*320 It will be perceived that the second article provides that no person surrendered shall be triable or tried, or be punished, for any political crime or offense, while article three provides that no person surrendered shall be triable or be tried (leaving out the words "or be punished") for any crime or offense committed prior to the extradition, other than the offense for which he was surrendered, until he shall have had an opportunity for returning to the country from which he was surrendered. Hence it is urged that, as punshment for another offense of which the person had been convicted is not in so many words expressly prohibited in and by article 3, a requisition may be obtained for one crine under that article, and, when possession of the person is thus obtained, he may be punished for another and totally different crime of which he had been con victed before extradition. We do not concur in this view. Although if the words "or be punished" were contained in the 3d article the question in this case could not, of course, arise, yet we are satisfied that the whole treaty, taken in connection with that of 1842, fairly construed, does not permit of the imprisonment of an extradited person under the facts in this case. The mere failure to use these words in the 3d article does not so far change and alter "the manifest scope and object" of the two treaties as to render this imprisonment legal. The general scope of the two treaties makes manifest an intention to prevent a state from obtaining jurisdiction of an individual whose extradition is sought on one ground and for one expressed purpose, and then, having obtained possession of his tion for his surrender has in fact been made with a view to try or punish him for an offense of a political character. person, to use it for another and different purpose. Why the words were left out in the 3d article of the convention of 1889, when their insertion would have placed the subject entirely at rest, may perhaps be a matter of some possible surprise, yet their absence cannot so far alter the otherwise plain meaning of the two treaties as to give them a totally different construction. In addition to the provisions of the treaty of 1889 we find still in existence the already-mentioned sections of the Revised Statutes, which prohibit a person's arrest or trial for any other offense than that with which he was charged in the extradition proceedings, until he shall have had a reasonable time to return unmolested from the country to which he was brought. It is argued, however, that the sections in question have been repealed by implication" by the treaty or convention of 1889, and that the respondent, therefore, cannot obtain any benefit from them. We see no fair or reasonable ground upon which to base the claim of repeal. Repeals by implication are never favored, and a later treaty will not be regarded as repealing an earlier statute by implication unless the two are absolutely incompatible and the statute cannot be enforced without antagonizing the treaty. United States v. Lee Yen Tai, 185 U. S. 213, 46 L. ed. 878, 22 Sup. Ct. Rep. 629. If both can exist the repeal by implication will not be adjudged. These sections are not incompatible with the treaty or in any way inconsistent therewith. We find nothing in the treaty which provides that a person shall be surrendered for one offense and then that he may be punished for another, such as is the case here. The most that can be Article VI. The extradition of fugitives under the No person surrendered by either of the provisions of this convention and of the high contracting parties to the other shall said 10th article shall be carried out in the be triable or tried, or be punished for any United States and in Her Majesty's dominpolitical crime or offense, or for any actions, respectively, in conformity with the connected therewith, committed previously to his extradition. 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. Article III. 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 his 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. laws regulating extradition for the time being in force in the surrendering states. Article VII. The provisions of the said 10th article and of this convention shall apply to persons convicted of the crimes therein respectively named and specified, whose sentence therefor shall not have been executed. In case of a fugitive criminal alleged to have been convicted of the crime for which his surrender is asked, a copy of the record of the conviction and of the sentence of the court before which such conviction took place, duly authenticated, shall be produced, together with the evidence proving that the prisoner is the person to whom such sen tence reters. *322 asserted is that an inference to that effect such case, however important it may be to perhaps might be drawn from the absence the petitioner, does not involve a question in article 3 of positive language preventing of gravity and general importance, there such punishment. But that slight and being no conflict between the decisions of doubtful inference, resting on such an in-state and Federal courts, or between those of Federal courts of different circuits, and sufficient foundation, is inadequate to over-nothing affecting international relations. come the positive provisions of the statute Error to court of appeals of District of Coand the otherwise general scope of both lumbia-criminal case. treaties, which are inconsistent with the existence of such right. 2. A judgment convicting a chancery receiver of embezzling money which had come into his possession in his official capacity is not reviewable on writ of error from the Federal Supreme Court to the court of appeals of the District of Columbia, on the theory that the forfeiture by defendant, under D. C. Code, § 841, defining the offense, of all right or claim to any commissions, was determined by the judg It is urged that the construction contended for by the respondent is exceedingly technical and tends to the escape of criminals on refined subtleties of statutory construction, and should not, therefore, be adopted. While the escape of criminals is, of course, to be very greatly deprecated, it is still most important that a treaty of this nature between sovereignties should be construed in accord-ment, and that therefore the jurisdictional ance with the highest good faith, and that it should not be sought, by doubtful construction of some of its provisions, to obtain the extradition of a person for one offense and then punish him for another and different offense. Especially should this be the case where the government surrendering the person has refused to make the surrender Argued March 12, 13, 1907. Decided April for the other offense, on the ground that such offense was not one covered by the treaty. Our attention has been directed to various other treaties between this government and other nations, where provision is expressly made in regard to punishment. They frequently provide that no person shall be triable or tried "or be punished" for any other offense than that for which he was delivered up until he has had an opportunity of returning to the country from which he was surrendered. But because in some of the treaties the words "or be punished" are contained we are not required to hold that in the case before us the absence of those words permits such punishment, when that construction is, as we have said, contrary to the manifest meaning of the whole treaty, and also violates the statutes above cited. The order of the Circuit Court is affirmed. amount prescribed by § 233 of such Code was involved, since the forfeiture of commissions does not follow the judgment, but follows the wrongful conversion or appropriation of the moneys. [No. 395.J 8, 1907. IN ERROR to the Court of Appeals of the District of Columbia to review a judgment which affirmed, with a modification of the sentence, a judgment of the Supreme Court of that District convicting the defendant of embezzlement. Dismissed for want of jurisdiction. Also A PETITION for a writ of certiorari to review the same judgment. Denied. See same case below, 27 App. D. C. 433. Statement by Mr. Justice Brewer: Thomas M. Fields was indicted in the supreme court of the District of Columbia at the January term, 1905, for embezzlement. Of eight counts in the indictment seven were disposed of by demurrer or by verdict in favor of the defendant. The trial, begun on May 8, and ending May 15, 1905, resulted in a verdict of guilty under the third count. Mr. Justice Moody did not sit in the case Motions in arrest of judgment and for a new and took no part in its decision. (205 U. S. 292) THOMAS M. FIELDS, Plff. in Err., V. UNITED STATES. trial having been overruled, he was sentenced to imprisonment and labor in the penitentiary for five years. The court of appeals of the District modified the judgment of the supreme court by striking out the order for "labor," and, as so modified, affirmed it. 27 App. D. C. 433. The case was brought to this court on writ of error. A motion to dis1. Certiorari to review a judgment of miss and a petition for certiorari were prethe court of appeals of the District of Co- sented by the respective parties, the considlumbia in a criminal case will not be grant-eration of both of which was postponed to ed by the Federal Supreme Court, where the hearing on the merits. The indictment Certiorari-to court of appeals of District of Columbia. *293 *295 was found under § 841 of the District Code, | rules laid down by this court governing the which is as follows: latter applications are to be ignored, and the case held in this court by either the writ, of error or the certiorari. "Any executor, administrator, guardian, trustee, receiver, collector, or other officer into whose possession money, securities, or other property of the property or estate of any other person may come by virtue of his office or employment, who shall fraudulently convert or appropriate the same to his own use, shall forfeit all right or claim to any commissions, costs, and charges thereon, and shall be deemed guilty of embezzlement of the entire amount or value of the money or other property so coming into his possession and converted or appropriated to his own use, and shall be punished by a fine not exceeding one thousand dollars, or by imprisonment not exceeding ten years, or both." [31 Stat. at L. 1326, chap. 854.] The statute under which the writ of error was sued out is § 233 of the District Code, which reads: "Sec. 233. Any final judgment or decree of the court of appeals may be re-examined and affirmed, reversed, or modified by the Supreme Court of the United States, upon writ of error or appeal, in all cases in | which the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars, in the same manner and under the same regulations as existed in cases of writs of error on judgments or appeals from decrees rendered in the supreme court of the District of Columbia on February ninth, eighteen hundred and ninety-three, and also in cases, without regard to the sum or value of the matter in dispute, wherein is involved the validity of any patent or copyright, or in which is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States." Stat. at L. 1227, chap. 854.] [31 Messrs. Frank J. Hogan, John C. Gittings, and Henry E. Davis for plaintiff in error. Mr. J. S. Easby-Smith and Solicitor General Hoyt for defendant in error. In this case there is no sufficient ground for a certiorari. The application comes within none of the conditions therefor declared in the decisions of this court. However important the case may be to the applicant, the question involved is not one of gravity and general importance. There is no conflict between the decisions of state and Federal courts or between those of Federal courts of different circuits. There is nothing affecting the relations of this nation to foreign nations, and indeed no matter of general interest to the public. Will a writ of error lie? Is the case one of which this court has jurisdiction? It is settled that a criminal case, as such, cannot be brought here on a writ of error from the court of appeals of the district. Chapman v. United States, 164 U. S. 436, 41 L. ed. 504, 17 Sup. Ct. Rep. 76, and cases cited in the opinion; Sinclair v. District of Columbia, 192 U. S. 16, 48 L. ed. 322, 24 Sup. Ct. Rep. 212. The authority of these cases is not questioned, but it is contended that the forfei ture of all right or claim to any commissions, etc., was determined by the judgment in the case at bar, and that, therefore, it comes within the pecuniary provisions of 233. Smith v. Whitney, 116 U. S. 167, 29 L. ed. 601, 6 Sup. Ct. Rep. 570, is cited as authority. In that case we sustained our ju. risdiction over a judgment of the supreme court of the District, dismissing a petition for a writ of prohibition to a court-martial convened to try an officer for an offense punishable by dismissal from the service and consequent deprivation of salary, which, during the term of his office, would exceed the ent from this. There the direct result of an sum of $5,000. But that case is very differadverse judgment of the court-martial was the deprivation of an office with a salary of over $5,000. That sum, therefore, was involved in the trial sought to be restrained. *Mr. Justice Brewer delivered the opinion But no such result follows in this case. The of the court: The petition for certiorari must be first considered. A certiorari can be issued only when a writ of error cannot. 26 Stat. at L. 828, § 6, chap. 517, U. S. Comp. Stat. 1901, p. 550, last two paragraphs. There have been two or three instances in which, after a writ of error has been allowed, an application for a certiorari has been filed, the latter because of doubt whether the former would lie. It must not be supposed that because we have before us both a writ of error and an application for certiorari that the act of the defendant in fraudulently converting or appropriating the moneys in his pos session operates to forfeit all right or claim to any commissions, etc., and this, irrespective of the question whether he is or is not convicted of any crime in respect thereto. It is true such fraudulent conversion or appropriation is declared to be embezzlement, and the defendant was prosecuted and convicted of that offense, but the forfeiture of commissions does not follow the judg ment, but follows the wrongful conversion or appropriation of the moneys. The only di *297 rect pecuniary result of a conviction is a fine not exceeding $1,000, and that as a pun. ishment for the offense. United States v. More, 3 Cranch, 159, 174, 2 L. ed. 397, 402. It adjudges no forfeiture of commissions. It may be that it furnishes evidence in respect to the forfeiture of commissions, but, if so, it is simply evidence. Nor does the criminal offense depend at all upon the amount of the appropriation. If the official fraudulently converts or appropriates $1,000 the crime is the same as though he fraudulently converts or appropriates $50,000. All that can be accomplished by the criminal prosecution is the statutory punishment for the offense, which cannot exceed a fine of $1,000, or imprisonment for ten years, or both. The conviction is conclusive as to the fact of fraudulent conversion and appropriation, but not as to the amount thereof, any more than a conviction of larceny is a conclusive adjudication that the larceny was committed at a day named or of the precise amount or value of the property charged to have been stolen. Those are incidental and minor facts, which may or may not be proved exactly as stated. All that is necessary to sustain the judgment before us is that there was a fraudulent conversion or appropriation of some amount of money in the possession of the official. For these reasons the writ of error cannot be sustained. The application for a certiorari is denied and the writ of error is dismissed. I N ERROR to the Circuit Court of the United States for the Southern District of New York to review a judgment sustaining a demurrer to, and dismissing, the complaint in an action to recover the value of goods imported from the Isle of Pines which had been seized for the nonpayment of duties. Affirmed. The facts are stated in the opinion. Mr. James C. Lenney for plaintiff in error. Attorney General Bonaparte, Solicitor General Hoyt, and Otis J. Carlton for defendant in error. Mr. Chief Justice Fuller delivered the opinion of the court: Plaintiff brought his action in the circuit court of the United States for the southern district of New York against the then collector of the port of New York to recover the value of certain cigars seized by him, which had been brought to that port from the Isle of Pines, where they had been produced and manufactured. This seizure was made under the Dingley act, so called (act July 24, 1897, 30 Stat. at L. 151, chap. 11, U. S. Comp. Stat. 1901, p. 1626), and the regulations of the Secretary of the Treasury thereunder. The Dingley act provided for the imposition of duties "on articles imported from foreign countries," and in plaintiff's complaint it was asserted that the Isle of Pines was "in possession of and part of the United States," and hence domestic territory. The government demurred, the demur Mr. Justice White concurred in the judg- rer was sustained, the complaint dismissed, ment. (205 U. S. 257) EDWARD J. PEARCY, Plff. in Err., V. NEVADA N. STRANAHAN. The Isle of Pines must be regarded as at least de facto under the jurisdiction of the Republic of Cuba, and hence, as a "foreign country" within the meaning of the Dingley tariff act of July 24, 1897 (30 Stat. at L. 151, chap. 11, U. S. Comp. Stat. 1901, p. 1626)), since the United States has never taken possession of such island as included in the territory ceded by Spain to the United States in the treaty of peace, but, instead, through its legislative and executive departments, has recognized the Cuban government as rightfully exercising sovereignty over the Isle of Pines as a de facto government until the de jure status shall be deter mined. [No. 1.] and the case brought here on a writ of error. Whether the Isle of Pines was a part of the United States is a conclusion of law not admitted by the demurrer. It was certainly not such before the treaty of peace with Spain [30 Stat. at L. 1754], and, if it became so, it was by virtue of that treaty. The court takes judicial cognizance whether or not a given territory is within the bound. aries of the United States, and is bound to take the fact as it really exists, however it Jones v. United may be averred to be. States, 137 U. S. 202, 34 L. ed. 691, 11 Sup. Ct. Rep. 80; Lincoln v. United States, 197 U. S. 417, 49 L. ed. 816, 25 Sup. Ct. Rep. 455; Taylor v. Barclay, 2 Sim. 213. August 12, 1898, a protocol of agreement for a basis for the establishment of peace was entered into between the United States and Spain, which provided: of sovereignty over and title to Cuba. "Article 2. Spain will cede to the United States the island of Porto Rico and other Submitted March 4, 1907. Decided April 8, islands now under Spanish sovereignty in 1907. 27 8. C.-35. the West Indies, and also an island in the 26 Ladrones, to be selected by the United, to leave the government and control of Cuba States." 30 Stat. at L. 1742. to its own people. All that has been done in relation to Cuba has had that end in view, and, so far as the court is informed by the public history of the relations of this This was followed by the treaty of peace, ratified April 11, 1899, containing the following articles: "Article 1. Spain relinquishes all claim of country with that island, nothing has been Sovereignty over and title to Cuba. done inconsistent with the declared object of the war with Spain. "Cuba is none the less foreign territory, within the meaning of the act of Congress, because it is under a military governor ap "And as the island is, upon its evacuation by Spain, to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may, under in-pointed by and representing the President ternational law, result from the fact of its occupation, for the protection of life and property. "Article 2. Spain cedes to the United States the island of Porto Rico and other islands now under Spanish sovereignty in the West Indies, and the island of Guam in the Marianas or Ladrones." 30 Stat. at L. 1754, 1755. In Neely v. Henkel, 180 U. S. 109, 45 L. ed. 448, 21 Sup. Ct. Rep. 302 (Jan. 14, 1901), the question was whether Cuba was a foreign country or foreign territory within the act of Congress of June 6, 1900 (31 Stat. at L. 656, chap. 793, U. S. Comp. Stat. 1901, p. 3591) providing for the extradition from the United States of persons committing crimes within any foreign country or foreign territory or any part thereof, occupied or under the control of the United States. And it was held that Cuba was within this description. Mr. Justice Harlan, delivering the opinion of the court, said: "The facts above detailed make it clear that, within the meaning of the act of June 6, 1900, Cuba is foreign territory. It cannot be regarded, in any constitutional, legal, or international sense, a part of the territory of the United States. "While by the act of April 25, 1898 [30 Stat. at L. 364, chap. 189], declaring war between this country and Spain, the President was directed and empowered to use our entire land and naval forces, as well as the militia of the several states to such extent as was necessary, to carry such act into effect, that authorization was not for the purpose of making Cuba an integral part of the United States, but only for the purpose of compelling the relinquishment by Spain of its authority and government in that island, and the withdrawal of its forces from Cuba and Cuban waters. The legislative and executive branches of the government, by the joint resolution of April 20, 1898 [30 Stat. at L. 738, U. S. Comp. Stat. 1901, p. 2790], expressly disclaimed any purpose to exercise sovereignty, jurisdiction, or control over Cuba 'except for the pacification thereof,' and asserted the determination of the United States, that object being accomplished, in the work of assisting the inhabitants of that island to establish a government of their own, under which, as a free and independent people, they may control their own affairs without interference by other nations. The occupancy of the island by troops of the United States was the necessary result of the war. That result could not have been avoided by the United States consistently with the principles of international law or with its obligations to the people of Cuba. "It is true that, as between Spain and the United States,-indeed, as between the United States and all foreign nations,Cuba, upon the cessation of hostilities with Spain, and after the treaty of Paris, was to be treated as if it were conquered territory. But, as between the United States and Cuba, that island is territory held in trust for the inhabitants of Cuba, to whom it rightfully belongs and to whose exclusive control it will be surrendered when a stable government shall have been established by their voluntary action." If, then, the Isle of Pines was not embraced in article 2 of the treaty, but was included within the term "Cuba" in article 1, and therefore sovereignty and title were merely relinquished, it was "foreign coun try" within the Dingley act. This inquiry involves the interpretation which the political departments have put upon the treaty. For, in the language of Mr. Justice Gray, in Jones v. United States, "who is the sovereign, de jure or de facto, of a territory, is not a judicial but a political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges as well as all other officers, citizens, and subjects of that government." By the joint resolution of April 20, 1898 (30 Stat. at L. 738, U. S. Comp. Stat. 1901, p. 2790), entitled "Joint Resolution for the Recognition of the Independence of the People of Cuba, Demanding That the Government of Spain Relinquish Its Authority and Government in the Island of Cuba, and to Withdraw Its Land and Naval Forces from Cuba and Cuban Waters, and 265 |