62 C. C. A. 644, 128 Fed. 262; Sun Mut. | reasons there stated we hold that the aeIns. Co. v. New York, 8 N. Y. 249. The right of action accrued on May 25, 1914,-six months after the application was filed with the commissioner. Wright v. Blakeslee, 101 U. S. 174, 180, 25 L. ed. 1048, 1050; Stewart v. Barnes, 153 U. S. 456, 458, 38 L. ed. 781, 782, 14 Sup. Ct. Rep. 849; Christie-Street Commission Co. v. United States, 129 Fed. 508, 126 Fed. 991; United States v. Utz, 26 C. C. A. 184, 39 U. S. App. 630, 80 Fed. 851. There was a complete cause of action in the plaintiff six months after appeal had been filed with the commissioner, and the two-year limitation in U. S. Rev. Stat. § 3227, Comp. Stat. § 5950, 3 Fed. Stat. Anno. 2d ed. p. 1037, commenced at that time. Graham v. Scripture, 26 How. Pr. 501; 25 Cyc. 1066; Larason v. Lambert, 12 N. J. L. 247; Eller v. Church, 121 N. C. 269, 28 S. E. 364; Amy v. Dubuque, 98 U. S. 470, 25 L. ed. 228; Parmalee v. Price, 105 Ill. App. 271; Conklin v. Furman, 8 Abb. Pr. N. S. 161, affirmed in 48 N. Y. 527; Christie-Street Commission Co. v. United States, 69 C. C. A. 464, 136 Fed. 326; Cary v. Koerner, 200 N. Y. 253, 93 N. E. 979; Jacobs v. Mexican Sugar Ref. Co. 104 App. Div. 242, 93 N. Y. Supp. 782; Schwarzchild & S. Co. v. Rucker, 143 Fed. 656. Mr. Justice Brandeis delivered the opinion of the court: tion was not barred. As bearing upon the merits material differences in the facts must be considered. In the case now under consideration, the businesses and the assets of the several departments were not separated; and there was not technically a surplus, but a fund designated as undivided profits. The company carried on five classes of business, one of which was banking. An amount in excess of its capital was permanently invested in bonds and real estate, the latter including its office building. A schedule of these investments was carried on the books, designated, "Schedule [306] of Investments of the Capital Stock of One Million Dollars;" but there was no physical segregation of these assets from others belonging to the company. Nor was there segregation of the money received from the capital stock or from investments made therewith, from the money derived from earnings of the several departments. No attempt was made to segregate or earmark investments as having been made for any particular department. All moneys received by the company, including bank deposits, were commingled; and from these general funds all investments were made and all expenses and losses were paid. The office building was used by all the departments. All the earnings from the several departments were pooled and went into the profit and loss account. There was carried in this account a credit representing undivided profits, amounting, in 1898, to $414,468.86, which increased from year to year, and was $948,074.56 in 1902. These undivided profits were not at any time, during the period in question, set apart in any way as a separate fund, and they were at all times subject to distribution by the board of directors as dividends, and available for any department of the business. At a date subsequent to the period here in question additional stock was sold above par to form a surplus fund. This suit was brought in the court of claims by the Fidelity Title & Trust Company of Pittsburgh, in July, 1918, to recover the sum of $10,028.94, assessed upon its whole capital and undivided profits, and paid as bankers' special taxes under $ 2 of the Spanish War Revenue Act. That court entered judgment for the defendant; and the case is here on appeal. Appellant contends that nothing was payable as a tax, because none of the capital or undivided profits was used or employed in banking; and that the tax was, in no event, assessable on the undivided profits, because these The burden lay on the plaintiff to eswere not a part of the capital within the tablish that none of the company's capimeaning of the act. The government tal, or that less of it than the amount for contends that the whole capital and un- which it was assessed, had been used divided profits were taxable; and that, or employed in the banking department. in any event, the action is barred by the It failed entirely to sustain that burden. two-year Statute of Limitations, because The proportions of capital and accumu the application for refund had been lated profits used in the respective demade in November, 1913. In the main, partments were not established by the evithe facts are similar to, and the ques-¦dence. There was no finding that the tions of law are the same as, those considered in Fidelity & D. Co. v. United States, decided this day [259 U. S. 296. ante, 948, 42 Sup. Ct. Rep. 511]. For the net profits of the banking department were received solely from the use of depositors' money. And there does not appear to have been any request for a find ing of fact that no part of the capital and undivided profits was used in banking; or for a finding of facts from [307] which the proportion so used, if any, could be determined. Therefore the court of claims properly denied recovery for any part of the taxes paid, unless we can say, as matter of law, that undivided profits, on which, for the years 1898 and 1901, taxes were assessed as upon capital, were not assessable as such. The act declares that "in estimating capital, surplus shall be included," and that the "annual tax shall in all cases be computed on the basis of the capital and surplus for the preceding fiscal year." The act does not mention undivided profits. The question is whether Congress intended to draw a distinction between surplus and undivided profits; or intended that all capital actually used in banking should be taxed, whether it was strictly capital stock, or surplus, or undivided profits. The company argues that while the word "surplus," in its general and popular meaning, includes undivided profits, Congress, in the Act of June 13, 1898 [30 Stat. at L. 448, chap. 448, Comp. Stat. § 6144, 4 Fed. Stat. Anno. 2d ed. 135], used the term in its technical and restricted sense of a fund formally set apart and called surplus by the authorized officers of the bank; and that, as matter of law, no tax can be assessed on undivided profits. This view finds support in opinions of the Attorney General rendered in 1899 and 1900. 22 Ops. Atty. Gen. 320; 23 Ops. Atty. Gen. 341. But his rulings were not acquiesced in by the Treasury Department. It recommended promptly an amendment of the act which should expressly declare that undivided profits were to be considered surplus (Annual Reports of Commissioner of Internal Revenue, 1899, p. 91; 1900, p. 89); and it submitted the question thereafter to the courts for determination. In Leather Mfrs. Nat. Bank v. Treat, 116 Fed. 774 (1902), the district court held that undivided profits were subject to taxation; and the judgment in that case was affirmed by the circuit court of appeals for the second circuit, 62 C. C. A. 644, 128 Fed. 262 (1904). [308] With these courts we agree. By the Act of 1898, Congress imposed the tax, not on incorporated banks only, but also on any person, firm, or company engaged in banking. And it measured the tax by 66 L. ed. the amount of capital actually used or employed in banking. The technical distinction between capital, surplus, and undivided profits is obviously not applicable to the banking business when conducted by individuals or firms, and the distinction between surplus and undivided profits, while commonly observed by incorporated banks, is not ordinarily made by other business corporations. As it is the use or employment of capital in banking, not mere possession thereof by the banker, which determines the amount of the tax, the fact that a portion of the capital so used or employed is designated "undivided profits" is of no legal significance.1 Compare Fidelity & D. Co. v. United States, decided this day [259 U. S. 296, ante, 948, 42 Sup. Ct. Rep. 511]. But while capital assets of a banker are not, as matter of law, exempt from taxation under the Act of 1898 merely because they are designated undivided profits, undivided profits, like any other part of the company's capital, may be free from the tax, because they were not, in fact, used or employed in banking. And the company contends that the court of claims did find as a fact that these undivided profits were not so used. The passage in the findings relied upon is this: "The said profit and loss credit balance was never designated as, or set apart or appropriated to, capital or surplus, or used for capital or surplus purposes." It is argued that the last clause of the sentence means that none of the undivided profits were used for banking purposes. The contention is plausible. But [309] when the passage is read in connection with other parts of the findings, it seems clear that such was not the meaning of the court. There the undistributed profits, as was, thus, no finding to the effect that distinguished from capital, were not used or employed in banking. Affirmed. 1 The Revenue Act of October 22, 1914, chap. 331, 38 Stat. at L. 745, 750, 4 Fed. Stat. Anno. 2d ed. p. 135, provides in terms that undivided profits shall be included in capital. It is under this act that Anderson v. Farmers' Loan & T. Co. 154 C. C. A. 202, & T. Co. v. Lederer, 229 Fed. 799; German241 Fed. 322, 327; Real Estate Title, Ins. town Trust Co. v. Lederer, 263 Fed. 673, relied upon by the government, were decided. 955 CHARLES GLEN COLLINS, Appt., V. VICTOR LOISEL, United States Marshal, etc. (See S. C. Reporter's ed. 309-317.) Foreign extradition 4. A conviction not only for cheating, but for obtaining property under false pretenses, is justified by evidence tending to prove that the accused obtained a pearl button from a jeweler as a result of his representations, all false to his knowledge, that he was a wealthy man, was a partner in a name of crime. 1. The law of foreign extradition does not require that the name by which the crime is described in the two countries shall be the same, nor that the scope of the liability shall be coextensive or in other re-business house, was an army officer on leave, spects the same in both countries. It is enough if the particular act charged is criminal in both jurisdictions. [For other cases, see Extradition, IV. a, in Digest Sup. Ct. 1908.] Foreign extradition — evidence ments. had a right to draw on a London house the draft which he gave the jeweler in payment, and that this house was a firm of bankers. [For other cases, see Evidence, XII. n, in Digest Sup. Ct. 1908.] docu- Foreign extradition — evidence of guilt. 5. It is not the function of the committing magistrate in foreign.extradition proceedings to determine whether or not the accused is guilty, but merely to decide whether or not there is competent evidence which, according to the law of the surrendering state, would justify his apprehension and commitment for trial if the crime had been committed in that state. [For other cases, see Extradition, IV. a, in Foreign extradition Digest Sup. Ct. 1908.] dence. 2. The admissibility of documentary evidence in foreign extradition proceedings is governed by the provisions of the Act of August 3, 1882, § 5, that depositions, warrants, and other papers, or the copies thereof, properly and legally authenticated, shall be received and admitted as evidence for all purposes on hearings of an extradition case if they hear the certificate of the principal diplomatic or consular officer of the United States resident in the foreign country, and not by U. S. Rev. Stat. § 5271, which provides only that copies of foreign depositions 6. The exelusion, in a foreign extradishall be admitted when attested upon the tion proceeding, of evidence relating strictoath of the party producing them to be truely to the defense, does not render the "evicopies, and which does not provide for the admission of warrants or other papers, since § 6 of the Act of 1882 expressly provides for the repeal of so much of U. S. Rev. Stat. § 5271, as is inconsistent with the earlier provisions of that act. [For other cases, see Extradition, IV. a, in Digest Sup. Ct. 1908.] 3. The Federal Supreme Court will take judicial notice of the fact that the consul general of the United States who is stationed at Calcutta is the principal diplo Note. As to extradition of persons accused of crime on demand of foreign governments-see note to Kentucky v. Dennison, 16 L. ed. U. S. 717. On practice and procedure in extradition cases, see notes to Kentucky v. Dennison, supra; Cook v. Hart, 36 L. ed. U. S. 934; and Iasigi v. Van de Carr, 41 L. ed. U. S. 1046. dence of criminality" insufficient, according to the laws of the surrendering state, to have justified apprehension and commitment for trial if the crime had been committed there, within the meaning of the Treaty with Great Britain of August 9, 1842, art. 10, although, by the law of the surrendering state, a person charged with crime is entitled to make a voluntary declaration before the committing magistrate and to present evidence in his own behalf. The phrase "such evidence of criminality," as used in the treaty, refers to the scope of the evidence or its sufficiency to block out those elements essential to a conviction. instruments of evidence, or to the rules govIt does not refer to the character of specific erning admissibility. If the evidence introduced was sufficient to establish the elements essential to a conviction, the law of the surrendering state could not require more. [For other cases, see Extradition, IV. a, in Digest Sup. Ct. 1908.] [No. 672.] On judicial notice, generally-see note Argued April 28, 1922. Decided May 29, to Olive v. State, 4 L.R.A. 33. On habeas corpus to review extradition 1922. proceedings-see notes to State v. JackPPEAL from the District Court of son, 1 L.R.A. 373; Ex parte Davis, 12 L.R.A. (N.S.) 225; Com. ex rel. Flower v. Superintendent of County Prison, 21 L.R.A. (N.S.) 939; Wisener v. Burrell, 34 L.R.A. (N.S.) 755; and Oteiza y Cortes v. Jacobus, 34 L. ed. U. S. 464. the United States for the Eastern District of Louisiana to review a judg ment refusing to discharge on habeas corpus a person imprisoned under a warrant of commitment in foreign extradition proceedings. Affirmed. The facts are stated in the opinion. Mr. Edgar Allan Poe argued the to exercise his judgment as to whether the cause for appellant. Mr. Guion Miller also argued the cause, and, with Messrs. J. Zach Spearing and J. Kemp Bartlett, filed a brief for appellant: No extraditable offense was charged. State v. Colly, 39 La. Ann. 841, 2 So. 496; Whart. Crim. Law, $$ 2085, 2087, 2096, 2112; 2 Bishop, Crim. Law, §§ 397, 400, 401; Johnson v. Stockham, 89 Md. 364, 43 Atl. 920; Pettit v. Walshe, 194 U. S. 205, 48 L. ed. 938, 24 Sup. Ct. Rep. 657. The exclusion of practically all evidence offered on behalf of accused was gross and injurious error. Re Farez, 7 Blatchf. 34, Fed. Cas. No. 4,644; Re Kelley, 25 Fed. 268; Re Charleston, 34 Fed. 531; State ex rel. Dist. Atty. v. Moulin, 45 La. Ann. 309, 12 So. 142; State v. Stewart, 34 La. Ann. 1037; Tinsley v. Treat, 205 U. S. 20, 51 L. ed. 689, 27 Sup. Ct. Rep. 430; Charlton v. Kelly, 229 U. S. 447, 57 L. ed. 1274, 46 L.R.A.(N.S.) 397, 33 Sup. Ct. Rep. 945; Re Martin, 5 Blatchf. 303, Fed. Cas. No. 9,151; Grin v. Shine, 187 U. S. 181, 47 L. ed. 130, 23 Sup. Ct. Rep. 98, 12 Am. Crim. Rep. 366. The copies of depositions and other papers produced before the court of the chief presidency magistrate, Bombay, were not authenticated so as to make them admissible in evidence before the committing magistrate, under the provisions of U. S. Rev. Stat. § 5271, Comp. Stat. $10,111, 3 Fed. Stat. Anno. 2d ed. p. 281. Upon extradition to a foreign country, the accused can only be tried for the specific offenses named in the extradition proceedings against him. United States v. Rauscher, 119 U. S. 407, 30 L. ed. 425, 7 Sup. Ct. Rep. 234, 6 Am. Crim. Rep. 222. Appellant should only be surrendered upon the clearest evidence of probable cause for believing him guilty. Re Ezeta, 62 Fed. 972. There is a great difference between the law of extradition to a foreign country and the law of extradition from one state to another, within the United States. Biddinger v. Police Comr. 245 U. S. 128, 62 L. ed. 193, 38 Sup. Ct. Rep. 41. Mr. Robert H. Marr argued the cause and filed a brief for appellee: In proceedings for extradition, if the committing magistrate had jurisdiction of the subject-matter and of the accused, and the offense charged is within a treaty of extradition, and the magistrate had before him competent legal evidence upon which facts were sufficient to establish the crimi nality of the accused for the purpose of extradition, such decision cannot be reviewed on habeas corpus, either originally or by appeal. Charlton v. Kelly, 229 U. S. 447, 57 L. ed. 1274, 46 L.R.A.(N.S.) 397, 33 Sup. U. S. 520, 57 L. ed. 330, 33 Sup. Ct. Rep. Ct. Rep. 945; McNamara v. Henkel, 226 146; Grin v. Shine, 187 U. S. 181, 47 L. ed. 130, 23 Sup. Ct. Rep. 98, 12 Am. U. S. 270-278, 46 L. ed. 534-540, 22 Sup. Crim. Rep. 366; Terlinden v. Ames, 184 Ct. Rep. 484, 12 Am. Crim. Rep. 424; 42 L. ed. 94, 17 Sup. Ct. Rep. 744; Bryant v. United States, 167 U. S. 104, Ornelas v. Ruiz, 161 U. S. 502, 508, 40 L. ed. 787, 789, 16 Sup. Ct. Rep. 689. There was competent evidence before the extradition magistrate, justifying the holding of the accused for extradition. The certificate of the consul general of the United States at Calcutta, being in the required form, the depositions were prop erly admitted in evidence. ed. 253, 30 Sup. Ct. Rep. 131; Grin v. The acts of the accused were criminal in India, and, if they had been committed in Louisiana, would have been criminal there. Greene v. United States, 85 C. C. A. 251, 154 Fed. 406; Powell v. United Wright v. Henkel, 190 U. S. 58, 47 L. ed. States, 124 C. C. A. 282, 206 Fed. 403; 954, 23 Sup. Ct. Rep. 781, 12 Am. Crim. Rep. 386; Bingham v. Bradley, 241 U. S. 511, 60 L. ed. 1136, 36 Sup. Ct. Rep. 634; ed. 864, 36 Sup. Ct. Rep. 487; Rex v. Dix, Kelly v. Griffin, 241 U. S. 13, 14, 60 L. 18 Times L. R. 231; State v. Will, 49 La. 34 La. Ann. 1219; State v. Seipel, 104 Ann. 1337, 22 So. 378; State v. Jordan, La. 67, 28 So. 880; State v. Tessier, 32 La. Ann. 1227. ited or confined to the rules applicable to Proceedings for extradition are not limto local preliminary examinations as crimes in the place where the person sought for on extradition is found. Elias v. Ramirez, 215 U. S. 398, 409, 54 L. ed. 253, 257, 30 Sup. Ct. Rep. 131; Ex parte La Mantia, 206 Fed. 330; Ex parte Glaser, 100 C. C. A. 254, 176 Fed. 702; Gluckman v. Henkel, 221 U. S. 512, 55 L. ed. 833, 31 Sup. Ct. Rep. 704. In extradition cases the inquiry is limited to ascertaining whether there is or is not a prima facie case of guilt. The question of actual guilt or innocence cannot be gone into. Charlton v. Kelly, 229 U. S. 456, 57 L. ed. 1278, 46 L.R.A.(N.S.) 397, 33 Sup. Ct. Rep. 945. If there was sufficient ground for holding the accused by the extradition judge upon the evidence before him, he is not to be discharged for defects in the original arrest or commitment. Yordi v. Nolte, 215 U. S. 227, 54 L. ed. 170, 30 Sup. Ct. Rep. 90; Nishimura Ekiu v. United States, 142 U. S. 651, 652, 35 L. ed. 1146, 1147, 12 Sup. Ct. Rep. 336. Mr. Justice Brandeis delivered the opinion of the court: This is the second appeal by Collins in this case. The first was dismissed in Collins v. Miller, 252 U. S. 364, 64 L. ed. 616, 40 Sup. Ct. Rep. 347, for want of jurisdiction. There the earlier proceedings and the nature of the controversy are fully set forth. After our decision the case was again heard by the district court, [311] on the same record and the same evidence; and on October 25, 1921, judgment was entered. By that judgment the writ of habeas corpus was granted, so far as the commitment was based on charges of obtaining property by false pretenses from Pohoomull Brothers and from Ganeshi Lall & Sons; and as to these commitments the court discharged Collins. But as to the commitment based on the charge of obtaining property by false pretenses from Mahomed Ali Zaimal Ali Raza, the court dismissed the application for habeas corpus and remanded Collins to the custody of Loisel, the marshal. The British consul general acquiesced in this judgment. Collins appealed from so much thereof as recommitted him to the custody of the marshal. As the judgment below was final and disposed of the whole case, we now have jurisdiction. It is insisted, on several grounds, that the committing magistrate was without jurisdiction, and that consequently the appellant should have been discharged. First. Collins contends that the affidavit of the British consul general does not charge an extraditable offense. The argument is that the affidavit charges cheating merely; that cheating is not among the offenses enumerated in the extradition treaties; that cheating is a different offense from obtaining property under false pretenses, which is expressly named in the Treaty of December 13, 1900 (32 Stat. at L. 1864); that to conviet of cheating it is sufficient to prove a promise of future performance which the promisor does not intend to perform; while to convict of obtaining property by false pretense it is essential that there be a false representation of a state of things past or present. See State v. Colly, 39 La. Ann. 841, 2 So. 496. It is true that an offense is extraditable only if the acts charged are criminal by the laws of both countries. It is also true that the charge made in the court of India rests upon § 420 of its Penal Code, which declares: "Whoever cheats and thereby dishonestly induces the person deceived [312] to deliver any property to any person shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine;"1 whereas § 813 of the Revised Statutes of Louisiana declares: "Whoever, by any false pretense, shall obtain, or aid and assist another in obtaining, from any person, money or any property, with intent to defraud him of the same, he shall, on conviction, be punished by imprisonment at hard labor or otherwise, not exceeding twelve months." But the affidavit of the British consul general recites that Collins stands charged in the chief presidency magistrate's court with having feloniously obtained the pearl button by false pretenses; and the certificate of the secretary to the government of India, which accompanies the papers on which Collins's surrender is sought, describes the offense with which he is there charged as "the crime of obtaining valuable property by false pretenses." law does not require that the name by which the crime is described in the two countries shall be the same, nor that the scope of the liability shall be coextensive, or, in other respects, the same in the two countries. It is enough if the particular act charged is criminal in both jurisdietions. This was held with reference to different crimes involving false statements in Wright v. Henkel, 190 U. S. 40, 58, 47 L. ed. 948, 954, 23 Sup. Ct. Rep. 781, 12 Am. Crim. Rep. 386; Kelly v. Griffin, 241 U. S. 6, 14, 60 L. ed. 861, 864, 36 Sup. Ct. Rep. 487; Benson v. McMahon, 127 U. S. 457, 465, 32 L. ed. 234, 237, 8 Sup. Ct. Rep. 1240, and Greene v. United States, 85 C. C. A. 251, 154 Fed. 401. Compare Ex parte Piot, 15 Cox, C. C. 208, 48 L. T. N. S. 120, 47 J. P. 247. The either "simple" or "rigorous," the latter 1 Imprisonment under the Indian Code is with hard labor. Indian Penal Code, §—. "Whoever does anything with the intention of causing wrongful gains to one person, or wrongful loss to another, is said to do that thing dishonestly." Indian Penal Code, § 24. |