(61] the effect of the charge was *to enable the the stamps before they were received by

government to put the accused, although Kirby, and that the indictment charges that
shielded by the presumption of innocence, they were out of the possession of the United
upon the defensive as to a vital fact involved States and were stolen property when they
in the charge against him by simply produc- came to the hands of the accused.
ing the record of the conviction of other par. Another contention by the accused is that
ties of a wholly different offense with which the indictment was fatally defective in not
the accused had no connection.

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 adv. 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.” Mat- tive felony, for which he can be tried either tox v. United States, 146 U. S. 140, 151 [36: before or after the conviction of the princi. 917-921); Cooley, Const. Lim. 318; 1 Phil. pal felon, or whether the latter is tried or lips, Ev. chap. 7, 8 6.

not. Under such a statute the person who For the reasons stated it must be held that stole the property might be pardoned, and 80 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 rt. [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 inal prosecutions the accused shall be con- were received." Vol. 2, 8 983. By an Eng. fronted with the witnesses against him. lish statute, 7 & 8 Geo. IV., chap. 29. $ 54, it Upon this ground the judgment must be re- was enacted that "if any person shall receive versed and a new trial had in accordance any chattel, money, valuable security, or other with law. But as the case must go back to property whatsoever, the stealing or taking the circuit court for another trial, it is whereof shall amount to a felony, either at proper to notice other questions presented by common law or by virtue of this act, such the assignments of error.

person knowing the same to have been feloni. The accused contends that the indictment ously stolen or taken, every such receiver is defective in that it does not allege owner shall be guilty of felony, and may be indicted ship by the United States of the stolen ar. and convicted either as an accessory after the ticles of property at the time they were al- fact, or for a substantive felony, and in the leged to have been feloniously received by latter case, whether the principal felon shall

him. This contention is without merit. The or shall not have been previously convicted, (62) indictment alleges that the articles described or shall or shall not be amenable to justice."

were the property of the United States when etc. Under that statute a receiver of stolen they were feloniously stolen on the 7th day goods was indicted. It was objected that of June, 1896, and that the defendant only one of the counts did not state the name of two days thereafter, on the 9th day of June, the principal, or that he was unknown. Tin1896, "the postage stamps aforesaid so as dall, Ch. J., said: “It will do. The offense aforesaid feloniously stolen, taken, and car. created by the act of Parliament is not reried away, feloniously did receive and ceiving stolen goods from any particular per: have in his possession, with intent then son, but receiving them knowing them to and there to convert the same to his have been stolen. The question therefore

or gain, the said Joe Kirby will be, whether the goods are stolen, and then and there well knowing the said whether the prisoner received them knowing postage stamps to have been theretofore them to have been stolen. Your objection is feloniously stolen, taken, and carried away:

." founded on the too particular form of the The stamps alleged to have been feloniously indictment. The statute makes the receiving received by the accused on the 9th day of of goods, knowing them to have been stolen, June are thus alleged to have been the same the offense.Rex v. Jervis, 6 Car. & P. 156; that were stolen from the United States two 2 Russell, Crimes, 6th ed. 436. In State F. days previously. The larceny did not change Hazard, 2 R. I. 474 (60 Am. Dec. 96), an in the ownership, and it must be taken that the dictment charging the accused with fraudUnited States had not regained possession of ulently receiving stolen goods, knowing them




174 U.S.

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 Thomas Cosgrove from the custody of the person from whom the goods were received, marshal of the United States upon arrest nor that they were received from some person upon an indictment for obstructing the maror persons unknown to the grand jurors. We shal in the execution of a writ of attachtherefore think that the objection that the ment and remanding him to the custody of the indictment does not show from whom the ac. marshal. Cosgrove had been arrested after cused received the stamps, nor state that having been extradited from Canada to the the name of such person was unknown to the United States on a criminal charge, and grand jurors, is not well taken. If the while he was out upon bail before the trial

stamps were in fact stolen from the United of such offense. Order reversed, and cause (64] States, and if they were received by the *ac remanded with directions to discharge said

cused, no matter from whom, with the intent Cosgrove. to convert them to his own use or gain, and knowing that they had been stolen from the Statement by Mr. Chief Justice Fuller: United States, he could be found guilty of the *November 7, 1895, Winney, United States (65) crime charged even if it were not shown by Marshal for the eastern district of Michigan, the evidence from whom he received the inade a complaint before one of the police stamps. This rule cannot work injustice nor justices of the city of Detroit within that disdeprive the accused of any substantial right. trict against Thomas Cosgrove for the lar. If it appears at the trial to be essential in the ceny of a boat, named the Aurora, her tackle, preparation of his defense that he should etc., whereon a warrant issued for his arrest. know the name of the person from whom the Cosgrove was a resident of Sarnia, in the government expected to prove that he re- Province of Ontario, Dominion of Canada, ceived the stolen property, it would be in the and extradition proceedings were had in acpower of the court to require the prosecution cordance with the treaty between the United to give a bill of particulars. Coffin v. United States and Great Britain, which resulted in States, 156 U. S. 432, 452 [39: 481, 491]; a requisition on the Canadian government, Rosen v. United States, 161 U. S. 29, 35 which was duly honored, and a surrendering (40: 606, 608); Commonwealth v. Gilés, 1 warrant issued May 19, 1896, on which CosGray, 466; Rosc. Crim. Ev. 6th ed. 178, 179, grove was brought to Detroit to respond to 420.

the charge aforesaid; was examined in the The judgment is reversed, and the case is police court of Detroit; was bound over to remanded with directions for a new trial and the July term, 1896, of the recorder's court for further proceedings consistent with law. of that city; and was by that court held for Reversed.

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 Mo- the eastern district of Michigan, on an inKenna dissented.

dictment against Cosgrove, on the charge of obstructing the United States marshal in the

execution of a writ of attachment, which was THOMAS JOSGROVE, Appt.,

not served until December 10, 1896, some

months after Cosgrove had been admitted to EUGENE D. WINNEY, United States Mar- bail in the recorder's court. shal for the Eastern District of Michigan.

Cosgrove having been taken into custody

by the marshal applied to the district court (See S. C. Reporter's ed. 64-69.)

for a writ of habeas corpus which was issued,

the marshal made return, and the cause was Right of extradited person not to be arrested duly argued.

for another offense until his return to his The court entered a final order denying the own country.

application and remanding the petitioner. The right of a person extradited under the 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 count

*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 The district judge stated in his opinion any other offense committed prior to his ex: that it appeared "that the property, for the tradition, is not lost or waived by going to taking of which he (Cosgrove) is charged his own country and voluntarily returning with larceny, was the vessel which, under while at liberty on ball before his final discharge in the case for which he is extradited. the indictment in this court, he was charged

with having unlawfully taken from the cus[No. 172.]

tody 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 Court of the United States for the East was not traversed, the petitioner has had the ern District of Michigan, denying an appli. 'opportunity secured him by that treaty to 174 U. S. U. S., BOOK 43.





return to his own country. If he has had “Sec. 5276. Whenever any person is deliv. such opportunity, then article 3 has not ered by any foreign government to an agent been violated, either in its letter or spirit, of the United States, for the purpose of being by the arrest and detention of the petitioner. brought within the United States and tried It is conceded that he was delivered to the for any crime of which he is duly accused, authorities of the state of Michigan in May, the President shall have power to take all 1896, to stand his trial upon the charge of necessary measures for the transportation larceny. He gave bail to appear for trial in and safekeeping of such accused person, and the recorder's court when required and im- for his security against lawless violence, unmediately returned to Canada. On Decem- til the final conclusion of his trial for the ber 10th, 1896, he voluntarily appeared in the crimes or offenses specified in the warrant of state of Michigan, of his own motion, and not extradition, and until his final discharge upon the order of the recorder's court, or at from custody or imprisonment for or on acthe instance of his bail, and while in this dis count of such crimes or offenses, and for a trict was arrested.”

reasonable time thereafter, and may employ

such portion of the land and naval forces of Messi's. E. H. Sellers and Cassius Hol- the United States, or of the militia thereof, lenbeck for appellant:

as may be necessary for the safekeeping and The treaty of 1889 expressly limits the protection of the accused.” surrender to one offense and the trial of the Cosgrove was extradited under the treaty, accused on that offense, and no other, until and entitled to all the immunities accorded he shall have had an opportunity of return to a person so situated; and it is admitted ing to the country of his asylum on regain that the offense for which he was indicted ing his liberty.

in the district court was committed prior to United States v. Rauscher, 119 U. S. 407, his extradition, and was not extraditable. 80 L. ed. 425; Com. v. Hawes, 13 Bush. 697,26 But it is insisted that although he could not Am. Rep. 242; State v. Vanderpool, 39 Onio be extradited for one offense and tried for St. 273, 48 Am. Rep. 431 ; Blandford v. State, another, without reing afforded the oppor10 Tex. App. 627; United States v. Watts, tunity to return to Canada, yet as, after ho 14 Fed. Rep. 130; Ex parte Hibbs, 26 Fed. had given bail, he did so return, his subse Rep. 431; Ex parte Coy, 32 Fed. Rep. 917; quent presence in the United States was volRe Reinitz, 39 Fed. Rep. 204, 4 L. R. A. untary and not enforced, and therefore he 236; People, Young, v. Stout, 81 Hun, 336; had lost the protection of the treaty and renRe Rowe, 40 U. S. App. 516, 77 Fed. Rep. dered himself subject to arrest on the capias 105, 23 C. C. A. 103.

and to trial in the district court for an offense The trial of appellant for another offense other than that on which he was surrenwas in violation of the faith and honor of the dered; and this although the prosecution in government, as well as of an express law of the state court was still pending and unde Congress.

termined, and Cosgrove had not been released People v. Cross, 135 N. Y. 540; Re Coop- or discharged therefrom. er, 143 U. S. 501, 36 L. ed. 242; Re Cannon, Conceding that if Cosgrove had remained 47 Mich. 486; State v. Hall, 40 Kan. 345; Re in the state of Michigan and within reach of Robinson, 29 Neb. 137, 8 L. R. A. 398; Ex his bail, he would have been exempt, the arparte McKnight, 48 Ohio St. 588, 14 L. R. gument is that, as he did not continuously A. 128.

so remain, and, during his absence in Can. Mr. John K. Richards, Solicitor Gener- ada, his sureties could not have followed him al, for appellee:

there and compelled his return, if his ap A fugitive from justice acquires from that pearance happened to be required according fact alone no right of asylum in a foreign to the exigency of the bond, which the facts (68] country, which exempts him from trial here stated show that it was not, it follows that if he falls within the clutches of the law. when he actually did come back to Michigan

Ex parte Brown, 28 Fed. Rep: 653; Ker he had lost his exemption. v. Illinois, 119 U. S. 436, 30 L. ed. 421; Ma- But we cannot concur in this view. The hon v. Justice, 127 U. S. 700, 32 L. ed. 283; treaty and statute secured to Cosgrove a Lascelles v. Georgia, 148 U. S. 537, 37 L. ed. reasonable time to return to the country 549; Cook v. Hart, 146 U. S. 183, 36 L. ed. from which he was surrendered, after his dis934.

charge from custody or imprisonment for or

on account of the offense for which he had [66] *Mr. Chief Justice Fuller, delivered the been extradited, and at the time of this aropinion of the court:

rest he had not been so discharged by reason Article three of the Extradition Conven- of acquittal; or conviction and compliance tion between the United States and Great with sentence; or the termination of the Britain, promulgated March 25, 1890 (26 state prosecution in any way. United Stat. at .. 1508), and section 5275 of the States v. Rauscher, 119 U. S. 407, 433 (30: Revised Statutes, are as follows:

425, 434). "Art. III. No person surrendered by or to The mere fact that he went to Canada did either of the high contracting parties shall not in itself put an end to the prosecution be triable or be tried for any crime or offense, or to the custody in which he was held by

committed prior to his extradition, other his bail, or even authorize the bail to be for[67] *than the offense for which he was surren- feited, and when he re-entered Michigan ho

dered, until he shall have had an opportunwas as much subject to the compulsion of his ity of returning to the country from which sureties as if he had not been absent. he was surrendered."

In Taylor v. Taintor, 16 Wall. 366, 371

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in the circuit court of appeals for the fifth tral Railway Company to this court, which circuit upon an appeal to that court from on November 24, 1890, affirmed that decree. the circuit court of the United States for the 137 U. S. 171 [34: 625]. northern district of Texas.

Pursuant to that decree, on April 22, 1891, The leading question presented by the writ all the property mortgaged, except some not of certiorari is whether Judge Pardee was immediately connected with the railroad, disqualified to sit at the hearing of that ap was sold to Moran, Gold, and McHarg, truspeal by the provision of § 3 of that act, tees for bondholders. On their petition filed

that no justice or judge before whom a in the cause, Judge Pardee, on August 28, cause or question may have been tried or 1891, made a decree directing Dillingham heard in a district court or existing circuit and Clark, receivers, to execute and deliver wurt shall sit on the trial or hearing of a deed, and to deliver possession, to the pur. such cause or question in the circuit court chasers, of all_the property, real and per. of appeals.” 26 Stat. at L. 827.

sonal, of the Texas Central Railway ComIf Judge Pardee was so disqualified, the pany, in the state of Texas, used for and per. decree in which he took part, even if not ab- taining to the operation of its railway; and solutely void, must certainly be set aside providing “that nothing in this decree conand quashed, without regard to its merits. tained is intended to affect, or shall be con!]American Construction Co. v. Jacksonville, strued as affecting, the status of any pending T. & K. W. Railway Co. 148 U. S. 372, 387 or undetermined litigation in which said re[37: 486, 492].

ceivers appear as parties; such litigation The material facts bearing upon the ques- shall continue to determination in the name tion of his disqualification, as appearing by of said receivers, with the right reserved to the record now before this court, are as fol- said purchasers, should they be so advised, lows:

to appear and join in any such litigation; Upon a bill in equity, filed April 2, 1885, and nothing in this decree contained is inin the aforesaid circuit court of the United tended to affect, or shall be construed as States, by the Morgan's Louisiana & Texas affecting the receivership of any of the Railroad & Steamship Company against property of the defendant railway company the Texas Central Railway Company, to fore- other than the property, so transferred to close a mortgage of its railroad and other said purchasers, possession of which said property, Judge Pardee, on April 4, 1885, property other than that so transferred is made an order, appointing Benjamin G. retained for further administration, subject Clark and Charles Dillingham joint receiv. to the orders of this court;" and "that said ers of the property, and appointing John G. purchasers or said receivers may apply at Winter special master as to all matters re- the foot of this decree for such other and ferred or to be referred to him in the cause. further relief as may be just.”. The proper.

Upon a petition filed in that cause by Dil- ty was accordingly delivered to the pur. lingham, representing that he had been the chasers in September, 1891. On November active receiver for seventeen months, and 6, 1891, on like petition of the purchasers, praying for an allowance for his services as Judge Pardee made a similar decree, except such, Judge Pardee, on December 4, 1886, in directing the deed to the purchasers to made an order “that the receivers be author- be executed and delivered by Dillingham and ized and directed to place Charles Dilling- Winter, special master commissioners, and ham upon the pay roil of the receivers for in other particulars not material to be menthe sum of one hundred and fifty dollars per tioned. month, as an allowance upon his compensa- Dillingham afterwards, and until April, tion as receiver in this cause; this allowance 1895, continued to draw and pay to himself to date from the possession of the receivers, the sum of $150 a month, and returned and to continue while Mr. Dillingham gives quarterly accounts to the master crediting his personal attention to the business of the himself with those sums. On August 25, company or until the further order of the 1891, he presented a petition, entitled in the court.”

cause, to the master, praying him to "make On April 12, 1887, Judge Pardee made a *to him such an allowance for his services as[156] final decree in the cause, for the foreclosure receiver in the above-entitled cause, from the of the mortgage; for the sale of the mort- date of his appointment until his discharge, gaged property by auction; and for the pay. as to said master may seem just and proper.” ment by the purchasers of "all the indebt. About the same time, a compromise was edness of the receivers incurred by them in made between him and the purchasers, pur. this cause, including all the expenses and suant to which he was paid, in addition to costs of the receivers' administration of the the allowance of $150 a month for the past, property," "and also the compensation of the the sum of $20,000 for services as receiver; receivers and their solicitors;” appointing and he signed a paper, entitled in the cause, Dillingham and Winter special master como acknowledging that he had received from missioners to make the sale, and to execute them the sum of $20,000 "in full of my fees and deliver a deed to the purchasers; and and charges as receiver of the Texas Central reserving the right to any party to the cause, Railway Company, as per agreement.” At as well as to the receivers and master com the hearings before the master upon Dillingmissioners, to apply to the court for orders ham's accounts it was contested between him necessary to carry that decree into execution. and the purchasers whether he was entitled

Appeals from that decree were taken by the to $150 monthly since the compromise. The 55]Morgan's Louisiana & Texas Railroad & master reported that he was; and exceptions Steamship Company and by the Texas Cen- by the purchasers to his report were referred

At the trial the parties agreed to and filed of cars wherein they can safely transport the following stipulation:

such character of freight. "Ist. That plaintiff is and was during the “2d. That the average number of cars of times mentioned in the petition a corpora- the plaintiff used in the course of the busition duly organized and existing by virtue of ness aforesaid within the state of Colorado the laws of the state of Illinois, with its during the year for which such assessment principal office in the city of East St. Louis, was made would equal forty, and that the in saià state; that it is engaged in the busi. cash value of plaintiff's cars exceeds the sum ness of furnishing refrigerator cars for the of $250 per car, and that if such property transportation of perishable products over of the plaintiff is assessable and taxable the various lines of railroads in the United within such state of Colorado, then the States; that these cars are more expensive amount for which such cars, the property than the ordinary box or freight car; that of the plaintiff, is assessed by said state the cars referred to are the sole and exclu- board of equalization is just and reasonable, sive property of the plaintiff, and that the and not in excess of the value placed upon plaintiff furnishes the same to be run indis- other like property within said state for the criminately over any lines of railroad over purposes of taxation. which shippers or said railroads may desire "3d. That said company is not doing busi. to route them in shipping, and furnishes the ness in this state, except as shown in this same for transportation of perishable freight stipulation and by the facts admitted in the upon the direct request of shippers or of rail-pleadings. road companies requesting the same on be- “4th. That in case it be found by the court half of shippers, but on the responsibility of under the undisputed facts set forth in the the carrier and not of the shipper; that as pleadings and the facts herein stipulated compensation for the use of its cars plaintiff that the authorities of the state of Colorareceived a mileage of three fourths of a cent do under existing laws have no power to as. per mile run from each railroad company sess or tax the said property of plaintiff, over whose lines said cars are run, such rate then judgment shall be entered herein for of payment being the same as is paid by all the plaintiff for the relief prayed; otherwise [73] railroad companies to each other for the use judgment shall be entered for the defendants. of the ordinary freight cars of each when "The following constitutional and statuused on the lines of others in the exchange of tory provisions are referred to in the opincars incident to through transportation of ion: freight over connecting lines of railroads; that “All corporations in this state, or doing plaintiff has not, and never has had, any con- business therein, shall be subject to taxation tract of any kind whatsoever by which its for state, county, school, municipal, and cars are leased or allotted to or by which it other purposes, on the real and personal agrees to furnish its cars to any railroad property owned or used by them within tho company operating within the state of Colo- territorial limits of the authority levying the rado; that it has and has had during said tax.' ($ 10, art. 10, State Const.) times no office or place of business nor other “ 'Sec. 3765. (M. A. S.) All property, both property than its cars within the state of real and personal, within the state, not exColorado, and that all the freight transported pressly exempt by law, shall be subject to in plaintiff's cars in or through the state of taxation. Colorado, including the cars assessed, was “ 'Sec. 3804. It shall be the duty of

transported in such cars either from a point said board (the board of equalization) to as(72] or points in a state of the United States sess all the property in this state owned,

outside of the state of Colorado to a point in used, or controlled by railway companies, the state of Colorado, or from a point in telegraph, telephone, and sleeping or palace the state of Colorado to a point outside of car companies. said state, or between points wholly outside 'Sec. 3805. The president, vice president, of said state of Colorado, and said cars never general superintendent, auditor, tax agent, were run in said state in fixed numbers nor or some other officer of such railway, sleepat regular times, nor as a regular parting, or other palace car, or telegraph or telof particular trains, nor were any certain ephone company, or corporation, owning, cars ever in the state of Colorado, except as operating, controlling, or having in its pos. engaged in such business aforesaid, and then session in this state any property, shall fur. only transiently present in said state fornish said board on or before the fifteenth day such purposes.

of March, in each year, a statement signed "That, owing to the varying and irregular and sworn to by one of such officers, and demand for such cars, the various railroad showing in detail for the year ending on the companies within the state of Colorado have thirty-first day of December preceding.' not deemed it a profitable investment to “5th. A full list of rolling stock belonging build or own cars of such character, and to or operated by such railway company, therefore relied upon securing such cars setting forth the number, class, and value of when needed from the plaintiff or corpora- all locomotives, passenger cars, sleeping cars tions doing a like business.

or other palace cars, express cars, baggage “That it is necessary for the railroad com cars, mail cars, box cars, cattle cars, coal panies operating within the state of Colora- cars, platform cars, and all other kinds of do, and which are required to carry over cars owned or used by said company. The their lines perishable freight, such as fruits, statement shall show the actual proportion meats, and the like, to have such character of the rolling stock in use on the company's

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