The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1886-02-10

OF the Government being TO deny the FlSnt
Of ASYLUM to criminals This law came in
force in April, 1916, previous 10 any treaty
for extradition being entered into.
The Civil Code was compiled and be-
came law in 1889, and by it the following
clauses were substituted for those before
set out:
Section 449.-The respective Judges
and Magistrates of the Kingdom shall
have authority, upon complaint made
under oath, to issue warrant for the ap-
prehension of any person charged with the
commission of a crime, in any foreign
country. that he may be brought before
such Judges, or other Magistrate respect
lively. TO the end that the evidence of Grim
inality may be heard and considered; and
if, on such hearing, the evidence be deemed
sufficient to sustain the charge, 1t shall be
the duty of the examining Judge or Magis-
trate to certify the same to the Minister OF
Foreign Affairs, that he may issue war
rant for the surrender of such fugitive.
Section 45O.-Before issuing any such
warrant, the Minister of Foreign Affairs
shall be satisfied that the expenses of ap-
prehension and detention OF the fugitive
have been paid, or that the representative
of the nation has assumed the payment of
such expenses.
Section 451-The warrant of the Minis
ter of Foreign Affairs, directing the sur
render of any fugitive from justice, shall
be binding upon all officers of His Majesty's
Government, in anywise having the custody
of such fugitive.
fn
tice may be retained in prison after his sur
render, until a suitable opportunity occurs
for his removal, at the expense of the
officer to whom he is surrendered"
So that, it appears to the Court, there
can be no question as to the right of His
Maiesty's Government to surrender fugi-
tive criminal And indeed a very dis
tinguished living statesman (P. S. Mancin)
maintains that 1.-the duty of surrendering
such fugitives is founded in national rights
as debt due to justice and consequently
does not depend for its existence either on
the fact of treaty or on the condition of
reciprocity" (See American Law Review,
November-D December, 1885, page 955).
The Legislature having, according to our
view, provided for the surrender of such
fugitives and His Majesty's Government
having exercised its discretion by the Min
lister of Foreign Affairs issuing his warrant
for the surrender of the petitioner it is not
within our province to review the exercise
of such discretion, except so far that we
must see that there is a proper legal basis
to sanction the act of the Minister; and
this brings us to the consideration OF the
remainder of the points urged on behalf of
the petitioner.
The requisition is made by the Governor
of the State of California, and it is contended
he has no power to make such requisitlon
bv the laws and Constitution of the United
States.
However this may be, and without bind
ing the Court to decide as we now do in
any case which may hereafter come before
it, we hold, in the case now before us
that the Minister Resident of the United
States having requested the intervention OF
His Majesty's Government, the ground
taken for the petitioner is not sustainable
With respect to the points touching the
want of evidence to warrant the arrest OF
the petitioner, we are of opinion that ii the
petitioner was charged with the crime be-
fore a Magistrate having power only tc
commit the accused for trial, and to issue
his warrant for the arrest of the accused
for examination, the evidence would un
doubtedly be insufficient to make even 6
prima facie case, and the petitioner woulC
be entitled to his discharge. But here al
| Indictment has been found by Grand
| Jury, from which we must assume tina
! sufficient evidence was adduced to warrant
| the placing of the petitioner upon his trial
| Article ii of our Constitution, as TO thu
right of an accused to have witnesses
! against him produced face to face, only APP
! plies to persons put upon their trial upoI
| Indictment before the Courts of this King
dom. 1t is enough that reasonable pre-
sumption of guilt is apparent and the pro
duction of the copy of an Indictment foun'
| charging the crime is sufficient. (Spear, p
291).
With regard to the sufficiency of tn
bench warrant, we think it would hav
been more regular TO forward the original
but the copy is certified to by the prope
authority, and it purpOrts to be ISSUES
under the seal of the Court, and we thin
that the objections are not well taken.
The only remaining point is whether tn
petitioner is a fugitive from justice. Tn
petitioner claims that by the law of tn
State of California Political Code, No. S5a
he is entitled to be absent from the Stat
for sixty days, and that consequently he
to be treated, not as fugitive from justice
but as person lawfully travelling whereve
he may please. We cannot adopt thi
view, and we think the authorities of tn
State of California repudiated such con
struction by taking the measures the
have The affidavit of the officer entruste
with the warrant for the arrest of the pc
titioner is distinct and specific. He says
Sought for him at his last known place {
residence, and at his place of business, an
in the market place, and at the Exchange
and that he could not find said J. W
Mccarthy; and deponent deposes an
AYERS upon his information and belief tha
the said ]. w. Mccarthy has fed from ju'
tice in the State of California, and take
refuge in the Kingdom of Hawaii" W
therefore are of opinion it is sufficient
proven that the petitioner is a fugitiv
, from justice.
We therefore dismiss the petition and r.
mand the petitioner to the custody OF til
Marshal, costs to be paid by the petitioner
CoNCURRING OPINION BY THE CHIEF JUSTICE
: The following concurring opinion W.
read by Chief Justice Judd:
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