
    
      IN THE MATTER OF THE APPLICATION OF RAFAEL MARTOREL FOR WRIT OF HABEAS CORPUS.
    San Juan,
    Law,
    No. 1399.
    Re Extradition to Coda.
    Extradition — Requisition.
    1. It is not necessary' that a foreign requisition be filed with-the secretary of state before extradition proceedings under Rev. Stat. § 5270. The commission may proceed without it.
    
      Extradition — Commissioner.
    • 2. If tlie commissioner lias jurisdiction of tlie subject-matter and the person, and the offense is within the treaty, the decision of the commissioner upon legal evidence cannot be reviewed by the courts.
    Cuba-Spanish Procedure.
    3. The Spanish procedure still obtains in Cuba, under which hearsay is permissible, even in criminal cases. If such evidence introduced from Cuba stood alone, it might be questionable whether the commissioner could retain the prisoner.
    American Extradition Treaty with Cuba — Falsification of Documents.
    4. The allegation of falsification of a public document implies a previous existence of the document. Subornation of perjury to secure a document is not falsification of a document.
    Extradition — Other Offense.
    5. Where the .ease shows a violation of another clause of the treaty and that the applicant in habeas corpus is an undesirable alien, he may be held a reasonable time by the court to allow amendment of the procedure.
    Extradition — Limitations.
    6. It being unnecessary to pass upon the question of the Statute of Limitations, it is not to be held as passed upon in any way.
    Opinion filed July 29, 1920.
    
      Messrs. Miguel Querrá, and Goll y Qucld for petitioner.
    
      Messrs. Muñoz & Brown for Government of Cuba.
   Hamilton, Judge,

delivered the following opinion:

On July 1, 1920, petition for habeas corpus was died in this cause, by Rafael Martorel, alleging that be was unlawfully imprisoned by tbe marshal of tbe United States district court, in tbe penitentiary at San Juan under a warrant of arrest issued by the United States Commissioner on complaint by the Consul of the Republic of Cuba under the Extradition Treaty of Februaiy 8, 1905. (33 Stat. at L. 2265.) The return of the marshal shows that the prisoner is held under a warrant by United States Commissioner Savage dated duly 1, 1920, which in preamble sets out that the Charge of the Cuban Consulate makes oath that said Martorel committed the crime of falsification of public documents by securing certain false evidence to 1)6 introduced in regard to the marriage and heirship of Manuel Fernando Fernandez Vega, deceased, upon which the Commissioner made the commitment in question. Proceedings were had in this court upon said petition for habeas corpus. The court permitted the petition to be amended on July 12 in order to make its allegations more specific, and the case was finally submitted on petition and motion to quash the petition July 13, 1920. The evidence introduced before the United States Oom-anissioner was reintroduced upon the hearing of the petition and consists of proceedings before Cuban courts duly certified by thé Cuban authorities and by the Consul and other authorities in the United States.

1. 'The treaty in question between the United States and Cuba is found in 33 Stat. at L. 2265, bearing date February 8, 1905. It is there provided in art. 3 that “the extradition of the fugitives under the provisions of this treaty shall be carried out . . . in conformity with the laws regulating extradition for the time being in force in the state in which the demand for the surrender is made/5 that is to say, the proceedings must conform to the Federal practice. That is governed by Revised Statutes, § 5270, Comp. Stat. § 10,110, 3 Fed. Stat. Anno. 2d ed. p. 265, which is as follows: “Whenever there is a treaty or convention for extradition between the government of tJio United States and any foreign government, any Justice of the. Supreme Court, circuit judge, district judge, commissioner*, authorized so to do by any. of the courts of the United States, or judge of a court of record of general jurisdiction of any state, may, upon complaint made mider oath, charging any person found within the limits of any state, district, or. territory, with having committed Avithin the jurisdiction of any such foreign gorernment any of the crimes provided for by such treaty or convention, issue his Avarrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or commissioner, to the end that the evidence of crinh inality may be heard and considered. If, on such hearings he deems the evidence sufficient to sustain the charge under the. provisions of the proper treaty or convention, he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the’ requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to- the proper jail, there to remain until such surrender shall be made.”

Whether this requires that extradition papers shall first have been filed with the Secretary of State has been an open quesr tion. Re Farez, 7 Blatchf. 34, 345, 491, Fed. Cas. Nos. 4,644, 4,646. It was decided that the requisition must first have been made before the Commissioner could act. Be Herris, 32 Fed. 583. It Avas, hoAveAmr, held by Mr. Justice Brower, on appeal, that this might often result in the defeat of justice, and the, ruling was reversed [33 Fed. 165]. Mr.- Justice Belson, how-over, thought otherwise, and his opinion was followed in the second circuit. Re Farez, 7 Blatchf. 491, Fed. Cas. No. 4,646. The point was finally set at rest by the opinion of the Supreme Court in the case of Grin v. Shine, in 1902, 187 U. S. 181, 47 L. ed. 130, 23 Sup. Ct. Rep. 98, 12 Am. Crim. Rep. 366. The result is that under Rev. Stat. § 5270, when complaint is made under oath charging a person in the district with having committed a crime provided for by the treaty a Commissioner or a district judge may issue his -warrant and hear the evidence of criminality. If upon the hearing he deems the evidence' sufficient to meet the treaty he shall certify the same with the testimony to the Secretary of State that a warrant may issue ■upon the requisition of the proper authorities of such foreign government, meantime committing the person so charged to jail. It was under this law that Commissioner in this case heard the complaint of the Cuban Consul and committed the petitioner herein to jail. The case was not certified to the Secretary of State because of the interposition of the petitioner for habeas corpus, but the papers are all ready for such transmission to the Secretary of State.

2. A preliminary question in every proceeding is as to the jurisdiction of the court to which application is made, that is to say, in the case at bar, the jurisdiction of the United States district court. A writ of habeas corpus in a case of extradition cannot perform the office of a writ of error. If a Commissioner has jurisdiction of the subject-matter and the person, if the offense charged is within the treaty and the commissioner who committed has competent legal evidence, his decision cannot be reviewed by other courts. Re Oteiza y Cortes, 136 U. S. 330, 34 L. ed. 464, 10 Sup. Ct. Rep. 1031, 8 Am. Crim. Rep. 241; Benson v. McMahon, 127 U. S. 457, 32 L. ed. 234, 8 Sup. Ct. Rep. 1240. The evidence before the Commissioner need not be conclusive and need not be direct provided there is evidence' leading to the conclusion adopted by the Commissioner. Ex parte Zentner, 188 Fed. 344; Re Breen, 73 Fed. 458. It is not necessary that the evidence before the Commissioner shall be sufficient to sustain a conviction. Ex parte Glucksman, 189 Fed. 1016. It -would seem, therefore, that the jurisdiction of this court upon a petition for habeas corpus in.an extradition proceeding before a Commissioner is limited to inquiring (a) whether the crime as alleged is comprehended within the treaty, and (b) whether the evidence as adduced is such as “according to the laws of the place where the fugitive or person so charged shall be found would justify his or her apprehending a commitment for trial if the crime or offense had been there committed.” It will be convenient to consider these two questions in the reverse order.

3. Porto Bico, no less than Cuba, was Spanish, until the Spanish-American war of 1898, inheriting the same traditions and customs from the time of Columbus. After the Treaty of' Paris of 1900 Porto Bico became a part of the United States and subject to American influences, her laws being modified in' accordance with Anglo-American ideals. Porto Bico is now under a Criminal Code, Code of Criminal Procedure, and law of evidence, based upon American models, the essence of which is a public trial, in which the defendant is confronted with witnesses against him, allowed counsel, and the evidence adduced must be primary and not hearsay. Cuba on the other hand has retained with slight modifications the Spanish procedure in which trials are not always public nor counsel always allowed, and evidence talien by deposition not necessarily in tbe presence of tbe defendant, and consisting of whatever tbe officials tbink tends to prove tbe case. Tbns hearsay is admissible there. Tbe difference of systems grows out of the difference of civilizations, tbe Anglo-American taking its rise from tbe Germanic influences, in which tbe individuality of tbe citizen was emphasized, while under tbe civil law of tbe continental states tbe emphasis was upon tbe power of tbe state under tbe theory that tbe state would protect tbe individual. This is not tbe place for consideration of a discussion of tbe two systems. An American naturally thinks that bis own is preferable and it has been a matter of interest to bear Porto Ricans, who but for tbe War would have been under tbe Spanish system, advocating forcibly and as an American must tbink correctly tbe advantages of tbe present system in Porto Rico. It is to be remembered, however, that tbe petitioner is a Cuban and so if surrendered would be returning to laws under which bo has grown up and which be no doubt prefers. Art. 5 of tbe treaty provides that “neither of tbe contracting parties shall be bound to deliver up its own citizens under tbe stipulations of this treaty.” This has no application therefore to tbe facts of this case.

Tbe particular feature of the case which is relied upon by tbe petitioner as showing that tbe evidence would not justify trial in Porto Rico is that the record contains “a duly authenticated copy of tbe warrant of arrest in tbe country where tbe crime or offense has been committed, and of tbe depositions or other evidence upon which such warrant was issued, . . . all facts and data necessary to establish the identity of tbe person whose extradition is sought shall also be presented.” Treaty, art. 3. In this regard the record contains a great deal of hearsay evidence, and possibly the most interesting part of \the record is the report of the police authorities, based upon investigations made by their agents, secretly and in all quarters, regarding the life of the petitioner. This paper would have to be excluded because not evidence of anything under the American system any more than the pleadings in a case are evidence. If it stood alone there would be no question that sufficient evidence had not .been produced to justify the extradition of the petitioner.

But it does not stand alone, for there is the testimony of the commanding officer of the deceased Hernandez and of others who knew him, and direct evidence also of parties who knew the petitioner in Cuba. In the United States common repute is sometimes admissible as to marriage. Without taking the evidence up in detail, it suffices to say that it seems to the court that there was enough evidence before the Commissioner to justify the provisional retention of the petitioner under the treaty.

4. The more important point, perhaps, is as to whether the crime charged is embraced within the terms or spirit of the treaty. The ground of application by the Consul for the Republic of Cuba is that petitioner in the year 1917 committed the “crime of falsification of public documents,” while the treaty mentions “(4) forgery, or the utterance of forged papers, or falsification of the official acts or documents of the, government or public authority, including courts of justice, or the utterance or fraudulent use of any of the same.” There is also further down in the treaty mentioned “(8) perjury; subornation of perjury.” 33 Stat. at L. 2265. Argument is made that the offense shown by the evidence to have been committed is not the falsification of a document, but the procuring of false evidence so that proceedings perfectly correct in form but mistaken in fact were had before a Cuban court and official entries made accordingly. Whether there was proper evidence or not has been considered; but the general trend of the evidence introduced for the Republic of Cuba tends to show that Manuel Fernando Fernandez Vega was a native of Porto Pico, being born at Cíales in 1876 and was in business in. San Puan for some time. That in January, 1896, he went to Hew York and became a member of an expedition commanded by G'eneral Pus of the Cuban army, which landed at Maniti, Cuba, May of the same year, and the troops of which the said Fernandez was a member operated about Havana. That in December, 1896, ho was private secretary to Domingo Hernandez, a commandant in the regiment of Calixto Garcia and that the said Fernandez was killed with others in a skirmish in the municipal district -of San Antonio de los Baños. The impression of his commander and others was that he died unmarried. In 1915 record was made at - to this effect. In 1917, however, Pafael Martorel, also a native of Porto Pico,.who had been owner of cafés in Havana but prior to that had lived at Batabano, secured a woman to appear before the municipal court at Batabano and the municipal court of Pegla and with witnesses proved to the satisfaction of those courts that she was the widow of said Fernandez, and that her boy was his legitimate son. That shortly afterwards the alleged widow and son made a deed 'to said Martorel, under which he returned to Porto Pico and instituted proceedings at Arecibo for the recovery of an estate of $32,000 value which had been left to said Fernandez by bis deceased father.

The argument is that if this was an offense at all it was of perjury and not falsification of documents and that accordingly Martorel is not accused of any crime which the evidence shows he committed. The treaty provides that there shall be no surrender for political offenses and that “no person surrendered by either of the contracting parties to the other shall, without his consent, freely granted and publicly declared by him, be triable or tried or be punished for any crime or offense committed prior to his extradition, other than that for which he was delivered up.” Art. 8. “Falsification of the official acts or documents of the government or public authorities, including courts of justice,” together wdth forgery or utterance of forged papers make up subdivision 4 of art. 2 of the treaty. In the United States Revised Statutes falsification of documents is also prohibited in § 5394, Comp. Stat. § 10,297, which is as follows: “Every person who feloniously steals, takes away, alters, falsifies, or otherwise avoids any record, writ, process, or other proceeding, in any court of the United States, by means whereof any judgment is reversed, made void, or does not take effect, and every person who acknowledges, or procures to be acknowledged, in any suck court, any recognizance, bail, or judgment, In the name of any other person not privy or consenting to the same, shall be fined not more than five thousand dollars or be imprisoned at hard labor not more than seven years; . . .”

It is clear that this wording presupposes the existence of the record falsified. It does not extend to procuring another to •commit perjury in the case; that is a separate offense provided for in the section immediately preceding where it is said that “every person 'who procures another to commit any perjiiry is guilty of subornation of perjury, and punishable, etc.” Perjury is defined in .Revised Statutes, § 5392, as being a false statement by a witness under oath. The P. R. Penal Code, § 413 is not dissimilar. On the other hand, in Spanish falsedad has been since the Partidas the changing of the truth, imitation, alteration, suppression, and the like. Falsificación is the act of adulteration or changing of anything, like a writing. Every falsification, says Escriche, is falsedad, but not every falsedad is falsificación. Falsedad is where a witness gives false testimony or is silent when .he ought to speak, but there is no falsificación except when there is some fiction or real alteration of a material thing, such as a signature, seal, will, or writing. Escriche, s. v. Falsedad, Falsificación.

It would seem to follow, therefore, that the evidence introduced in this case does not prove falsification of documents.

5. This being so, what is the proper procedure ? The treaty Avas made because the countries Avere “desirous to confirm their friendly relations and to co-operate to promote the cause.of justice,” and to that end to deliver up persons for trial therefor. The evidence tends to show that the petitioner is guilty of the charge of subornation of perjury, and if so is an undesirable alien Avho upon proper proceedings is subject to extradition. If a requisition had been filed making the Avrong charge it might Avell be that the Cuban authorities had elected and no duty or comity Avas incumbent upon the Federal authorities in the premises. It may be that in the case at bar the Cuban authorities Avould rather see the petitioner released than change the application which they haAre made for his arrest. This court is far from indicating what they should or should not clo ; hut it -would seem that the proper course is not to turn loose a prisoner whose acts contravene the treaty until the Cuban authorities have the opportunity to consider what they wish done in the premises. It is conceivable, however it might be in the case at bar, that if released such a person might escape before a new application can be made to arrest him.

Upon the whole, the best course would seem to bo to file this opinion without deciding the ease for throe days. At the end of that time if there is no change in the proceeding the court will render a final order upon the application for habeas •corpus.

6. In this view of the case it would seem unnecessary to take up the question of Statute of Limitations, and that, therefore, is not passed upon one way or the other.

It is therefore ordered that this opinion be filed without more.  