strengthened by the fact that the said petitioner was sentenced for conspiracy alone, and that the sentence is the one provided by the United States statute for conspiracy alone, and that a sentence for fraud would have been a different one. In consequence, the warrant of committal is quashed, and declared null and void, the petition granted and the petitioner liberated. ADDISON JOHNSON, AGENT AND WARDEN OF THE STATE PRISON OF THE In the Supreme Court of the United States, 1906. 205 U. S. 309. Appeal from the Circuit Court of the United States for the Southern The respondent sued out a writ of habeas corpus from the Circuit Court of the United States for the Southern District of New York, directed to the agent and warden of the State Prison at Sing Sing, in the State of New York, where he was confined, and pursuant to the terms of the writ the respondent was brought before that court in New York City, and after a hearing the court ordered his discharge. The agent and warden has appealed to this court from that order. The facts appearing on the hearing before the Circuit Court on the return to the writ were these: The respondent was an examiner of silks in the appraisers' department in the port of New York, and in the spring of 1903, in the Circuit Court of the United States for the Southern District of New York, a grand jury found two indictments against him, one being found against him jointly with two others for conspiring to defraud the United States in violation of section 5440 of the Revised Statutes; and the other was against him alone for knowingly attempting to enter certain Japanese silks upon payment of less than the amount of legal duty thereon, in violation of section 5444, Revised Statutes. In January, 1904, he, in company with one of the others named in the indictment (the other having fled the jurisdiction), was tried in the Circuit Court of the United States for the Southern District of New York upon the indictment charging them with conspiracy. He was convicted and sentenced to imprisonment in the State Prison at Sing Sing, N. Y., for two years. He appealed to the Circuit Court of Appeals for the Second Circuit, where the conviction was affirmed, and thereafter an application was made in his behalf to this court for a certiorari to review the judgment of conviction, which application was denied in January, 1906. After his trial and conviction, and pending a review of the judgment, the respondent had been enlarged on bail, and after the judgment was affirmed in the Circuit Court of Appeals and a certiorari from this court had been denied, he was, on the 19th of January, 1906, duly called in the Circuit Court to submit himself to sentence, but did not appear, and his default was entered. A few days subsequently he was found in the Dominion of Canada. This Government then instituted extradition proceedings in Montreal to procure his rendition upon the judgment of conviction of conspiracy to defraud the United States, and claimed it was an extraditable crime under the fourth subdivision of Article I of the treaty or "extradition convention of 1889, between the United States and Great Britain. That subdivision reads as follows: 4. Fraud by a bailee, banker, agent, factor, trustee or director or member or officer of any company made criminal by the laws of both countries. |