The New York herald., 1870-10-22
UNITED STATES CIRCUIT coua1-calm.AAl BRANCH.


The Caldwell Drawback Fraud Casc-Argu-
ment ON Motion TO Qunsh the Indictment
Can Party Extraditcd for One Offence be
sued for Another Interesting Legal Points.
Before Judge Benedict.
The United States us Richard D. CdldsceU.-The
case OF defendant, VINO is implicated with several
other Customs olcers in defraudIng the government
BY sy ystematized course OF alleged frauds, known
as the Custom House drawback frauds and who Is
under Indictment for conspiracy to deraud the Gus
toms revenue, was yesterday before the Court on
motion to quash the indictment. Tho ground or the
motion was that the Indictment was vitiated by
charging two Grimes against the accused In one In.
dictment-felony, IN the charge or forgery, and
msuemeanor III the charge OF conspiracy.
THE MOTION 10 QUAsu.
Mr.. w. II. Anthon, defendants counsel moved to
count was simply ior Conspiracy 10 Ieraud The row
ernment-a misdemeanor only: wnlle the other
counts are for forgery and uttertng forged papers
win felOnlOus intent. Counsel contended that the
indictment was taus vitiated-tnat there was mis-
toMder Of offences, and that the crime was not
charged with sufficient precision TO- enable The de-
1endant to properly provide for MS defence. anl in
ease Of conviction the Court would not know for
s sVs
this view OF the and commended tnat Two
ielonies could be and had been Joined IN in1ict
ment, the Indictment being hed good, and that II
two fel0nies could be jolned felony and a msde-
msanor could, especially In case IKE this, IN
would be substantially the same.
The Court held this view TO be sound, but said
That before tine Case could be given To the Jury
when 1t came to trial the government woulo have
To elect AZ to which case they would 90 to the
Another motion was made to aussh two other IN.
shctnents found against Calawell-one Tor Drbing
Samuel I. Biatchiord, Custom House oIncer, 10
pass forged drawback cerlicatea aud the other for
DrlbiDg an Internal Revenue olileer 10 sign such
forged cerlhcAtes, OIL the ground that the court had
W. %s jurisdiction 70 Try suon charges against oald
Counsel coltended that the extradition treaty
known as the Ashburton treaJy-dld not cover The
charges under which the prisoner was indicted un-
der these heads. The offences enumerated under
the treaty are murder, and Tor ery. Now none
Of these Indictments charged him with murder.
Arson er forgery, and con equently he does fail
witnin the purvlews. sTne qucsion arises whether
ehe court has any jurisdiction he prisoner uu.
DER these circumstances The defendant was ar.
rested IN Canada on Charge OF forgery made at the
rested and confined in the common jan 1t Toronto
Till his extraditOn under the Asnburton treaty. The
case that evidence OF some kind tending TO show
forgery, alihoueh, as he stated IN his decls on,
.1,yery very feeble IN its , nature" had been al
facie case OF forgery had been made out
against the prisoner to authorize linn to issue his
warrant OF extraslltion. THAT warrant was issued,
and on the charge OF forgery he was extradited.
The prisoner was al the time a resident or canada.
The quesylon then arises whether the prisoner can
be tired Tor any other offence than that OF forgery
lc was an evasion OF the treaty 10 nave the man
tanned jurisdiction over the prisoner 10 try hln for
the onences charged In the indictment yOnspiracy
or DrIe ery-ol,n u IS not mcnllonea or provided Tor
IN the treaty. The prisoner was ne 10 be tried
IOr the offence Tor wnlcn he VAS eXlradltea-an
offence trumped up against hirlbut to be tNed for
conspiracy anu bflbing Custom House Oiicer. The
Court could only acquire jurisdiction by the opera
ton Of the treaty, and by thai operation only.
Tae Court admitted the importance o the question
raised, and when r9ument closed wou.d 1t said,
take time TO determine the proper action OF the
c"nne sus me- Woa present point 20 or Two sr
ernMens might conn ailnof any aslon Of + eatle /,
but can this Court take any cosnHance OF an eva
DOn OF treaty by person,r no Its officers, and not
acting under lis process. He wou caii attention
70 the extraditIon from this country Of Lamorcier,
fugitive from English justice. lie was Ga ged here
and exiradlted Tor forgery; but tried and con-
victed at home tor embezzlement. Whether obec-
ton was taken to the jurisdiction OF ihe English
Court in That case the Court could not say,
Counsel or prisoner thought tthat no point had
been raised in that case.
The Court-It Is a case In point but whether gov.
ernments approved Of or winked at an evasion of
treaties or not 1t was not for the courts to approve
nfIactl0ns or evasionS or laws or treaties. The
Court referred to other or questionable juris
diction, to which counsel for prisoner replied.
United States District Attorney Davis replied In
detail to the argument Of counsel ana on closing re-
ferring to the argument that q person exlraalted
could NOT 6e tried ior any other onence than that
that the Jurisd cton Of the court not aected by
the question how the prisoner was brought here,
whether by law, according to law by proc. 50 OF law
or by absolute violence. Ihat, however, was not
the question to determine. He had lived
for many years on the northwestern from
personal experience that the officers both State and
federal are accustomed to arrest without any legal
the adjoining frontier OF Canada. Fugitives are ar
rested by the Canadian authorities handed over to
the officers, brought here and convicted and,
though such proceeding might be irregular, no
person on earth had tile slightest right to complain
save the governments whose jurisdiction may be In
vaded.
Mr.. Anthon, in reply, quoted the case of Kendall
Court OF the United States and in which the dues.
ton Of jurisdiction of the courts was fully discussed.
Tne The. position a, was Vas. taken by the Supreme
istration OF justice could exercise Jurisdiction
over party unless he voluntarily appears or
bo found within the jurisd ctlOn Of the court
30 as to be served with Its process. That was the
ground he tooS-the decision of the Supreme Court
system Of border rufilanism which the District Al
tNney advocates. The Supreme Court entertalns
higher principle Of morality than that Which the
District Attorney has laid down, and lays down the
rule that the Court has no jurisdiction unless the
party voluntarily appears or Is found within the ju
was extended INTO Canada Tor the SPECIAL purpose
OF arresting the party on charge OF forgery, and
aavas been eXtradied @ on that charge and on that
Oi the Court only, can he now be tried.
Opinion reserved
Counterfeit Cases.
The United States US. William D,cyer-The de-
fendant pleaded guilty to counterfetng and was
manded for sentence. The case Of William Gilbert,
indicted for altering and negotiating after altering
number Of United States bonds, was put over on
application Of counsel The case OF Peter McClusky,
who was indicted for cOunereiting, went over on
account OF the absence OF witnesses
Proceedings against Edward Norris indicted for
c0unterfeiting, were Withdrawn by the District At
tOrney, Morris having given important intelligence
to the governmental relation to other counterleers
UNITED STATES COMMISSIONERS COURT.
Justice Hartman in COurt-He is Charged
with u Violation Of the New Reaistry
Law-He Claims an Examination Before