In re ROWE, 77 F. 161

CALDWELL,- Circuit Judge, after stating the case as above, delivered the opinion of the court. The -first contention of- the -petitioner is that, under the laws of Iowa,' ino one but an officer charged with the safe-keeping of public moneys.can commit the crime of embezzlement of such moneys. It is said that there can be no accessory before the fact to such an offense; that

section 5699 of the Iowa statute,- which abrogates^ the distinction between an accessory before the fact and a principal, does not apply to one who aids and abets the embezzlement of public moneys by the official custodian thereof; and that the petitioner is therefore guilty of no offense whatever. By the common law, an accessory cannot "be tried without his own consent before the principal, and, if the principal is acquitted, both must be acquitted, and there can be no conviction on an indictment charging him as principal. Dr.

Wharton, in-his work on Criminal Law, observes that the obstructions of justice caused by these subtleties have long been deplored; and while, in several states of the American Union it is already provided by statute that accessories before the fact are to be proceeded against as principals, in other states and in England the change will probably not be long delayed. 1 Whart. Or. Law, § 205. These subtle distinctions between a -principal and an accessory before the fact at common law, which were a fruitful source of the miscarriage of criminal justice, were abrogated by

section 5699 of the Iowa statute; and in that state one who aids and abets the commission of a crime is in the same category with one who actually commits the offense. They are both principals. But we are spared the necessity of any extended discussion of the question whether the indictment under which the petitioner is now held charges an' offense against the laws of the state of Iowa. The supreme court of that state denied the petitioner a writ of habeas corpus, asked for on the distinct ground, among others, that the indictment charged no offense against the laws of that state.

In making that decision, the court necessarily passed upon this question adversely to. the contention of the petitioner, and the judgment of that court is conclusive on the question in this court. . . ..... T lie next contention of the petitioner is that lie is being held for i rial for an offense different from that for which he was extradited, it is settled by the judgment of the supreme court in the case of U. S. v. Rauscher. 119 U. S. 407, 7 Sup. Ct. 234, as well as hy the provisions of

section 5275 of the Revised Statutes of the Uidted States, that, under the treaty with -Mexico, the petitioner is exempt from trial for any other offense than that specified in the warrant of extradition unlii ho has had a reasonable time to depart out of the United State's. Is the petitioner held for trial for an offense different from That for which he was extradited?

The information and affidavits laid before tiie Mexican authorities, and upon which that government acted in granting the warrant of extradition, stated in plain and unambiguous language the facts constituting the offense with which he is charged in the pending indictment. The indictment states th(> acts constituting the offense with more technical verbiage, but it describes the same offense described in the information and affidavits upon which the Mexican government was asked to, and did, surrender the petitioner, with the addition of a single technical averment, which will be noticed presently.

The treaty provides for tiie surrender of the fugitive “when the fact of tin? commission of the crime shall he so established as that the laws of the country in which the fugitive or the person so accused shall be found, would justify his or her apprehension and commitment for trial if the crime had been there committed.” The Mexican government is the best judge of its own laws, and the warrant of extradition issued by the department of foreign affairs of that government recites “that the crime imputed to Chester is proved, and that there exist suspicions that Richard is his accomplice, which would be sufficient for his legal arrest and trial in Mexico, liad the crime been committed here.” The Mexican government doubtless used the term “accomplice” out of abundant caution, and to remove any ground for the technical objection that is herí' made, winch is, in effect, that the petitioner cannot he indicted and tried as a principal because he was extradited io he tried as an accessory before the fact, and that he cannot be tric'd as an accessory before the fact because the Iowa statute abrogates tiie distinction behveen a principal and an accessory.

But the petitioner was not surrendered (o answer as an accessory before the fact, or as a principal, but as an accomplice. An accomplice is defined to be: “One who is concerned in the commission of a crime. The term, in its fullness, includes in its meaning all persons who hare been concerned in the commission of a crime, all parficeps criminis, whether they are considered, in strict legal propriety, as principals in the tirst or second degree, or merely as accessories before or after the fact.” Bouv. Law Diet. tit. “Accomplice.” It is obvious, therefore, that the petitioner was extradited to answer for the

part lie played in the commission of this particular crime of embezzlement, whether it was as a principal or as an accessory before the fact. The third

article of (he treaty provides for the extradition of persons charged with the crimes therein mentioned, “whether as principals, accessories, or accomplices.” The petitioner was a fugitive from the justice of tiie law’s of the state of Iowa.

By the law of that state, where one embezzles public money, and another aids and abets the commission of the offense, they are both equally guilty of the crime of embezzlement; so that the offense with which the petitioner is charged is within the very letter of the treaty which provides for the extradition of persons charged with the crime of “embezzlement of.public moneys,” whether he is a principal or accessory, and the warrant of extradition, as we have seen, uses a term sufficiently comprehensive to include a principal as well as an accessory.

The technical defect in the information describing the offense, heretofore referred to, is the omission of the words “unaccounted for.” In the case of State v. Brandt, 41 Iowa, 593, the supreme court decided that the word “or,” preceding the words “unaccounted for,” in

section 5214, should be read “and,” and that an indictment under that

section which did not allege the money embezzled was “unaccounted for” was bad on demurrer. But this decision does not support the contention of the petitioner, which is, in substance, that: “An Insufficient Information is equivalent to no information. Without an information, there is no charge. Any charge is different from no charge. Therefore, if the petitioner is tried at all, it will be on a charge- for which he is not extradited.” It is too late in the day for this kind of logic to meet with any favor in the courts. Such subtle reasoning is no longer admitted to obstruct the course of justice.

It would result in refining all common sense out of the law, and in the adoption of rules too technical and minute for the social conduct of men. If the petitioner had been tried and convicted in the district court on the first indictment, he could not have been discharged from imprisonment under that conviction on a writ of habeas corpus.

The judgment might have been reversed, for error, by an appellate court exercising supervisory jurisdiction over the district court, but it would, not have been void, or subject to collateral attack; and the reason is that the court had jurisdiction of the party and the offense. Errors in law, however numerous and gross, committed by the trial court in a case within its jurisdiction, can only be reviewed by appeal or writ of error in the court exercising supervisory or appellate jurisdiction over the trial court in the particular case.

The writ of habeas corpus cannot be made to perform the office of a writ of error or appeal. Ex parte Ulrich, 43 Fed. 661; Ex parte Watkins, 3 Pet. 193, 7 Pet. 568; Ex parte Lange, 18 Wall. 163; Ex parte Parks, 93 U. S. 18; Ex parte Siebold, 100 U. S. 371; Ex parte Curtis, 106 U. S. 371, 1 Sup. Ct. 381; Ex parte Carll, 106 U. S. 521, 1 Sup. Ct. 535; Ex parte Yarbrough, 110 U. S. 651, 4 Sup. Ct. 152; Ex parte Crouch, 112 U. S. 178, 5 Sup. Ct. 96; Ex parte Bigelow, 113 U. S. 328, 5 Sup. Ct. 542; Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935; Ex parte Harding, 120 U. S. 782, 7 Sup. Ct. 780; In re Lane, 135 U.

S. 443, 10 Sup. Ct. 760; In re Wight, 134 U. S. 136, 10 Sup. Ct. 487; In re Nielsen, 131 U. S. 176, 9 Sup. Ct. 672; In re Coy, 127 U. S. 731, 756, 8 Sup. Ct. 1263. It does not follow, therefore, that an information or an indictment which is bad on demurrer is necessarily no information or indiotmcnt at all. There is a wide difference between a technical error or omission in setting out tbe facts essential to constitute tbe offense, such as existed in tbe information and first indictment in this case, and no information or indictment.

In the former case, if the sufficiency of the information or indictment is not challenged, or even if it is challenged and the court holds it good, the court may proceed to try the defendant, and if he is convicted, he can obtain no relief by the writ of habeas corpus; whereas, in the latter case the court lias no jurisdiction to try him for any offense, and, the judgment being void, tbe defendant may avail himself of the writ of habeas corpus.

Xor is the contention tenable that, when a demurrer to an indictment is sustained for a technical defect such as existed in this case, a second indictment, which conforms with technical accuracy to the requirements of the statute, charges another or a different offense. They both charge the same offense, though one of them does not charge it with sufficient technical accuracy to withstand the attack of a demurrer.

We entertain no doubt of tbe correctness of tbe judgment of the circuit court, but, if we did, we would not, on tbe facts disclosed in this record, discharge the petitioner, but would, in the exercise of the discretion with which we are invested, let the case take its regular course in the state court, and leave the petitioner to his remedy by writ of error from tbe supreme court of the state, and thence, if he was so advised, from the supreme court of the United States. “While,” says Mr. Justice Harlan in delivering the opinion of the supreme court in Re Wood, 140 U. S. 278, 289, 11 Sup.

Ct 738, 742, “the courts of the United States have power, upon habeas corpus, to inquire into tbe cause of tbe detention of any one claiming to be restrained of bis liberty in violation of the constitution or laws or treaties of the United States, it was not intended by congress that t hey should, by writs of habeas corpus, obstruct tbe ordinary administration of the criminal laws of file states, through their own tribunals. Where,’ this court said in Ex parte Royall, 117 U. S. 241, 252, 253, 6 Sup.

Ct. 734, 741, ‘a person is in custody, under process from a state court of original jurisdiction, for an alleged offense against the lawrs of such state, and it is claimed that he is restrained of Ms liberty in violation of tbe constitution of tbe United States, Hie circuit court has a discretion whether it will discharge him upon habeas corpus in advance of his trial in the court in which he is indicted; that discretion, however, to be subordinated to any special circumstances requiring immediate action.

When tbe state court shall have finally acted upon the case, the circuit court has still a discretion whether, under all the circumstances then existing, the accused, if convicted, shall be put to his writ of error from the highest court of the state, or whether it will proceed by writ of habeas corpus summarily to determine whether the petitioner is restrained of his liberty in violation of the constitution of the United States.’ And we will add that, after the final disposition of the case by the highest court of the state, the circuit court, in its discretion, may put the party who has been denied a right, privilege, or immunity claimed under the constitution or law’s of the United States to his writ of error from this court, rather than interfere by writ of habeas corpus.

These principles have special application where,' as in the present case, there is no pretense that the statute under which the prosecution of the appellant was conducted is repugnant to the constitution or laws of the United States.” The judgment of the circuit court is affirmed.