Hayes v. Palmer , 21 App. D.C. 450 ( 1903 )

Mr. Justice Shepard

delivered the opinion of the Court:

1. Several assignments of error relating to alleged defects in the requisition may be considered together. We regard: none of these objections as sufficient to warrant the reversal •of the judgment and the discharge of the appellant. That the indictment does not show indorsement as a true bill, over the signature of the foreman of the grand jury, is immaterial in this proceeding. Whitten v. Tomlinson, 160 U. S. 231, 244. Moreover, the record showing the presentment and following formal indictment seems to be in accordance with the practice that prevails in Maryland under statutes of which judicial notice may be taken in a proceeding •of this character, if necessary. Roberts v. Reilly, 116 U. S. 80, 96. The technical sufficiency of1' the indictment is also a matter for the determination of the court having jurisdiction of the crime therein charged. Ex parte Reggel, 114 U. S. 642, 651; Roberts v. Reilly, 116 U. S. 80, 96; Whitten v. Tomlinson, 160 U. S. 231, 245. The fact that the requisition recites that the party “ stands charged with the crime •of ‘gambling,’” and nothing more, does not constitute a fatal defect or omission. “ Graining ” and “ gambling ” mean substantially the same thing, and the keeping of tables, devices, nr houses for gaming or gambling amounts to the same offense. They are used as convertible teims in the indictment, which, with the warrant issued thereon, was made a> part of the requisition, and the same may be regarded as supplementing the brief description of the crime as stated therein.

2. We come now to the substantial question of the case: Whether, und.gr the evidence adduced, the appellant was: rightly adjudged to be a fugitive from the justice of the State of Maryland ?

The decisions of the Supreme Court of the United States, heretofore cited, all indicate that the actual presence of the accused in the demanding State,, at the time of the commission of the crime as charged in the indictment, is an essential condition of extradition. In Roberts v. Reilly, supra, it was held that the question whether the accused is a fugitive from the justice of the demanding State is one of fact which the governor, upon whom the demand has been made, must decide, upon such evidence as he may deem satisfactory, and that, having decided, his warrant of arrest, “ whether the writ contains a recital of an express finding to that effect ■or not, must be regarded as sufficient to justify the removal until the presumption in its favor is overthrown by contrary proof.”

In the District of Columbia the chief justice of the Supreme Court thereof is charged with the same duties that in similar proceedings are imposed upon the governors of the several States. In the recent case of Hyatt v. State of New York (decided February 23, 1903), the Supreme Court has again given interpretation to the Constitution and the law enacted in pursuance thereof, and in an elaborate opinion, ■delivered by IVIr. Justice Peckham, redeclared the rules which must govern all the courts of the Union, State and Federal, in making inquiry into the validity of warrants issued for the Arrest and removal of alleged fugitives from the justice of a .State. In the course thereof it was said: “We are of opinion that the warrant of the governor is but prima facie sufficient to hold the accused, and that it is open to him to show by admissions, such as are herein produced, or by other conclusive evidence, that the charge upon which extradition is 'demanded assumes the absence of the accused person from the State at the time the crime was, if ever, committed.” In that case, where the accused had been arrested under a warrant issued by the governor of New York, upon the requisition of the governor of Tennessee, it was, by admission and evidence, made certain that the accused was not in Tennessee at or between the several dates charged in an indictment for grand larceny and false pretenses, and that the demand for his removal to that State for trial was necessarily based upon the doctrine that a constructive presence of the accused, at the time of the alleged commission of the crime, was sufficient to authorize the demand for his surrender. That doctrine was expressly denied in language, which we quote in part: “ In the case before us it is conceded that the relator was not in the State at the various times when it is alleged in the indictments the crimes were committed, nor until eight days after the time when the last one is alleged to have been committed. That the prosecution on the trial of such an indictment need not prove with exactness the commission of the crime at the very time alleged in the indictment is immaterial. The indictments in this case named certain dates as the times when tire crimes were committed, and where in a proceeding like this there is no proof or offer of proof to show that the crimes were in truth committed on' some other day than those named in the indictments, and that the dates named therein were erroneously stated, it is sufficient for the party charged to show that he was not in the State at the times named in the indictments, and when those facts are proved so that there is no dispute in regard to them, and there is no claim of any error in the dates named in the indictments, the facts so proved are sufficient to show that the person was not in the State when the crimes were, if ever, committed. * * * The exercise of jurisdiction by a State to make an act committed outside its borders a crime against tbe State is one thing, but to assert that the party committing such act comes under the Federal statute, and is to be delivered up as a fugitive from the justice of that State, is quite a different proposition. The language of section 5278, R. S., provides, as we think, that the act shall have been committed by an individual who was at the time of its commission personally present within the State which demands his surrender. * * * It is difficult to see how a person can be said to have fled from the State in which he is charged to have committed some act amounting to a crime against that State, when in fact he was not within the State at the time the act is said to have been committed.”'

It remains to apply the doctrine enounced to the special facts of the case at bar. There is neither concession nor proof that the demand for the arrest and removal of tire appellant to the State of Maryland, as a fugitive from justice there, was founded on his constructive presence, merely, at the time of the commission of the crime charged. The issue of the warrant made a prima facie case of actual presence at the time charged, and departure from the State thereafter, which it was incumbent upon the accused to overthrow by “ conclusive evidence.”

The absence of a person from, or his presence in, the State upon the alleged date of the commission of a crime, is a fact about which others might be uncertain, but the person, himself, ought to be able to testify with perfect certainty. The public policy which prompted the constitutional provision relating to extradition demands that he shall do so, else the ease and rapidity with which the country may be traversed would render one State a comparatively safe refuge for the criminals of another.

The learned) justice who presided on the hearing excluded no evidence offered by the appellant.

He received all that was offered, but was not convinced by it. In his opinion it did not show conclusively that the appellant was not personally present in Maryland at the time the offense is alleged to have been committed, and we are not satisfied that it is sufficient to require the reversal of his judgment.

The appellant testified, it is true, that he was not in Maryland on June 2, 1902, but admitted that he had been there “ shortly before,” and frequently during that summer.

As to the date that he was there, and exactly how long before the date of the alleged crime he actually crossed the boundary line of the ¡State, he was silent. With the constant means of rapid transit between the District of Columbia and the nearby resorts of Maryland, he might have crossed the line the very moment before midnight on June 1, according to his own record of the time. And this he might have regarded as being in Maryland “ shortly before June 2.”

We think it was his duty to meet the prima facie case of the State by proof showing with precision of statement the date of his departure from Maryland. Had he done so, it would have devolved upon the State to show that he was a fugitive from justice by producing evidence that he was in the State at the time charged in the indictment, or to prove that said date had been erroneously charged and could be carried back to the necessary time. Until the discharge of the burden imposed upon him by the prima facie case of the State, through the presentation of a distinctly traversable issue, the latter ought not to be called upon to reply.

In Hyatt v. New York the right to demand extradition depended entirely upon the effect of the constructive presence of the accused in the State when the crime was committed, and it was distinctly stated that the facts showing that condition must be “ proved so that there is no dispute in regard to them.” When so proved, the accused must be discharged; when not, he must be remanded. Evidence, however strong, the practical effect of which is to set up nothing more than a defense of alibi, raises an issue that can only be tried by the court having the exclusive jurisdiction to convict or acquit of the crime. Any other rule would tend, in many cases, to defeat the salutary purpose of the constitutional provision and the law enacted to give it operation.

Eor example, suppose the case of a party indicted for a secret murder that had been brought to light, long after its commission, by the discovery of the partly decomposed body, or the skeleton of the murdered person; the evidence being entirely circumstantial, and the date of the commission of the crime a matter of conjecture on the part of the grand jury. The accused, having been arrested in another State as a fugitive from justice, testifies that he was not in the demanding State on the day alleged, but had been there shortly before, and frequently during the same summer, failing, however, to fix the latter dates at all. Would this evidence be sufficient to impose upon the demanding State the burden of introducing witnesses to prove the various circumstances from which it might reasonably be inferred that the murder had occurred shortly before the date alleged in the indictment ? We think not.

There is, moreover, another reason for regarding the evidence in this case as insufficient.

The appellant was charged not only with keeping a gaming table, a crime wbicb might have been committed by a momentary act, but also with keeping and managing a house for gambling, which implies a crime of a continuous nature. Now, if he went into Maryland and opened a gaming-house in violation of the law of that State, going between it and his Washington place of business both before and after the date alleged in the indictment, is proof that he was personally present at each time that a game was exhibited therein essential to constitute him a fugitive from justice ? It seems to us not. Going in person to another State, and opening a house in which gaming may be carried on from day to day, or night to night, is quite different in effect from the single exhibition of a particular gaming device which may be but one of a series of acts indicating the character of the house.

Appellant admitted that he had been in Maryland frequently during the summer and again shortly before dune 2, 1902. He admitted, without saying when, that he had leased the premises in question, but stated that he “ had previously sublet the same ” to one Pumphrey, who was in control on dune 2, 1902, and in whose name the license to sell liquor stood on that date.

Appellant owned a saloon in the city of Washington at the same time, and said Pumphrey was the barkeeper therein. Upon this issue the guilt or innocence of the appellant would turn upon the question whether the substitution of Pumphrey, as lessee of the premises and with sole responsibility for the uses to which they might be applied, was an act of good faith or collusion merely. That question is clearly one for the determination of the trial court in the State of Maryland.

The evidence tending to show that appellant had been in Maryland several times after his indictment, and that no effort had been made to arrest him, is immaterial. The fact that he had gone into Maryland after indictment and had not left to escape a pursuing officer operated neither to constitute him a fugitive from justice, if in fact he had not been there at the time of the commission of the crime, nor to relieve him from liability as a fugitive if he was in the State at that time and had subsequently withdrawn. Hyatt v. New York, supra; Roberts v. Reilly, 116 U. S. 80, 97. In the case last cited it was said: “ To be a fugitive from justice, in the sense of the act of Congress regulating the subject under consideration, it is not necessary that the party should have left the State in which the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun, but simply that having within a State committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offense, he has left its jurisdiction and is found within the territory of another.”

Having found no error in the judgment appealed from, it will be affirmed, with costs. It is so ordered. Affirmed.