(dissenting).
Judge ALSCHULER, in the majority opinion, has characteristically stated the facts, the questions involved, and the contentions of the parties, so fairly and fully that no additional or modifying statement is necessary or justifiable. Likewise, the reasons for the conclusions reached by the majority are so clearly pronounced as to leave the statement of the grounds of my dissent comparatively easy and to limit our differences to a very narrow compass.
If the cause of action (receiving money knowing it to be fraudulently obtained), a criminal offense in England, is or was an offense against the laws of the state of Illinois, the coinmonwealth wherein Factor was apprehended, then the judgment of the District Court should be reversed. It is only in reference to the answer to this question that I differ with the majority opinion. The disposition of questions preliminary to this one meets with my approval.
The majority opinion is based entirely upon tho Supremo Court decision rendered in Kelly v. Griffin, 241 U. S. 6, 36 S. Ct. 487, 60 L. Ed. 861. That decision, rather than any Illinois statute, is the reliance of the majority op inion (as it was, and is, of appellants’ counsel) for the conclusion reached. I confess it was at first determinative of the question with me. A willingness to accept and apply the law as announced by the Supreme Court must, of course, ever actuate this court.
What effect then should bo given to the language of the court in the Kelly Case (page 15 of 241 U. S., 36 S. Ct. 487, 489):
“The last charge, stealing or embezzling and receiving money fraudulently obtained, needs a word of explanation. It may he assumed that there is no evidence of larceny or embezzlement as (commonly) defined, bul the receiving of property known to have beep fraudulently obtained is a crime by the laws of both Canada and Illinois. There may he a doubt whether the appellant, if a party to the fraud, received the money of the government directly from it, or through a third hand so as to be guilty under this count of the complaint. We are not prepared to pronounce his detention upon the count unjustifiable in view of the finding. We assume, of course, that the government in Canada will respect the convention between the United States and Great Britain and will not try the appellant upon other charges than those upon which the extradition is allowed.”
If the majority opinion be correct in saying that this quotation settles the case regardless of any erroneous statement therein set forth, then the appeal before us is easily disposed of, and eorreetly so, by the majority opinion, for I find no justification for saying that the above language of the Supreme Court was dictum.
It seems to the writer, however, • that the Supreme Court was announcing a proposition, the soundness of which may, in this, a different case, he challenged. That there has been no change in this respect in the Illinois criminal statutes must be conceded. Appel-lee has the right to ask, What is the Illinois statute which makes it an offense against the laws of Illinois to do tho acts with which he is charged? For appellants with commendable frankness admit that the offense charged was not a crime at common law. Counsel for appellants do not seriously rely upon the statute which Judge Landis said in the Kelly Case was the Illinois statute defining the crime of receiving property knowing the same to have been fraudulently obtained. The offense charged against appellee, which apparently is a criminal offense in England, is at most a species of tho genus — fraud. It exists, if at all, only because a statute makes it a criminal offense. Waiving to one side all rules which necessitate a strict construction of the criminal statutes, the stubborn fact which confronts us is that no Illinois statute has been found which makes it a criminal offense *634to do the acts charged against appellee. Counsel have not cited any statute, and the court has found none. Nevertheless, although no statute thus exists, we are asked by appellants to admit its existence because the Supreme Court, in the case referred to, was persuaded that such a statute existed.
The facts in the Kelly Case may be dis- ’ tinguished in material respects from the facts in this ease. Restricting the holding to the actual facts disclosed, that decision may be distinguished, although there is in the opinion the definite statement to the effect that the receiving of property known to have been fraudulently obtained is a crime by the laws of both Canada and Illinois. In the Kelly Case, the money received was property of the King, which had been embezzled, stolen, or fraudulently obtained through perjury and false statements made respecting the amount of concrete, lumber, bolts, etc., used in the construction of the new Parliament buildings at Winnipeg.
This distinction accounts for the language of the three sentences following the italicized portion of Justice Holmes’ opinion, above quoted, which fact should not be overlooked when construing the single sentence upon which appellants rely.
The nearest, or rather the least remote, Illinois statute to which our attention has been called, reads:
“Receiving. § 239. Every person, who, for his own gain, or to prevent the owner from again possessing his property, shall buy, receive or aid in concealing stolen goods, or anything the stealing of which is declared to be larceny, or property obtained by robbery or burglary, knowing the same to have been so obtained, shall be imprisoned in the penitentiary not less than one nor more than ten years, or if such goods or other property or thing does not exceed the value of $15, he shall be fined not exceeding $1,000, and confined in the county jail not exceeding one year.” Cahill’s Illinois Revised Statutes, chapter 38, par. 507.
The Illinois statute relied upon in the Kelly Case reads as follows:
“Every person who shall be a party to any fraudulent conveyance of any lands, tenements or hereditaments, goods or chattels, or any right or interest issuing out of the same, or to any bond, suit, judgment or execution, contract or conveyance had, made or contrived, with intent to deceive and defraud others, or to defeat, hinder or delay creditors or others of their just debts, damages or demands, or who, being a party as aforesaid, at any time shall wittingly and willingly put in use, avow, maintain, justify or defend the same or any of them as true, and done, had or made in good faith, or upon good consideration, or shall sell, alien or assign any of the lands, tenements, hereditaments, goods, chattels or other things before mentioned, to him conveyed as aforesaid, or any part thereof, shall be fined not exceeding $1,000.” Cahill’s Ill. Rev. Stats, chap. 38, par. 294.
Obviously it would be impossible to stretch either of these statutes to include one who receives money from another knowing that such other person obtained the money fraudulently.
Opinion evidence, offered by the contending parties before the Commissioner, of legal experts, who testified to the existence, as well as to the nonexistence, of an Illinois criminal statute covering the subject-matter, was irrelevant. The existence of an Illinois state statute defining a crime cannot be established by the opinion of Illinois lawyers, regardless of their high standing at the bar. Such statutes as exist speak for themselves. The federal courts of this circuit take judicial notice of Illinois statutes. Their effect is for the court to determine. Equally far afield was the inquiry made of the same witnesses respecting the effect of the language of the Supreme Court, above quoted.
It is hardly necessary to speculate upon the reasons for the different commonwealths’ (including Illinois) action in failing or refusing to make it a criminal offense to receive property knowing the same to have been fraudulently obtained. Whether the danger of abuse of such a statute (whereby the criminal prosecution is made an instrument for the collection of a disputed civil liability) is not greater than the beneficial results incident to a conviction in a criminal prosecution of one who practices fraud in order to sell personal property, is for the legislative, rather than the judicial, branch of the Government to determine. In the instant ease the search of counsel, as well as the search of the court, has satisfied me that Illinois has no statute making it a criminal offense to receive property knowing the same to have been fraudulently obtained. The offense charged not being a crime in Illinois, appellants have not brought their case within the terms of the treaty, which alone furnishes the basis for the proceedings in the District Court. The fact that there may be other offenses, such as conspiracy, which might be invoked, is quite immaterial. As pointed out in the majority opinion, the offense charged must (a) be one *635of the offenses covered by the treaty and (b) it (the offense charged) must be an offense against the laws of both countries. Wright v. Henkel, 190 U. S. 40, 23 S. Ct. 781, 47 L. Ed. 948.
The inquiry before the Commissioner, as before us, was an extremely narrow one. It is one which the court, not the witnesses, must decide. If an Illinois statute exists, what is its wording? None having been found which would sustain a conviction for the offense charged, it follows that appellants have failed in their proof.
While it is highly desirable to give tbe treaty between the United States and Great Britain the most liberal construction possible to carry out its desired purpose, the courts of both countries have recognized the necessity of the extraditable offense being an offense against the demanding government and the commonwealth wherein the offender has taken his residence. It is not, therefore, for this court to attempt to broaden tbe terms of the treaty nor for us to make laws tó apply to an individual ease regardless of our sympathies. We must take the treaty as it is and apply it to the case at hand.
In passing, it may not be inappropriate to observe that any inclination to stretch the terms of the treaty against an alien who seeks refuge in this country vanishes when and if it be made to appear that the counsel for, or the representative of, the demanding government misuses the treaty and makes of it a collection agency. I agree with the majority opinion in its conclusion that any abuse of the use of the treaty must be presented to the Secretary of State and may not be accepted by this court on this appeal as the basis of a motion to dismiss. Yet such misuse' of the treaty, if it be established, is utterly repugnant to the spirit of justice and to the enforcement of law and order, which, after all is said, is the background of all these extradition treaties.
It is hardly necessary to add, in view of what has been said, that I agree with the conclusion reached by Judge Carpenter.