The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1886-02-05
MCCARTHY ExTRADITION CASE.
His Honor the Chief Justice Decides
Against the Prisoner.

In the Supreme Court yesterday at
chambers the following opinion was
given by Chief Justice Judd:
"Having decided that the law of this
Kingdom authorizes me to hear and con-
slider the evidence of the criminality of
the prisoner, he being charged with the
commission of crime in foreign coun-
try, the Attorney General has introduced
the evidence.
''It consisted OF request by George
SLOVENIAN, Governor of the State of Cali
fornia, by the Secretary OF State of Cali
fornia, under the great seal of the State,
dated the 10th OF January, 1886, to His
Royal Highness the King of the Ha-
waiian Islands, for the apprehension and
delivery to one Joseph Bee, who is duly
authorized to receive him, of one John
w, Mccarthy, who stands charged with
the crime of embezzlement, committed
within the county OF San Francisco.
"(2) Copy of an Indictment in the
Superior Court of the city and county of
San Francisco, State of California,
against the said John w. Mccarthy, in
which he is accused by the Grand Jury
of the city and county of San Francisco
with the crime of embezzlement, in that
he was on or about the 18th day of Feb
ruary, 1885, the duly elected, qualified
! and acting Clerk of the Supreme Court of
| the State of California, and by virtue of
| his trust as such officer, there came into
his possession and control $3.50 of the
property of the State of California, and
which he, at the city and county of San
Francisco on the 2Sth of February, 1885,
wilfully, unlawfully, fraudulently and
feloniously did appropriate to his own
use, contrary TO the due and lawful
execution of his said trust and
contrary to the form, etc., of the
statute, etc. This is signed by j. n. E.
| Wilson, District Attorney, Endorsed a
True Bill' by E. NJ. Burns, Foreman of
the Grand Jury, and certified by Jas. G.
Flynn, the Clerk of the Superior Court,
as having been presented in open Court
by the Foreman of the Grand Jury and
| filed as record of said Court on the 18th
of January, 1886
"(3) Copy of bench warrant issued
on the indictment by order of the Court
and attested by Jas. G. Flynn, the clerk,
dated the 18th of January, 1886, for the
arrest forthwith of said John w. Nc
Carthy.
"(4) Original affidavit or return of
William Broughton, a police officer of
| the city and county of San Francisco,
| that he received the annexed warrant for
the arrest of John w Mccarthy, and
! that he made diligent search for him,
! ETC., and AYERS upon information and be-
| lief that he has fled from justice in the
| State of California and taken refuge in
the Kingdom of Hawaii. This is sworn
to before Deputy Clerk of the Superior
| Court.
"These three last papers, tO-wit the
indictment, bench warrant and affidavit
| of William Broughton are certified to by
Jas. q. Flynn, Clerk OF the Third Circuit
| Court, under the seal of the said Court,
as full and complete exemplifcation of
the papers and proceedings in the case
| of the People of the State of California
VS. j. w. Mccarthy. The commences
OF this certificate signature is attested by
NJ. A. Edmonds, Presiding Judge of the
| Superior Court of the city and county of
! San Francisco, and this is in turn certi-
fed to and authenticated by Jas. G.
Flynn, Clerk as aforesaid. The genuine
ness of the seal and of the signatures of
| Judge Edmonds, and j. @. Flynn, the
| Clerk, have been proved to my satisfac-
ton by competent evidence. The testi-
mony of Joseph Bee, police officer of
| the city and county of San Francisco,
| was taken, that he knew the John w.
Mccarthy, now in Court, to be the John
! w. Mccarthy, who was in February,
! 1885, Clerk of the Supreme Court of the
! State of California, and who is charged
| in the Indictment with embeZzlement of
public funds. Evidence of the statutes
| of California as to the constitution and
jurisdiction of the Supreme Court OF
| Oahu for the functions of the Grand
| Jury, the nature of an indictment found
! by it, the nature of the crime of embez-
Element, etc, was also given.
''Mr w. A. Whiting, counsel for the
prisoner, contends that the foregoing is
| not sufficient evidence of the criminality
of the accused. He urges that the treaty
of 1880 between the United States and
this Kingdom, article XIV provides that
| persons charged with certain named
| crimes arc agreed tn ba surrendered EnrO-
vided, that this shall only be done upon
such evidence of criminality as, accord
ing to the laws of the place where the
person so charged shall be found, would
justify his apprehension and commit
ment for trial if the crime had there
been committed
''It is answered by the Attorney Gen
eral that an enlightenment is not one
of the crimes named in the treaty, the