Lascelles v. State , 90 Ga. 347 ( 1892 )

Lumpkin, Justice.

1. The plaintiff in error was convicted of forgery. He had been indicted, under the name of Walter S. Beresford, as a common cheat and swindler and for larceny after trust, and upon the indictments for these offences, requisitions were issued upon the governor of New York, and the accused was arrested in that State in compliance with the requisitions, and delivered to the officer appointed in behalf of this State to receive him, who brought him here and delivered him to the sheriff of the county where the indictments had been found. While in jail, where he had been kept continuously from the time he was placed there under the charges made in these indictments, an indictment for forgery was found against him, based upon the same transaction as the charge of cheating and swindling, and he was thereupon convicted. By his motion to quash the indictment and by his plea in abatement, he made the objection that it was unlawful to try him for an offence not charged in the extradition proceedings, without first allowing him an opportunity to return to the State from which he had been surrendered.

We think this objection was properly overruled. No such limitation upon the right of trial as that contended for is to be found in the constitution and laws of the United States or of this State. That such a limitation exists in cases of extradition from foreign countries, has been determined by the Supreme Ooui’t of the United States in the case of U. S. v. Rauscher, 119 U. S. 407; and it was contended that the doctrine of that case is applicable to this. In our opinion, the reasons which control in cases of foreign extradition do not apply where the fugitive is surrendered under the provisions of the Federal constitution by the authorities of one State of the Union to those of another. In the first place, the limitation which exists in cases of foreign extradition is matter of express law. By the act of Congress of March 3d, 1869, c. 141, §1, as construed in the Rauscher case, it is provided that the accused shall be tried only for the crime specified in the warrant of extradition, and shall be allowed a reasonable time to depart out of the United States before he can be arrested or detained for another offence. It is significant that Congress, while thus care|hl to secure to the fugitive the right of return in cases of extradition from a foreign country, has made no such provision with reference to persons sm-rendered from one State of the Union to another. Moreover, the mutual rights and obligations of foreign governments with respect to extradition, are defined usually by treaties, in which the agreement to surrender extends, not as in the case of the States,' under the Federal constitution, to every offence against the laws of the demanding State, but only to certain offences specified in the treaty; and this, according to the views announced in the Rauscher case, is equivalent to the exclusion of the right to try for other offences, or for an offence other than that for which the fugitive was surrendered. In that case the crime for which the accused was tried was not only a different one from that for which he was sun-endered, but was not one of those specified in the treaty. The treaty being, uuder our constitution, a part of the law of the land, it was held to be the duty of the courts to take cognizance of it and enforce it as such, although in the particular case the foreign government had not asserted its rights in the premises. When we go back of the express law on the subject, and consider the matter independently of the statute referred to or of the obligations assumed by treaty, it will be found that the right of the person extradited to return to the country from which he was surrendered, is based upon the right of that country to afford asylum to the fugitive, and to refuse to give him over to another except upon such terms as it may see fit to impose. It is well settled that the criminal himself never acquires a personal right of asylum or refuge anywhere. Such right as he may have in this respect grows entirely out of the rights of the government to whose territory he has fled. It matters not, so far as the right to try him is concerned, that he may have been abducted while in another State, and brought back illegally and against his will to the State whose criminal laws he has violated, nor, in such case, that the executive of the State from which he was taken has demanded his return. Mahon v. Justice, 127 U. S. 700. See also Ker v. Illinois, 119 U. S. 436, decided on the same day as the Eauscher case, supra. That the right to protect the fugitive who has taken refuge in its territory exists on the part of every independent nation, except in so far as it may have agreed to' forego the right, is recognized by the Supreme Court of the United States in the Eauscher case, as an established principle of international law. But to our minds it is clear that under the organic law of the Union, no such right exists on the part of the several States with reference to each other. The constitution declares that “a person charged in any State with treason, felony or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.” (Art. 4, sec. 2, subsec. 2.) And it is settled that this provision extends without exception to all offences punishable by the laws . of the State where the act was done. It is immaterial that the thing complained of is not a crime in the State in which the accused is found; nor can the authorities of that State inquire into the question of his guilt or innocence. The sole question is, whether he is a fugitive charged with crime under the laws of the demanding State. If he is, the duty to deliver him up is imperative. The framers of the organic law clearly intended that there should be no reserved right to convert any State into a place of refuge for fugitives from the justice of another, and that State lines should constitute no insuperable obstacle to the enforcement of the criminal laws of any part of the Union, as to offences committed within the field of their operation. By the act of 1793, Congress has constituted the executive authority of the State to which the accused has fled the agency for carrying into effect the provisions of the Federal constitution and laws as to arrest and delivery. His sole function is to ascertain whether the authorities of the demanding State have on their part complied with the constitutional and statutory requirements, and if so, to cause the arrest and delivery of the fugitive. If these requirements are complied with, he has no further interest in the matter and cannot set up any right of his State to protect the fugitive. The sole right which his State can set up as against the right of the demanding State is, that its own justice shall be satisfied if at the time of the demand the accused stands charged with a violation of its laws. In such cases the right of the demanding State is not denied, but is merely suspended until a prior claim shall have been discharged. The imperative duty of delivery, where the Federal requirements are complied with, is recognized in the legislation of this State (Code, §§54, 55), the only reservation of any right of the State being that which has just been indicated. In Johnston v. Riley. 13 Ga. 98, this court held that “ when a demand is made by the executive officer of one State for a fugitive from justice who has taken refuge in another State, under the provisions of the constitution and laws of the United States, and a cop3r of the indictment found or the affidavit made, as provided by the act of 1793, shall be produced and duly authenticated, as required by the act, charging the person so demanded with having committed a crime against the laws of the State from which he fled, the executive officer of the State upon whom the demand is made for the surrender of such fugitive must be governed by the record produced; he has no authority to make any addition to it, or to look behind the indictment or affidavit, and inquire whether by the laws of his own State, the facts charged therein would constitute a criminal offence ; but it is made his imperative duty, under the supreme law of the land, which he has sworn to support, to surrender up such fugitive to the authorities of the State whose laws have been violated, having jurisdiction of the crime.” On this subject see also 2 Moore on Extradition, §§607, 608 et seq.-, Spear on Extradition (edition of 1886), 422-434; Hawley on Interstate Extradition, 10 et seq., 48; Kentucky v. Dennison, 24 Howard, 99. It may be true that there, is no power on the part of the Federal government or of the demanding State to compel performance of this duty, but it is not on that account in any less degree a duty.

If, therefore, the demand cannot, as a matter of right, be refused when made in compliance with the Federal requirements, it would be idle for the authorities of the State to whom the accused was surrendered to set him at large so that another demand might be made, before trying him for an offence other than that charged in the requisition upon which he was surrendered. Certainly they are under no obligation, before trying him for other violations of law, to place the executive of the surrendering State in a position to do or refuse to do that which, under the supreme law of the land, it is his imperative duty to do. If what we have said is true, considerations of comity and good faith on the part of the State to which the surrender was made are not involved in the matter. Besides, if it is competent for the State in which the surrender is made to impose any conditions not imposed by the Federal laws, no such condition appears in this case. There was no executive pledge on the part of this State and no stipulation on the part of the State of New York, so far as the record discloses, which could give rise to an implication of bad faith; and the courts of that State have declined to recognize any such limitation upon the right of trial as that contended for in behalf of the accused in this case. See People ex rel. Post v. Cross, decided by the Supreme Court, June 1, 1892 (19 N. Y. Supp. 271); affirmed by the Court of Appeals, 32 N. E. Rep. 246.

We think no further discussion is required to show that the reasons for this limitation in the case of foreign and independent nations, do not control as between States united under a common supreme government, the objects of whose union, among others, are “to establish justice, insure domestic tranquillity” and “promote the general welfare.” (See preamble to constitution.) As between States occupying these relations to each other, the right of one to protect fugitives from the justice of another, or to place any check or limitation upon the right' of trial by another, would be wholly inconsistent with the objects of the union, and besides could be of no value, while to each of the States, as well as to the whole Union, it is of the highest importance that each shall have the right to punish all offenders against its laws, no matter to what part of the common territory they may have fled.

The conclusion reached in this case, although not in accord with the views announced by some courts, is sustained by a decided preponderance of authority. The cases cited contra which are nearest in point are those of State v. Hall, 40 Kan. 338, and Ex parte McKnight (Ohio), 28 N. E. Rep. 1034. In the case of Cannon, 47 Mich. 481, also cited contra, the question arose upon an inquiry as to the legality of an arrest in a bastardy suit, after the defendant had been brought back to the State upon another charge; and according to the view of the court, the bastardy proceedings were not criminal in the strict sense of the term, and involved no offence for which extradition could have been demanded. The main ground upon which these decisions rest is, that it would be bad faith and a perversion of justice, after procuring the surrender of a person upon one charge, to try him upon another. Such is the view expressed by Mr. Spear in his work on Extradition, 525 ct seq., and by Judge Cooley in the Princeton Review, Jan., 1879, quoted from at some length in the Kansas decision, supra. This view seems to have been influenced to some extent by the decisions as to the illegality of arrest in civil actions of parties brought within the jurisdiction on a criminal charge, as well as by the supposed analogy, which we have already discussed, to cases of international extradition. We think there are various reasons why cases involving the fraudulent use of criminal process by private individuals to promote the ends of a civil aetion, stand upon an altogether different footing from cases where a State which has brought a person within its jurisdiction upon one charge, proceeds afterwards to try him for other offences against public justice. A controlling distinction to be noted is, that a person against whom it is sought merely to establish or enforce a civil liability, has personal rights which are violated by his being brought into the jurisdiction by fraud, while, as we have seen, an offender against the criminal laws of the State acquires no right by his flight or absence from the jurisdiction, which the courts, in the administration of those laws, are bound to regard when he is again found within the jurisdiction. This was the doctrine of the common law courts, and may now be regarded as settled in this country by the decisions of the Supreme Court of the United States in the cases of Ker and Mahon, supra. The manner in which the accused was brought into the jurisdiction is not taken into account unless some right of the government which has surrendered him has been violated, or would be, by his trial; and such rights, if not asserted by the government itself, the courts are not bound to enforce at the instance of the accused, unless by express law it is made obligatory upon them to do so. And clearly, if that government would have no right to object to his surrender for the offence for which he is put on trial, or has not asserted any such right, and in delivering him up imposed no condition as to his trial for other offences, the question of good or bad faith, as we have already said, is not involved. Before the State should forego its right to try or punish for violations of its laws when the offender is found within its jurisdiction, we think there should be some very plain and positive duty in the premises. But whatever may be thought of the considerations which should influence the executive department of the State, the courts must administer the law as they find it, without regard to any supposed rights of other States not defined by law and not asserted before them by the* proper authority. These views are supported by the following authorities : 2 Moore on Extradition, §§516 et seq., 642-644 (ed. 1891); Rorer, Interstate Law, 227; Hawley, Interstate Extradition, 79 et seq., 46 (1890); 1 Bish. Crim. Proc. §224b; People v. Cross (N. Y. Supreme Court and Court of Appeals), supra; Williams v. Weber, 28 Pac. Bep. 21, (Colorado, 1891); Ham v. State, 4 Tex. App. 645; State v. Stewart, 60 Wisc. 587, 50 Am. Rep. 388; In re Noyes (U. S. Dist. Ct. of N. J.), 17 Alb. L. J. 407.

It may also be worthy of note, that the policy of the political department of this State has been to treat interstate rendition, not as a matter of comity or discretion, but as an absolute duty when the Federal laws on this subject are complied with on the part of the demanding State. See correspondence between Govenror Gordon of this State and Governor Taylor of Tennessee (1889), 82 Ga. Rep., Appendix 810; also correspondence between Governors Schley and Gilmer of this State and the executive of Maine (1837-1839), referred to in 2 Moore on Extradition, §563. Governor Gordon, in coirtending that the right to the rendition of the fugitive extended to misdemeanors of every kind, as well as to all other offences punishable by the laws of the demanding State, whether punishable or not at common law or by the statutes of other States, says: “Interstate extradition is not a matter of comity, but of cold, hard law.” “The governor of a State . . has no legal right of discretion to refuse to issue his warrant when a requisition is made upon him, if that requisition is made in conformity with the law of Congress.” Governor Gilmer, in one of the communications referred to, says: “Unless the governments of the several States shall deliver up, upon demand, all within their jurisdiction who are charged with the commission of crimes in other States, with the same certainty that criminals are arrested by the officers of justice within the jurisdiction where their offences are committed, the people of this country have no sufficient security for the protection of their rights against the facility with which offenders can escape from the jurisdiction where alone they can be tried, and our form of government will have failed in providing for the performance of one of its most important functions — the certain punishment of crimes.” “The arrest of fugitives from justice can never be asked of a governor as a matter of favor, to be granted according to his discretion. . . The demand must be made as a matter of right; and if accompanied by the proof required by the law of the United States, the duty is imperative,” the proof here referred to being the authenticated copy of the affidavit ■or indictment in which the charge is preferred. 2 Moore, 892, citing Sen. Docs. vol. iv., 26 Cong. 1st Sess.-273.

2. It appears from the record that a prior indictment for forgery was found against the accused on the 30th of September, 1891, and that on the 5th of October, the court passed an order reciting that “ the solicitor-general desiring that a nolle prosequi be entered on this bill for the purpose of drawing another of fuller counts, it. is therefore ordered that this bill of indictment be and the same is hereby nol. pros’dOn the same day another true bill for forgery was found against the defendant upon the same facts as were set forth in the former bill; and on the next day this second bill, on motion of the solicitor-general, was ordered quashed, the order reciting that it appeared to the court to be defective upon its face. Subsequently on the same day, an order was passed on the same bill, that a new bill of indictment be presented and laid before the grand jury; whereupon, on the same day, was found the indictment upon which the defendant was tried and convicted. The accused, by motion to quash and plea in abatement, objected that the entering of a nolle prosequi as to the indictment of September 30th was illegal, because the same was not done on account of any fatal defect therein ; that there was no order directing a new bill found on the 5th of October, and therefore the bill found on that day was null and void; and that the order disposing of the bill forrnd on that day, and the order of October 6th, directing the finding of a new bill, were improperly granted. Under the act of February 26th, 1877, entitled “An act to allow a nolle prosequi to be entered in criminal cases with the consent of the coart,” and which declares “ that a nolle prosequi may be entered by the solicitor-general in any criminal case, with the consent of the court, after an examination of the casé in open court” (Acts 1877, p. 108; Code, §4649), the consent of the court is conclusive upon the validity of a nolle prosequi which the court has allowed the solicitor-general to enter before putting the accused on trial. The latter, when arraigned upon a bill of indictment subsequently found and returned by the grand jury for the same act or offence, cannot by plea in abatement or motion to quash, draw in question the rightful disposition of'the former bill by nol. pros.

3. Another objection raised by motion to quash and plea in abatement was, that a member of the grand jury that found the bill was related by affinity to the prosecutor within the fourth degree, his wifé being a second cousin to the prosecutor. According' to the principle ruled in former decisions of this court, a plea in abatement or motion to quash, based upon objections of this character, is not sustainable, at least if the accused has had an opportunity to make the question by challenge before the finding of the indictment. Betts v. The State, 66 Ga. 508; Williams v. The State, 69 Ga. 12; Lee v. The State, Id. 705; Turner v. The State, 78 Ga. 174. In this case the accused was apprised by the warrant for his arrest, several days before the indictment was found, that the case would go before the grand jury, and it is not shown in his plea or motion to quash that he had no opportunity to make the objection by challenge. The ease of Reich v. The State, 53 Ga. 73, is distinguishable from this case and the others cited. There the grand juror was an alien, and was therefore incompetent'to serve in any case. Not'being a citizen, he lacked one of the necessary qualifications prescribed by law. Here the grand juror, so far as appeared, had all the legal qualifications to act generally in that capacity, but was subject to objection merely because of implied bias in the particular case. Moreover, in the Reich case, supra, the charge was prefei’red by special presentment; so there was no reason to suppose that the accused could have anticipated the action of the grand jury. The distinction between grounds of challenge propter affectum, or for favor, and grounds propter defectum, which go to the lack of capacity to serve in any case, and which would render the accusation void if successfully maintained, is noted in the case of Betts, supra. It was there held that “it was not a good plea in abatement to an indictment, that one of the grand jurors who found it had previously been a member of the coroner’s jury who sat upon the corpse and who found that the deceased had come to his death at the hands of the present defendant, and that the killing was murder.” In the Williams case, supra (5c), it was held that “ if a defendant in a criminal case can except to a grand juror at all, on the ground that he has formed and expressed an opinion, it should be done before the true bill is .found, and not on the trial thereunder. Certainly so where the defendant had notice of the pending consideration of his ease by the grand jury, by reason of having been previously placed under bond.” “The truth is,” said Jackson, C. J., in the opinion in that case, “it is a matter of comparatively little importance that grand jurors should not have formed opinions, because they only put the party on trial, and that after hearing only one side of the case. If, however, it is deemed important in a particular case to fight the prosecution in limine, diligence requires that the challenge be made before the bill is found. In this ease the party could have done so.” In .the Lee case, supra, it was held, as in the case of Betts, that service by one of the grand jury upon the coroner’s inquest that found the defendant had committed the homicide under consideration, was not a good ground for a plea in abatement. The court said that a traverse juror stands upon a different plane from a grand juror, in respect to causes of challenge. “The latter, where there is a homicide proved, only puts the presumption of the law into the form of an accusation against the slayer; the former tries his case, and must be without bias or prejudice,” etc. In Turner v. The State, supra, it was held that “ points relating to the number of grand jurors and their competency should be made before the true bill is found, and not on the trial before the traverse jury, especially where the defendant is under a charge that apprises him that the case will go before the grand jury, by being under bond to. appear or confined in jail to answer the offence in court.” See also Roby v. The State, 74 Ga. 812. The cause of disqualification alleged in the present case belongs to the same class of causes of challenge as does the fact of service by a grand juror on a previous investigation of the same subject-matter in controversy. 5 Bac. Abr. 353 et seq. In Thompson & Merriam on Juries, §535, it is said: “The only objections which can be taken to grand jurors by plea in abatement must be such as would disqualify the juror to serve in any ease. In other words, the plea must show the absence of positive qualifications demanded by law. All other objections affecting the incompetency of the juror must be taken by challenge, if at all, and will not be heard after the time for challenging is past. Thus, it is not a good plea to an indictment for murder, that a member of the grand jury which found the indictment was a nephew of the person who was murdered.” See State v. Easter, 30 Ohio St. 542, which was a case of this kind; also-the recent case of State v. Sharp, 110 N. C. 604, 14 S. E. Rep. 504, in which the son of the prosecutor was a member of the grand jury and actively participated in the finding of the bill. Also State v. Rickey, 5 Hals. (N. J.) 83; State v. Hamlin, 47 Conn. 95, 36 Am. Rep. 54; U. S. v. White, 5 Cranch C. C. 646; U. S. v. Williams, 1 Dillon, 485 (opinion by Dillon, J.). Some of these decisions were rendered in States where there were no statutory provisions as to the challenging of grand jurors, and where it did not appear that it had been the practice to exercise this right, but the right was i’ecognized as existing wherever the common law prevailed. See Whart. Crim. PL & Prac. (9 ed.), §§344 par. 4, 350; 1 Bish. Crim. Proc. (3 ed.), §§876, 878.

4. The exceptions to the overruling of the demurrer as to misjoinder of counts, and to the overruling of the motion to require the State to elect upon which of the counts it would rely, are dealt with in the 4th headnote. As to these exceptions, see : Hoskins v. State, 11 Ga. 94; Stewart v. State, 58 Ga. 580; Thomas v. State, 59 Ga. 786; Johnson v. State, 61 Ga. 213; Gilbert v. State, 65 Ga. 450; Hopkins’ Penal Code, §§1514, 1515.

5. It is assigned as error that the court refused to continue the case for the term, and allowed the accused only twenty days to prepare for trial. The showing for continuance and the counter-showing are set out, in substance, in the reporter’s statement. On the counter-showing, taken in connection with the showing, there was no abuse of discretion by the presiding judge in denying the application. And no error appears in admitting in evidence the facts constituting the counter-showing, most of them consisting of acts and declarations by the prisoner himself which were inconsistent with the good faith of his showing, and those which consisted of declarations by others not being separately objected to on the ground that they were hearsay.

6. The testimony ruled upon in the 6th head-note tended to illustrate the motives of the accused in the transaction in question, and was clearly admissible.

7. Several grounds of the motion for a new trial are' based upon the failure and refusal- of the court to charge, in effect, that if the name signed by the accused, although not his own, was one which he had been accustomed to employ and under which he had done business, the jury could' not convict him. It was insisted that, in order to constitute forgery, the name must have been assumed for the sole purpose of defrauding the persons alleged to have been defrauded. "We think it immaterial for what purpose the name was originally assumed and used, if it is shown that in the instance in question it was used to defraud. It was a fictitious name, within the meaning of the statute (Code, §4453), if the accused gave it a fictitious character which was calculated and intended to deceive by imparting an apparent value to the writing which might not otherwise attach to it in the minds of the persons with whom the accused was dealing. Where one has been accustomed to use a certain assumed name, it is not to be implied merely from his signing such name to a bill of exchange or other writing that the purpose is to defraud; it is not forgery unless there is something else besides the mere signing to show that the fictitious character of the name is in that instance an instrument of fraud. In the case of Dunn, 1 Leach C. C. 57, and Reg. v. Martin, 49 L. R., C. C., 244, cited for the plaintiff in error, there was no such showing made. In the ' present case, however, the accused, at the time of signing the writing, gave a fictitious character to the name, upon the faith of which he induced the parties with Avhom he Avas dealing to give value for the writing. According to his representations to them, it Twas the name of the son of-Lord Beresford, an English nobleman of great wealth, Avho Avas about to deposit in bank $25,000 in the name of this son. When Mr. Hamilton hesitated about paying the money, the accused said: “Our name can' command auy amount of money in England.” . He not only used an assumed name, but, in connection with, the signing of the writing in question, gave'a fictitious character to the name, and impersonated that character in order to obtain money upon the writing, which he might not have gotten if he had simply represented himself to be "Walter S. Beresforcl, or had stopped with the representations he had made as to his own wealth, without making these additional representations as to his relationship and standing. The parties with whom he was dealing paid over their money to the supposed son of Lord Beresford, upon the faith of a writing executed by the accused in that character, when, as it afterwards turned out, .the name used was not his own name, and Lord Beresford had no son of the name used. There being no such son, it was not a case of personating another, as contemplated by section 4596 of the code. It was the personating of a fictitious person, and this is of the essence of the offence described in thé section upon which the first count of this indictment was based. Code, §4453/

8, 9. The court did not err in its instructions as to "what constituted a counterfeit- letter or writing, under seetiou 4455 of the code. The evidence warranted the verdict, and there was no error in not granting anew trial on any one of the grounds,, contained in the motiou therefor. Judgment affirmed.