The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1886-02-02
CAUGHT IN zee TOILS.
The. MCCARTHY Extradition Case

As related in the previous Issue of the GAZETTE.
John W. Mccarthy, the alleged absconding clerk Of
the Supreme Court of California had been arrest
ed at the instance Of requisition from Governor
SLOVENIAN of California, brought hither by Detec-
tive Bee of the central Office in san Francisco.
Detective Bee had received immediate assistance
from o. s. Minister Resident Merrill whose efforts
had been cordially met with by the assistance of
the proper Government officials here, and a re-
suit within few hours after arrival Detective Bee
held possession pro tenn of his man. The hearing
on the matter of the legality of issuance of the
warrant took place on the afternoon of the inst
! In the intermediary Court room, Justice Judd
sitting as committing magistrate. Outside of the
parties directly interested IN the case and mem
bers of the press there we're but few others present
Among those few however Judge Stoney of
San Francisco who seemed to be an attentive lis
| tener 10 the arguments of counsel.
Attorney General Paul Neumann appeared for
| the prosecution, w. Austin Whiting attending TO
| the interests of the defendants
The proceedings were opened by the Attorney
General reading the warrant and indictment of
the prisoner, by the Grand Jury of San francisco,
for the crime of embezzlement of public funds
while defendant was acting IN his official capacity
as clerk of the Supreme Court of California (the
| sum was not mentioned but is supposed to be
about $4,000 and also the request for extraditon
/ signed by Governor Stoneman.
| Attorney General Neumann then went on to
state that he, at the instance of the Minister of
| Foreign Affairs caused warrant to be. issued.
| which showing Judge Judd had issued an order Of
| by saying that he was now prepared to proceed
1 with the case.
Mr.. Whiting, for the defendant, stated that be
| had matter of plea which he desired to present
| on behalf of his client. be contended that the
Court had jurisdiction in the matter, and asked
for decision in favor of defendant on the follow
| ing grounds:
LIST. That the warrant issued TO cause the apple
| hension of John w. Mccarthy sets forth no crime
| or accusation of crime.
I'd. That even if the affidavit be taken in connec-
ton with the warrant, it appears that the crime
| alleged to have been committed by John W. Nc
Carthy, for which he is sought TO be extradted, is
that of "embezzlement.n That "embezzlement"
| committed in a foreign country, viz: the United
States is not an offence CT crime for which John
/ w. Mccarthy can be extTadited.
I'd. That the demand for extradition is made
through the Governor of the State of California.
That there is authority in law for said Cover
| nor to make this demand.
4th. That the affidavit and complaint made
| by the Attorney-General of this Kingdom. That
the Attorney General cannot properly and legally
make such complaint, or be complainant herein.
The above appeal was signed by Mccarthy.
Mr.. Whiting stated that he took the above course
in preference 10 asking for the issuance of writ
of habeds corpus. Thought the question of extra
dition one of vital Importance and required to be
carefully dealt with. de claimed that the requi-
stlon was not from proper source it should have
emanated from the Federal Government and not
from the Governor of a State. Although he would
not waive his right to argue each point he would
confine himself to but two.
The first question he would argue is, can this
Court issue an order of arrest on the charge of en-
bezzement. He claimed that the warrant was
wrongly drawn and the party charged was not
properly presented. The question arises under
the treaty with the United States made in 1850 and
to which Article XIV of the said treaty has special
reference. Mr.. Whiting then read the Article re-
ferred to as follows.
''Ihe contracting parties mutually agree to sur
render, upon official requision, to the authorities
OF each all persons who, being charged with the
crimes of murder piracy, arson, robbery forgery,
or the uterance of forged paper, committed within
the jurisdiction of either, shall be found within
the territories of the other; provided that this
shall only be done upon such evidence of Grim
nality according to the laws of the place where
the person 50 charged shall be found, would just
ify his apprehension and commitment for trial,
if the crime had there been committed. And the |
respective judges and other magistrates of the two
governments shall have authority, upon complaint
made under oath, to issue warrant for the APP
prehension of the person charged, that he may |
be brought before such judges other magis |
trates respectively to the end that the evidence of
criminality may be heard and considered; and it, |
on such hearing, the evidence be deemed sufficient
to sustain the charge, 1t shall be the duty of the
Examining Judge magistrate to certify the same
to the proper executive authority, that warrant |
may issue for the surrender of such fugitive. The
expense of such apprehension and delivery shall |
be borne and betrayed by the party who makes the |
requisitiion and receives the fugitive
The counsel commended that the crimes NEIL
toned i'll the treaty clause included all for which
Section 49 of the Civil Code was only intended to
supply the means to carry out the stipulations of
the treaty and for no other crimes than those NEIL
toned. Counsel then quoted from various author
tiles to support his argument.
The second question was the source from which |
the requsition came. Mr.. Whiting considered |
that the document should not eminate from the
Governor of California but from the United States
Governments and quoted from that came
before the Supreme Court in New York and re-
ported In 5Oth N. Y. Reports p 32l, Spear on Law
of Extraditlon, and others. Upon these grounds
especially counsel asked for the discharge of de-
PENDANT.
JUDGE JUDD " 1 would ask counsel how far am
l, sitting simply as n committing Magistrate, au-
thoriaed to go into the detail consideration of ar
guments proposed. Am not sitting merely as a
Police Judge as it were, merely to examine the
proofs presented, whether the case should proceed.
Am not within the limits of the the Code in oc-
cupying this postion?'
COUNSEL: 81 think that Your Honor is to certify
to the commitment on the law and the facts, and
have that power. If this case was before district
Magistrate l could object to the jurisdiction. As
the case stands now before YOU you have the power
to release commit. The statute (Sec. 40 G. c.
claim is intended to simply carry out the treaty
stipulations. If the Court discovers that the crime
charged in the warrant is not included in the
treaty then it is bound not to take cognizance
of it."
JUDGE JuDD. a am not decided in that matter
to answer instanter.'
COUNSEL. "How does your Honor obtain iuries
except by laws set forth in the Civil Code. You
have provisions there for special iuries then only
special crimes are set forth. claim that the crime
mentioned in the warrant is not covered by the
treaty. OF course if your Honor finds on the law
and the facts is your duty to certify it up when
1t may return to you again for decision If your duty
is simply to ascertain the facts and for the Minis
ter of Foreign Affairs to decide that is another
matter.n
JUDGE JUDI. 81 do not dispute that the Court
may have discretion in the matter and may review
the action of the Minister of Foreign Affairs or
any other official. | think Mr. Whiting that your
position is that the crime committed in any cOun-
try must be such as will beregarded crime by
the laws of another country and next to that that
crime to secure detention or arrest must be cover
ed by treaty."
COUNSEL. Yes your Honor that is about the way
the matter stands.
Attorney General Neumann commenced his ar
gument for the petitioners by saying that the OF
lection of the regularity in the issuance of the
warrant was settled by the right conveyed to
judges By section $40 of the compiled laws of the
Kingdom follows:
"SECrIoN 90l. The said Justices shall severally
have power to issue warrants for the apprehension,
in any part OF the Kingdom, of any person accused
under oath, of a crime misdemeanor, aud to
examine and commit such person to prison for
trial"
The claim is made in accord with Law and that is
all that need be said on that matter. The main
point is whether the affidavit filed here charging
the complainant with embezzement embodies q
crime recognizable as a crime in this country and
which IS covered by treaty. Section 4iS and 449 OF
the laws were as explicit as possible they we're not
intended to assist in the carrying out of treaty
which exists that was in itself law and needed no
assisted vitality. Section AS states
SECTION 44S The. Minister of Foreign Affairs
is charged with the requisition upon foreign gov
ernments, for the surrender of persons charged
with the commission of crimes within this King
dom; and he is also charged with the surrender of
fugitives from Justice, coming TO this Kingdom
from any foreign country"
SECTION AS. The respective judges and mag
istrates of the Kingdom shall have authority, upon
complaint made under oath, to issue warrant for
the apprehension OF any person charged with the
commission of crime, in any foreign country
that he may be brought before such Judges, or
other magistrates respectively to the end that the
evidence Of criminality may be heard and con
sdered; and if on such hearing, the evidence be
deemed sufficient 20 sustain the charge 1t shall be
the duty OF the examining JUGge or magistrate TO
certify the same to the Munster OF Foreign Af
fairs, that he may issue warrant for tue surren
der Of such fugitive"
The workings of both are clear that tie sections
were not enacted to carry out the treaty clause
but to afford-lawful means to deal with people who
might come here and whose presence was desired
The speaker claimed for this country
the entire right of sovereignty 10 exclude GRIMM
ais and also to return them When desired The
right to surrender escaped criminals exists with
nations at all times, the obligation
Ouly uudar certain Is when gDgriaiiV