dissenting:
For the reasons which I am about to state I am unable to concur in the opinion just announced.
Goldsoll is charged with obtaining from the Republic of France $1,563,104.84 by means of false representations made by him to the Pierce-Arrow Company. It is conceded that the offense charged must be denounced by the law of the District of Columbia. Section 842 of our Code [31 Stat. at L. 1326, chap. 854] provides that “whoever by any false pretense, with intent to defraud, obtains from any person anything of value * * * *536shall * * * be imprisoned.” There is nothing in this which requires the false pretense to be made to the person defrauded. To say that there is would require that we read into the section a limitation which Congress did not place there. Our duty is to enforce the law as we find it, not to mold it to suit cur convictions as to what it should be. True, in the Robinson Case, 42 App. D. C. 186, referred to by the majority, this court held that the representations must be made to the person defrauded, but I think the holding was obiter, for the reason that the question was not presented for consideration, it being* admitted that the representations in that case were made to the person who was defrauded.
Other courts have dealt with the subject under a statute similar to ours. A person was charged in Massachusetts with having defrauded another by. false pretenses made to a third person. Speaking of the indictment the supreme judicial court of the commonwealth said: '“A combination of facts has here occurred and may occur again, where a deception has been practised upon one person, and his property obtained, and the loss has fallen upon another, the intention being to defraud him. This is clearly within the mischief intended to be guarded against, and, we have no doubt, within the effective prohibition of the statute.” Com. v. Call, 21 Pick. 515, 520, 32 Am. Dec. 284. A Kentucky statute provides that “if any person by any false pretense, statement, or token, with intent to commit a fraud, obtain from another money, property, or other thing, which may be the subject of larceny, * * * he shall be confined,” etc. Commenting* upon the supreme court of the state said: “The statute does not require that the false statement should be made to any particular person, or that it should be with the intention of committing a fraud upon the person to whom the false statement was made. The offense is committed when the false statement is made with the intention to commit a fraud, and money or property is thereby obtained.” Com. v. Johnson, 167 Ky. 727, L.R.A.1916D, 267, 181 S. W. 368.
In State v. Hargrave, 103 N. C. 328, 9 S. E. 406, it appeared *537that one Hargrave had a claim against the county for witness fees which he assigned to Olodfelter. He then went to Kinney, the court officer authorized to pay the claim, represented that he was still the owner of the claim, and obtained the money thereon. Charged with obtaining from Kinney money by false pretense with the intent to defraud Clodfelter, he was convicted and the conviction upheld by the supreme court, which said “that the making of a false representation to one person so as to defraud another constituted an indictable offense, under the statute.” The accomplished fraud must have reasonable connection with the pretense (Bishop, Statutory Crimes, see. 452), and the pretense must be shown to be false, and made ■with intent to injure or defraud. Defraud whom? The statute does not in terms inform us. Usually the intent is to defraud the owner of the thing obtained; but it is sufficient if the intent be to defraud anyone connected with the ownership, possession, or custody of the chattel.” Mack v. State, 63 Ala. 138, 140. I think the indictment clearly charges a crime under the laws of the District of Columbia.
Before proceeding to consider the evidence I think it proper to inquire by what rule, according to the decisions of the Supreme Court of the United States, we should be guided in our investigation. As I read those decisions, if there was any legal evidence of Goldsoll’s guilt submitted to Mr. Justice Hitz, sitting as a committing magistrate, the case must be reversed and the writ of habeas corpus discharged. That court has said that in a habeas corpus proceeding the judgment of the committing magistrate cannot be reviewed “on the weight of evidence “(Ornelas v. Ruiz, 161 U. S. 502, 509, 40 L. ed. 787, 789, 16 Sup. Ct. Rep. 689) ; that unless it can “be said that the commissioner had no choice on the evidence but to” (id. 511) discharge the accused he is not entitled to the writ; that the judgment of the commissioner cannot be reviewed if “there was any legal evidence at all upon which the commissioner could decide that there was evidence sufficient to justify his commitment for extradition” (Bryant v. United States, 167 U. S. 104, 105, 42 L. ed. 94, 95, 17 Sup. Ct. Rep. 744); that “the ques-*538don simply is whether there was any competent evidence before the commissioner entitling him to act under the statute. The weight of the evidence was' for his determination.” [Italics mine.] McNamara v. Henkel, 226 U. S. 520, 523, 57 L. ed. 330, 332, 33 Sup. Ct. Rep. 146. This decision is followed in Bingham v. Bradley, 241 U. S. 511, 511, 60 L. ed. 1136, 1140, 36 Sup. Ct. Rep. 634. In the last case the court said that the finding of the commissioner could not be reversed “if he acted upon competent and adequate evidence,” I do not think the court intended by the use of the word “adequate” to reverse its previous holdings. “Any legal evidence” is adequate. See also Strassheim v. Daily, 221 U. S. 281, 55 L. ed. 735, 31 Sup. Ct. Rep. 558. Little weight is given in proceedings upon habeas corpus to those, niceties of reasoning which may find effective play on the trial of a criminal case. Glucksman v. Henkel, 221 U. S. 508, 512, 55 L. ed. 830, 833, 31 Sup. Ct. Rep. 704. In the Strassheim Case the court in denying the application for the writ said disparingly'that “considerable ingenuity was spent in pointing out defects that would occur to no one outside the criminal law,” and objections which “savored of technicality” were rejected in the Bingham Gase.
Following, then, the rule announced by the Supreme Court of the United States in the foregoing decisions, it seems to me that our duty is to search the record carefully, not for the purpose of determining whether or not we can find sufficient evidence Avhicli, if believed by the magistrate, would have warranted him in discharging the accused, but for the purpose of ascertaining whether or not the holding of the magistrate is supported by “any legal evidenceand here, as I understand the opinion of the majority, is where my associates and myself part company. This is well illustrated by the majority opinion, wherein it is said “that in a criminal case the accused is entitled, where two interpretations are open, to that consistent with innocence.” If the testimony is open to two interpretations, the examining magistrate may take his choice, and we have no power under the decisions which I have just quoted to review his action.
*539Perry at the instance of the Pierce-Arrow Company arrived in Paris on March 23, 1915, for the purpose of obtaining orders from the French Minister of War for five-ton automobile trucks, upon which he was authorized to make a discount of 15 per cent from the list price. Tie soon learned that five-ton trucks were not then needed, but that possibly two-ton trucks might be, and if they were they would be purchased in New York. The next day he sought the aid of Tleliopoulos, who told him that he would see what could be done. Soon thereafter Ileliopoulos went to the firm of Gold soil, 12 Rue Tronchet, where he found !)e Yero and Higgins. He told them of Perry’s visit, and they said, “bring him, there is perhaps something to be done.” He brought him to Goldsoll’s office but did not remain. On this point he testified; “I have simply brought him to 12 Rue Tronchet, and I have been present at none of the interviews that they have had together.” What took place at this meeting or who was there we do not know, except by inference. Heliopoulos said that Higgins told him that he, Higgins, “asked Mr. Perry if he was authorized to sign a contract granting to us the exclusiveness for the duration of the war.” The answer was that he had authority, but “for more certainty he was going to telegraph.” This testimony is purely hearsay and should not be considered. It is not “legal evidence.” Bingham v. Bradley, 241 U. S. 517, 60 L. ed. 1140, 36 Sup. Ct. Rep. 634, supra.
The meeting between Perry and those who were present at Goldsoll’s office, it appears, took place on March 26th. At 9 :40 a. m. of that day he cabled his company that the French government did not require any five-ton trucks, and asked the company to give him at London “best monthly deliveries, discount, and body prices by June 5. He [the French Minister of War] needs my firm offer immediately. If accepted, will cable American Commission place order with you.” This cablegram must have been sent prior to the meeting at Goldsoll’s office; for at 1:55 on the same day and after the meeting he cabled to his company: “Very large orders are certain on same terms as before if allow trading house here seven and value otherwise pos*540sibility business very unlikely. Strongly advise you cable me instructions sign commission letter this and future business immediate action necessary. Cable here deliveries twos and fives April, May, June, make no offers your side instruction will be sent New York place, orders with you presume my commission payable.” The Pierce-Arrow Company responded to Perry’s second cablegram and authorized him to sign a contract, which he did. It is beyond doubt that something took place between the sending of the two .cablegrams which wrought a marked change in Perry’s mental attitude towards the business which he had in hand. The first indicates no confidence on his part that he would be able to do business with the War Department; the second shows that he had become convinced that he could and that “large orders are certain.” It is urged that these telegrams aré merely hearsay and hence incompetent, but I do not think so. They are in the nature of verbal facts (3 Wig-more, Ev. 1768) disclosing the change which had taken place in Perry’s mind, and its character. What produced this change? It had a cause. Something must have been said or done at the meeting in Goldsoll’s office which led Perry to believe that the person to whom he had there talked could do what he had been unable to do, — that he had power to procure contracts where Perry had failed. On no other theory can the change be accounted for. Was that person Goldsoll, and, if so, what did he say?
The majority opinion says that Perry and Goldsoll did not come together until after the second cablegram was sent; but I think the facts, as I shall show, indicate otherwise — at least there is room for that inference; and if there is, that is sufficient for the purpose of this proceeding. Heliopoulos is relied upon to establish what the majority asserts, but his competent testimony does not do so. As I have shown, he testified that he was not present at any of the interviews which Perry liad in Goldsoll’s office prior to the time the contract was signed, lie further said: “I was present at only one talk — the one where took place the signature of the contract and where Gold-soil was present.” No one, then, tells us who made the repre*541sentations which induced .Perry to send the second cablegram, but we do know that Goldsoll was present at the time the contract was signed and that it was made for his use and benefit. To be sure it runs in the name of lieliopoulos, but Goldsoll, according to the witness Thomas, stated that “he trades under the name of lieliopoulos to avoid the appearance of a monopoly,” and lieliopoulos said: “I am not at all of the Goldsoll syndicate. I am only a simple intermediary.” There is testimony to the effect that lieliopoulos was to have some interest in the contract, but the commissioner was justified in believing- the testimony to which we have just invited attention as showing that Goldsoll had no associates, — that lieliopoulos was only an intermediary.
Somebody must have conducted the negotiations with Perry which resulted in the sending of the second cablegram and the making of the contract. I think it more reasonable to find that this was clone by Goldsoll, the person interested, than by someone not interested. I think, also, that the facts recited warrant the inference that at the interview between Perry and Goldsoll the whole situation was gone over fully; that Perry explained to him that he was authorized to give the French government a discount of 15 per cent on five-ton trucks, and that he was unable to secure orders for trucks of any kind [under the circumstances what could have been more natural than a discussion of such matters between them] ; also that the representations which induced Perry to send the second cablegram and close the contract were made by Goldsoll.
I next come to consider the nature of the representations made by Goldsoll.
Goldsoll came to tliis country in August of the same year, 1915, and had an interview with II. Nerr Thomas, assistant general manager of the Pierce-Arrow Company, in which he stated “that he was in position to control, through the War Department [of Prance] the giving of orders for American trucks,” and asked that in the future he should be allowed 12] per cent and the French government only 7-]- per cent. This testimony was given in answer to a question by Mr. Pecker, *542special deputy attorney general of the State of New York. It is said in the majority opinion that there was an “apparent attempt in the examination of Mr. Thomas * * * to have him express an opinion inconsistent with that really entertained by him concerning the interview with Goldsoll.” This criticism of a public official, endeavoring to perform his duty, is not, in my judgment, warranted by the record. Furthermore, the answer did not express an opinion. It was a positive statement of fact: — “Yes, he said so.” Mr. Thomas was not a single person, easily misled. At no place did he show dissatisfaction with his answer or ask that he might be permitted to modify it. It is then stated that a fair reading of his entire testimony makes it very clear that his understanding of the interview with Goldsoll did not differ from that of Vice President May of the same company; and the conclusion is reached, as I understand it, that Thomas did not mean what he said when he answered the question under consideration. But this, I submit, is weighing the testimony, — the very thing the Supreme Court of the United States says this court may not do in a proceeding of this character. Ornelas v. Ruiz, 161 U. S. 502, 509, 40 L. ed. 787, 789, 16 Sup. Ct. Rep. 689.
The Pierce-Arrow Company, acting through Thomas, yielded to the request of Goldsoll and made a supplementary contract with him, providing that thereafter he shofild receive 12-J- per cent and the French government 7-£ per cent discount. When Goldsoll made the statement to Thomas that his relations with the French War Department were such that he could control the giving of orders for American trucks, he must have done so in the belief that it would persuade him to change the contract so as to give him, Goldsoll, the 12J per cent. It was the only argument used. Ho was dealing with the same subject and seeking to accomplish the same end as those covered by the contract with Perry. Is it not a permissible inference that he felt that what had persuaded Perry would persuade Thomas, and hence that the representation in each case was identical,— that the statement -made to Thomas “was a retrospectant indication” (3 Wigmore, Ev. sec. 148) of the representations made *543to Perry? This may be indulging in niceties, but under the decisions of the Supreme Court of the United States to which I have invited attention, we are permitted to do that in a case of this kind, for we are seeking not for convincing proof, but for “any legal evidence” of the crime charged.
Goldsoll was a soldier of France, a gunner conductor in the artillery. In 1916, a year and some months after he made the contract of March 25 and while it was still being performed, he was in New York. General Vignal, his military superior, discovering that he was there without legitimate reason, ordered him to return to France, but he did not obey, claiming he “had a, bad crisis of appendicitis.” An examination by a physician showed that he was -well. General Yignal then sought him with a view to again ordering him to France. After searching for sometime he was able to locate him, and renewed the order. Goldsoll then endeavored to influence the French officials to permit him to remain here, but without success, lie was again ordered, and for a third time, to proceed to France, and also admonished that unless he obeyed he risked being condemned as a deserter in time of war. Still he lingered. Tieing a soldier, why this reluctance to return to his country at a time when she sorely needed fighting men ? Does it not warrant the inference that he was conscious of having committed some wrong against her law? If so, it must be the crime for which his country now demands him, for the record does not show that he was at that time under any other charge. Flight, or refusal to return, which is the same thing, is a circumstance tending to show guilt. Allen v. United States, 164 U. S. 492, 41 L. ed. 528, 17 Sup. Ct. Rep. 154; Bird v. United States, 187 U. S. 118, 47 L. ed. 100, 23 Sup. Ct. Rep. 42. I think that these circumstances when taken together are sufficient to justify the belief that Goldsoll procured the contract of March 25 by representing that orders from the French government to the Pierce-Arrow Company for American trucks could be procured only through him, and that he knew at that time that the Pierce-Arrow Company was willing to allow the French government a discount of 15 per cent on five-ton trucks.
*544The falsity of tbe representations is abundantly established by the testimony of several witnesses, and clearly authorized a finding to that effect. But did the French government lose anything by reason of the representations ? It is admitted that it was the practice of the Pierce-Arrow Company to allow a discount of 20 per cent from the list price of its trucks, — 7-J per cent to the'customer and 12-|- per cent to the dealer. No matter what the division of the 20 per cent might be, the company alv ays insisted upon receiving 80 per cent of its list price. The division, then, of the 20 per cent between the dealer and the customer in nowise affected the price which it received for its products. Perry, the London agent of the Pierce-Arrow Company, was authorized to sell five-ton trucks to the French government at a discount from the list price of 15 per cent. By the contract with Goldsoll he was to receive 7J per cent; hence the French government could receive but 12-^ per cent. Thus France was coriipelled to pay 2-J per cent more than it would have had to pay if the contract had not been made.
In April, 1915, two-ton trucks were ordered through Gold-soil, but the first order for five-ton trucks was not until November. In August, 1917, the Pierce-Arrow Company wrote the French government “that the price of its five-ton trucks comprises a commission that we are obliged to pay our agent,” and followed with a statement that if it could secure a discharge of its obligation to pay the agent the commission it would reimburse the Republic “the entire sum or part of said commission of which it had been freed.” The agent referred to was Goldsoll. As we have seen, he in September, 1915, induced the company to supplement the contract of March 25 by changing the rate of commission so that the French government would receive only 7¿ per cent instead of 12-J per cent, and he would receive 12-J per cent instead of 7-| per cent. Under this arrangement the French government was obliged to pay 7-|- per cent more for its trucks than would have been required of it if the arrangement had not been made. But as this arrangement was effected upon representations made in the United States, perhaps the additional amount which France had to pay on its *545account cannot be attributed to the contract of March 25. The arrangement of September 25 did not, however, supplant the first contract. It only supplemented it, leaving the first contract as it was; and under that contract, as already appears, the French government contract had not been made.
This money was paid to the Pierce-Arrow Company by the French Republic!, and it is urged that it thereby became the money of that company; that when Goldsoll received it it was the property of the company, and hence that it cannot be correctly said that he, by his false representations, defrauded the French Republic; that if he defrauded anybody it was the Pierce-Arrow Company. This is not tenable. While the company had the legal title to the money at the time it was delivered to Goldsoll, it had exacted the money from the French government because of the representations which he had made, and the French government was as truly defrauded as if the money had been paid directly to Goldsoll instead of through the Pierce-Arrow Company. In the Massachusetts, Kentucky, and other cases cited above, the legal title to the money received by the accused was not in the defrauded person at the time he received it; nevertheless it was held that he was guilty of obtaining money under false pretenses.
Equally untenable is the claim that since the complaint charges that the money was received from France, evidence that it was obtained from the Pierce-Arrow Company, which had received it from France, does not support the charge. The manner in which the money was obtained is specifically set out in the first count, and conforms strictly to the testimony adduced. A count must be construed as a whole, and when this is done there can be no doubt as to what is meant by the statement that the money was obtained from France. It is not necessary that the same exactness should be observed in a complaint as in an indictment or information, upon which the accused must stand trial. In Bingham v. Bradley, 241 U. S. 517, 60 L. ed. 1140, 36 Sup. Ct. Rep. 634, it appears that there was no allegation that the crime was committed in Canada, the requesting country; nevertheless the Supreme Court of the *546United States sustained it, saying that it was inferable from statements in the complaint that the crime was committed there, and concluding with the observation that it was “clear that the intent was to charge that it was committed in Canada.”
Finally, it is urged that if there was any evidence tending to show that Goldsoll committed the crime alleged, it was committed in the United States, and not in France, because while the false pretenses may have been made in France the money was obtained in the United States. He committed part of the offense in France and compléted it in the United States. “We think it plain,” says the Supreme Court of the United States, “that the criminal need not do within the State every act necessary to complete the crime. If he does there an overt act which is and is intended to be a material step toward accomplishing the crime, and then absents himself from the State and does the rest elsewhere, he becomes a fugitive from justice, when the crime is complete, if not before. Re Cook, 49 Fed. 833, 843, 844. Ex parte Hoffstot, 180 Fed. 240, 243. Re Sultan, 115 N. C. 57, 28 L.R.A. 294, 44 Am. St. Rep. 433, 20 S. E. 375. For all that is necessary to convert a criminal under the laws of a State into a fugitive from justice is that he should have left the State after having incurred guilt there (Roberts v. Reilly, 116 U. S. 80, 29 L. ed. 544, 6 Sup. Ct. Rep. 291), and his overt act becomes retrospectively guilty when the contemplated result ensues.” Strassheim v. Daily, 221 U. S. 280, 285, 55 L. ed. 735, 738, 31 Sup. Ct. Rep. 578.
The evidence is by no means satisfactory or convincing, but it is not necessary that it should be. Sternaman v. Peck, 26 C. C. A. 214, 51 U. S. App. 312, 80 Fed. 884. Re Herres, 33 Fed. 165, 167, Judge Brewer said: “I might observe, with reference to these extradition proceedings, that the substance, and not the form, should be the main object of inquiry, and that they should not be conducted in any technical spirit with a view to prevent extradition.”
The testimony may be-entirely consistent with the innocence of Goldsoll, but whether it is or not is a matter with which wc have ño concern. All we are required to is to ascertain whether *547tliere is “any legal evidence” on which to base the charge made against him.
The Supreme Court has shown in extradition proceedings a strong disposition to grant the request of the State interested whenever it is possible under the law to do so. If ever there was a case where all doubt should be resolved in favor of extradition, this is the one. Goldsoll, a citizen of France — more even than that, a soldier of France, — is charged with defrauding his government out of more than $1,500,000 at a time when it was in dire need. France demands that he answer to her for his dereliction. He appeals to the courts of this country to save him from making response to the charge. I think his appeal should be denied, and that he should be returned to France that lie may be acquitted if innocent, or punished if guilty.
A petition for appeal to the Supreme Court of the United States was denied May 10, 1919.