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KELLY v. GRIFFIN

April 17, 1916

KELLY
v.
GRIFFIN, JAILER OF LAKE COUNTY, ILLINOIS



APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS

White, McKenna, Holmes, Hughes, Van Devanter, Pitney, McReynolds

Author: Holmes

[ 241 U.S. Page 11]

 MR. JUSTICE HOLMES delivered the opinion of the court.

The appellant was held for extradition to Canada and petitioned for and obtained a writ of habeas corpus. After a hearing upon the returns to the writ and to a writ of certiorari issued to the Commissioner by whose warrant the

[ 241 U.S. Page 12]

     petitioner was detained, the District Judge discharged the writ. An appeal was allowed and several objections have been pressed to the proceeding, which we will take up in turn. The matter arises out of frauds in the construction of the new parliament buildings at Winnipeg, in which Kelly the contractor and a number of public men are alleged to have been involved.

First it is said that jurisdiction of the appellant's person has not been obtained legally. On October 1, 1915, he was arrested without a warrant, on a telegram from Winnipeg. The next day a complaint was made before the Commissioner by the British Vice-Consul General in Chicago upon information and belief, a warrant was issued, and the petitioner was turned over to the United States Marshal by the Chicago police. On October 15 a new complaint was filed by the British Consul General, a new warrant was placed in the hands of the marshal and the former complaint was dismissed. Wright v. Henkel, 190 U.S. 40, 42, 44, 63. The contention is that the original arrest was illegal and that the appellant was entitled to be set at liberty before the warrant of October 2 or that of October 15 could be executed with effect.

But however illegal the arrest by the Chicago police it does not follow that the taking of the appellant's body by the marshal under the warrant of October 2 was void. The action of the officers of the State or city did not affect the jurisdiction of the Commissioner of the United States. Furthermore the order dismissing the complaint of October 2 was that the appellant be discharged forthwith from custody; so that on the face of the record it would seem that before being held under the present warrant the appellant had the moment of freedom which he contends was his right. It is urged that the Canadian Authorities are trying to take advantage of their own wrong. But the appellant came within reach of the Commissioner's warrant by his own choice, and the most that can be said

[ 241 U.S. Page 13]

     is that the effective exercise of authority was made easier by what had been done. It was not even argued that the appellant was entitled to a chance to escape before either of the warrants could be executed. This proceeding is not a fox hunt. But merely to be declared free in a room with the marshal standing at the door having another warrant in his hand would be an empty form. We are of opinion that in the circumstances of this case as we have stated them the omission of a formal act of release and a subsequent arrest, if they were omitted, furnishes no ground for discharging the appellant upon habeas corpus. All the intimations and decisions of this Court indicate that the detention of the appellant cannot be declared void. Pettibone v. Nichols, 203 U.S. 192. Iasigi v. Van De Carr, 166 U.S. 391, 393, 394. Ekiu v. United States, 142 U.S. 651, 662. If we were satisfied that a different rule would be applied by the final authority in Great Britain other questions would arise. Charlton v. Kelly, 229 U.S. 447. But we are not convinced by anything that we read in Hooper v. Lane, 6 H.L.C. 443, that a different rule would be applied and we think it unnecessary to discuss the differences in detail.

The complaint of October 15 charges perjury, obtaining money by false pretenses, and, conjointly, stealing or embezzling and unlawfully receiving money and other property of the King which had been embezzled, stolen or fraudulently obtained by means of a conspiracy as set forth. The perjury alleged is swearing falsely to the proportion of cement sand and broken stone put into the caissons of the new parliament buildings at Winnipeg, in a judicial proceeding before the Public Accounts Committee of the Legislative Assembly of the Province of Manitoba, the appellant knowing his statements to be false. It is objected that although perjury is mentioned as a ground for extradition in the treaty, the appellant should not be surrendered because the Canadian Criminal Code, ยง 170,

[ 241 U.S. Page 14]

     defines perjury as covering false evidence in a judicial proceeding 'whether such evidence is material or not.' As to this it is enough to say that the assertions charged here were material in a high degree and that the treaty is not to be made a dead letter because some possible false statements might fall within the Canadian law that perhaps would not be perjury by the law of Illinois. "It is enough if the particular variety was criminal in both jurisdictions." Wright v. Henkel, 190 U.S. 40, 60, 61. There is no attempt to go beyond the principle common to both places in the present case. It is objected further that although the above committee was authorized to examine witnesses upon oath it was only in 'such matters and things as may be referred to them by the House.' But even if there were not some evidence and a finding, Ornelas v. Ruiz, 161 U.S. 502, 509, the ...


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