102 Cal. 347 | Cal. | 1894
Lead Opinion
The petitioner, Foss, was indicted by the grand jury of the county of Plumas for the crime of embezzlement. At the date of the finding of this indictment the petitioner was in Honolulu, and there remained until February, 1894, when, upon the request of the American minister, and upon “ a requisition to that effect” from the governor of the state of California, he was surrendered by the provisional government of the Hawaiian Islands to the agent appointed by the governor to receive and convey him back to this state, there to be tried for the offense with which he was charged in the indictment referred to.
The treaty between the United States and the government of the Hawaiian Islands in relation to the ex
The petitioner claims that his imprisonment, under the circumstances here stated, is illegal, and he seeks to be discharged therefrom under the writ of habeas corpus upon -which he has been brought before this court.
In support of this general contention he insists that his arrest in the foreign country, and enforced return to this state, and detention here for the purpose of being tried for the crime charged in the indictment, was, and is, in violation of his rights under the treaty between the United States and the government of the Hawaiian Islands. That treaty, in article XIV, provides: “ The contracting parties mutually agree to surrender, upon official requisition, to the authorities of each, all persons who, being charged with the crimes of murder, piracy, arson, robbery, forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall be
But while this is so, the existence of a treaty which provides for extradition for certain crimes does not deprive either nation of the power and right to exercise
The crime with which the petitioner is charged not being an extraditable offense under the treaty between the United States and the government of the Hawaiian Islands, it must be presumed that the surrender of the petitioner was made by the latter in the exercise of its own sovereign discretion and as an act of comity. This violated no right secured to the petitioner by the treaty referred to, as that treaty does not in terms, or by necessary implication, deny to that government the right to surrender, or deprive the United States of the right upon such surrender to receive into its custody, fugitives charged with offenses not enumerated in the treaty. The cases of United States v. Rauscher, 119 U. S. 407; Commonwealth v. Hawes, 13 Bush, 697; 26 Am. Rep. 242; United States v. Watts, 8 Saw. 370; Ex parte Hibbs, 26 Fed. Rep. 421, cited and relied upon by petitioner, do not sustain his contention upon this point. Those cases simply declare that when a defendant has been surrendered in pursuance of a treaty for trial upon a specific, charge named therein, he cannot be placed upon trial for any other than the particular offense named in the extradition proceeding. This rule is well settled, but it has no application whatever to the case presented by the petitioner here.
It is also contended in behalf of petitioner that he was only surrendered by the government of the Hawaiian Islands for trial upon the indictment referred to in the warrant issued by that government commanding his arrest and delivery into the custody of the agent authorized to convey him back to this state, and that when this indictment was set aside he had fully met his accusation and was entitled to a reasonable time' within which to return to the foreign asylum, and that he cannot be lawfully detained here to answer the complaint upon which he is now held for trial before the superior court. If it should be conceded that a fugitive from justice, surrendered by a foreign government on grounds
Petitioner remanded.
Beatty, C. J., Harrison, J., and Garoutte, J., concurred.
Dissenting Opinion
I dissent. The petitioner, Foss, was indicted by the grand jury of Plumas county, in this state, for the crime of embezzlement. At the time of the indictment he was in the Hawaiian Islands. A requisition was made upon the government of the islands for his extradition here to answer the charge preferred by said indictment; and under extradition proceedings he was returned to said Plumas county. He moved to set aside the indictment, and his motion was granted, and he was discharged from custody. • Within two hours afterwards a complaint for embezzlement was made before a justice of the peace, and he was arrested upon a warrant issued by said justice. He now applies to this court under the proceeding of habeas corpus to be discharged.
There is a treaty between the government of the
The first point made by the petitioner is that he cannot be returned to this country and tried here for any crime not enumerated in the treaty. There are certain very strong authorities to sustain this point, particularly Commonwealth v. Hawes, 13 Bush, 697; 26 Am. Rep. 242; United States v. Watts, 8 Saw. 370; Holmes v. Jennison, 14 Pet. 540, 593; United States v. Rauscher, 119 U. S. 407; Spear on Extraditions, pp. 221, 205 etseq. The questions raised by this point need not, however, be here passed -upon definitely, because we think that the petitioner should be discharged upon the second point made by his counsel, to wit, that the indictment upon which the extradition was secured having been set aside, and the petitioner entirely discharged, he cannot afterwards be held upon the complaint before a justice of the peace, without having been given reasonable time to return to the country from whence he was brought. The treaty above mentioned provides that a person charged with crime shall be extradited only “ upon such evidence of criminality as according to the laws of the place where the person so charged shall be found would justify his apprehension and commitment for trial if the crime had been committed there.” It further provides that the person demanded shall be brought before a court of the country in which he is “to the end that the evidence of criminality may be heard and considered.” And if upon such hearing the magistrate is satisfied that the evidence sustains the charge, he may issue a warrant for the surrender of the fugitive. Now, in the case at bar, it appears that the judge at the Hawaiian Islands was presented with a certified copy of the indictment that had been found against the petitioner, with the affidavit of the foreman of the grand jury, and that he acted entirely
The petitioner, in my opinion, should be discharged from custody.