INFORMATION AND BELIEF OF COMPLAINANT [§ 333

of the demanding government.1 Complaints are commonly made by consular officers, whose official character removes the necessity of affirmative proof of authority.2 When a person other than a diplomatic or consular representative is the complainant, his authority to act in behalf of the demanding government must be shown at some stage of the judicial proceedings. It need not, however, be disclosed in the complaint itself.3

(b)

§ 333. Information and Belief of Complainant.

A complaint under Section 5270 of the Revised Statutes need not be, and rarely is, sworn to by a person having actual knowledge of the facts set out therein. It suffices if it is based upon information and belief. It must appear to the magistrate called upon to issue the warrant of arrest that the sources of the complainant's information and belief justify much more than suspicion of the truth of what is charged. The complaint itself should indicate that the complainant has been informed through a responsible governmental channel that criminal proceedings have been instituted against the accused by the demanding govern

Moore, Dig., IV, 380, and documents there cited. As to the arrest, pursuant to the application of the British government, of a fugitive on a British vessel in an American port by American authorities, see in re Newman, 79 Fed. 622, Moore, Dig., IV, 381.

That an illegal arrest by State or municipal authorities does not necessarily affect the jurisdiction of the United States Commissioner, is emphasized in the case of Kelly v. Griffin, 241 U. S. 6.

In re Kelly, 26 Fed. 852, 856; In re Ferrelle, 28 Fed. 878. In a dictum in Grin v. Shine, 187 U. S. 181, 193, a person qualified to make a complaint (when not "the official representative of the foreign government" such as its consular officer) is described as one "acting under the authority of the foreign government, having knowledge of the facts." It may be doubted whether, at least in practice, the possession of such knowledge is made the test of the capacity of the complainant when he is not the official representative of such government.

In view of a provision expressed in certain treaties, such as in Art. IX of that with Nicaragua of March 1, 1905, Malloy's Treaties, II, 1296, that "each government shall endeavor to procure the provisional arrest" of the fugitive under specified circumstances, it would appear to be the duty of the Government of the United States, if the treaty were properly invoked, to designate an official to make the complaint. Such an individual might be regarded as possessed of the authority of the demanding government.

2 Grin v. Shine, 187 U. S. 181, 193.

3 In re Kelly, 26 Fed. 852, 856; In re Ferrelle, 28 Fed. 878; In re Herres, 33 Fed. 165; In re Mineau, 45 Fed. 188.

Rice v. Ames, 180 U. S. 371, 375-376; Glucksman v. Henkel, 221 U. S. 508; see, also, Ex parte Dinehart, 188 Fed. 858; Powell v. United States, 206 Fed. 400.

Rice v. Ames, 180 U. S. 371, 375–376.

ment, and that a requisition for his surrender accompanied by the necessary depositions duly authenticated has been, or is about to be made. The absence of any statement in the complaint setting out the sources of information and belief, is not, however, regarded as a fatal defect if there has previously been brought to the knowledge of the magistrate as such, in a proceeding relating to the extradition of the accused, proof that the complainant had in fact solid grounds for the allegations which he made.2 The statement in the complaint of sufficient sources of information and belief would seem to obviate the necessity of offering simultaneously proof as to the existence or nature of those sources, or of attaching to the complaint copies of documents which were in fact the foundation of the complainant's allegations.3

$334. Form of Charge.

(c)

The complaint should set forth clearly and precisely the offense charged. It need not be drawn with the formal precision of an indictment. If it be sufficiently explicit to inform the accused of the precise nature of the charge against him, it is sufficient. The complaint should contain the allegation that the accused is a fugitive or that he is believed to be within the jurisdiction; also the allegation that the offense charged is within the treaty.5

1 Ex parte Dinehart, 188 Fed. 858.

2 Yordi v. Nolte, 215 U. S. 227, affirming Ex parte Yordi, 166 Fed. 921. 3 Notwithstanding the dicta of the court in Rice v. Ames, 180 U. S. 371, 375-376, there is an absence of judicial authority to the effect that the Act of Congress requires the complainant to offer documentary proof of the sufficiency of the sources of his information and belief. The test of the authority of the magistrate to issue a warrant seems to be whether he himself has reason to believe that the complainant has just ground for making the complaint. The former has reason for such belief, when the complainant asserts under oath the existence of certain facts which if true would create in the mind of the complainant reasonable belief of the truth of the allegations set forth in the complaint. In numerous cases complaints have been upheld by the courts where the complainant has referred to the receipt of certain telegrams as the sources of his information and belief, without exhibiting to the magistrate such telegrams or certified copies thereof, either by attaching them to the complaint itself or by any other process. See, Castro v. De Uriarte, 12 Fed. 250; Yordi v. Nolte, 215 U. S. 227; Powell v. United States, 206 Fed. 400.

The statement in the text is the language used by Coxe, J., in Ex parte Sternaman, 77 Fed. 595, 596, quoted with approval by Fuller, C. J., in Yordi v. Nolte, 215 U. S. 227, 230. See, also, Grin v. Shine, 187 U. S. 181, 189; Ex parte Zentner, 188 Fed. 344; For. Rel. 1911, 716-722, where a Consul General of Spain was unable to make a complaint containing the allegations commonly declared to be essential.

The language of the text is that of the captions in Moore, Extradition, I, §§ 294 and 295.

According to Section 5270 of the Revised Statutes, if the committing magistrate deems the evidence sufficient to sustain the charge under the provisions of the treaty, he must certify the same; and by a common treaty provision, the amount of evidence necessary for commitment is to be tested by what the law of the place where the fugitive was found would justify for apprehension and commitment, if the crime were there committed. Thus, in

1 "The place by whose law the question is to be tested is, if the fugitive is apprehended in the United States, the State in which he is found." Moore, Dig., IV, 391, citing Pettit v. Walshe, 194 U. S. 205. See, also, Mr. Fish, Secy. of State to Mr. Westenberg, Dutch Minister, Nov. 12, 1873, For. Rel. 1874, 785, Moore, Extradition, I, § 337, p. 517, note 1.

AUTHENTICATION OF DOCUMENTARY EVIDENCE OF THE DEMANDING GovERNMENT. The documentary evidence of the demanding government is rendered admissible if authenticated according to the requirements of the existing law of the United States. §5 of the Act of August 3, 1882, 22 Stat. 216, U. S. Comp. Stat. 1918, § 10116, provides: "In all cases where any deposition, warrants, or other papers or copies thereof shall be offered in evidence upon the hearing of any extradition case under Title sixty-six of the Revised Statutes of the United States, such depositions, warrants, and other papers, or the copies thereof, shall be received and admitted as evidence on such hearing for all the purposes of such hearing if they shall be properly and legally authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped, and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that any deposition, warrant or other paper or copies therof, so offered, are authenticated in the manner required by this act."

To understand the purport of the foregoing provisions it is desirable to examine the full and careful discussion contained in Moore, Extradition, I, chap. XIV, and also the documents cited in Moore, Dig., IV, 384-388. By such process it becomes possible to grasp the significance of the several Acts of Congress from 1848 until 1882 and of the decisions declaratory of them. With respect to what constitutes compliance with the Act of 1882, attention is called to the following cases: In re Behrendt, 22 Fed. 699; In re McPhun, 24 Blatchf. 254; In re Krojanker, 44 Fed. 482; In re Breen, 73 Fed. 458; In re Glaser, 176 Fed. 702; In re Luis Oteiza y Cortes, 136 U. S. 330; Grin v. Shine, 187 U. S. 181; Elias v. Ramirez, 215 U. S. 398; In re Lincoln, 228 Fed. 70.

Respecting the authentication of extradition papers by consular officers, see Mr. Knox, Secy. of State, to the Mexican Ambassador, April 13, 1910, For. Rel. 1910, 731, 732, where it was declared: “This department is of the opinion, however, that a consular officer of the United States, resident in a foreign country in which the United States maintains a diplomatic mission, is not authorized under this statute to authenticate extradition papers, and that were the question raised before the courts, the courts would so interpret it."

applying local requirements, it was held by Judge Morrow in the Ezeta Case, that the evidence of criminality

need not be such as would be required at the trial of the accused, but must be such evidence as ordinarily obtains at a preliminary examination, and amount to probable cause of his guilt; probable cause being such evidence of guilt as would furnish good reason to a cautious man, and warrant him in the belief that the person accused is guilty of the offense with which he is charged.'

This statement is believed to be declaratory of the principle involved, particularly in view of the nature of the proceedings before the committing magistrate.2

It may be observed that the furnishing of requisite proof that the person arrested is in fact the fugitive charged with crime and whose extradition is sought, may prove to be a difficult task.3 Frequently the demanding government finds it impossible to send to the United States persons capable of making proof of identification; and such individuals are not to be found at the place where the hearing is had. For that reason it is believed that there should be embraced within the depositions, whenever possible, some means of establishing the identity between the person arrested and him whose surrender is demanded. A photograph of the latter, or a specimen of his handwriting or of his finger-print, may suffice for such a purpose.

(b)

§ 336. Defensive Testimony.

Pursuant to the provision of Section Three of the Act of Congress of August 3, 1882,4 a fugitive is regarded as entitled to call witnesses in his own behalf, and to testify himself, if he so desires.5

1 In re Ezeta, 62 Fed. 972, 982, citing Aaron Burr's Case, 1 Burr's Trial, 11; Munns v. Dupont, 3 Wash. C. C. 31; In re Farez, 7 Blatchf. 345; In re Wadge, 15 Fed. 864; 16 Fed. 332; In re Macdonnell, 11 Blatchf. 170; In re Behrendt, 22 Fed. 699; Benson v. McMahon, 127 U. S. 457, 462. See, also, opinion of Mr. Nelson, Atty.-Gen., 4 Ops. Attys.-Gen., 201, Moore, Dig., IV, 388; Moore, Extradition, I, §§ 337-340; Mr. Olney, Secy. of State, to Mr. Townsend, Nov. 13, 1896, 213 MS. Dom. Let. 680, Moore, Dig., IV, 390; In re Piaza, 133 Fed. 998; In re Glaser, 176 Fed. 702, 704.

2 Benson v. McMahon, 127 U. S. 457, 462-463.

3 See, for example, Ex parte La Mantia, 206 Fed. 330, 332–333.

422 Stat. 215, U. S. Comp. Stat. 1918, § 10114.

5 In re Farez, 7 Blatchf. 345; In re Kelley, 25 Fed. 268. "The magistrate is not bound to adjourn proceedings to enable the accused to obtain evidence of an alibi." Moore, Dig., IV, 391, citing In re Wadge, 15 Fed. 864.

HABEAS CORPUS PROCEEDINGS

[$337 On the other hand, the Supreme Court of the United States has held that Section Five of the same Act of Congress respecting the admissibility of depositions when certified in the manner prescribed, is not applicable to depositions offered on the part of the accused, and that such documents when so authenticated are not admissible.1

In view of the nature and purpose of the inquiry before the committing magistrate, the evidence on the part of the accused should be directed to show that he did not in fact commit the acts charged against him, or that the acts so charged did not constitute any extraditable offense. Thus, for example, he might be able to offer convincing testimony that an act of robbery laid at his door was, by reason of the attending circumstances, of a political character, thus rendering the actor outside of the scope of the treaty.2 On the other hand, evidence to show justification or excuse for an act committed by the accused, being a matter of defense, should be reserved until the trial before the court of the demanding government, and hence excluded from the consideration of the committing magistrate.3

(c)

§ 337. Scope of Inquiry in Habeas Corpus Proceedings. None doubt that a writ of habeas corpus cannot perform the function of the office of a writ of error. The precise scope of the inquiry to be made by the court issuing the writ in extradition cases was well stated by Mr. Justice Blatchford, when, as a District Judge in 1875, he announced the decision of the court in the case of In re Stupp. He declared:

In full conformity with these views, the great purposes of the writ of habeas corpus can be maintained, as they must be. The Court issuing the writ must inquire and adjudge whether the Commissioner acquired jurisdiction of the matter, by conforming to the requirements of the treaty and the statute;

1 In re Luis Oteiza y Cortes, 136 U. S. 330, 336–337.

This was successfully shown, for example, in the Rudovitz Case.

In re Cienfuegos, 62 Fed. 972, 976. In Ex parte Charlton, 185 Fed. 880, 883-884, it was held that the question of the sanity of the accused at the time of the commission of the crime charged was a matter of defense and could only be interposed when he was put on trial; also that inquiry as to the question of his sanity subsequent to the commission of the offense could only be raised immediately before the trial, and then in the forum where the trial might be pending.

In re Luis Oteiza y Cortes, 136 U. S. 330; Ornelas v. Ruiz, 161 U. S. 502, 508.