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Conspiracy - to commit crime - overt, seeks his rendition. That appears on act.

the face of the papers, is a fatal defect, 5. By the law of Massachusetts and by and is always open to judicial inquiry the common law a conspiracy to commit a in these rendition cases on an application crime is itself a criminal offense, although no overt act be done in pursuance of it; for discharge under a writ of habeas such acts, however important as evidence of corpus. conspiracy or as matters of aggravation, Roberts v. Reilly, 116 U. S. 80, 95, 29 not being of the essence of the offense, L. ed. 544, 549, 6 Sup. Ct. Rep. 291; since there is no statute making criminality Hyatt v. New York, 188 U. S. 691, 47 dependent upon the commission of an overt L. ed. 657, 23 Sup. Ct. Rep. 456, 12 Am. act. [For other cases, see Conspiracy, I. in Digest Lean, 121, Fed. Cas. No. 12,968.

Crim. Rep. 311; Ex parte Smith, 3 McSup. (t. 1908. ] Extradition interstate fugitive

All the decisions of this court, though from justice.

liberal to a degree in other respects, de6. There is adequate ground for the re. clare that it is essential that the indictturn as a fugitive from justice under U. S. ment charge the accused with the comRev. Stat. § 5278, of a person charged by mission of a crime within the state authentic indictment with the commission demanding him. of a criminal conspiracy in the demanding state on or about a specified date, who, by

Kentucky v. Dennison, 24 How. 66, 16 his own admission, bad been personally L. ed. 717; Robb v. Connolly, 111 U. S. present there and in communication with 624, 638, 28 L. ed. 542, 547, 4 Sup. Ct. the alleged co-conspirator at or about that Rep. 544; Roberts v. Reilly, 116 U. S. time, and was afterwards found in the 80, 95, 29 L. ed. 544, 549, 6 Sup. Ct. Rep. surrendering state.

291; Hyatt v. New York, 188 U. S. 691, [For other cases, see Extradition, I. in Digest 709, 710, 47 L. ed. 657, 660, 661, 23 Sup.

Sup. Ct. 1909.) Habeas corpus - extradition review Ct. Rep. 456, 12 Am. Crim. Rep. 311; of governor's finding.

Ex parte Reggel, 114 U. S. 642, 652, 653, 7. Whether in fact a person whose 29 L. ed. 250, 253, 254, 5 Sup. Ct. Rep. interstate extradition is demanded is a 1148, 5 Am. Crim. Rep. 218; Munsey v. fugitive from justice is for the governor Clough, 196 U. S. 364, 49 L. ed. 515, of the surrendering state to determine, and 25 Sup. Ct. Rep. 282; Pettibone v. his conclusion that he is such a fugitive Nichols, 203 U. S. 192, 51 L. ed. 148, 27 must stand on habeas corpus unless clearly overthrown.

Sup. Ct. Rep. 111, 7 Ann. Cas. 1047; (For other cases, sce Habeas Corpus. II. b: Appleyard v. Massachusetts, 203 U. S.

Extradition, Iv. c, in Digest Sup. Ct. 1908.) 222, 51 L. ed. 161, 27 Sup. Ct. Rep. 122, Extradition fugitive from justice.

7 Ann. Cas. 1073; Illinois ex rel. Mc8. To be regarded as a fugitive from Nichols v. Pease, 207 U. S. 100, 52 L. justice it is not necessary that one shall have left the state in which the crime is ed. 121, 28 Sup. Ct. Rep. 58; Strassheim alleged to have been committed for the very

v. Daily, 221 U. S. 280, 55 L. ed. 735, purpose of avoiding prosecution, but simply 31 Sup. (t. Rep. 558; Biddinger v. that, having committed there an act which, Police Comr. 245 U. S. 128, 62 L. ed. by the law of the state, constitutes a crime, 193, 38 Sup. Ct. Rep. 41. be afterwards has departed from its juris- The appeilant may be lawfully tried in diction, and, when sought to be prosecuted, New York for receiving funds alleged is found within the territory of another to have been stolen by Hanson and sent state, [For other cnone, see Extradition, I. in Digest to Hogan, without violating the limitaSup. Ct. 1908.)

tions of the rendition clause of the Con

stitution as established by the uniform (No. 120.]

decisions of this court. submitted under the Twentieth Rule, No

People ex rel. Briggs v. Hanley, 226 vember 8, 1920. Decided January 31,

N. Y. 453, 123 N. E. 663; Re Jackson, 2 1921.

Flipp. 183, Fed. Cas. No. 7,125.

Rendition ought not to be left to the A ,

the United States for the District of contested, it will depend upon political New Jersey to review the denial of relief expediency. The present system has by habeas corpus to a person detained stood the test of time and the trial of under an extradition warrant. Affirmed. the slavery issue and war. The sug.

The facts are stated in the opinion. gested change would be an innovation. Mr. Reuben D. Silliman submitted the Obsta principiis is a safe and wise

maxim. cause for appellant: Hogan is not charged with having

Re Cook, 49 Fed. 833. committed a crime within the state which Mr. Joseph C. Pelletier submitted the

HOGAN v. O'NEILL.

1920

cause for appellee. Mr. William S. Kin- it appeared that a demand for appelney was on the brief:

lant's apprehension and extradition to The defendant having admitted that, Massachusetts [54] had been made by on or about the time the indictment al- the governor of that commonwealth upon leges the crime was committed, he was the governor of New Jersey, accompain the commonwealth of Massachusetts, nied with a copy of an indictment found in company with the codefendant Han- by the grand jury of Suffolk county, cerson, and that thereafter he departed tified as authentic by the governor of from the said commonwealth, establishes Massachusetts, and an affidavit to the beyond contradiction that he is a fugi- effect that appellant was in the comtive from the justice of the common- monwealth for some time previous to wealth of Massachusetts.

and at the time of the commission of the Roberts v. Reilly, 116 U. S. 80, 29 L. alleged crime, and afterwards fled ed. 544, 6 Sup. Ct. Rep. 291; Munsey therefrom. v. Clough, 196 U. S. 361, 49 L. ed. 515, The following is a copy of the indict25 Sup. Ct. Rep. 282; Appleyard v. ment (signatures omitted): Massachusetts, 203 U. S. 222, 51 L. ed. "Commonwealth of Massachusetts, Suf161, 27 Sup. Ct. Rep. 122, 7 Ann. Cas. folk, ss: 1073; Drew v. Thaw, 235 U. $. 432, 59 “At the superior court begun and holden L. ed. 302, 35 Sup. Ct. Rep. 137.

at the city of Boston, within and for the In the commonwealth of Massachusetts county of Suffolk, for the transaction the crime of conspiracy is complete up- of criminal business, on the first Monday on the making of the unlawful agree of February, in the year of our Lord ment, irrespective of whether or not any one thousand nine hundred and nineteen. overt act is thereafter performed for “The jurors for the commonwealth of the purpose of carrying out the con- Massachusetts, on their oath present that spiracy.

Charles K. Hogan and Luther R. HanCom. v. Judd, 2 Mass. 329, 3 Am. Dec.son, on the eighteenth day of August in 54; Com. v. Tibbetts, 2 Mass. 536; Com. the year of our Lord one thousand nine v. Warren, 6 Mass. 74; Com. v. Hunt, hundred and sixteen, conspired together 4 Met. 111, 38 Am. Dec. 346; Com. v. to steal the property, moneys, goods and Rogers, 181 Mass. 184, 63 N. E. 421; chattels of the Market Trust Company, a Com. v. Stuart, 207 Mass. 563, 93 N. E. banking corporation legally established 825.

and existing." The accusation on which the requisi- It appeared that since the month of tion is based will not be scrutinized with May, 1915, appellant had resided contechnical accuracy. If it charges a crime tinuously at East Orange, New Jersey; substantially, the determination of its but he admitted that in the summer of technical sufficiency as a pleading must 1916—he said he could not remember the be referred to the courts of the demand date—he visited Boston, and spent some ing state.

time in the company of Hanson, the alRoberts v. Reilly, 116 U. S. 80, 29 L. leged co-conspirator. ed. 544, 6 Sup. Ct. Rep. 291; Re Roberts, It is objected that the indictment does 24 Fed. 132; Re Voorhees, 32 N. J. L. not charge appellant with the commission 141.

of a crine in Massachusetts; but when This court will take judicial notice of it is read in the light of the laws of that the laws of the demanding state in ren- commonwealth the difficulty disappears. dition cases.

Revised Laws of Massachusetts, chap. 218, Roberts v. Reilly, supra.

§ 20, reads thus: “The time and place

of the commission of the crime need not Mr. Justice Pitney delivered the opin- be alleged unless it is an essential element ion of the court:

of the crime. The allegation [55] of This is an appeal from a final order time in the caption shall, unless othof the district court, discharging a writ erwise stated, be considered as of habeas corpus and remanding appel- legation that the act was committed lant to the custody of appellee for ren- before the finding of the indictment, dition to a representative of the com- after it became a crime, and within monwealth of Massachusetts, pursuant the period of limitations. The name to a warrant issued by the governor of of the county and court in the capNew Jersey under § 5278, U. S. Rev. tion shall, unless otherwise stated, be Stat. Comp. Stat. § 10,126, 3 Fed. Stat. considered as an allegation that the act Anno. 2d ed. p. 285.

was committed within the territorial jurisUpon the hearing before the district diction of the court. All allegations of court on return of the habeas corpus,' the indictment shall, unless otherwise

499

an al

v.

stated, be considered to refer to the same state. Roberts v. Reilly, 116 U. S. 80, time and place.” Of course, the courts | 95–97, 29 L. ed. 544, 549, 6 Sup. Ct. of the United States will take notice of Rep. 291; Munsey v. Clough, 196 U. S. the laws of the demanding state, as the 364, 372–375, 49 L. ed. 515-518, 25 governor of New Jersey was at liberty Sup. Ct. Rep. 282; Appleyard v. Massato do. Roberts v. Reilly, 116 U. S. 80, chusetts, 203 U. S. 222, 227, et seq., 51 96, 29 L. ed. 514, 519, 6 Sup. Ct. Rep. L. ed. 161, 163, 27 Sup. Ct. Rep. 122, 7 291.

Ann, Cas. 1073; Illinois ex rel. McNichols Were there any doubt of the sufficiency v. Pease, 207 U. S. 100, 108, 109, 52 L. of the indictment as a pleading, it would ed. 121, 124, 125, 28 Sup. Ct. Rep. 58; not be open to inquiry on habeas corpus. Biddinger v. Police Comrs. 245 U. S. 128, Munsey v. Cloughi, 196 U. S. 361, 373, 133, 134, 62 L. ed. 193, 198, 199, 38 Sup. 49 L. ed. 515, 517, 25 Sup. Ct. Rep. 282. Ct. Rep. 41.

The suggestion that there is neither Final order affirmed. allegation nor proof of an overt act done by appellant in Massachusetts, pursuant to the alleged conspiracy, is without weight. By the law of Massachusetts, as by the common law, a conspiracy to

PORT OF SEATTLE, Appt., commit a crime is itself a criminal offense, although no overt act be done in

OREGON & WASHINGTON RAILROAD

pursuance of it; such acts, however important

COMPANY and J. F. Duthie & Company. as evidence of conspiracy or as matters

(See S. C. Reporter's ed. 56–71.) of aggravation, not being of the essence of the offense, since there is no statute Waters relative rights of state and making criminality dependent upon the United States. commission of an overt act. Com. v.

1. The right of the United States in the Judd, 2 Mass. 329, 337, 3 Am. Dec. 54; navigable waters within the several states Com. v. Tibbetts, 2 Mass. 536, 539; Com. is limited to the control thereof for pur1. Warren, 6 Mass. 74; Com. v. 'Hunt, poses of navigation; and, subject to that 4 Met. 111, 125, 38 Am. Dec. 346.

right, each state became, upon its organi

zation as a state, the owner of the navigable Appellant being charged by authentic waters within its boundary and of the land indictment with a criminal offense com- under the same. mitted in Massachusetts on or about iFor other cases, see Waters, I. b, in Digest August 18, 1916, and having, by his own

Sup. Ct. 1908.) admission, been personally present there

Waters state regulation and control and in communication with the alleged

tidelands riparian rights. co-conspirator at or about that time, and I absolute owner of the tidelands within its

2. The state of Washington, being the being afterwards found in the state of boundaries and of the waters over them, is New Jersey, there [36] is adequate free, in conveying such lands, either to ground for his return as a fugitive from grant with them rights in the adjoining justice under $ 5278, U. S. Rev. Stat. en- water area, or completely to withhold such acted to give effect to art. 4, § 2, of the rights.

[For other cases, Waters, I, d, 1, in Constitution. Whether in fact he was a Digest Sup. Ct. 1908.) fugitive from justice was for the de- | Federal courts following decisions termination of the governor of New Jer- of state courts riparian rights. sey. The warrant of arrest, issued in 3. Whether a conveyance made by a compliance with the demand of the state of land abutting upon navigable water governor of Massachusetts, shows that he confers upon the grantee any right or interfound appellant to be a fugitive; and est in those waters or in the land under the this conclusion must stand unless clearly which question the provisions of the Con

same is a matter wholly of local law, upon overthrown, which appellant has not suc-stitution and statutes of the state and the ceeded in doing. To be regarded as a decisions of its highest court are accepted fugitive from justice it is not necessary by the Federal Supreme Court that one shall have left the state in which clusive.

[For other cases, see Courts, VII, C, 5, in the crime is alleged to have been com- Digest Sup. Ct. 1908.) mitted for the very purpose of avoiding Waters relative rights of public and prosecution, but simply that, having com- individual riparian rights. mitted there an act which, by the law

4. Under the law of the state of Washof the state, constitutes a crime, he after-ington a conveyance by the state of uplands

abutting upon a natural navigable waterwards has departed from its jurisdiction, way grants no right of any kind, either in and, when sought to be prosecuted, is land below high-water mark, or in, to, or found within the territory of another over the water, except the limited pref500

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erential right conferred by statute upon the that upland, tideland, or shore land, in its owner of the upland to purchase the shore natural condition, is without appurtenant land if the state concludes to sell the same. rights of any sort beyond the boundaries [lor other cases, see Waters, I. d, 2, a, in of the property, applies as well when the Digest Sup. Ct. 1908.]

lands are filled tidelands abutting on Waters relative rights of public and natural waterway deepened and confined. individual riparian rights.

[For other cases, see Waters, I. d, 2, a, in 5. So complete is the absence of Digest Sup. Ct. 1908. ] riparian or littoral rights in the owner of Waters relative rights of public and lands bordering on navigable waters in the individual tidelands wharfing state of Washington that the state may,

out. subject to the superior rights of the United States, wholly divert a navigable stream state of Washington not to grant riparian

8. The clearly defined policy of the and sell the river bed, and yet have imrights in navigable waters prevents the paired in so doing no right of the upland Federal courts, in the absence of a decision owners, whose land is thereby separated of the highest state court to the contrary, from all contact with the water. [For other enses, secie Waters, 1. d, 2, a, in grantees of filled tidelands of a right of

from inferring an implied grant to the Digest Sup. Ct. 1908.) Waters relative rights of public and

over intervening property to the individual tidelands

navigable channel, even conceding the truth riparian

of the assumption that such grants were riglits.

6. A conveyance of tidelands from the made conformably to a development project, state of Washington gives the grantee no

which was an artificial creation; that land rights of any sort beyond the boundaries of

was artificially made up to a bulkhead; the grant. A right of access to the

that, at some distance beyond, a navigable navigable channel over intervening land

channel was artificially created out of an above or below low water must arise from unnavigable stream; that between the bulka grant by the owner of the intervening vent full use of waterside lots in connection

head and the channel are shoals which preproperty. I For other cases, see Waters, I. d. 2, a, in with navigation unless wharves are erected; Digest Sup. Ct. 1908.)

that when the original grant was made no Waters relative rights of public and provision in the law authorized leasing those

individual tidelands riparian shoals for docking purposes, but, on the conrights.

trary, the whole waterway was reserved by 7. The rule of the Washington law / statute forever from sale or lease; and that Note. On state and Federal owner- /

On public right of access to watership of waters-see note to Smith v. see note to Slater v. Gunn, 41 L.R.A. Deniff, 50 L.R.A. 737.

268. As to riparian rights on navigable On right of state to grant tideland waters—see note to Gibson v. United / so as to destroy wharfage rights of States, 41 L. ed. U, S. 997.

shore owner---see note to Cobb v. LinAs to state decisions and laws as coln Park, 63 L.R.A. 264. rules of decision in Federal courts-see

On title to land under water-see note notes to Clark v. Graham, 5 L. ed. U. to Goff v. Cougle, 42 L.R.A. 161. S. 334; Elmendorf v. Taylor, 6 L. ed.

As to the right of riparian owner to C. S. 290; Jackson ex dem. St. John v.

construct wharves--see notes to Ex Chew, 6 L. ed. U. S. 583; Mitchell v. parte Easton, 24 L. ed. U. S. 373; and Burlington, 18 L. ed. U. S. 351; United Madison v. Mayers, 40 L.R.A. 635. States ex rel. Butz v. Muscatine, 19 L.

As to title to bed of navigable river-ed. U. S. 490; Forepaugh v. Delaware, see note to Kinkead v. Turgeon, 1 L.R.A. L. & W. R. Co. 5 L.R.A. 508; and Snare (N.S.) 762. & T. Co. v. Friedman, 40 L.R.A.( N.S.) On right of way on shore-see note to 380.

Hartman v. Tresise, 4 L.R.A.(N.S.) 872.

On removal of causes in cases of diOn the right of government to divert water from nontidal stream without

verse citizenship-se

see notes to Whelan compensation to riparian owner-see

v. New York, L. E. & W. R. Co. 1 L.R.A. note to Fulton Light, Ileat & P. Co. v.

65; Seddon v. Virginia T. & C. Steel &

I. Co. 1 L.R.A. 108; Huskins v. CincinState, 37 L.R.A.(N.S.) 307.

nati, N. 0. & T. P. R. Co. 3 L.R.A. 545; On right of action by owner of up- Bierbower v. Miller, 9 L.R.A. 228; Brodland for interference with access to head v. Shoemaker, 11 L.R.A. 567; Delanavigable water--see notes to Thiesen

ware R. Constr. Co. v. Meyer, 25 L. ed. v. Gulf, F. & A. R. Co. L.R.A.1918E, 738; U. S. 593; Butler v. National Home for Ferry Pass Inspectors & Shippers' Asso. Disabled Volunteer Soldiers, 36 L. ed. v. White River Inspectors & Shippers' U. S. 346; Torrence v. Shedd, 36 L. ed. Asso. 22 L.R.A.(N.S.) 345; and State ex U. S. 528; St. Louis & S. F. R. Co. v. rel. Denny v. Bridges, 40 L.R.A. 593. Kitchen, 50 L.R.A.(N.S.) 828.

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the plat by reference to which all lots were, is the real party in interest, so far as sold showed a pierhead line at the point the same appears in the record, and if of navigable water.

the real party is a state, and the nomi[For other cases, see Waters, I. d, 2, b, in Digest Sup. Ct. 1908.)

nal party but a representative thereof, Waters relative rights of state and jurisdiction in the Federal court will be

United States rights in bed and held not to exist. shores wharfing out.

Murray v. Wilson Distilling Co. 213 9. The establishment of pierhead lines U. S. 151, 53 L. ed. 742, 29 Sup. Ct. Rep. by the United States in a navigable water: 458; Lankford v. Platte Iron Works Co. way did not create any riparian right to wharf out, as against the state. Such lines 235 U. S. 461, 59 L. ed. 316, 35 Sup. Ct. merely fixed the point beyond which piers Rep. 173; Re Ayers, 123 V. S. 443, 31 mighť not extend, and the lines so fixed, L. ed. 216, 8 Sup. Ct. Rep. 164; Hagood although acted upon by the erection of v. Southern, 117 U. S. 52, 29 L. ed. 805, piers, could be changed by the United States 6 Sup. Ct. Rep. 608; Louisiana v. Jumel, at any time.

107 U. S. 711, 746, 27.L. ed. 448, 460, 2 [For other cases, see Waters, 1. b, 2, in Digest Sup. Ct. Rep. 128; Missouri, K. & T. R.

Sup. Ct. 1908.) Waters relative rights of public and Co. v. Missouri R. & Warehouse Comrs.

individual tidelands pierhead (Missouri, K. & T. R. Co. v. Hickman) lines.

183 U. S. 53, 46 L. ed. 78, 22 Sup. Ct. 10. State officials had no power, under Rep. 20; Ferguson v. Ross, 3 L.R.A. 322, the law of Washington, to establish pier- | 38 Fed. 161; Stone v. South Carolina, head lines when platting tidelands.

117 U, S. 430, 433, 29 L. ed. 962, 963, 6 (For other cases, see Waters, 1. d, 2, a, in Digest Sup. Ct. 1908.)

Sup. Ct. Rep. 799; Germania Ins. Co. v. Removal of causes - state as party

Wisconsin, 119 U. S. 473, 30 L. ed. 461, immunity from suit.

7 Sup. Ct. Rep. 260; Arkansas v. Kan11. The interest which the state of sas & T. Coal Co. 96 Fed. 353. Washington has in the result of a suit by

The right to remove a case from the the Port of Seattle--a municipal corpora state to the Federal court is determined tion—to quiet the title of the state to tide solely upon the face of the record made lands as against a foreign corporation claiming, as grantee from the state, the in the state court, and if an inspection right to wharf out to the navigable chan. of that record does not disclose ground nel, does not prevent the removal of the for removal, it must be remanded. cause to a Federal district court for diverse Crehore v. Ohio & M. R. Co. 131 U. S. citizenship, since the Port had both the 240, 33 L. ed. 144, 9 Sup. Ct. Rep. 692; power and the duty to bring suit to protect Alabama G. S. R. Co. v. Thompson, 200 the interests involved, and had an inde U. S. 206, 50 L. ed. 441, 26 Sup. Ct. Rep. pendent direct financial interest in the result, a statute providing for the payment 161, 4 Ann. Cas. 1147; West Side R. Co. by abutting owners, in the nature of a

v. California P. R. Co. 202 Fed. 331; rental, for a permit to use parts of the Phillips v. Western Terra Cotta Co. 174 waterway in the erection of wharves, docks, Fed. 873; Thompson v. Ward, 199 Fed. or other structures, and requiring that a | 861; Key v. West Kentucky Coal Co. 237 specified portion of such rental be paid Fed. 258; Smith v. Western U. Teleg. Co. to the county for the use of the Port. (For other cases, see Removal of Causes. IV.

79 Fed. 132; Berry v. Mobile & 0. R. Co. b; States, IX.'b, in Digest Sup. Ct. 1903.) | 228 Fed. 395; Beadleton v. Harpending,

32 Fed. 644. (No. 107.]

The Federal court cannot retain juris.

diction of a case improperly removed on Argued December 6, 1920. Decided January the ground of diversity of citizenship, 31, 1921.

even though a Federal question is raised in the case after its removal to the Fed

eral court. the United States for the Western

Creshore v. Ohio & M. R. Co. 131 U. S. District of Washington to review a de- 240, 33 L. ed. 144, 9 Sup. Ct. Rep. 692; cree which dismissed the bill in a suit Jackson v. Allen, 132 U. S. 27, 33 L. ed. to quiet the title of the state of Wash- 249, 10 Sup. Ct. Rep. 9; Healy v. Mcington to tidelands. Reversed and remanded for further proceedings.

Cormick, 157 Fed. 318; Fitzgerald v.

Missouri P. R. Co. 45 Fed. $12; Shane The facts are stated in the opinion.

v. Butte Electric R. Co. 150 Fed. 801; Mr. Leander T. Turner argued the Broadway Ins. Co. v. Chicago G. W. R. cause, and, with Messrs. Harold Preston Co. 101 Fed. 507; Santa Clara County v. and O. B. Thorgrimson, filed a brief for Goldy Mach. Co. 159 Fed. 750; Grand appellant:

Trunk R. Co. v. Twitchell, 8 C. C. A. This court will, for the purpose of 237, 21 U. S. App. 45, 59 Fed. 727; Mildetermining jurisdiction, determine who I ler v. Soule, 221 Fed. 493.

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