§ 317. Embezzling public moneys. It was provided by the treaty of December 11, 1861, between the United States and Mexico that extradition might be had of a person charged with the crime of the embezzlement of public moneys." Where moneys were collected as tolls and wharfage, they became the property of the state as soon as they were collected, and to constitute them public moneys it was not necessary that they should be first paid into the treasury. For such an embezzlement, extradition of the person charged can be secured under the treaty.62 The funds of a private corporation, however, cannot be considered public moneys within the meaning of the treaty. But where a cashier of a savings bank owned by a city in Germany embezzles its funds, he being a public official appointed by the city, the crime is an embezzlement of public moneys within the meaning of that term in the treaty of 1852 between Prussia and the United States.& 63 64 The Penal Code of Cuba provides that a public employee who shall take public funds of which he has charge by virtue of his office shall be guilty of a crime. If such an officer falsely certifies to invoices in which coupons are inclosed, and obtains possession of money, which could not, except in consequence of his official act, pass from the possession of the bank to his own, he is guilty of an extraditable offense. If it appears from the extradition papers that the person charged received checks for money due a municipality, and deposited them in bank to the credit of the corporation, but that he accounted for only a portion, sufficient proof is presented to warrant his delivery. Whether the amount unaccounted for, as appeared from the evidence, was greater or less than the amount charged is, in such a case, immaterial.66 § 318. Law of the place. In applying in particular cases the definitions of crimes named in a treaty, the jurisdiction and legislation of the particular places of arrest will be determining factors.6 67 Where a murder is committed on the high seas, on board 62 People v. Gray, 66 Cal. 271, 5 Pac. 240. 63 Blandford v. State, 10 Tex. App. 627. In re Reiner, 122 Fed. 110. 65 In re Cortes, 42 Fed. 47; af firmed, Oteiza v. Jacobs, 136 U. S. 330, 10 Sup. Ct. Rep. 1031, 34 L. ed. 464. In re Breen, 73 Fed. 458. "In re Muller, Fed. Cas. No. 9913. of a British war vessel, it, within the meaning of the treaty of extradition of 1794, was within the jurisdiction of Great Britain, and the government of the United States, should the accused be found in the country, is compelled to surrender him.es Forgery, as defined and recognized by the courts of England, does not include the making of false entries in the usual books of account, or memoranda on slips directing such entries by others, made by an officer or employee of a bank, for the purpose of concealing embezzlements made by him. A person will be discharged on habeas corpus where he is held to extradition for forgery and the only proof consists of such acts committed in England.69 § 319. Laws of the place of refuge.-Under a treaty between the United States and France, it was provided that the laws of the place of refuge were to be applied to the investigation, as if the crimes had been committed at the place of arrest, but it was held that on the question whether an extraditable offense had been committed or not, the laws of France, and not those of the United States, should form the basis of inquiry.70 The term "forgery," as used in the treaty between AustriaHungary and the United States, includes the crime of uttering forged papers.71 The third article of the treaty between the United States and Salvador, in defining murder, states that it comprehends "the crimes designated in the penal codes of the contracting parties by the terms 'homicide,' 'patricide,' 'assassination,' 'poisoning' and 'infanticide.'" The Penal Code of San Salvador defines murder as homicide "committed with premeditation and under one of the following circumstances: (1) With perfidy or a breach of trust; (2) for a price or promise of reward; (3) by means of flood, fire or poison. The crime of murder will be punished with the penalty of death." The same code defines homicide as the killing of another "with premedita es United States v. Robbins, Fed. Cas. No. 16,175; United States v. Cooper, Whart. St. Tr. 659, Fed. Cas. No. 14,865. In re Tully, 20 Fed. 812. To In re Metzger, Fed. Cas. No. 9511. Under the treaty with Switzerland, a crime subject to infamous punishment in that country is a crime for which extradition may be tion, and without any of the circumstances enumerated in the preceding article, or under some one of said circumstances, and without premeditation." The penalty for homicide is punishment at hard labor. It was held that homicide as thus defined constituted murder within the meaning of the treaty. But where a person was killed in Salvador by the President and his officer under the jurisdiction of the military law of that country, the offense is not extraditable.73 § 320. Forgery in the third degree.-The Mexican government held that the making of original false entries in books of account, constituting forgery in the third degree under the law of Missouri, did not constitute forgery within the meaning of the treaty which in the Spanish text employed the word "falsificacion.'' 74 But where a treaty uses general terms, such as "murder" or "arson,” it does not follow that their meaning is to be interpreted solely by the common law, but they may be interpreted according to the law of the two countries as it exists when extradition is sought.75 A 75 Cohn v. Jones, 100 Fed. 639. case came before the United States circuit court for the northern district of California on a petition for a writ of habeas corpus, where, among other questions, the point was urged that under the treaty with Japan forgery was not committed where a signature was obtained to a paper by fraud. It appeared that a mercantile firm in Japan had been in the habit of furnishing military machinery and supplies to a Japanese arsenal, and for several years had employed the accused to receive the supplies and to verify the statements furnished, while all the pecuniary transactions were attended to by a member of the firm, which had been in the habit of furnishing their statements and invoices in French. The accused, however, stated to the managing partner that it would be more convenient for those in charge of the arsenal if the invoices should in the future be made out in Japanese, and to such procedure consent was given. The accused presented to the managing partner, written entirely in Japanese, what purported to be an invoice, but which in reality was a receipt on which the accused collected money. It was contended on one side that this constituted forgery, because the accused had made his employer his unconscious agent in completing the document; while, on the other, it was urged that the act constituted either embezzlement or obtaining money by false pretenses, offenses not extraditable. Another charge was also made against the prisoner of al § 321. Retroactive effect of treaties.-An extradition treaty is not in the nature of an ex post facto law within the meaning of the Constitution, and hence, unless a clause is inserted to the contrary, it will cover offenses committed prior to its ratification. 76 An extradition treaty was concluded February 22, 1899, between the United States and Mexico, which provided in its eighteenth article that it "shall take effect from the date of exchange of ratifications, but its provisions shall be applied to all cases of crimes or offenses enumerated in article II which may have been committed since the twenty-fourth day of January, 1899." Mr. Hay, Secretary of State, in a note to the Mexican Ambassador, stated that while the Department of State did not deem the question entirely free from doubt, it had reached the conclusion that in view of the stipulations contained in the eighteenth article, the treaty did not authorize extradition for offenses. committed prior to January 24, 1899. In his annual message of December 7, 1903, President Roosevelt said: "Steps have been taken by the State Department looking to the making of bribery an extraditable offense with foreign powers. The need of more effective treaties covering this crime is manifest." 78 Charles Kratz, charged with the commission of bribery in Missouri, fled to Mexico, and in October, 1903, the United States asked for his extradition, although at the time when the offense. was committed the crime was not included in the treaty of extradition between the United States and Mexico, but was embraced in a supplemental convention, which subsequently became operative. The law of Mexico of 1897 authorized extradition to be granted where there was no treaty covering the subject, on the promise that reciprocity would be made. The United States, basing its action on the latter convention, made a promise of reciprocity, saying that according to the decision of the federal courts, an extradition treaty has, in the United States, a retro tering the figures in an instrument, so that the first question became involved in the second, and practically was not necessary to be decided. The writ of habeas corpus was denied and the prisoner remanded. In re Oyama Kenichi, No. 12,579, decided April 8, 1898. In re Giacomo, Fed. Cas. No. 3747, 12 Blatchf. 391. This is the general rule. Twiss' Law of Nations, ed. 1884, 411. "July 11, 1899, MS. Notes to Mexican Leg., X, 469, No. 17. 78 For. Rel. 1903, XV. active operation, where no express stipulation to the contrary exists, and accordingly the extradition of Kratz was, after examination, effected.79 If, § 322. Special stipulation as to time of taking effect. however, a treaty expressly provides that it shall not apply to crimes committed anterior to its date, and it specifies no date when it shall take effect, the date of its conclusion will be deemed the date on which it becomes effective.80 But where the treaty declares that it shall not apply to offenses committed prior to its date, and that it shall take effect twenty days after the exchange of ratification, the treaty will apply to an offense committed the day after the exchange of ratifications, as the reference to the date of the treaty was either the date of the signing or the date of the exchange of ratifications, and not the time when it should take effect. A statute of a state making an act a crime, enacted after the date of a treaty, will sustain an application for extradition, where the statute was in force at the time when the offense was committed and when the application was heard.82 § 323. Extradition of citizens.-In many of the extradition treaties it is expressly provided that neither of the contracting powers shall be obliged to deliver up its own citizens. But it is not necessary for the government seeking extradition to allege or prove that the fugitive is not a citizen of the demanding government. Citizenship is a matter of defense.83 But the United States "is ever ready to annul or to narrow the exemptions contained in its extradition treaties based on the citizenship of the fugitive." 84 Citizenship is not conferred by a declaration of intention to become a citizen.8 Where a different mode of trial 79 For. Rel. 1903, 674. 85 so Matter of Metzger, 5 N. Y. Leg. Obs. 83. $1 In re Vandervelpen, Fed. Cas. No. 16,844, 14 Blatchf. 137. In this case the treaty was between the United States and Belgium, and the date of the signing of the treaty was March 19, 1874. The exchange of ratifications was effected on April 30, 1874, and the crime for which extradition was sought was committed in Belgium cn May 1, 1874. |