GREENE et al. v. UNITED STATES, 154 F. 401

SHELBY, Circuit Judge. A brief statemént of the case must be made, to be supplemented later by a fuller statement of the issues and facts pertinent to each contention considered and decided. In the court below; four indictments were found against the plaintiffs in error, Benjamin D. Greene and John F. Gajmor, who will hereafter be called the “defendants.” One of the indictments, No. 477, was dismissed, and need not be mentioned again. In two of the remaining cases the defendants were jointly indicted with Oberlin M.

Carter, a captain in the Corps of Engineers of the United States Army, who, before the finding of the indictment, had been in charge of the river and harbor improvements in the Savannah, Ga., district, and, while so employed as an officer and agent of the United States,' had large sums of money placed in his hands and under his control for disbursement. • The several counts of the three indictments all relate to money of the government which passed into his hands and under his control as an officer and agent of the United States.

Each of the counts contain charges of the successful conspiracies of the defendants to fraudulently obtain possession of these funds, the presentation of false and fraudulent claims for payment out of them, or for the embezzlement of $575,749.90' of such funds. On motion of the United States attorney, the indictments were consolidated. Rev. St. § 10¾4 [U. S. Comp. St. 1901, p. 7¾0], 146 Fed. 781. The defendants were tried on the three indictments so consolidated. Indictment No. 322, hereafter called the first indictment, contains, as numbered thereon, 10 counts.

The last two counts were stricken out, and the defendants were put to trial on the remaining counts numbered from 1 to 8, inclusive, which charged violations of Rev. St. §i§ 5438 and 5440. Indictment No. 371, hereafter called the second indictment, was evidently framed to cover the same offenses charged in the first indictment. The charges in the second indictment are made more elaborately, and apparently with the purpose of meeting objections which had been made to the first indictment. It contains six counts, four for violations of Rev. St. § 5440, and two for offenses under Rev. St. § 5438.

Indictment No. 476, the third indictment, contains four counts, each charging embezzlement. Rev. St. §§ 5497, 5488. After the court had disposed of preliminar}'- questions, the defendants pleaded “not guilty” to these several charges. The jury found the defendants “guilty as charged” in all of the 18 counts submitted to them. By the judgment entered on the verdict, each of the defendants was sentenced (

a) on the counts of the first and second indictments, held to be under the provisions of

section 5440, Rev. St., to two years’ imprisonment in the United States penitentiary at Atlanta, Ga., and to pay a fine of $10,000; (

b) on the counts of the second indictment, held to be under the provisions of

section 5438, Rev. St., to four years’ imprisonment in the United States penitentiary at Atlanta, Ga.; (

c) on the third indictment, held to be under sections 5188 and 5497, Rev. St., to four years’ imprisonment in the United States penitentiary at Atlanta, Ga., and to pay a fine of $575,749.90, that being the amount alleged to have been embezzled. The several terms of imprisonment run concurrently, and begin at the date when the prisoners should be received by the warden of the penitentiary. The defendants were extradited from Canada under the treaty of 1889-90 between the United States and Great Britain. We copy here parts of the treaty to which reference is necessary: “The provisions of the said 10th

article (of the treaty of 1842) are hereby made applicable to the following additional crimes: * * ⅜ “

(3) Embezzlement; larceny; receiving any money, valuable security, or other property, knowing the same to have b,een embezzled, stolen, or fraudulently obtained. “

(4) Fraud by bailee, banker, agent, factor, trustee, or director or member or officer of any company, made criminal by the laws of both countries. “Extradition is also to take place for participation in any of the crimes mentioned in this convention or in the aforesaid 10th article, provided such participation he punishable by the laws of both countries. * * ⅜ “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 bis extradition, other 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.” 20 Stat. 1508.

The defendants presented certain defenses to the first and second indictments, which related to their extradition. These defenses had no application to the third indictment.

The defenses were presented by pleas, which, so far as is necessary to'state, were, in substance, that they had lately been in the Dominion of Canada and had been surrendered to the United States to be tried for “participation in fraud by; an agent or trustee” and “participation in embezzlement,” and that neither of these offenses is charged by the two indictments to which the pleas were addressed, and that the court had no right or authority to try them for any crime or offense for which they were not extradited.

The government answered the pleas, admitting that the defendants were extradited for the offenses stated in the pleas, and averring that the indictments charged them with the offenses for which they had been extradited. The third indictment was not involved in these contentions, for it clearly charged embezzlement, and the extradition admittedly included that offense. By consent of counsel, the issues raised 'by these pleas to the first and second indictments were tried by the court.

The United States offered in evidence the opinion of the Extradition Commissioner awarding their surrender; the judgment of the Privy Council; the judgment of the Court of King’s Bench for Rower Canada on mandamus proceedings; habeas corpus proceedings instituted by Benjamin D. Greene and John E. Gaynor before Mr. Justice Ouimet, of the Court of King’s Bench for Lower Canada, and Mr. Justice Ouimet’s opinion and judgment sustaining the extradition ; the requisition for surrender made by the American Secretary of State on the British Ambassador; the President’s warrant to George E. White and Joseph E.

Doyle to receive Benjamin D. Greene and John F. Gaynor from the Canadian authorities and deliver them to the proper authorities in the United States; George E. White’s return on bench warrants; and the President’s warrant showing the return of the defendants, Benjamin D. Greene and John F. Gaynor, before the District Court at Savannah on October 9, 1905. No other evidence was offered. The court overruled the pleas, and to this ruling the defendants excepted. The first question raised by these pleas is: Do the first and second indictments charge an offense for which the defendants were extradited?

This question must be answered by a comparison of the extradition proceedings and warrant with the indictments. The formal statement in the pleas admitted in the answers is that the defendants were surrendered to be tried for (1) “participation in fraud by an agent or trustee”; (2) “participation in embezzlement.” The question here relates to the first charge, the charge of embezzlement appearing only in the third indictment. The words used are taken from the treaty as general descriptions of certain crimes that are made extraditable.

The particular crimes or criminal acts that the Canadian government had in view when it surrendered the defendants to be tried for “participation in fraud by an agent or trustee” can be ascertained by considering the demand that had been made on that government and the evidence, that was submitted to it by the United States to sustain such demand, and, especially, the judgment or order of the Extradition Commissioner upon which the warrant of extradition was based. The demand of the United States was made on the charge, among others, that the defendants had entered into corrupt agreements with Oberlin M.

Carter to defraud the United States out of large sums of money held by Carter as the agent of the United States. The facts were placed fully before the Canadian authorities substan-tiaily as they were subsequently presented to the jury on the trial of the defendants. On such demand and upon such evidence the judgment or order of the Extradition Commissioner was rendered.

A brief excerpt from the order or judgment will show what was meant in the extradition warrant by the words “participation in fraud by an agent or trustee”: “I have determined that they should be surrendered * * * on the groimd that they are accused of the following extradition crimes; that is to say, for that the said Benjamin D. Greene and John F. Gaynor:

(1) Did, on or about July 1, 1897, within the Eastern Division of the Southern District of Georgia, in the United States of America, participate in fraud then and there committed by Oberlin M. Carter, a disbursing officer, agent, and trustee in the employment of the government of the United States, (

a) by entering hilo a corrupt agreement (conspiracy) with the said Oberlin M.

Carter, the said oili-cer and agent of the United States, to defraud the United States in the discharge of the duties of his said office and employment, and for the payment by him, as such disbursing officer and agent of the United States, out of the public moneys of the United States intrusted and to be Intrusted to him as such disbursing officer and agent, of fraudulent claims made and to be made; against the United States for the benefit of said conspirators, and to be presented to said disbursing officer for his approval and payment; by which corrupt agreement and deceitful device the said officer and agent transferred the exercise of the discretions of his office, and the services of his employment, which he was in duty bound as such officer and agent to render honestly and faithfully to and in favor of the United States, from the United States, his principal and emjiloyer, to the said Benjamin D.

Greene, John F. Gaynor, aiid others, so that the said United States, by said corrupt agreement itself, lost what it was entitled to have, the honest and faithful services of its said public; officer and agent, to its injury.” It is not usual, nor would it be expedient or practicable, for the warrant of extradition to describe the crime with all the fullness that would be required in an indictment. The words “participation in fraud by an agent or trustee” must be looked at and construed in connection with the proceedings which caused their use.

When so considered, it becomes clear that the Canadian Minister of Justice, by the use of the words in the extradition warrant, referred to the charge made by the United States and the acts of the defendants proved in the case and described in the extradition judgment.

The extradition warrant, in fact, refers to the judgment by its date, and as the “warrant of Ulric Lafontaine, Esquire, Commissioner tinder the ‘Extradition Act.’ ” The indictments in question plainly charge the identical corrupt and fraudulent agreement or conspiracy for which the Extradition Commissioner committed the defendants, holding that such acts constituted participation by conspiracy in fraud committed by an agent or trustee.

The indictments charge, as do the proceedings in Canada, a corrupt agreement or conspiracy to defraud the United States; that the conspiracy was between the defendants and Oberlin M. Carter, an officer and agent of the United States, and that the purpose was to defraud the United States in the discharge of the duties of his office; that the fraud concerned money intrusted and to be intrusted to Carter as such officer and agent, etc.

It is not possible to read the indictments and the proceedings leading up to the extradition and not see that both charge and relate to the same acts and transactions as constituting an offense against the laws of the United States. It is contended by counsel that the extradition is for participation in fraud by an agent or trustee, and that the first and second indictments are for conspiracy. That is true, but it is not the whole truth. The conspiracy charged in the indictment is a conspiracy with an agent to defraud.

The acts of the defendants charged as constituting the participation in fraud in the extradition are the same acts charged as a conspiracy to defraud in the indictments. While the extradition and the indictment must be for the same -criminal acts, it does not follow that the crime must have the same name in both countries. The same crime often has different names in different countries. If the act in question is criminal in both countries and is within the terms of the treaty, nothing more is required.

In deciding whether the indictment charges the same offense for which the defendants were extradited, the acts of the defendants alleged in the two proceedings must be considered. It is not a question of names. The technical niceties and distinctions recognized sometimes in criminal law as making a fatal variance cannot be applied. Cohn v. Jones (D. C.) 100 Fed. 639; State v. Spiegel, 111 Iowa, 701, 83 N. W. 722; State v. Rowe, 73 N. W. 833, 104 Iowa, 323; In re Cortes (C. C.) 42 Fed. 47.

It is held that one extradited by the Mexican government as an accomplice may be, on the same facts, indicted and tried as a principal, the distinction between principals and accessories being abolished by local statutes. In re Rowe, 77 Fed. 161, 23 C. C. A. 103. In Bryant v. United States, 167 U. S. 104, 108, 17 Sup. Ct. 744, 42 L. Ed. 94, a fugitive from justice was charged under the treaty between the United States and Great Britain with the crimes of forgery, larceny, and embezzlement and false entries committed in London.

The commissioner held the evidence sufficient to warrant the prisoner’s commitment for extradition, and committed him generally on the charges made. The prisoner sought release on the ground that as he could only be tried for the particular offense for which he was surrendered, the demanding government and the commissioner should have elected, and that, if the latter deemed the evidence sufficient to commit upon the one, he should not have been committed upon the other.

Responding to the objection; the Supreme .Court said: “So long as tlie prisoner is tried upon the facts which appeared in evidence before the commissioner, and upon the charges or one of the charges for which he is surrendered, it is immaterial whether the indictment against him shall contain counts for forgery, larceny, or embezzlement. That is a matter of practice with which we have nothing to do.” So the Canadian authorities considered and decided this case.

They surrendered the defendants to be tried upon “the facts which appeared in evidence before the commissioner,” and it was immaterial what practice or form of ■ indictment was used in the courts of this country so long as the defendants were tried here for the same offense and upon the same facts. The defendants are tried, within the meaning of , the treaty, for the same offense when they are tried for the same acts and for the same charge set out in the demand and shown by the evidence presented to the commissioner.

We are of opinion that the record shows that the first and second indictments charge the defendants with an offense for which they were extradited. The second question raised by contentions based on these defenses is, are the acts or alleged crimes of the defendants charged by the United States before the Canadian authorities and for which they were ex-tradicted and with which they are charged in the first and second indictments included in the treaty?

The fact that the executive department of this Government requested the surrender of the defendants under the treaty on these facts shows that it construed the treaty as embracing the crime shown by the acts charged. The surrender of the defendants by the executive of the Canadian government charged with the duty of deciding the demand shows that that government acquiesced in the construction placed on the treaty by the United States. The defendants applied to the Canadian courts, and they upheld the judgment of extradition. This concurrent action is a construction placed on the treaty by both parties to it.

These several acts, executive' and judicial, were to the effect that the acts of the defendants charged in the extradition demand and proved by the United States came within the provisions of the treaty as constituting participation by the defendants m the fraud of an agent or trustee. Whether such construction of the treaty and application of the alleged facts to it was correct or erroneous is one of the questions to which much of the argument of counsel in this case has been addressed. The learned trial judge decided the question in the affirmative in an elaborate opinion, citing authorities. (D.

C.) 146 Fed. 766. The question that first presents itself is whether or not the courts here should review the decision of the executive and courts of Canada on this question. They having decided that the case comes within the terms of the treaty, it is contended by the learned United States attorney that such decision is final —that the extradition judgment and warrant is conclusive that the crime came within the provisions of the treaty. This contention seems to us to be sustained by reason and authority. The defendants had no right of asylum in Canada.

If there had been no treaty between this country and Great Britain, Canada, if it chose to do so, could have surrendered them for trial in this country, and thev could not have questioned, on their trial, the legality of their surrender. The effect of the treaty is not to’ add to any natural right of asylum which they had, for they had none. The treaty only provides that Canada must deliver them up for trial for certain specified acts or crimes. It makes it incumbent on that country by contract to do what it might have done by way of comity if no treaty had existed. Ker v. Illinois, 119 U. S. 436, 442, 7 Sup.

Ct. 225, 30 L. Ed. 421. It follows that the defendants cannot base their defense on the alleged illegality of their surrender for trial. The question of whether or not a fugitive shall be surrendered must of necessity he decided by the government to 'which the application for the fugitive’s surrender is made. The courts of the country which makes the demand are not expected to review the decisions of the government and the courts of the country which makes the surrender.

It would place the judicial and executive branches of this government in unseemly and useless conflict to have the courts decide that the demand was not authorized by the treaty after the country on which the demand was made had granted it and the courts of that country had approved it. It seems, therefore, reasonable that the courts here should decline to review and reverse a decision of the Canadian government and courts that the .offense was extraditable. That question should be closed by the decisions of the Canadian authorities and courts.

The defendants may demand here that they be tried only for the offense for which they were extradited, but they cannot defend on their trial in this country by the averment that the demand and surrender were not sanctioned by the treaty after the surrender has had the approval of the courts of the country on which the demand was made.

The treaty contains but one limitation as to the offense for which the surrendered fugitive may be tried; that is, that he shall not be tried for any crime or offense other than “the offense for which he was surrendered.” The courts here are within the terms of the treaty when they limit the trial to the offenses for which the fugitives were surrendered. In Lascelles v. Georgia, 148 U. S. 537, 545, 13 Sup. Ct. 687, 690, 37 L.

Ed. 549, the Supreme Court, speaking of international extradition, said that it “depends upon treaty contract or stipulation, which rests upon good faith, and in respect to which the sovereign upon whom the demand is made can exercise discretion, as well as investigate the charge on which the surrender is demanded.” It is clear that, when such sovereign’s discretion is exercised against the surrender of the fugitive, the courts of this country could not interfere. xThe same rule should apply when, after investigation, the sovereign exercises discretion in favor of granting the demand, especially when the fugitive appeals to the courts of that sovereign and they hold that the surrender was within the treaty.

The third paragraph of

article 3 of the treaty provides that “if any question shall arise as to whether a case comes within the provisions of this article, the decision of the authorities of the government in whose jurisdiction the fugitive shall be at the time shall be final.” 36 Stat.

Article 3 relates to offenses of a political character, and it is urged that the language quoted is confined to decisions relating to offenses of that character. But it seems to us that this language merely emphasizes by express agreement in reference to the second

article of the treaty what must, upon reason and principle, be true as to the whole — that the decision of the authorities of the government in whose jurisdiction the fugitive shall be found is necessarily final. As we have observed, the courts of this country cannot review a decision of foreign authorities against extradition; and when such decision is in favor of the demand of this government, the defendants being deprived of no common-law or statutory right, there is no reason why it should not be conclusive on the courts of this country. The recent case, of Johnson v.

Browne, decided by the Supreme Court April 8, 1907, 37 Sup. Ct. 539, 305 U. S. 309, 51 L. Ed. 816, contains expressions that sustain our conclusion. Browne was indicted and extradited for a violation of

section 5444 of the Revised Statutes, which provides for the punishment of “every officer of the revenue who, by any means whatever, knowingly admits or aids in admitting to entry any goods, wares, or merchandise, upon payment of less than the amount of duty legally due thereon.” Browne having been arrested in Canada charged with the violation of that statute, the Canadian commissioner held him and ordered his extradition, and upon a writ of habeas corpus the Court of King’s Bench affirmed the order.

When brought to the United States, the authorities here wrongfully imprisoned him for an offense for which he was not extradited. In his effort to be discharged from such imprisonment, the case reached the Supreme Court, and that court held, citing United States v. Rauscher, 119 U. S. 407, 7 Sup. Ct. 234, 30 L. Ed. 425, that Browne, when so extradited, could not be imprisoned upon a former conviction of a crime for which the Canadian authorities had refused to extradite him.

In affirming his discharge from such illegal imprisonment, the Supreme Court found it necessary to refer to the crime for which he had been extradited; that is, a violation of

section 5444 of the Revised Statutes. The court said: “It does not appear that any movement has been made or notice given by this government to try the respondent on the indictment for the crime for which he has been extradited. ⅞ * ⅜ Whether the crime came within the provisions of the treaty was a matter for the decision of the Dominion authorities, and such decision was final by the express terms of the treaty.” The learned counsel for the defendants contend that this is a dictum; that the precise point did not necessarily arise in the case. We are not sure that this is true.

The Supreme Court was affirming the discharge of the prisoner from an illegal imprisonment. He had been extradited for admitting or aiding in admitting merchandise to entry in this country for less than the legal duty. Rev. St. § 5444. That offense, by a specific name, is not mentioned in the treaty. The question necessarily occurred to the Supreme Court as to what course the court, having jurisdiction should take as to the prisoner in reference to the offense for which he had been extradited. One purpose of the opinion of an appellate court is to advise and instruct the trial court.

It is not clear to us that the matter in point was not before the Supreme Court, and that it was not responding to a question in the case when it held that whether the crime came within the provisions of the treaty was a matter for the decision of the Dominion authorities, and that such decision was final. Whether it be a dictum or not, the language is so pertinent and so consonant with reason that we would not feel justified in disregarding it.

But if it were true that the facts disclosed by the demand and surrender — the extradition proceedings — did not show a case within the treaty, it is difficult to see how the defendants could take advantage of it; for, if the parties to the treaty choose to construe it as including a crime not really covered by it, the defendants have no more cause of complaint than they would have if the parties included the crime by a new treaty. They could do this, and the new treaty would he retroactive. 1 Moore on Kxtradition, § 86.

Although there is a treaty which provides for the surrender of fugitives charged with the commission of specified offenses, as to crimes not specified the parties to the treaty stand as if no treaty had been made. In the absence of a treaty, every state can, if it chooses, refuse an asylum to fugitives from justice from other states.

There are publicists who hold that there is a positive obligation to deliver up a person accused of the commission of a crime in another country upon demand of its government, while others hold that the obligation is so imperfect as, in the absence of express contract, to depend entirely upon comity and convenience. Th’e modern view and the one. maintained in this country, is that a state is under no absolute obligation to surrender fugitives accused of crime unless it has contracted to do so. Taylor’s International Public Taw, § 205.

But the existence of a treaty relating only to certain, crimes does not deprive either nation of the right to exercise its own discretion pursuant to its own laws in cases not coming within the terms of the treaty. As to persons charged with crime not coming within the treaty, each government, as an incident to its own sovereignty, may either grant or deny to the fugitive an asylum within its jurisdiction.

If the charges in question here were really without the terms-of the treaty, there would have been no absolute obligation on the Canadian government to have granted the demand, and the presumption would be that the surrender had been made as

an act of comity, and the defendants could be tried for the offenses for which they were extradited, although they were not within the treaty. Moore on Extradition, §§ 40, 42, 97; Ex parte Foss, 102 Cal. 347, 36 Pac. 669, 25 L. R. A. 593, 41 Am. St. Rep. 182. If they had been kidnapped and brought to this country, that fact, it is held, would not afford them any legal grounds of defense in the courts of this country. Ker v. Illinois, 119 U. S. 436, 7 Sup. Ct. 225, 30 L. Ed. 421.

Eor stronger reasons, we think they could not base their defense upon the fact that the demand was not authorized and the surrender not required by the treaty, but that the Canadian authorities had yielded to the request of the United States upon principles of comity. While that principié-is not involved here, it shows the necessity and reason of the rule that the decision of the authorities having jurisdiction of the demand for the fugitive is conclusive.

The demand in this case having been made upon the theory that the case comes within the terms of the treaty, and the Canadian executive and courts having so determined, we hold that such decision was conclusive on the trial court and on this court that the crime for which the defendants were extradited comes within the provisions of the treaty. The defendants demurred to the first indictment. The District Court overruled the demurrers to the counts numbered 1 to 8, inclusive, and sustained the demurrers to the ninth and tenth counts.

The learned judge handed down an opinion as to the sufficiency of the first eight counts of the indictment. 115 Fed. 343. This ruling is assigned as error. But it seems to us unnecessary to examine the question as to the sufficiency of the first indictment. The second indictment, which was found after the demurrers were filed to the first, covers all the charges under

section 5440 which are contained in the first indictment, and it was evidently drawn to meet the objections which had been made to that indictment. The verdict of the jury was guilty on all the counts of both the indictments. The sentences imposed are Such as could have been imposed for a violation of sections 5438 and 5440 under the second indictment alone. A general judgment upon an indictment containing several counts and a verdict of guilty on each count cannot be reversed if any count is good and is sufficient to support the judgment (Claassen v. United States, 142 U. S. 140, 12 Sup. Ct. 169, 35 L.

Ed. 966; Evans v. United States, 153 U. S. 584, 14 Sup. Ct. 934, 38 L. Ed. 830); and the same principle is applicable to consolidated indictments (Porter v. United States, 91 Fed. 494, 33 C. C. A. 652). If there are defects in the first indictment, they are, for all practical purposes, corrected by the second indictment. Demurrers were also interposed to the second indictment, but a careful examination of it in the light of the briefs and argument submitted discloses, we think, no substantial defect in it.

One of the grounds of demurrer was that more than three years had elapsed between the commission of the offense and the return of the indictment. This indictment in every count charged that the defendants were “persons fleeing from justice” for a period which would take the case out of the statute. Rev. St. § 1045. Besides, the defense of the statute of limitations could not be made by demurrer. United States v. Cook, 17 Wall. 168, 21 L. Ed. 538. The defendants, of course, had the right to avail themselves of the statute of limitations by evidence under the general issue.

The learned counsel for the defendants contend that the case should be reversed because of that defense. The first indictment was returned December 8, 1899, within less than three years after the time of the commission of the alleged offenses, and we do not understand that it is claimed that the defense of the statute of limitations is applicable to that indictment. The second indictment was returned February 28, 1902. It charges the conspiracy as of date January 1, 1897, and overt acts pursuant to the conspiracy March 17, 3897, and July 6, 1897.

Other counts of this indictment charge the presentation of false accounts to Carter for approval on July 1, 1897. The third indictment was returned November 18, 1905, and it charges the embezzlement as having occurred July 6, 3897. The statute of limitations of three years is applicable to the offenses charged. Rev. St. § 1044. These indictments charge in'each count that the defendants were “persons fleeing from justice.” Rev.

St. § 1035, provides that the limitation of three years shall not “extend to any person fleeing from justice.” If it were proved that the crimes were committed at the times alleged, regardless of the question of flight from justice, the statute of limitations of three years would not have barred the prosecutions before July, 1900. The three years would not have expired from the alleged dates of the crimes before that time.

A controlling question of fact as to the second and third indictments, therefore, was whether or not the defendants became fugitives from justice — “persons fleeing from justice” — before July, 1900. If they were before that time persons fleeing from justice, the statute of limitations of three years did not extend to them. The defendants did not have to leave the United States to become persons fleeing from justice within the.meaning of the statute.

If they committed a crime in the Southern District of Georgia, and, when sought to be tried by the court having jurisdiction, they had left the district and are found in another state and district, and not in the district of their homes, under circumstances indicating a purpose to evade the authority and jurisdiction of the local courts, they might be justly considered fugitives from justice. Streep v. United States, 160 U. S. 128, 16 Sup. Ct. 244, 40 L. Ed. 365.

Evidence was presented tending to prove the crimes charged in the second indictment, including the overt acts, and evidence was also presented tending to prove the embezzlement charged in the third indictment. On the issue as to whether or not the defendants were persons fleeing from justice so that the statute of limitations would not extend to them, the government offered evidence making that a proper question to be submitted to the jury. This evidence, in party was to the effect that the defendants were in the Southern District of Georgia in 1897 and 1898; that in 1898 Capt.

Carter was tried and convicted by court-martial; that in October, 1899, the United States attorney for that district was charged with the investigation of the matters developed in the trial of Carter; that the United States attorney, in November, 1899, issued instructions to the deputy-marshals of the district to search for the defendants in that district; that they made such search, and that the defendants were not found in the district; that when arrested they were in the Southern District of New York, but that none of the defendants lived in that district; that the defendants resisted proceedings to remove them from the Southern District of New York to Georgia for trial; and that, later, they fled to Canada.

There was also evidence tending to show that the defendants were not fleeing from justice till they fled to- Canada. But it is sufficient for the purposes of our decision to show that there was evidence proper to be submitted to the jury and sufficient to sustain a verdict that the defendants became fugitives from justice, or “persons fleeing from justice,” prior to July, 1900. This court, in the exercise of its appellate jurisdiction, cannot review and reverse the verdict of a jury upon the facts of the case.

The bill of exceptions shows that, after the case was argued to the court and jury, the court, on the motion of the defendants’ attorneys and against the objection of the United States attorney, made the following order: “As to the exceptions to the charge of the court, Or to the refusal by the court to charge, it is ordered that the defendants shall have the right, within two days after date of the delivery of the charge to the jury in said cases, to present to the court whatever exceptions they deem necessary or proper to the charge as given, or to the refusal by the court to charge as requested by the defendants, the said exceptions to be noted by the court and filed as of the date of the delivery of the charge, and as if said exceptions were taken before the jury retired. “In open court, April 10, 1906.” After making this order the court charged the jury, and the verdict was returned and the jury discharged on April 12, 1906.

Two days later, the defendants presented many exceptions to the charge of the court, and their exceptions to the failure of the court to give many charges which the court had been duly requested to give. It therefore affirmatively appears by the record that the exceptions to the charge of the court and the refusal of the court to give requested charges were taken after the jury had returned the verdict and had been discharged.

The rule established by many decisions of the Supreme Court is that no instruction to the jury given or refused by the court below can be brought to that court for revision by writ of error unless the record shows that the exception to it was taken or reserved while the jury were at the bar. Barton v. Forsyth, 20 How. 532, 15 L. Ed. 1013; Pacific Express Co. v. Malin, 133 U. S. 531, 10 Sup. Ct. 166, 33 L. Ed. 450; St. Clair v. United States, 154 U. S. 134, 14 Sup. Ct. 1003, 38 L. Ed. 936; Lewis v. United States, 146 U. S. 370, 13 Sup. Ct. 136, 36 L. Ed. 1011.

There would be no controversy here about the application of this rule except for the order we have quoted. It should be kept in view that the order was made on the motion of the defendants’ counsel and against the objection of the government. It is argued here by the learned counsel for the defendants that the effect of the order was to make a rule of court for this case. If.the court could make such a rule for this case, it could be made for all cases, and such a practice, it has been held, would be improper and “beyond the power of the court to adopt.” Johnson v. Garber, 73 Fed. 533, 537, 19 C. C. A. 556.

In reference to the general rule requiring exceptions to a charge to be taken before the jury leave the bar, it is said that “the rule is mandatory, its enforcement does not rest in the discretion of the'lower court.” St. Louis, etc., Ry. Co. v. Spencer, 71 Fed. 93, 95, 18 C. C. A. 114 ; Price v. Pankhurst, 53 Fed. 313, 313, 3 C. C. A. 551. See, also, MacDonald v. United States, 63 Fed. 426, 439, 12 C. C. A. 339. In Phelps v. Mayer, 15 How. 160, 14 L.

Ed. 643, it was said: “It has been repeatedly decided by this court that it must appear by the transcript, not only that the instructions were given or refused at the trial, but also that the party who complains of them excepted to them while the Jury were at the bar. The statute of Westminster II, which provides for the proceeding by exception, requires, in explicit terms, that this should be done; and, if it is not done, the charge of the court, or its refusal to charge as requested, forms no part of the record, and cannot he carried before the appellate court by writ of error.

It need not be drawn, out in form and signed before the Jury retire; but it must be taken in open court, and must appear, by the certificate of the judge who authenticates it, to have been so taken.” In Barton v. Forsyth, 20 How. 532, 15 L. Ed. 1012, referring to the rule, it is said: “This is required by the statute which authorized the exception, and cannot be dispensed with.” It is also urged that the effect of the order was that the court regarded every portion of its charge as excepted to, and made the order to denote such exception.

The order was made before the charge was delivered, so it would be difficult to place that construction on the order; but an exception to an entire charge would not raise any question for review. Holder v. United States, 150 U. S. 91, 14 Sup. Ct. 10, 37 L. Ed. 1010; Bogk v. Gassert, 149 U. S. 17, 13 Sup. Ct. 738, 37 L. Ed. 631. The attorneys for the United States had the right to ask that the usual rule be followed.

There could be no sound reason, not even one of convenience, for granting the defendants’ motion that the requested charges should not be presented in open court before the jury retired, and the exceptions then and there reserved to the refusal of the court to give them. The bill of exceptions does show the charges to have been duly presented, but the exceptions to the refusal to give them were not made until two days after the trial was ended. But little time would have been required to announce exceptions to such refusal.

The exceptions being made in open court, the United States attorney would have been within his line of duty, if he thought any one of the charges proper to have been given, to have said so, and to have asked, if he chose, explanatory instructions. As to the exceptions to the charge of the court, it would have consumed some time to have noted them; but we cannot believe that the argument that it would be more convenient to the parties or their attorneys is sufficient reason for departing from the well-settled rule requiring the exceptions to be taken before the jury retire from the bar.

The court may be willing to subject its charge to a two days’ examination for the purpose of exceptions, but the parties litigant have the right to require the regular practice. If an exception is made to a part of the charge at the bar, the court might discover an inaccuracy or error and correct it at once. The United States attorney, being present when the exceptions were made, would be at liberty, if he deemed it proper and necessary to protect the interest of the government, to respectfully suggest to the court modifications or corrections in the parts of the charge to which exceptions were taken.

A departure from the regular course was not justified by anything that appears in the record. It is true, as argued by counsel, that an appellate court has the power to correct plain errors, even when exceptions are not duly or well taken, and that to prevent injustice it will sometimes do so. Our examination of the case has extended to all points presented in briefs and argument, without regard to the time when the exceptions were taken, with the view of seeing that no injustice was done the defendants.

We find nothing in the record to show that the result of the trial in the court below led to an unjust verdict or judgment, or that an error was committed that would make it our duty to reverse the judgment. The judgment of the District Court is affirmed.