leave it.What is meant by the rule, even when applied, is that an act which is an innocent one under the laws of the asylum state will not be found to be an extraditable offense, although denounced as criminal by the demanding country. Verbal identity in the definition of the offense in the two countries is not demanded. It is enough if the act aside from its verbal description is regarded as criminal by the laws of each country. What is and what is not within the rule as laid down is not altogether clear. The adage that the receiver is worse than the thief is common to England and Pennsylvania. The laws of Pennsylvania make it an offense to receive stolen goods with knowledge of the theft. There are likewise various fraudulent transfers which are made criminal as affecting both grantor and grantee. Law as a science must differentiate acts. Robbery, larceny, and embezzlement are, however, nothing else than different forms of theft. Statutory embezzlement may include acts which would not be embezzlement at common law. Conspiracy may in itself be made a crime in one country but not in another unless followed by an overt act. There may thus be an absence of identity in the verbal definition of the same criminal act as found in the laws of the demanding and the asylum country, but if an act as described in a treaty has been made extraditable, it will not be held to be not so merely because the definition of the offense verbally differs from the definition of the same offense found in the law of the asylum country.
This phase of the discussion may be summed up in the comment that the law of Pennsylvania denounces the crime of "receiving moneys knowing them to have been fraudulently obtained" quite as nearly as the law of Illinois was found to do in Kelly v. Griffin, 241 U.S. 6, 36 S. Ct. 487, 60 L. Ed. 861.
Passing the points just discussed, we come to the real defense interposed in this case as presented in the very forcible argument addressed to us by counsel for the relator. It begins with the proposition that no one can be tried for an offense with which he has not been charged and proceeds to the fact that the relator has been charged with the receipt of moneys, all of which came into his hands before a named date, and that there is no evidence that any one had been defrauded of any moneys until after the date named. Indeed, the only transactions connected with the defendant were with one man who instead of losing money had in truth and fact made a profit, and further that these transactions were nothing more than the purchase and sale of investment securities of the type known as high class. The argument drawn from this as presented by counsel is unanswerable. The only question thus becomes whether the right presentation has been made. The fraud, the fruits of which the relator is charged with having received, was the concept of no common mind. It was based upon the proposition that to defraud those who trust you they must first be induced to confide in you. The plan in consequence was to at first to do what in itself was a legitimate business. When confidence had been thus created and customers had been secured, but not until then, was the trap to be sprung. The intended and foredoomed victims were lured to the place where the trap was to be sprung by bait, but there was no trap set until they had been attracted in large numbers. The scheme was none the less fraudulent from the beginning and fraudulent before in the loss sense there was any fraud. The reply to this is that to charge the relator with participation in such a scheme is to charge conspiracy, and this is not an extraditable offense. Whenever there is the participation of several persons in a criminal act there is an overlapping. The planning of a crime and degreement to take part in it is a conspiracy, and if the part of one is to act as the purse and caretaker of its fruits, such receiver is a conspirator and accessory as well. If the crime involves a robbery or larceny or the obtaining of the moneys of others through a fraud and money is obtained and received and such receipt has been made a crime and is extraditable, the receiver is not relieved because he has also been guilty of conspiracy. It is an accepted doctrine that the trial of an extradited defendant should be restricted to the crime for which extradited, and each country trusts the other to observe this doctrine.
The conclusion we have reached is in accord with that reached in the cases of U.S. ex rel. Klein v. Mulligan, 1 F. Supp. 635 order affirmed (C.C.A.) 50 F.2d 687, and Laubenheimer v. Factor charged with the like offense with which Geen is charged and with the many cases which have been cited to us. The already overgrown length of this opinion will not permit a discussion of them, but we list a number of the many in the light of which we have made our rulings. These are:
1. The relator should be certified as the proper subject of extradition proceedings and be committed to await Executive action in accordance with the act of Congress.
2. The petition for a writ of habeas corpus should be denied.
Appropriate orders in accordance with this opinion may be submitted.
The cited cases to which reference has been made are as follows: Bryant v. U.S., 167 U.S. 104, 17 S. Ct. 744, 42 L. Ed. 94; Collins v. Loisel, 259 U.S. 309, 42 S. Ct. 469, 66 L. Ed. 956; Wright v. Henkel, 190 U.S. 40, 23 S. Ct. 781, 47 L. Ed. 948; Rocca v. Thompson, 223 U.S. 317, 32 S. Ct. 207, 56 L. Ed. 453; Bingham v. Bradley, 241 U.S. 511, 36 S. Ct. 634, 60 L. Ed. 1136; U.S. v. Greene (D.C.) 146 F. 803; Pennsylvania Criminal Code of 1860, §§ 120 and 130 (see 18 PS §§ 2864, 2428).
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