COSGROVE V. WINNEY, 174 U. S. 64 (1899)

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U.S. Supreme Court

Cosgrove v. Winney, 174 U.S. 64 (1899)

Cosgrove v. Winney

No. 172

Submitted January 19, 1899

Decided April 24, 1899

174 U.S. 64


The appellant, a Canadian, was extradited from Canada under the extradition treaty between Great Britain and the United States, and, being brought before a police court of Detroit, was charged with larceny, gave bail for his appearance at the trial, and returned to Canada. Returning from Canada to Detroit voluntarily before the time fixed for trial, he was arrested on a capias issued from the District Court of the United States for the Eastern District of Michigan before his extradition, charging him with an offense for which be was not extraditable, and was taken into custody by the marshal of that district. He applied to the district court of the United States for a writ of habeas corpus, which

Page 174 U. S. 65

was allowed. After hearing and argument, his application for a discharge was refused by the district court. On appeal to this Court, it is held that under the circumstances, the appellant 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.

November 7, 1895, Winney, United States Marshal for the Eastern district of Michigan, made a complaint before one of the police justices of the City of Detroit within that district against Thomas Cosgrove for the larceny of a boat named the "Aurora," her tackle, etc., whereon a warrant issued for his arrest. Cosgrove was a resident of Sarnia, in the Province of Ontario, Dominion of Canada, and extradition proceedings were had in accordance with the treaty between the United States and Great Britain, which resulted in a requisition on the Canadian government, which was duly honored, and a surrendering warrant issued May 19, 1896, on which Cosgrove was brought to Detroit to respond to the charge aforesaid, was examined in the Police Court of Detroit, was bound over to the July Term, 1896, of the recorder's court of that city, and was by that court held for trial and furnished bail. He thereupon went to Canada, but came back to Detroit in December, 1896.

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,

Page 174 U. S. 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."

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