*1 340 Be In Collins. May 22, No. 1374.
[Crim. 1907.] Bаnk. COLLINS, Corpus. In Re on Habeas GEORGE D. Petition—Pleading—Traverse— n Corpus—Proceedings Habeas Proof.—The function of a for a writ of habeas Burden of corpus writ, issuance of the is to secure the and when the writ accomplished purpose. issued, petition has its The writ re- person officer or other quires a return prisoner. petitioner may present To such return the excep- tions, questions law, traverse, or a raising raising fact, o-f issues of subject exception,—that is, Where the return is not to or both. process good forth on its face it sets shows where process being produced holding prisoner, hearing, at the alleges tending matter to apparent and the traverse invalidate the process,—the proving of such burden such new matter is effect Adopting analogy pleadings petitioner. in civil complaint, answer; actions, the return is traverse is the up denied, set in the traverse is deemed and new matter must be party alleging by the it. proved — for Other Offense Law—Extradition—Trial Offense Criminal Subsequent relates, far Extradition.—So as to in- to Committed distinguished extradition, from interstate it is the ternational forеign country from a rule that a extradited for a general upon any charge cannot be tried other offense until his particular brought has been original conclusion, to a final within has had a reasonable time which to return to the coun- and rule, however, only he had been extradited. Such try from which alleged prior have been crimes to his applies extra- apply crimes committed dition, and does not after his extradition returned, he was to which while his trial on he was extradited remains charge for which undetermined. Id.—Treaty 1889 between United States Great Britain— Statutes.—Neither Canada—Revised articles Act Extradition convention the extradition concluded between nor IY of HI year Britain in America Great States of nor Canada, the Dominion of Act of nor section Extradition States, the United exempts person Statutes of Revised province of British Columbia from the to the state of extradited being tried that state for a from crime there com- California his extradition and while his trial on the mitted he was extradited remains charge for which undetermined. Treaty—Treaty 1842.—Article III of Parties Id.—Intent providing thаt “no convention, or to contracting parties shall be high triable or tried for either prior offense, committed extradition, Ms crime surrendered, which he was until he offense shall have than returning opportunity from an which he had May, In Re ’’ surrendered, by limiting exemption to crimes committed extradition, part contracting indicates intent parties exempt prosecu- surrendered should not be subsequently If tion crimes committed. under the *2 any United and between the States Great Britain there was exemption for crimes, exemption such removed was
by the of convention 1889. Id.—Extradition Act of Canada—Surrender of Contravention provision Act.—The of the Extradition Act of the Dominion of prohibiting any person of Canada the extradition to state or which, by "in country, the law force in such state person may such be tried after such extradition for other offense for than that he was unless an shall assurance given by authority first have been of executive such state or person whose extradition has been claimed shall ’ ’ offense, only lay not be tried for has the effect to down a rule government for the of оfficials of of the Dominion Canada. They may right under act have had the to refuse to surrender an receiving accused without referred to in the assurance they If rights act. did surrender him without such assurance of the United States and of the state of receiving California after prisoner only by were treaty. limited Id.—Perjury Perjury—Effect Judgment— on Trial for Prior Corpus.—A prisoner of perjury Habeas indicted and convicted alleged to have been committed as a witness own his behalf on his trial under an a perjury, indictment for and which disagreement jury, trial in a resulted not entitled to be corpus discharged on ground perjury habeas on the' which he was swearing second indictment consisted in to some of the same formed of perjury matters which the basis in the first might indictment. Whatever be the effect acquittal or conviction in one is matter defense be relied go on in jurisdiction the other. It does not affords and no corpus. for release on habeas Id.—Voluntary Giving prisoner Bail.—A Surrender after arrested under an indictment and extradition proceedings thereunder who voluntarily was released on bail and who thereaftеr custody himself given bail, into and has not since and whose trial unreasonably postponed against objection, has his properly custody held in under bench warrant issued proceedings. and
indictment Supreme Id.—Writ of Error Court of United States—Admission Pending—Effect Bail Corpus.—When, of Remand on Habeas hearing upon corpus,' for a writ habeas prisoner has been remanded to the came, whence he ordinarily proceeding stayed there is pending a review supreme of that order on writ of error The States. is not thereafter held virtue of the order Re remand, process but virtue the warrant or other issued, corpus which he held at the time the writ habeas power exclusively to such belongs and the to admit him to bail independent officer, power any, had the to admit to bail corpus application proceeding, the habeas must make provided usual of this state. bail manner as the laws Beatty, O. [Per J.] Corpus for a Writ of Habeas directed APPLICATION City County the Sheriff of the of San Francisco. are opinion facts stated court. George Collins, pro. per., D. for Petitioner. Respondent. Coоk, Johnson, William Hoff Hiram T. corpus SLOSS, J. A writof habeas was issued unlawfully *3 George to application Collins, of D. who claimed he county liberty by city and restrained of his the sheriff of the hearing had. of San Francisco. A return was made and of the of the merits proceeding Before to a consideration orally repeat what was application, it be well to here of this court on hearing regarding practice the at the stated is the petition the to secure corpus. The function of habeas writ, issued, petition when the writ the and, issuance by requirеs a return accomplished purpose. The writ has its prisoner. the the officer or other raising may present exceptions, petitioner such return the To raising fact, or both. traverse, issues of law, or a questions of subject is, where it exception,—that is not to the return Where good ground for which on its face shows process sets forth being produced at the prisoner, process such holding the alleges matter (Pen. Code, 1480), the traverse hearing sec. and process,—the- apparent effect of such tending to the invalidate petitioner. new on the proving matter burden 180], to Pac. are Smith, 368, in In re 143 Cal. remarks by agreement only where, the case referring be taken as court, petition is treated consent of the the parties and the the are not return, its averments dis- the and a traverse as petition as a traverse has treating puted. The course court, where it is followed in this but 'frequently followed file, respondent in addition to the require it does not Hay, In Re Collins. allega- denying affirmative specifically
return, a pleading it traverse) nor shift (treated does tions of the allegаtions petitioner proof as to such burden of in civil analogy pleadings respondent. adopt To answer; is the complaint, the traverse actions, return is the and must denied, up new matter set in the traverse deemed proved party alleging it. return, exceptions to the petitioner In this filed case Evidence a traverse. which were overruled. He then filed following are the facts disclosed taken, was and the substantial — : charging day an indictment July, 1905, On thirteenth alleged have been perjury "the the crime of on the city county Francisco cоmmitted in and of San jury grand day June, 1905, was thirtieth found city county of San superior and filed in the court of the and superior designated in said Francisco. Said indictment 16,130. alleged commission After the number finding the indictment Collins said and crime gone court and departed jurisdiction had of said from the Columbia, city province of British of Victoria in duly Steps Dominion taken to of Canada. were demand treaty between pursuant surrender to the extradition Britain, and United States of America and Great twenty-seventh day October, Collins city from the of Victoria and removed county arraigned city Being'there of San Francisco. guilty, the case indictment, pleaded said disagreement in a to trial. trial resulted went Such has jury December, 1905, and a second trial month incthe *4 not since been had. became a witness
In the course of said trial defendant mailing behalf, in certain statements (cid:127)and testified his own disagreement said trial were, under oath which after the perjury found jury, made the basis of a second indictment twenty-ninth December, This day of 1905. second 16,415, superior court, in and numbered indictment filed his charged perjury giving in committed Collins testimony day December, in his own on the twelfth defense attоrney proceeded upon to trial the second 1905. The district against objection Collins, and such indictment 344 [151 Re In judgment was conviction; whereupon resulted a verdict of pronounced. appeal judgment An was taken and from the appeal. pending now in the court of district inasmuch principal The contention of the is that as he was from Dominion of Canada extradited specific could indictment, 16,130, No. the state California upon the try upon any until his trial conclusion, original charge brought final had first been to a given and he had time within which to bеen reasonable return to which he had been extradited. from distinguished inter- So far as relates to international as general (Com extradition, undoubtedly state this is rule. ; Hawes, Bush, 697, Rep. Am. monwealth v. 13 [26 242] Rep. 431].) Vanderpool, 273, State v. Am. Ohio St. [48 subject fully very supreme The court considered leading the United States case the United States court, Rauscher, 407, Sup. 234], v. 119 U. where the S. Ct. considering existing, then reached all of the authorities providing the conclusion that under a of extradition specific crimes, for the surrender of accused of taken together Statutes, with sections 5272 and of the Revised 3596) (U. Comp. pp. 3595, “a who S. Stats. brought jurisdiction has been within only proceedings can virtue of under and for for one of the offenses described tried charged proceedings widen he the offense with extradition, opportunity until a reasonable time and have given him, charge, after his release or trial been asylum from whose he had been to return forcibly proceedings.” taken under those case, every
In as well as other case that has the Rauscher been, attention, our the crime for which it was called to аlleged try prisoner was one to have sought to the extradited present ease, extradition. contrary, the crime with Collins was he was convicted was committed after his sur- and of which authorities, country which he had render refuge, after his return to the state of California.. sought immunity against whether the question offense, declared United States v. Rauscher and another an offense committed cases, extends to similar *5 May, In Re Collíns. language
the extradition. No doubt there is in States general regard Rauscher, terms, which, v. in its taken without court, to the facts before would lend countеnance prisoner is, view that the until the of his trial for conclusion offense on which he was and for a reasonable thereafter, absolutely time immune from on charge. elementary however, doctrine, other It is an expressions judicial opinions light in in are to be read of court, necessary, therefore, facts before the it is grounds upon which of consider the the decision this class grounds cases order to determine whether those are went applicable to the case a crime committed after the extra- dition. reаsoning substantially v. United States Rauscher is obligation upon
this: That the absence of there is no any country persons charged to surrender to another who are country. comity with crime in the latter That as a matter of might made, pursuance such surrender but that made of a request person demand or for the of a surrender accused crime, specific undertaking of a there an implied is part country receiving the surrender that such sur- render is asked and purpose putting received for the purpose. accused trial for that crime and fоr no other adopted, providing When a the surrender specific crimes, implied obligation accused the same exists, particularly generally provision more in view of the found in treaties of extradition that before surrender shall made proof there must be some commission permit the offense. To a seek the extradition person found another that he specific with the commission of offense covered treaty, then, an extradition when his surrender has granted upon ground, try him for some other possible offense would make it to evade treaty, pretense securing and to use it as a possession designed try whom it was not charge upon nominally for the which his sought, might might but for some other offense which language be in itself extraditable. of the court in consideration, impossible the case under to conceive of “it jurisdiction the exercise of in such a ease In Re *6 purpose than that mentioned the and ascertained by proceedings party extradited, under which the is the with- rights implication upon party an of fraud of out country permitted and of bad faith to the which extraditеd his extradition.” ultimately doctrine, then, upon
The seems to rest the view treaty provide for the that extradition intended may one surrender who have fled from committing designated one of a number of to another after a crimes, that it would be breach international faith to and any treaty purpose for other than use surrender,— which is in the demand for the one stated may namely, put upon be his trial for the designated proceedings. in the In the absence specific offense up limitation, possible to make a fictitious of this it would nominally treaty, and, coming within the terms of the case prisoner, disregard to then possession of the secured proceed to upon which he was charge which not try other offense could have been upon him some by extradition, not covered because made basis charge extradition, even the crime or a on which treaty, might have been refused. was.named offense apply to the ease an considerations But and return of the accused. after the surrender person in which a may policy of a be the While it right asylum grant except him rеfuge has taken a a crime covered against specific a him, it has country, once extradited after extradition, such immunity new securing for for be concerned cannot demanding country. return to committed after his crimes country demanding the sur- obligation assumed "The pur- not for the will be used surrender is that such render any trial other offense prisoner on putting the pose of sought he committed before to have he be claimed which country, but we cannot see that foreign asylum of the faith in international com- breach of any there would juris- рersons within the with other in common him, pelling any he offense which responsibility diction, to assume no possi- case there is In such his return. after may commit subterfuge being as a proceedings used extradition bility than the one for an other offense accused pursue Hay, 1907.] Re Collins. authority In the absence he was extradited.
which hold that prepared not conclusion, we are compelling such may, return, extradited under charge, commit pending security against atrocious, absolute .any crime, however opportunity to an return he have had until shаll prosecution taken. country from which was immunity prisoner from of an extradited which he was extradited the one for offense than .for asylum right him to have absolute .rests refuge, primarily upon which he has taken but in the land him, sovereignty has surrendered rights treaty. This illustrated pursuant has done so forcibly holding accused where an seized many cases *7 country by violence, force, and transferred or in another country, without resort to extradition to this fraud rely on the circumstances of removal to cannot defeat he (Ex parte Scott, and trial when herе. 9 prosecution Cases, Dearsley Lopez & 1 446 ; & Sattler’s & B. Barn. C. Smith, 1 Bailey, (S. C.) v. (Eng.) 525 ; State C. C. Brewster, 679] ; 118 ; Dec. State v. 7 Vt. 283, Am. Dow’s [19 Ross, Iowa, 467 ; 21 Case, 37 ; 18 State v. The Rich- Pa. also, 9 States, Cranch, See, v. 102. Ker mond v. Sup. 225] ; Illinois, 436, Mahon, S. Ct. In re 119 U. 34 [7 525.) Fed. upon principle
“The fundamental which the doctrine of rests, acquires The criminal himself these cases this: never asylum refuge personal right of from the consequences of government anywhere. The his crime country state or n may insist which he flees that shall not extradited by its consent and unless under such from there conditions (Hawley assent to.” .as it shall International Extradi- tion, 15.) itself there are one or expressions
In the Rauscher case two indicating the court to limit intended the doctrine de- of offenses committed to cases clared to the extradition. ‘‘ right accused, speaking says: That it, as understand is that he shall right, we be tried only charged with which he is the offense pro- ceedings for which he was up; delivered and that if that, or after trial acquittal, tried he shall have a In Re Collins. to leave reasonable time before he is arrested crime previous committed his extradition.” at place opinion immunity
And another refers to the arrest, trial, from and conviction a crime “not enumerated treaty the extradition and committed his removal.” before (The ours.) italics are Much force is added to view that the-accused is not protected for crimes his extradition' consideration of terms of the treaty under which Collins surrendered. treaty involved Rauscher case was treaty merely provided
with Great Britain. That for the respective contracting governments surrender per- crimes, sons with certain enumerated the surrender criminality be made justify such evidence as would arrest commitment for which was the accused. express asked surrender There was no limita- tion for which might the crimes the accused be tried after surrender. Such limitation was held the court to be implied treaty itself, the nature and there nowas precise occasion to define its extent.
In 1889 the United States America and Great Britain concluded an extradition which, referring convention made provisions. certain further Article (26 1509) III of 1889 Stats. reads as follows: by or high “No to either of the con- *8 tracting parties any shall be triable or tried for crime offense, extradition, prior committed other than the surrendered, was offense for which he until he shall have had returning country opportunity an from which he By provision contracting govern- was surrendered.” this the express agreement to an ments reduced and definite ex- the emption implied. which had been before It seems clear that limiting exemption in the crimes to extra- contracting parties dition, the indicated their per- intent that be sons should not exempt subsequently If treaty crimes committed. under the former any exemption was for such there crimes (which, said, opinion have was not case) as we our such exemp- by treaty. removed the new tion was Hay, In Re urged
It is that the effect of article III of the provisions Britain modified Great of article VI of treaty, providing fugi- the same that “The extradition of provisions tives under the of this convention and of the said (of 1842), Ann., tenth article p. Fed. Stats. 576], shall he carried out the United States and her majesty’s dominions, respectively, conformity with the regulating being laws extradition for the time in force in surrendering state.” any We are not furnished with сopies laws of the Dominion of Canada and none are present at time accessible to us. the hearing On qualifying petitioner, regarding as a witness the laws Canada, testified that Extradition Act of pro- Canada that, vided “This act shall not authorize the issue of a war- any person rant for the extradition of under provisions statute, of this state or in which, by the law country, person may force such state or be tried after such extradition for other offense than that for which he an unless assurance shall first have given authority executive such state or that the whose extradition has been claimed shall not tried other offense than that on account of which such extradition has been claimed.” already
For reasons stated we do not think that this protect statute was intended to surrendered from subsequent offenses, was, trial for but if only it its effect was lay government down a rule for the of officials of the They may, of Canada. Dominion under act, this have had right to refuse to surrender the accused receiving without assurance they referred to the act. If did surrender assurance, rights him without such of the United States state of receiving California after only by limited were of the treaty, and that seen, prevent as we have did not trial for a subsequent offense. it this connection observed that corpus alleged
the writ of habeas as a fact that the warrant extradition issued the Canadian government, prisoner which the returned to country, contained provision express that the “should tried *9 any for or on account of or triable offense than the one [151 In Re Collins. granted which . until such extradition shall be . . final trial for said offense and until conclusion discharge custody imprisonment for or on final has had a offense, thereafter, account of such until he returning country from opportunity reasonable to the original war- which he taken on said extradition.” destroyed conflagration April 18, 1906. rant was deciding language quoted, that the inserted Without warrant, right try would affect state accused say indictment, it is sufficient to that evi- on the second absolutely negatives hearing the claim dence taken on the conclusively language that no such petitioner and shows was inserted in the warrant. opinion, nothing is, in our
There States, the Revised of the United section Statutes 1901, p. 3596], which Comp. conflicts with the S. Stats. [U. expressed. views herein by petitioner perjury
It is further contended that the charged in which he was the second indictment consisted the same swearing to some of matters formed the charge perjury the first indictment. From basis of the argued acquittal charge it is verdict on the first any conclusive favor of the defendant on would be subse- (United Butler, 498 ; Coffey States v. 38 Fed. quent trial. Sup. States, 432] ; Cooper 116 U. S. Ct. v. v. United [6 Ky. 909, Rep. 275, 51 Commonwealth, 106 Am. St. S. W. Similarly, claimed, a 789].) it is verdict of conviction on thе preclude would conviction on the other. We first principle any appli- whether the invoked has need not decide presented. event, here acquit- facts cation to the trial, in one is matter of defense to be conviction relied tal or go the jurisdiction, It does not in the other. and affords corpus. for release on habeas we are reasons satisfied that the For these state of Cali- obligation violate did not fornia right accused, putting States, or to trial indictment, properly second held in upon pursuant judgment by the sheriff conviction. also claims hold the The sheriff virtue of first issued indictment,—namely, warrant a bench basis of the extradition proceedings. which was one As *10 May, Re In on bail. been released claims to have this county city of the public records
The destruction 1906, makes conflagration April, Francisco in the of San claim. The evidence the truth of this to determine it difficult that the conclusion conflicting. We have reached upon it is prisoner, weight is to the effect that of evidence voluntarily surrendered having upon charge, this given bail given since bail. custody and he has not himself into allega- support in of his has he offered evidence Nor unreasonably post- been his on has tion that this has no against objection and that poned this indictment. putting him to trial on intention bona fide bench custody in of the sheriff on the properly He is therefore 16,430, and the the indictment iñ case issued under warrant judgment of thereon, as well as the proceedings 16,415. in case conviction custody remanded of the sheriff to be
Petitioner cases. pursuance process both held McFarland, Angellotti, Henshaw, J., J., Shaw, J., J., Lori- gan, J., Beatty, J., C. concurred.
The petitioner subsequently applied for a writ of error proceeding enable him to a record in this secure review of the supreme allowing court of the United States. justice following opinion writ the chief rendered the day June, twelfth 1907:— Having allowed
BEATTY, prisoner C. a writ of J. error to enable him to a secure review of the record proceeding by supreme States, court of the United having requested operate writ to order that supersedeas, specially limiting I my desire to state reason for operation of the order.
In certain origin eases of recent in this state which prisoners process superior under court have hearing upon corpus been remanded after a habeas another court, judge, upon or before a different that the imprisonment judge making lawful, the order of re- supersedeas mand has allowed a writ of error and ordered a he has empowering construed as him to admit Gray v. Lawlor. case is not prisoner which I make in this to bail. The order by any judge application be understood to whom hear- When after а bail made as effect. corpus has ing prisoner a writ of habeas came, custody from there been remanded to whence stayed ordinarily proceeding pending review of order. théreafter held virtue remand, process warrant or order of but virtue corpus writ of which he was held at the time the habeas belongs, him bail ex- power and the to admit issued, *11 him any, power as to admit clusively officer, such had to proceeding, and he independent corpus to bail habeas manner as application must make his for bail in the usual prоvided by the laws of this state. May 23, F. No. 3916.
[S. Bank. LAWLOR, GRAY, Respondent, W. W. v. WILLIAM M. Appellant. by Publication—Bight Defendant of Summons
Practice—Service Judgment.—Under Merits—Setting section Answer Aside Procedure, providing “When of the Code of Civil personally in an action not been served cause the summons has may defendant, may allow, such terms as on on legal at within just, representative, or his time such defendant action, judgment year such one rendition original action,” a defendant served answer to the merits of judg- publication only, to vacate application on an made mеrits, need not him, allowed answer to the against ment and to be except present any appear failure to the fact that excuse for his In such a case there is personally with the summons. not served proceedings or inexcusable presumption knowledge (cid:127) any neglect part part. If there on his negligence inequitable1 to injury opposite party, which make it would and of grant relief, proof neglect him the of such the circumstances injury plaintiff. from the causing must come Id.-—Imposition “on qualifying phrase effect of Terms.—The just,” in section 473 of the Code found terms power Procedure, give or discretion Civil the court