St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1885-11-08
RE- EAsED AND REARREsTED
ssEuIl-Dogss Kelly Was Not Legally
I4eld--A New Warrant.

ssEuIl-Dogss Kelly Was Not Legally
I4eld--A New Warrant.
Edward Kelly, who was brought before
Judge Nelson on writ of habeas corpus
was discharged yesterday. The prisoner
was arrested under warrant issued by
Frank Ives. commissioner of the circuit
court of the United States for the district
of Minnesota, on complaint OF conStaDle
of the dominion of Canada, for his extra
dition under the treaty of 1912 between the
United States and Great Britain. The
charge was murder, and after examination
was committed to the custody OF the marshal
of the United States for the district to
await the executive order for his surrender.
The case was argued for nearly two days.
and on Friday night last was submitted.
Yesterday Judge Nelson ordered the fol-
lowing decision:
THE COMMITMENT ILLEGAL.
The regularity OF the proceedings before
the commissioner and his jurisdiction Is at
lacked on the hearing and many objections
are urged by the prisoners counsel L snall
consider, briefly, two only. FHst-lt ap-
pears from the proceedings sent up that at
the close of the evidence Tor the prosecution
the defendant called witness in his behalf
and on objection, interposed by the counsel
for the prosecution, it was sustained. Ihls
is alleged as fatal error. The commissioner
undoubtedly erred. The defendant should
have been Uernitted TO introduce evidence.
The tenth article OF the treaty of 1912 de-
clares that the person charged with the crime
of murder shall be delivered up, providing
that this shall only be done upon such evil
deGce OF crimin&Iity as, according to the
laws of the place where the fugitive or per-
son so CHARGED shal! be found would Justify
his aDpreheuSiOn and commitment for trial,
if the crime or offense had there been COM
mitted."
The examination in this case must be con-
Quoted according to the laws of the state of
Minnesota where the prisoners arrested, and
by section 49, page 934, Yonng's Minnesota
statutes, it is enacted, that after the testi-
mony to support the prosecution IS finished
the witnesses for the prisoner, II ne has any,
shall be sworn and examined The COM
missioner failed to observe the mode of pro-
cedure designated by the laws of the state of
Minnesota and the prisoners commitment is
Illegal He is entitled to be discharged unless
the original warrant under which the arrest
is made is sufficient to hold him for examila-
ton de novo and this brings me to the other
objection of the prisoners counsel.
Second-Tbat the warran' under which the
arrest was made, is for the reason that it
does not show on its face that the commits
sioner is an officer authorized to act under
the law of congress of Aug II, 1S4S. This
law Is enuJlCu. an dcG ZOE giving SLtCI W
certain treaty stipulations between this
and foreign governments for the
apprehension and delivery up of
certain criminals and by its terms the CON-
missioner must be authorized to act as mag
istrate in cXtradition cases. i agree with
Judge Blatchford.Gn re-Farez, Seventh Batch
ford's Reports p age So that the proceeding
is specially instituted under the treaty and
the act of congress of 1SlS and the fact that
the commissioner who issued the warrant is
authorized to do, is jurisdictfonal and
must appear upon the face OF the warrant.
1t docs not SO appear in this warrant and in
my judgment the prisoner cannot be legally
held under it. He is therefore discharged.
KELLY REARRESTED.
The defendant was rearrested immedi-
ately on another warrant and locked up.
1t is not likely that he will have an eXami-
nation for some days to come. as it is UNI
derstood that he will endeavOr to prove an
alibi and time will be required to get wit
neSSes here.
PLENTY OF EVIDENCE.
1.-THE murder for which Kelly is wanted
was committed on the 27th of November
last, " remarked A. G. NJ. Spragge of Brit
ish Columbia representative of the Domin-
ion government, to a GLOBE reporter last
night. at was at place called Kouteny,
and | think the evidence / have is sufficient
TO convict him. One of the companions of
the murdered man positively identifies
Kelly as the man whom he saw do the
shooting, and take the 81, 100 from the
dead man."