The Portland daily press., 1878-06-11
Judge Johnson's Opinion in the Case Of


Frank Kane,
The following is the opinion of Judge john
son OF Montreal, delivered in the case of Frank
Kane Friday morning of last week:
He remarked that this was an application
made to him under the statute to commit the
prisoner Kane for extradition, on charge of
1elonious assault to commit murder. That is
one OF the offences provided for in the treaty,
ana my duty is to see that there is such evil
dence of it, before commit this man, as would
satsiy me if were asked to commit him here
1or the same offence. The case was SO fully
and fairly submitted on both sides, that see
no necessity for referring at any great length
TO any of the facts that led to the act COM
planned of; but come at once to the gist of
the matter: Whether the police officer upon
whom this offance is charged to have been
committed, was in the lawful discharge of his
duty or not is, L think. beside the question; for
even if be were not, there would be great and
fatal difference between trying to extrude him
and trying to kill him, without any prelimina.
~ attempt to turn him out, and as at common
law, which presume is the same in both coun-
tries, the officer was justified In arIestipg, in
view of the offence, which, according to his ac-
count, was what he did. So come at once to
mand can be made. There is evidence that the
prisoner took a revolver. probably to prevent
MS apprehension by the officer. There is
evidence that 1t went off twice. but the point
Is whether we have evidence that the prisoner
nred 1t at the officer. The first time it went of
was when the officer knocked it aside, it was
being presented at him at the time, and that
alone constitutes an assault no doubt; but am
not asked to commit for assault, as l could do
under this evidence if the offence had been
committed in this country, l must find all the
constituents of the offence mentioned in the
treaty-assaut with intent to murder-before I
can commit under it. The the second time
this pistol went off, both the men had hold of
1t at the same time and were scof1ing for its
possession. Can say it went off by the act of
say that the prisoner of himself fred at all?
think not. 1t was argued that il death had
ensued it would have been murder, and there
fore the intent is to be taken as proved. That
Is not the law. In such a case it would. no
doubt, be question for the j1ry whether the
result of death being in law murder that in
tent could be ascribed to the prisoner in max
ing the assault His Honor then referred to
Regina vs. Jones, 9 Carr. and p. 257, one of the
cases which had been cited IL the present
quilted, and said surely the diff
Guilty presents itself in this case. If two men
are struggling aud pistol held by both, goes
camstances be held to be the aet Of one only.
If this were case of kllini,,of course should
commit at once, and leave the jury who try the
case to say whether it was murder or not; and
should do SO because killing is murder BY law,
pTMtu Iucte WitnOuI PROOF VI iutouG, Dut Ill az
tempt to kill, as this is charged to be. cannot,
think, be supported by the proof in the present
case. There is no presumption of law as to in.
tent here, it must appear from the evidence.
If could say that Kane fred the pistol at the
officer, would commit in the present case, but
1 cannot, and therefore must discharge him.
1 say nothing as to the papers proving an in
dctment in the state of Maine. I believe in
strictness there is no proof of the identity of
the party, but at any rate the character of an
offence according to the law of q foreign coun-
try is not what am to look at, but by the ex-
press words of the treaty of the statute, L can
commit on such evidence only as accord
fly me in committing for an offence here. The
text apply is that could not so commit here;
though if the offence had taken place here
could in that case commit for the minor offence;
which now cannot and therefore Kane must
be discharged