Ex Parte Foss
Before: Haven, McFarland
Synopsis
Criminal Law—Extradition of Fugitives From Justice—Crimes Not Specified in Treaty—Discretion of Extraditing Government.— When a treaty with a foreign government provides for the extradition of fugitives charged with particular crimes, the reciprocal duty of delivering up persons charged with crime is confined to the particular cases for which the treaty has provided; but the existence of a treaty providing for extradition for certain specified crimes does not deprive either nation of the power and right to exercise its own discretion in surrendering fugitives from justice in cases not coming within the terms of the treaty.
Id.—Incident of Sovereignty—Comity—Presumption.—In relation to persons charged with offenses not named in the treat)', each government, as an'incident of its sovereignty, may either grant or deny to the fugitive an asylum within its sovereignty or jurisdiction; and when a criminal is surrendered upon charge of a crime which is not extraditable under the treaty, it must be presumed that the surrender was made in the exercise of its own sovereign discretion, and as an act of comity.
Id.—Surrender Not in Pursuance of Treaty—Order Setting Aside Indictment—Rearrest for Same Offense—Habeas Corpus.—The rule that when a defendant has been surrendered in pursuance of a treaty, for trial for a specified charge named therein, he cannot be placed upon trial for any other than the particular offense named in the extradition proceeding, does not apply where the defendant has not been surrendered in pursuance of the treaty; and the fact that he was surrendered for trial upon a particular indictment referred to in the warrant of arrest for extradition, and that such indictment was set aside upon his motion after extradition, does not entitle him to a discharge upon habeas corpus when rearrested upon a complaint charging him with the identical offense named in the indictment set aside.
Id.—Obdbr Setting Aside Indictment—Res Ad judicata.—An order setting aside an indictment does not operate as an acquittal of the defendant for the offense therein charged, and is not a bar to his further prosecution for the same offense by indictment or information.
Opinion — Haven
De Haven, J. 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[350]tradition of fugitives from the justice of either of such countries does not provide for the extradition of a person charged with the crime of embezzlement, and the warrant issued by the Hawaiian government for the arrest of the petitioner, and for his delivery to the agent appointed by the governor of this state to receive him into custody, does not refer to the treaty, but the proceedings preliminary to the issuance of such warrant were conducted in accordance with the rules prescribed by the treaty to effect the extradition of a person charged w'ith either of the offenses for which extradition is there provided. The petitioner, upon his return to this state, was brought before the superior court of Plumas county, in which the said indictment against him was pending, and he then moved to set the indictment aside. The motion was granted, and he was discharged from custody, and within two hours thereafter a complaint was filed with a justice of the peace charging him with the same embezzlement named in the indictment previously set aside, and he was again arrested, and after examination held to answer the charge before the superior court of Plumas county; and he is now in the custody of the sheriff of that county awaiting his trial.
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
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