December 3, 1895, a capias issued out of the district court of the United States for the Eastern district of Michigan on an indictment against Cosgrove on the charge of obstructing the United States marshal in the execution of a writ of attachment, which was not served until December 10, 1896, some months after Cosgrove had been admitted to bail in the recorder's court.
Cosgrove, having been taken into custody by the marshal. applied to the district court for a writ of habeas corpus, which was issued, the marshal made return, and the cause was duly argued.
The court entered a final order denying the application and remanding the petitioner. From this order an appeal was taken to the circuit court of appeals, and there dismissed, [174 U.S. 64, 66] whereupon an appeal to this court was allowed, and Cosgrove discharged on his own recognizance.
The district judge stated in his opinion that it appeared 'that the property, for the taking of which he [Cosgrove] is charged with larceny, was the vessel which, under the indictment in this court, he was charged with having unlawfully taken from the custody of the United States marshal, while the same was held under a writ of attachment issued from the district court in admiralty.'
And further: 'The only question which arises under this treaty, therefore, is whether, upon the facts stated in the return, which was not traversed, the petitioner has had the opportunity secured him by that treaty to return to his own country. If he has had such opportunity, then article 3 has not been violated, either in its letter or spirit, by the arrest and detention of the petitioner. It is conceded that he was delivered to the authorities of the state of Michigan in May, 1896, to stand his trial upon the charge of larceny. He gave bail to appear for trial in the recorder's court when required, and immediately returned to Canada. On December 10, 1896, he voluntarily appeared in the state of Michigan, of his own motion, and not upon the order of the recorder's court, or at the instance of his bail, and while in this district was arrested.' E. H. Sellers, for appellant.
Sol. Gen. Richards, for appellee.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.
Article 3 of the extradition convention between the United States and Great Britain, promulgated March 25, 1890 (26 Stat. 1508), and section 5275 of the Revised Statutes, are as follows:
Cosgrove was extradited under the treaty, and entitled to all the immunities accorded to a person so situated; and it is admitted that the offense for which he was in icted in the district court was committed prior to his extradition, and was not extraditable. But it is insisted that although he could not be extradited for one offense, and tried for another, without being afforded the opportunity to return to Canada, yet as, after he had given bail, he did so return, his subsequent presence in the United States was voluntary, and not enforced, and therefore he had lost the protection of the treaty, and rendered himself subject to arrest on the capias, and to trial in the district court for an offense other than that on which he was surrendered; and this although the prosecution in the state court was still pending and undetermined, and Cosgrove had not been released or discharged therefrom.
Conceding that if Cosgrove had remained in the state of Michigan, and within reach of his bail, he would have been exempt, the argument is that, as he did not continuously so remain, and during his absence in Canada his sureties could not have followed him there and compelled his return, if his appearance happened to be required according to the exigency [174 U.S. 64, 68] of the bond, which the facts stated show that it was not, it follows that when he actually did come back to Michigan he had lost his exemption.
But we cannot concur in this view. The treaty and statute secured to Cosgrove a reasonable time to return to the country from which he was surrendered, after his discharge from custody or imprisonment for or on account of the offense for which he had been extradited, and at the time of this arrest he had not been so discharged by reason of acquittal, or conviction and compliance with sentence, or the termination of the state prosecution in any way. U. S. v. Rauscher, 119 U.S. 407, 433 , 7 S. Sup. Ct. 234.
The mere fact that he went to Canada did not in itself put an end to the prosecution, or to the custody in which he was held by his bail, or even authorize the bail to be forfeited, and when he re-entered Michigan he was as much subject to the compulsion of his sureties as if he had not been absent.
In Taylor v. Taintor, 16 Wall. 366, 371, Mr. Justice Swayne, speaking for the court, said: 'When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and, if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another state, may arrest him on the Sabbath, and, if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner. In 6 Mod. 231, it is said: 'The bail have their principal on a string, and may pull the string whenever they please, and render him in their discharge.' The rights of the bail in civil and criminal cases are the same. They may doubtless permit him to go beyond the limits of the state within which he is to answer, but it is unwise and imprudent to do so; and, if any evil ensue, they must bear the burden of the consequences, and cannot cast them upon the obligee.' [174 U.S. 64, 69] We think the conclusion cannot be maintained, on this record, that, because of Cosgrove's temporary absence, he had waived or lost an exemption which protected him while he was subject to the state authorities to answer for the offense for which he had been extradited.
The case is a peculiar one. The marshal initiated the prosecution in the state courts, and some weeks thereafter the indictment was found in the district court for the same act on which the charge in the state courts was based. The offenses, indeed, were different, and different penalties were attached to them. But it is immaterial that Cosgrove might have been liable to be prosecuted for both, as that is not the question here, which is whether he could be arrested on process from the district court efore the prior proceeding had terminated, and he had had opportunity to return to the country from which he had been taken; or, rather, whether the fact of his going to Canada pending the state proceedings deprived him of the immunity he possessed by reason of his extradition, so that he could not claim it, though the jurisdiction of the state courts had not been exhausted; he had come back to Michigan; and he had had no opportunity to return to Canada after final discharge from the state prosecution.
We are of opinion that, under the circumstances, Cosgrove retained the right to have the offense for which he was extradited disposed of, and then to depart in peace, and that this arrest was in abuse of the high process under which he was originally brought into the United States, and cannot be sustained.
Final order reversed, and cause remanded, with a direction to discharge petitioner.