« AnteriorContinuar »
ADAMS, Circuit Judge. Petitioner seeks to be discharged from an arrest made under a warrant issued by the Governor of Missouri, pursuant to a requisition made by the Governor of Texas, based upon an indictment charging him with the crime of false swearing as denounced by the statutes of Texas. The Constitution and statutes of the United States, which authorize and regulate the proceedings in extradition (article 4, § 2, of the Constituion and section 5278, Rev. St. (U. S. Comp. St. 1901, p. 3597]), make two fundamental facts essential to extradition: (1) The person sought to be extradited must have been charged by some court of competent jurisdiction in the demanding state with some offense; (2) he must have fled from that state, and been found in another. No complaint is here made of the regularity of the proceedings to secure the warrant of arrest, and no claim is made that the petitioner did not, within the meaning of the law, flee; that is, depart from the state of Texas after the time he is alleged to have committed the offense in question. The sole ground for the petitioner's resistance to the warrant of arrest is that it does not appear that he has been charged with the commission of any offense in Texas, and to this question alone attention need be given. On November 1, 1906, he was indicted by the grand jury of Travis county for the offense of false swearing, indictable under the laws of the state of Texas. The indictment charged him with having made on May 31, 1900, an affidavit wherein he swore among many other things, which for the sake of perspicacity will be omitted, that the Waters-Pierce Oil Company, a corporation of Missouri, organized on May 29, 1900, of which he was president, was not then, on May 31, 1900, “a party to * * * any
* * *
or understanding with any other corporation, to regulate or fix the price of any article of manufacture, * * and was not then” a party to “* any agreement, to fix or limit the amount of supply or quantity of any article of manufacture.
The indictment falsifies the affidavit in two respects, among others. It charges, in substance, that on the 31st day of May, 1900, as well as at other times, the Waters-Pierce Oil Company was a party to an agreement with the Standard Oil Company of New Jersey, among others, to regulate and fix the price of petroleum, and to fix and limit the amount of supply and quantity thereof, and that petroleum was an article of manufacture. The charge so made is found in a maze of words in connection with other charges that the corporation was in a “pool,” “trust,” "combination," "confederation,” to fix the price and limit the product of manufacture, and for other purposes. The indictment also charges that the Waters-Pierce Oil Company had been a member of such “pool,” “trust,” "combination," "confederation,” etc., for four months prior to the date of its incorporation. Whatever strictures may be passed upon those features of the indictment falsifying the affidavit as to matters and things alleged to have occurred before the incorporation of the company, or whatever arguments may be drawn from the fact that the affidavit and indictment referred to "pools,” “trusts," "combinations,” and “confederations,” etc., without setting forth the facts which constitute them, or without otherwise defining them, we are by force of the
* * *
unequivocal language of the indictment brought to consider whether the charge that the petitioner made a false affidavit, to the effect that on the day he made it his company was not a party to any agreement with any other company or person to fix the price or limit the product of petroleum, states an offense of false swearing within the purview of the Texas statute. Section 752 et seq., Code Cr. Proc. Tex. 1895.
Whatever may have been the high degree of certainty required in framing indictments at common law, it is now well settled that refinement and technicality must yield to substantial things. The criterion for judging the sufficiency of indictments is whether the words employed make the charge clear to the "common understanding.” Dunbar v. U. S., 156 U. S. 185, 15 Sup. Ct. 325, 39 L. Ed. 390. "The object of criminal proceedings is to convict the guilty, as well as to shield the innocent, and no impracticable standards of particularity should be set up whereby the government may be entrapped into making allegations which it would be impossible to prove.” Evans v. United States, 153 U. S. 584, 591, 14 Sup. Ct. 934, 937, 38 L. Ed. 830. "Few indictments
are so skillfully drawn as to be beyond the hypercriticism of astute counsel, few which might not be made more definite by additional allegations; but the true test is not whether it might possibly have been made more certain, but whether it contains every element of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.” Cochran v. United States, 157 U. S. 286, 290, 15 Sup. Ct. 628, 630, 39 L. Ed. 704. Reasonable implications from facts clearly charged may be indulged in ascertaining the true meaning of an indictment. Rosen v. United States, 161 U. S. 30, 33, 16 Sup. Ct. 434, 40 L. Ed. 606; Clement v. United States, 7 C. C. A. 243, 149 Fed. 305. Such are the more recent expressions of the Supreme Court of the United States on this question. They amount to this: That while every precaution must be taken to fairly and fully apprise the accused of the nature and cause of the accusation against him, so as to enable him to make his defense and plead the judgment which may be rendered in the case for his protection against another charge for the same offense, and thereby protect him to the full in his constitutional right to a fair and impartial trial, no impracticable or useless standards of technicality or refinement, which tend to defeat justice or embarrass its administration, should be adopted. Such is also the statutory law of Texas:
“An indictment for any offense against the penal laws of this state shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant.” Article 448, Code Cr. Proc. Tex. 1895.
And in Texas an indictment may be amended by leave of court in all 'matters of form. Articles 587, 588, Code Cr. Proc. Tex. 1895.
In the light of the foregoing controlling and reasonable rules, it would seem that if a president of a corporation, whose duty it was as its chief executive officer to know what kind of agreements his company had made, should, pursuant to a law requiring him to do so, make an affidavit that his company was not on a given day a party to an agreement with any other company to fix the price or limit the production of an article of manufacture, the affiant could hardly say, when charged with false swearing in that particular, that he could not understand the nature of the charge, that its meaning was not apparent to common understanding, that it was only the expression of an opinion without knowledge of its meaning, when taken in connection with the law governing the same. There might be force in the argument of petitioner's counsel that the charge is based on a mere expression of opinion, and not on facts, if affiant had sworn as to the meaning or legal significance of some existing agreement or contract; but such is not the case. He swore to the fact his company had no agreement whatsoever with any other corporations or persons fixing the price or limiting the product of a manufactured article. It is not apparent how that single fact could be amplified by any statement of the terms of an agreement, when the existence itself of any such agreement is denied in toto. The indictment in the particulars just discussed in my opinion states the substance of an offense within the meaning of the extradition laws of the United States. It is true it employs some useless verbiage, is intricate and involved in its attempt at comprehensiveness, states and must stand on the somewhat improbable assertion that the company, whose corporate existence antedated the affidavit only by two days, did all the iniquity charged against it within that time. But none of these considérations can be entertained or their effect adjudicated in this proceeding by habeas corpus. Let it once be conceded or determined that the substance of an offense is stated in the indictment, however inartificially it may be done, or however involved with immaterial, or incompetent matters it may be, all other questions affecting the proceedings or the merits of the case must be relegated to the consideration and final adjudication of the courts of the demanding state. Those courts are conclusively presumed to administer the law of the land, and will discharge their duty with fairness and impartiality to the petitioner, as well as to the state. Such is the firmly settled rule from which this court cannot depart. Ex parte Reggel, 114 U. S. 642, 651, 5 Sup. Ct. 1148, 29 L. Ed. 250; Pearce v. Texas, 155 U. S. 311, 313, 15 Sup. Ct. 116, 39 L. Ed. 164; Whitten v. Tomlinson, 160 U. S. 231, 16 Sup. Ct. 297, 40 L. Ed. 406; Benson v. Henkel, 198 U. S. 1, 11, 25 Sup. Ct. 569, 49 L. Ed. 919; Hycle v. Shine, 199 U. S. 62, 83, 25 Sup. Ct. 760, 50 L. Ed. 90; Pettibone v. Nichols, 203 U. S. 192, 27 Sup. Ct. 111, 51 L. Ed. 148; Davis' Case, 122 Mass. 324; Ex parte Pearce, 32 Tex. Cr. R. 301, 23 S. W. 15.
Testing the indictment in another way, the same result follows. The charges contained in it include two at least which show the substantial elements of the offense of false swearing, and within the rule laid down in Stewart v. United States, 119 Fed. 93, 55 C. C. A. 641, and in Re Green (C. C.) 52 Fed. 106, specially relied upon by petitioner's counsel, it cannot be said that the indictment is essentially and fundamentally defective. If the petitioner, without any motion to quash, or other attack upon the indictment, had entered a plea of not guilty, gone to trial, and suffered a conviction, it could not be successfully contended that a motion in arrest interposing for the first time an objection to the sufficiency of the indictment would have been sustained (statute of jeofail; section 464 Code Cr. Proc. Tex. 1895), or that such judgment of conviction would have been absolutely void. There is too much substance in the indictment, notwithstanding much surplusage, to justify such a conclusion. If the indictment would not have been void on a motion in arrest, it must be held good as against the present collateral attack.
It is argued that, because the indictment was not found within three years after the commission of the offense, prosecution for it is barred by the statute of limitations, which is three years. Article 218, Code Cr. Proc. Tex. 1895. That argument is without merit. The statute constitutes a defense to be availed of at the option of an accused person, and one which may or may not be good. It may turn out to be true that the petitioner has been absent from the state of Texas during a part of the time since 1900. If so, the duration of such absence would not be included in the period of limitation. Article 221, Code Cr. Proc. Tex. 1895.
After a careful consideration of the able argument of counsel for both sides, the conclusion is irresistible that the substance of an offense is found in the indictment, and that jurisdiction rests alone with the courts of the demanding state to pass upon any question which may arise in its consideration and trial.
The prisoner must be remanded, and it is so ordered.
STATIONARY ENGINEER PUB. CO. V. COM ERFORD.
(Circuit Court, E. D. New York. May 31, 1907.)
1. COURTS-INJUNCTION-BILL-VERIFICATION OFFICERS.
Rev. St. $ 1778 [U. S. Comp. St. 1901, p. 1211], provides that in all cases in which under the laws of the United States oaths or acknowledgments may be taken before any justice of the peace, they may be also taken by or before any notary public or any of the commissioners of the Circuit Courts, and when certified under the hand and official seal of such notary or commissioners will have the same force as if taken before a justice of the peace. Held, that a bill for an injunction in a federal court, verified before a commissioner of deeds of the city of New York, was improp
erly verified. 2. SAME-PRELIMINARY INJUNCTION-VIOLATION OF CONTRACT.
Where a contract between plaintiff and a trade union for the publication of a trade paper for five years provided that a new contract might be made at the expiration of the original on like terms, and that complainant should have the first right to obtain such contract, provided complainant should have carried out the terms of the agreement to the satisfaction of the association, which thereafter refused to renew the contract, claiming dissatisfaction, complainant was not entitled to a preliminary injunction restraining the association from contracting with another and from refusing to renew the contract because it had satisfactorily performed the old contract, and that the union's refusal to renew was not in good faith, but a mere subterfuge on the part of certain officers in control having a personal animosity against complainant.
Joseph J. Hood, for complainant. Frank A. Acer (Dennis F. O'Brien, of counsel), for defendant. CHATFIELD, District Judge. The complainant is a corporation of the state of New Jersey, which for the last five years has been performing a contract made on or about the 31st day of May, 1902, with an organization, the International Union of Steam Engineers, of which the defendant is president. This contract was for the publication of a trade journal for the defendant, and contained numerous details defining the obligations upon both parties. The contract was to expire upon the 31st day of May, 1907, and contained an option, set forth in folio 17, as follows:
"It is further mutually agreed by and between the parties hereto, that a new contract may be made upon the expiration of this agreement upon like terms and conditions as herein contained or upon terms and conditions to be mutually agreed upon and that the said party of the first part shall have first right to obtain said contract, provided that said party of the first part shall have carried out the terms of this agreement to the satisfaction of the party of the second part.”
It is shown by the affidavits that this contract was entered into by five trustees, on the part of the union, which is an unincorporated association of individuals, with a principal office in the state of Illinois. This association comprises citizens of more than 35 states of the United States and some of the provinces of Canada, who meet in annual convention once in each year. The last convention was held at Milwaukee, Wis., on September 10, 1906. The association conducts its affairs through a general executive board, which has powers, when the association is not in convention, given to it by the constitution and by-laws of the association. At the conventions prior to the one held in 1906, during the existence of the contract above referred to, resolutions were adopted approving of the manner in which the complainant was performing this contract, and explaining the details of such performance. At the convention in 1906, the trustees, through whom the original contract had been made, and who appear to have taken a large part in the actions of the prior conventions, did not seem to be in control, and that convention neither approved of the contract nor of its extension under the so-called "option," but directed its executive committee to make arrangements for the publishing of the official journal under its own direction, and authorized the said executive board to make the necessary arrangements to carry out this purpose.
The complainant, alleging that it will be damaged in a large amount, and that it has no remedy at law, asks that the defendant be directed to make and deliver a new contract, according to the alleged option, and that the defendant be restrained from publishing, or causing to be published, any book, pamphlet, or magazine as the official journal of said union, and from performing the various acts connected with said publication. The complainant also asks for damages, and upon the complaint and an affidavit, verified by Orrin R. Young, as president of the complainant corporation, dated March 23, 1907, obtained an order to show cause why an injunction pendente lite should not issue, restraining the defendant, as president, etc., during the pendency