fronted only with the record of another crim- | dicted for feloniously receiving from one inal prosecution, with which he had no connection and the evidence in which was not given in his presence. The record showing the result of the trial of the principal felons was undoubtedly evidence, as against them, in respect of every fact essential to show their guilt. But a fact which can be primarily established only by witnesses cannot be proved against an accused-charged with a different offense for which he may be convicted without reference to the principal offender-except by witnesses who confront him at the trial, upon whom he can look while being tried, whom he is entitled to cross-examine, and whose testimony he may impeach in every mode authorized by the established rules governing the trial or conduct of criminal cases. The presumption of the innocence of an accused attends him throughout the trial, and has relation to every fact that must be established in order to prove his guilt beyond a reasonable doubt. "This presumption," this court has said, "is an instrument of proof created by the law in favor of one accused, whereby his innocence is established until sufficient evidence is introduced to overcome the proof which the law has created." Coffin v. United States, 156 U. S. 432, 459 [39: 481, 493]. But that pre Sarah Rich certain goods and chattels theretofore feloniously stolen by her from one Martha Clarke. At the trial before Mr. Justice Patteson it was proposed to prove a confession of Sarah Rich, made before a magistrate in the presence of the prisoner, in which she stated various facts implicating the prisoner and others as well as herself. The evidence was not admitted, but the court admitted other evidence of what Sarah Rich said *respecting herself only. The prisoner [57] was convicted and sentenced. The report of the case proceeds: "Having since learned that a case occurred before Mr. Baron Wood at York, where two persons were indicted together, one for stealing and the other for receiving, in which the principal pleaded guilty and the receiver not guilty, and that Mr. Baron Wood refused to allow the plea of guilty to establish the fact of the stealing by the principal as against the receiver, the learned judge thought it right to submit to the learned judges the question whether he was right in admitting the confession of Sarah Rich in the present case. The learned judge thought it right to add that the prisoner, one Taylor, and Sarah Rich had immediately before been tried upon an indictment for burglary, and stealing other property in the house of Mrs. Clarke on the night of the 22d of August; and that Taylor and Rich had been found guilty, but the prisoner had been acquitted, there being no proof of his presence. The learned judge did not pass sentence upon Sarah Rich immediately; but a new jury was called, and the prisoner was tried as a receiver, so that either party might have called her as a witness. In Easter term, 1832, all the judges (except Lord Lyndhurst, C. B., and Taunton, J.) met, and having considered this case, were unanimously of opinion that Sarah Rich's confession was no evidence against the prisoner; and many of them appeared to think that had Sarah Rich been convicted, and the indictment against the prisoner stated, not her conviction, but her guilt, the conviction would not have been any evidence of her 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, 8 Ad. & El. sumption in Kirby's Case was in effect held in the court below to be of no consequence; for as to a vital fact which the government [56] was bound to establish affirmatively, "he was put upon the defensive almost from the outset of the trial by reason alone of what appeared to have been said in another criminal prosecution with which he was not connected and at which he was not entitled to be represented. In other words, the United States having secured the conviction of Wallace, Baxter, and King as principal felons, the defendant charged by a separate indictment with a different crime that of receiving the property in question with knowledge that it was so stolen and with intent to convert it to his own use or gain was held to be presumptively or prima facie guilty so far as the vital fact of the property having been stolen was concerned, as soon as the govern-guilt, which must have been proved by other by witnesses confronting the accused of the existence of such vital fact. We cannot assent to this view. We could not do so without conceding the power of the legislature, when prescribing the effect as evidence of the records and proceedings of courts, to impair the very substance of a right long deemed so essential for the due protection of life and liberty that it is guarded against legislative and judicial action by provisions in the Constitution of the United States and in the Constitutions of most, if not of all, the states composing the Union. 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, С. С. 347. In that ca risoner was in 555, 560, which was an action involving a be evidence of the fact, where the indictment against the accessory alleged, not the conviction, but the guilt of the principal. And on principle it would seem to be evidence only when the indictment alleges the conviction of the principal, and simply to support that allegation." The leading American case on the question is Commonwealth v. Elisha, 3 Gray, 460. The indictment was for receiving stolen goods knowing them to have been stolen. The court, speaking by Metcalf, J., said: "This indictment is against the defendant alone, and charges him with having received property stolen by Joseph Elisha and William Gigger, knowing it to have been stolen. It is not averred, nor was it necessary to aver or prove (Rev. Stat. chap. 126, § 24), that they had been convicted of the theft. But it was necessary to prove their guilt, in order to convict the defendant. Was the record of their conviction on another indictment against them only, upon their several pleas of guilty to a charge of stealing the property, legal evidence, against the defendant, that they did steal it? We think not, either on principle or authority. That conviction was res inter alios. The defendant was not a party to the proceedings, and had no opportunity nor right to be heard on the trial. And it is an elementary principle of justice, that one man shall not be affected by another's act or admission, to which he is a stranger. That conviction being also on the confession of the parties, the adjudged cases show that it is not evidence against 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 con victed." text-writers. To the same general effect are some of the 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 respecting the admissibility of verdicts as evidence against third persons. From the report of the recent case of Rex v. Turner, it seems that a record of conviction of a prin cipal in the crime of stealing, who pleado guilty, would not now be received as evidenco of the guilt of the principal against the re ceivers of the stolen property, or the accessory after the fact; and it is said to be doubtful whether a record of the conviction of the principal on his plea of not guilty would be admissible against the accessory. As proof of the fact of conviction, the record would be admissible and conclusive, but it seems not to be admissible evidence of the guilt of the convict, as against another person charged with being connected with him in crime, the record being in this respect res inter alios acta. It is evidence that a certain person, named in the record, was convicted by the jury, but not evidence as against a third person, supposed to have been engaged with him in a particular transaction, as to the ground on which the conviction proceeded, namely, that the convict committed the criminal act described in the record." 2 Phillips, Ev. 3d ed. pp. 22-3. *Taylor in his Treatise on Evidence, after [60] stating that a prisoner is not liable to be affected by the confessions of his accomplices, says: "So strictly is this rule enforced, that where a person is indicted for receiving stolen goods a confession by the principal that he was guilty of the theft is no evidence of that fact as against the receiver (Rex v. Turner); and it would be the same, it seems, if both parties were indicted together, and the principal were to plead guilty. (Id.)" 1 Taylor, Ev. 6th ed. § 826. The principle to be deduced from these authorities 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 established in the case against the alleged receiver; for under the statute he could be prosecuted even if the principal felons had not been tried or indicted. As already stated, (61) the effect of the charge was to enable the the stamps before they were received by 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. It is scarcely necessary to say that to the rule that an accused is entitled to be confronted with witnesses against him the admission of dying declarations is an exception which arises from the necessity of the case. This exception was well established before the adoption of the Constitution, and was not intended to be abrogated. The ground upon which such exception rests is that from the circumstances under which dying declarations are made they are equivalent to the evidence of a living witness upon oath, "the condition of the party who made them being such that every motive to falsehood must be supposed to have been silenced, and the mind to be impelled by the most powerful 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. For the reasons stated it must be held that so much of the above act of March 3, 1875, as declares that the judgment of conviction against the principal felons shall be evidence in the prosecution against the receiver that the property of the United States alleged to have been embezzled, stolen, or purloined had been embezzled, stolen, or purloined, is in violation of the clause of the Constitution of the United States declaring that in all criminal prosecutions the accused shall be confronted with the witnesses against him. 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 al leged 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 and there to convert the same to his own use or gain, the said Joe Kirby then and there well knowing the said postage stamps to have feloniously stolen, taken The stamps alleged received by the accu June are thus allege that were stolen fro to days previously. T the ownership, and it United States had ne Pretofore wa 17 Kirby, and that the indictment charges that they were out of the possession of the United States and were stolen property when they came to the hands of the accused. Another contention by the accused is that the indictment was fatally defective in not stating from whom the defendant received the stamps. This contention is apparently supported by some adjudications, as in State v. Ives, 35 N. C. (13 Ired. L.) 338. But upon a careful reading of the opinion in that case it will be found that the judgment rests upon the ground that the statute of North Carolina, taken from an old English statute, made the receiver of stolen goods strictly an accessory and contemplated the case of goods being received from the person who stole them. As already stated the act of Congress upon which the present indictment rests makes the receiving of stolen property of the United States with the intent by the receiver to convert it to his own use or gain, he knowing it to have been stolen, a distinct, substantive 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 stole the property might be pardoned, and yet the receiver could be indicted and convicted of the crime committed by him. Bishop in his New Criminal Procedure says that while some American cases have held it to be necessary in an indictment against the re- [63]) ceiver of stolen goods to state from whom he received the goods, "commonly, in England and in numbers of our states, the indictment does not aver from whom the stolen goods were received." Vol. 2, § 983. By an English statute, 7 & 8 Geo. IV., chap. 29, § 54, it was enacted that "if any person shall receive any chattel, money, valuable security, or other property whatsoever, the stealing or taking whereof shall amount to a felony, either at common law or by virtue of this act, such person knowing the same to have been feloniously stolen or taken, every such receiver shall be guilty of felony, and may be indicted and convicted either as an accessory after the fact, or for a substantive felony, and in the latter case, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice," etc. Under that statute a receiver of stolen goods was indicted. It was objected that one of the counts did not state the name of the principal, or that he was unknown. Tindall, Ch. J., said: "It will do. The offense created by the act of Parliament is not receiving stolen goods from any particular person, but receiving them knowing them to have been stolen. The question therefore will be, whether the goods are stolen, and whether the prisoner received them knowing n to have been stolen. Your objection is d on the too particular form of the ent. The statute makes the receiving knowing them to have been stolen, Reæ v. Jervis, 6 Car. & P. 156; ime 6th ed. 436. In State v. 500 Am. Dec. 96], an inAccused with fraudods, knowing them to have been stolen, was held to be good, although 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 [64] 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. cation for a writ of habeas corpus to relieve 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: *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 inKenna dissented. THOMAS COSGROVE, Appt., υ. 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 treaty of 1890 with Great Britain, to have a reasonable time to return to his own country after his discharge from custody or Imprisonment on account of the offense for which he 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 discharge in the case for which he is extradited. [No. 172.] 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 circuit court of appeals and there dismissed, *whereupon an appeal to this court was al- [66] lowed, and Cosgrove discharged on his own recognizance. 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 [66] return to his own country. If he has had such opportunity, then article 3 has not been violated, either in its letter or spirit, by the arrest and detention of the petitioner. It is conceded that he was delivered to the authorities of the state of Michigan in May, 1896, to stand his trial upon the charge of larceny. He gave bail to appear for trial in the recorder's court when required and immediately returned to Canada. On December 10th, 1896, he voluntarily appeared in the state of Michigan, of his own motion, and not upon the order of the recorder's court, or at the instance of his bail, and while in this district was arrested." Messis. E. H. Sellers and Cassius Hollenbeck for appellant: The treaty of 1889 expressly limits the surrender to one offense and the trial of the accused on that offense, and no other, until he shall have had an opportunity of returning to the country of his asylum on regaining his liberty. United States v. Rauscher, 119 U. S. 407, 30 L. ed. 425; Com. v. Hawes, 13 Bush. 697,26 Am. Rep. 242; State v. Vanderpool, 39 Ohio St. 273, 48 Am. Rep. 431; Blandford v. State, 10 Tex. App. 627; United States v. Watts, 14 Fed. Rep. 130; Ex parte Hibbs, 26 Fed. Rep. 431; Ex parte Coy, 32 Fed. Rep. 917; Re Reinitz, 39 Fed. Rep. 204, 4 L. R. A. 236; People, Young, v. Stout, 81 Hun, 336; Re Rowe, 40 U. S. App. 516, 77 Fed. Rep. 165, 23 С. С. А. 103. The trial of appellant for another offense was in violation of the faith and honor of the government, as well as of an express law of Congress. People v. Cross, 135 N. Y. 540; Re Cooper, 143 U. S. 501, 36 L. ed. 242; Re Cannon, 47 Mich. 486; State v. Hall, 40 Kan. 345; Re Robinson, 29 Neb. 137, 8 L. R. A. 398; Ex parte McKnight, 48 Ohio St. 588, 14 L. R. Λ. 128. Mr. John K. Richards, Solicitor General, for appellee: A fugitive from justice acquires from that fact alone no right of asylum in a foreign country, which exempts him from trial here if he falls within the clutches of the law. Ex parte Brown, 28 Fed. Rep. 653; Ker v. Illinois, 119 U. S. 436, 30 L. ed. 421; Mahon v. Justice, 127 U. S. 700, 32 L. ed. 283; Lascelles v. Georgia, 148 U. S. 537, 37 L. ed. 549; Cook v. Hart, 146 U. S. 183, 36 L. ed. 934. *Mr. Chief Justice Fuller, delivered the opinion of the court: Article three of the Extradition Convention between the United States and Great Britain, promulgated March 25, 1890 (26 Stat. at L. L. 1508), and section 5275 of the Revised Statutes, are as follows: "Art. III. No person surrendered by or to either of the high contracting parties shall be triable or be tried for any crime or offense, committed prior to his extradition, other [67] *than the offense for which he was surrendered, until he shall have had an opportunity of returning to the country from which he was surrendered." "Sec. 5275. Whenever any person is delivered by any foreign government to an agent of the United States, for the purpose of being brought within the United States and tried for any crime of which he is duly accused, the President shall have power to take all necessary measures for the transportation and safekeeping of such accused person, and for his security against lawless violence, until the final conclusion of his trial for the crimes or offenses specified in the warrant of extradition, and until his final discharge from custody or imprisonment for or on account of such crimes or offenses, and for a reasonable time thereafter, and may employ such portion of the land and naval forces of the United States, or of the militia thereof, as may be necessary for the safekeeping and protection of the accused." Cosgrove was extradited under the treaty, and entitled to all the immunities accorded to a person so situated; and it is admitted that the offense for which he was indicted in the district court was committed prior to his extradition, and was not extraditable. But it is insisted that although he could not be extradited for one offense and tried for another, without being afforded the opportunity to return to Canada, yet as, after he had given bail, he did so return, his subse quent presence in the United States was voluntary and not enforced, and therefore he had lost the protection of the treaty and rendered himself subject to arrest on the capias and to trial in the district court for an offense other than that on which he was surrendered; and this although the prosecution in the state court was still pending and unde termined, and Cosgrove had not been released or discharged therefrom. Conceding that if Cosgrove had remained in the state of Michigan and within reach of his bail, he would have been exempt, the argument is that, as he did not continuously so remain, and, during his absence in Canada, his sureties could not have followed him there and compelled his return, if his appearance happened to be required according to the exigency of the bond, which the facts [68] stated show that it was not, it follows that when he actually did come back to Michigan he had lost his exemption. But we cannot concur in this view. The treaty and statute secured to Cosgrove a reasonable time to return to the country from which he was surrendered, after his discharge from custody or imprisonment for or on account of the offense for which he had been extradited, and at the time of this arrest he had not been so discharged by reason of acquittal; or conviction and compliance with sentence; or the termination of the state prosecution in any way. United States v. Rauscher, 119 U. S. 407, 433 [30: 425, 434]. The mere fact that he went to Canada did not in itself put an end to the prosecution or to the custody in which he was held by his bail, or even authorize the bail to be forfeited, and when he re-entered Michigan he was as much subject to the compulsion of his sureties as if he had not been absent. In Taylor v. Taintor, 16 Wall. 366, 371 |