! course, beyond a reasonable doubt, and in We are of the opinion that the trial court In response to a request from the jury to be further instructed, the court, after referring to the indictment and to the second section of the act of 1875, said: "This indict-erred in admitting in evidence the record of ment does not contain all the words of the the convictions of Wallace, Baxter, and King, statute. This indictment charges the de- and then in its charge saying that in the abfendant with having, on the 9th day of June, sence of proof to the contrary the fact that 1896, received and had in his possession these the property was stolen from the United postage stamps that were stolen from the States was sufficiently established against United States at Highmore. Now, if you Kirby by the mere production of the record should find beyond a reasonable doubt from showing the conviction of the principal felall the testimony in the case, in the first ons. Where the statute makes the convicplace, that the postage stamps mentioned in tion of the principal thief a condition precethe indictment or any of them were stolen dent to the trial and punishment of a refrom the postoffice at Highmore by these par- ceiver of the stolen property, the record of ties who, it is alleged, did steal them, and the trial of the former would be evidence in you further find beyond a reasonable doubt the prosecution against the receiver to show that these postage stamps or any portion of that the principal felon had been convicted; them were on the 9th day of June, 1896, re- for a fact of that nature could only be esceived by the defendant from the thieves or tablished by a record. The record of the con[53] their agent, knowing the same to have been viction of the principals could not, however, so stolen from the United States by these be used to establish, against the alleged reparties, with the intent to convert the same ceiver, charged with the commission of anto his own use or gain, or if you find beyond other and substantive crime, the essential a reasonable doubt that they were so stolen fact that the property alleged to have been at the Highmore postoffice, as I have stated, feloniously received by him was actually and that the defendant, on or about the 9th stolen from the United States. Kirby was day of June had them in his possession or not present when Wallace and Baxter conany portion of them, knowing the same to fessed their crime by pleas of guilty, nor have been so stolen, with the intent to when King was proved to be guilty by wit convert the same to his own use and gain, nesses who personally testified before the and you will find all these facts beyond a jury. Nor was Kirby entitled of right to reasonable doubt, you would be authorized to participate in the trial of the principal felreturn a verdict of guilty as charged." ons. If present at that trial he would not have been permitted to examine Wallace and Baxter upon their pleas of guilty, nor cross-examine the witnesses introduced against King, nor introduce witnesses to prove that they were not in fact guilty of the offense charged against them. If he had sought to do either of those things-even upon the ground that the conviction of the pricipal felons might be taken as establishing prima facie a vital fact in the separate prosecution against himself as the receiver of the property-the court would have informed him that he was not being tried and could not be perinitted in anywise to interfere with the trial of the principal felons. And yet the court below instructed the jury that the conviction of the principal felons upon an indictment against them alone was[55] sufficient prima facie to show, as against Kirby, indicted for another offense, the existence of the fact that the property was stolen a fact which, it is conceded, the United States was bound to establish beyond a reasonable doubt in order to obtain a verdict of guilty against him. One of the fundamental guaranties of life and liberty is found in the Sixth Amendment of the Constitution of the United States, which provides that "in all criminal prosecutions the accused shall be confronted with the witnesses against him.” Instead of confronting Kirby with witnesses to establish the vital fact that the property alleged to have been received by him had been stolen from the United States, he was con The jury returned a verdict of guilty against Kirby. The exceptions taken by him at the trial were sufficient to raise the questions that will presently be considered. As shown by the above statement the charge against Kirby was that on a named day he feloniously received and had in his possession with intent to convert to his own use and gain certain personal property of the United States, theretofore feloniously stolen, taken, and carried away by Wallace, Baxter, and King, who had been indicted and convicted of the offense alleged to have been committed by them. Notwithstanding the conviction of Wallace, Baxter, and King, it was incumbent upon the government, in order to sustain its charge against Kirby, to establish beyond reasonable doubt: (1) That the property described in the indictment was in fact stolen from the United States; (2) that the defendant received or retained it in his possession, with intent to convert it to his own use or gain; and (3) that he received or retained it with knowledge that it had been stolen from the United States. rested upon a trial and verdict of guilty. How did the government attempt to prove the essential fact that the property was stolen from the United States? In no other way than by the production of a record showing the conviction under a separate indictnt of Wallace, Baxter, and King-the ents against Wallace and Baxter restupon their respective pleas of the judgment against King fronted only with the record of another crim-dicted for feloniously receiving from one inal prosecution, with which he had no con- Sarah Rich certain goods and chattels therenection and the evidence in which was not tofore feloniously stolen by her from one given in his presence. The record showing Martha Clarke. At the trial before Mr. Justhe result of the trial of the principal felons tice Patteson it was proposed to prove a was undoubtedly evidence, as against them, confession of Sarah Rich, made before a magin respect of every fact essential to show istrate in the presence of the prisoner, in their guilt. But a fact which can be pri- which she stated various facts implicating marily established only by witnesses cannot the prisoner and others as well as herself. be proved against an accused-charged with The evidence was not admitted, but the court a different offense for which he may be con- admitted other evidence of what Sarah Rich victed without reference to the principal of said respecting herself only. The prisoner [57] fender-except by witnesses who confront was convicted and sentenced. The report of him at the trial, upon whom he can look the case proceeds: "Having since learned while being tried, whom he is entitled to that a case occurred before Mr. Baron Wood cross-examine, and whose testimony he may at York, where two persons were indicted toimpeach in every mode authorized by the es- gether, one for stealing and the other for tablished rules governing the trial or con- receiving, in which the principal pleaded duct of criminal cases. The presumption of guilty and the receiver not guilty, and that the innocence of an accused attends him Mr. Baron Wood refused to allow the plea throughout the trial, and has relation to of guilty to establish the fact of the stealing every fact that must be established in order by the principal as against the receiver, the to prove his guilt beyond a reasonable doubt. learned judge thought it right to submit to "This presumption," this court has said, "is the learned judges the question whether he an instrument of proof created by the law in was right in admitting the confession of favor of one accused, whereby his innocence Sarah Rich in the present case. The learned is established until sufficient evidence is in- judge thought it right to add that the pristroduced to overcome the proof which the law oner, one Taylor, and Sarah Rich had imme has created." Coffin v. United States, 156 diately before been tried upon an indictment U. S. 432, 459 [39: 481, 493]. But that pre- for burglary, and stealing other property in sumption in Kirby's Case was in effect held the house of Mrs. Clarke on the night of the in the court below to be of no consequence; 22d of August; and that Taylor and Rich for as to a vital fact which the government had been found guilty, but the prisoner had [56] was bound to establish affirmatively, he was been acquitted, there being no proof of his put upon the defensive almost from the out-presence. The learned judge did not pass set of the trial by reason alone of what ap- sentence upon Sarah Rich immediately; but peared to have been said in another criminal a new jury was called, and the prisoner was prosecution with which he was not connected tried as a receiver, so that either party and at which he was not entitled to be rep- might have called her as a witness. In Easresented. In other words, the United States ter term, 1832, all the judges (except Lord having secured the conviction of Wallace, Lyndhurst, C. B., and Taunton, J.) met, and Baxter, and King as principal felons, the de- having considered this case, were unanimousfendant charged by a separate indictment ly of opinion that Sarah Rich's confession with a different crime that of receiving the was no evidence against the prisoner; and property in question with knowledge that it many of them appeared to think that had was so stolen and with intent to convert it Sarah Rich been convicted, and the indictto his own use or gain-was held to be pre- ment against the prisoner stated, not her sumptively or prima facie guilty so far as conviction, but her guilt, the conviction the vital fact of the property having been would not have been any evidence of her stolen was concerned, as soon as the govern- guilt, which must have been proved by other ment produced the record of such conviction means; and the conviction was held wrong." and without its making any proof whatever In a later case, Keable v. Payne, Ad. & El. by witnesses confronting the accused of the 555, 560, which was an action involving a existence of such vital fact. We cannot as question as to the admission of certain evisent to this view. We could not do so with- dence, and was heard in the Queen's Bench out conceding the power of the legislature, before Lord Denman, Chief Justice, and Litwhen prescribing the effect as evidence of tledale, Patteson, and Williams, Justices, the records and proceedings of courts, to im- Mr. Justice Patteson, referring to Rex v. pair the very substance of a right long Turner, above cited, said: "On an indictdeemed so essential for the due protection of ment for receiving goods feloniously taken, life and liberty that it is guarded against the felony must be proved; and neither a legislative and judicial action by provisions judgment against a felon, nor his admission, in the Constitution of the United States and would be evidence against the receiver. In in the Constitutions of most, if not of all, such a case I once admitted evidence of a [58] the states composing the Union. plea of guilty by the taker; and it was held that I did wrong." A note in Starkie on Evidence, p. 367, is to this effect: "In Rex v. Turner, 1 Moody, C. C. 347; Rex v. Ratcliffe, 1 Lewin, C. C. 121; Keable v. Payne, & Ad. & El. 560, it is stated that many of the judges (all the judges except two being assembled) were of opinion that the record of the conviction of the principal would not This precise question has never been before this court, and we are not aware of any adjudged case which is in all respects like the present one. But there are adjudications which proceed upon grounds that point to the conclusion reached by us. A leading case is Rex v. Turner, 1 Moody, C. C. 347. In that ca risoner was in be evidence of the fact, where the indictment | seems that a record of conviction of a prinagainst the accessory alleged, not the convic- cipal in the crime of stealing, who pleads tion, but the guilt of the principal. And on guilty, would not now be received as evidence principle it would seem to be evidence only of the guilt of the principal against the rewhen the indictment alleges the conviction ceivers of the stolen property, or the acces of the principal, and simply to support that sory after the fact; and it is said to be doubtallegation." ful whether a record of the conviction of the The leading American case on the question principal on his plea of not guilty would be is Commonwealth v. Elisha, 3 Gray, 460. admissible against the accessory. As proof The indictment was for receiving stolen of the fact of conviction, the record would goods knowing them to have been stolen. be admissible and conclusive, but it seems The court, speaking by Metcalf, J., said: not to be admissible evidence of the guilt of "This indictment is against the defendant the convict, as against another person alone, and charges him with having received charged with being connected with him in property stolen by Joseph Elisha and Will- crime, the record being in this respect res iam Gigger, knowing it to have been stolen. inter alios acta. It is evidence that a cerIt is not averred, nor was it necessary to tain person, named in the record, was conaver or prove (Rev. Stat. chap. 126, § 24), victed by the jury, but not evidence as that they had been convicted of the theft. against a third person, supposed to have But it was necessary to prove their guilt, in been engaged with him in a particular transorder to convict the defendant. Was the action, as to the ground on which the conrecord of their conviction on another indict-viction proceeded, namely, that the convict ment against them only, upon their several committed the criminal act described in the pleas of guilty to a charge of stealing the record." 2 Phillips, Ev. 3d ed. pp. 22-3. property, legal evidence, against the defend- *Taylor in his Treatise on Evidence, after [60] Ent, that they did steal it? We think not, stating that a prisoner is not liable to be afeither on principle or authority. That con- fected by the confessions of his accomplices, viction was res inter alios. The defendant says: "So strictly is this rule enforced, that was not a party to the proceedings, and had where a person is indicted for receiving no opportunity nor right to be heard on the stolen goods a confession by the principal trial. And it is an elementary principle of that he was guilty of the theft is no evidence justice, that one man shall not be affected of that fact as against the receiver (Rex v. by another's act or admission, to which he is Turner); and it would be the same, it seems, a stranger. That conviction being also on if both parties were indicted together, and the confession of the parties, the adjudged the principal were to plead guilty. (Id.)” cases show that it is not evidence against 1 Taylor, Ev. 6th ed. § 826. the defendant. Rex v. Turner, 1 Moody, C. C. 347, and 1 Lewin, C. C. 119; 1 Greenl. Ev. 233; Rosc. Crim. Ev. 2d ed. 50; The State v. Newport, 4 Harr. (Del.) 567. We express no opinion concerning a case differing in any particular from this, but confine ourselves to [59] the exact question presented by these exceptions. Our decision is this, and no more: The record of the conviction of a thief, on his plea of guilty to an indictment against him alone for stealing certain property, is not admissible in evidence to prove the theft, on the trial of the receiver of that property, upon an indictment against him alone, which does not aver that the thief has been convicted." The principle to be deduced from these au8thorities is in harmony with the view that one accused of having received stolen goods with intent to convert them to his own use, knowing at the time that they were stolen, is not within the meaning of the Constitution, confronted with the witnesses against him when the fact that the goods were stolen is established simply by the record of another criminal case with which the accused had no connection and in which he was not entitled to be represented by counsel. As heretofore stated, the crime charged against Wallace, Baxter, and King and the crime charged against Kirby were wholly distinct-none the less so because in each case it was essential that the government should prove that the property described was actually stolen. The record of the proof of a vital fact in one prosecution could not be taken as proof in the other to the existence of the same fact. The difficulty was not met when the trial court failed as required by the act of 1875 to instruct the jury that the record of the conviction of the principal felons was conclusive evidence of the fact that the property had been actually stolen, but merely said that such record made a prima facie case as to such fact. The fundamental error in the trial below was to admit in evidence the record of the conviction of the principal felons as competent proof for any purpose. That those persons had been convicted was a fact not necessary to be es To the same general effect are some of the text-writers. Phillips, in his Treatise on the Law of Evidence, referring to the rule as to the admissibility and effect of verdicts or judgments in prosecutions, says: "A record of conviction of a principal in felony has been admitted in some cases, not of modern date, as evidence against the accessory. King v. Smith, 1 Leach, C. C. 288; Rex v. Baldwin, 3 Campb. 265. This has been supported on the ground of convenience, because the witnesses against the principal might be dead or not to be found, and on the presumption that the proceedings must be taken to be regular, and the guilt of the convicted party to be established. Fost. Disc. iii. chap. 2, § 2, p. 364. But this is not strictly in accordance with the principle re-tablished in the case against the alleged respecting the admissibility of verdicts as evi- ceiver; for under the statute he could be dence against third persons. From the re- prosecuted even if the principal felons had port of the recent case of Rex v. Turner, it not been tried or indicted. As already stated, [61]the effect of the charge was to enable the government to put the accused, although shielded by the presumption of innocence, upon the defensive as to a vital fact involved in the charge against him by simply producing the record of the conviction of other parties of a wholly different offense with which the accused had no connection. the stamps before they were received by Another contention by the accused is that the indictment was fatally defective in not stating from whom the defendant received It is scarcely necessary to say that to the the stamps. This contention is apparently rule that an accused is entitled to be con- supported by some adjudications, as in State fronted with witnesses against him the ad- v. Ives, 35 N. C. (13 Ired. L.) 338. But upon mission of dying declarations is an exception a careful reading of the opinion in that case which arises from the necessity of the case. it will be found that the judgment rests upon This exception was well established before the ground that the statute of North Carothe adoption of the Constitution, and was lina, taken from an old English statute, not intended to be abrogated. The ground made the receiver of stolen goods strictly an upon which such exception rests is that from accessory and contemplated the case of goods the circumstances under which dying dec- being received from the person who stole larations are made they are equivalent to them. As already stated the act of Congress the evidence of a living witness upon oath,-upon which the present indictment rests "the condition of the party who made them makes the receiving of stolen property of the being such that every motive to falsehood United States with the intent by the receiver must be supposed to have been silenced, and to convert it to his own use or gain, he knowthe mind to be impelled by the most power-ing it to have been stolen, a distinct, substanful considerations to tell the truth." Mattox v. United States, 146 U. S. 140, 151 [36: 917-921]; Cooley, Const. Lim. 318; 1 Phillips, Ev. chap. 7, § 6. tive felony, for which he can be tried either before or after the conviction of the principal felon, or whether the latter is tried or not. Under such a statute the person who For the reasons stated it must be held that stole the property might be pardoned, and so much of the above act of March 3, 1875, yet the receiver could be indicted and conas declares that the judgment of conviction victed of the crime committed by him. Bishop against the principal felons shall be evidence in his New Criminal Procedure says that in the prosecution against the receiver that while some American cases have held it to be the property of the United States alleged to necessary in an indictment against the re[63] have been embezzled, stolen, or purloined had ceiver of stolen goods to state from whom been embezzled, stolen, or purloined, is in vio- he received the goods, "commonly, in England lation of the clause of the Constitution of and in numbers of our states, the indictment the United States declaring that in all crim- does not aver from whom the stolen goods were received." Vol. 2, § 983. By an Eng inal prosecutions the accused shall be confronted with the witnesses against him.lish statute, 7 & 8 Geo. IV., chap. 29, § 54, it Upon this ground the judgment must be reversed and a new trial had in accordance with law. But as the case must go back to the circuit court for another trial, it is proper to notice other questions presented by the assignments of error. The accused contends that the indictment is defective in that it does not allege ownership by the United States of the stolen articles of property at the time they were alleged to have been feloniously received by him. This contention is without merit. The [62] indictment alleges that the articles *described were the property of the United States when they were feloniously stolen on the 7th day of June, 1896, and that the defendant only two days thereafter, on the 9th day of June, 1896, "the postage stamps aforesaid so as aforesaid feloniously stolen, taken, and carried away, feloniously did receive and have in his possession, with intent then to his and there to convert the same own use or gain, the said Joe Kirby then and there well knowing the said postage stamps to have been theretofore feloniously stolen, taken, and carried away.' The stamps alleged to have been feloniously received by the accused on the 9th day of June are thus alleged to have been the same that were stolen from the United States two days previously. The larceny did not change the ownership, and it must be taken that the United States had not regained possession of was enacted that "if any person shall receive Thomas Cosgrove from the custody of the marshal of the United States upon arrest upon an indictment for obstructing the marshal in the execution of a writ of attachment and remanding him to the custody of the marshal. Cosgrove had been arrested after having been extradited from Canada to the United States on a criminal charge, and while he was out upon bail before the trial of such offense. Order reversed, and cause remanded with directions to discharge said Cosgrove. Statement by Mr. Chief Justice Fuller: to have been stolen, was held to be good, al- | cation for a writ of habeas corpus to relieve though it did not set forth the name of any person from whom the goods were received, nor that they were received from some person or persons unknown to the grand jurors. We therefore think that the objection that the indictment does not show from whom the accused received the stamps, nor state that the name of such person was unknown to the grand jurors, is not well taken. If the stamps were in fact stolen from the United States, and if they were received by the *accused, no matter from whom, with the intent to convert them to his own use or gain, and knowing that they had been stolen from the United States, he could be found guilty of the crime charged even if it were not shown by the evidence from whom he received the stamps. This rule cannot work injustice nor deprive the accused of any substantial right. If it appears at the trial to be essential in the preparation of his defense that he should know the name of the person from whom the government expected to prove that he received the stolen property, it would be in the power of the court to require the prosecution to give a bill of particulars. Coffin v. United States, 156 U. S. 432, 452 [39: 481, 491]; Rosen v. United States, 161 U. S. 29, 35 [40: 606, 608]; Commonwealth v. Giles, 1 Gray, 466; Rosc, Crim. Ev. 6th ed. 178, 179, 420. The judgment is reversed, and the case is remanded with directions for a new trial and for further proceedings consistent with law. Reversed. *November 7, 1895, Winney, United States [65] Marshal for the eastern district of Michigan, made a complaint before one of the police justices of the city of Detroit within that district against Thomas Cosgrove for the larceny of a boat, named the Aurora, her tackle, etc., whereon a warrant issued for his arrest. Cosgrove was a resident of Sarnia, in the Province of Ontario, Dominion of Canada, and extradition proceedings were had in accordance with the treaty between the United States and Great Britain, which resulted in a requisition on the Canadian government, which was duly honored, and a surrendering warrant issued May 19, 1896, on which Cosgrove was brought to Detroit to respond to the charge aforesaid; was examined in the police court of Detroit; was bound over to the July term, 1896, of the recorder's court of that city; and was by that court held for trial, and furnished bail. He thereupon went to Canada, but.came back to Detroit in Mr. Justice Brewer did not participate in December, 1896. the decision of this case. December 3, 1895, a capias issued out of the district court of the United States for Mr. Justice Brown and Mr. Justice Mc- the eastern district of Michigan, on an in- v. THOMAS COSGROVE, Appt., EUGENE D. WINNEY, United States Marshal for the Eastern District of Michigan. (See S. C. Reporter's ed. 64-69.) Right of extradited person not to be arrested for another offense until his return to his own country. The right of a person extradited under the dictment against Cosgrove, on the charge of obstructing the United States marshal in the execution of a writ of attachment, which was not served until December 10, 1896, some months after Cosgrove had been admitted to bail in the recorder's court. Cosgrove having been taken into custody by the marshal applied to the district court for a writ of habeas corpus which was issued, the marshal made return, and the cause was duly argued. The court entered a final order denying the application and remanding the petitioner. From this order an appeal was taken to the treaty of 1890 with Great Britain, to have a circuit court of appeals and there dismissed, reasonable time to return to his own country whereupon an appeal to this court was al- [66] after his discharge from custody or imprison-lowed, and Cosgrove discharged on his own ment on account of the offense for which he recognizance. is extradited, before he can be arrested for any other offense committed prior to his extradition, is not lost or waived by going to his own country and voluntarily returning while at liberty on bail before his final dis charge in the case for which he is extradited. [No. 172.] The district judge stated in his opinion that it appeared "that the property, for the taking of which he [Cosgrove] is charged with larceny, was the vessel which, under the indictment in this court, he was charged with having unlawfully taken from the custody of the United States marshal, while the same was held under a writ of attachment Submitted January 19, 1899. Decided April issued from the district court in admiralty." 24, 1899. And further: "The only question which arises under this treaty therefore is whether upon the facts stated in the return which was not traversed, the petitioner has had the opportunity secured him by that treaty to 897 |
