Johnson v. Browne
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 § 5440 of the Revised Statutes (U.S.C.omp. Stat. 1901, p. 3676), 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 § 5444, Revised Statutes (U.S.C.omp. Stat. 1901, p. 3677).

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, New York, 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 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 1 of the treaty or 'extradition convention' of 1889, between the United States and Great Britain. [26 Stat. at L. 1508.] That subdivision reads as follows:

'4. Fraud by bailee, banker, agent, factor, trustee, or director or member or officer of any company made criminal by the laws of both countries.'

The respondent was held for extradition by the Canadian commissioner, but, on writ of habeas corpus, the court of King's bench held that the conspiracy to defraua the United States, as set forth in the indictment upon which respondent was convicted, was not such a fraud as was provided for in the subdivision of the article of the treaty above referred to. Extradition was therefore refused.

Thereupon the United States secured the rearrest of the respondent on another complaint, charging him with the offenses for which he had been indicted under § 5444 of the Revised Statutes, and for which he had not been tried in New York. The Canadian commissioner held the respondent upon that complaint, and ordered his extradition, and, upon a writ of habeas corpus, the court of King's bench affirmed that order; and the respondent was then surrendered to the proper agent of the United States, who at once took him to the state of New York, and, having arrived within the southern district of that state, the marshal of that district, proceeding under the warrant for imprisonment issued by the circuit court upon the conviction of the respondent on the conspiracy indictment, took possession of him and delivered him into the custody of the warden of Sing Sing prison, there to be imprisoned for two years according to the sentence imposed upon him under the conviction as stated.

The respondent then obtained this writ upon a petition setting forth the above facts, and claimed that his imprisonment was in violation of the 3d and 7th articles of the extradition treaty between the United States and Great Britain. 26 Stat. at L. 1508. The warden of the prison made return August 7, 1906, that he held the respondent by virtue of the final judgment of the circircuit court of the United States for the southern district of New York, rendered on the 9th of March, 1904, as above set forth.

Mr. W. Wickham Smith and Solicitor General Hoyt for appellant.

[Argument of Counsel from pages 312-314 intentionally omitted]

Messrs. Terence J. McManus, W. M. K. Olcott, and Black, Olcott, Gruber, & Bonynge for appellee.

Statement by Mr. Justice Peckham:

[Argument of Counsel from pages 314-316 intentionally omitted]

Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court: 

Notes
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