The Hawaiian gazette., 1886-02-09
Mccarthy in the Meshes.
THE PRESENT STATUS OF THE CASE.

The Mccarthy EIiradition case was the bust.
neEs which occupied the attention of Chief Justice
Judd, Attorney General Neumann, ". Austin
Whiting the defendant Mccarthy. Justice Stouev
and detective Joseph Bee, Of San Francisco, and
number OF other persons, in the Intermediary
Court room on the afternoon of the 4th inst on
which occasion Judge Judd gave his decision ON
the law and evidence introduced on behalf Of the
Crown by Attorney-GeneralN eumaun and opposed
by W. Austin Whiting counsel for defendant. The
Court reviewed the case and gave decision as fol
lows:
Having decided that the law OF this Kingdom
authorizes me to hear and consider the evidence
of the Criminality of the prisoner, he being
charged with the commission Of a crime in u for
elgn country, the Attorney General has introduced
the evidence.
!. request by George Stoneman. Governor of
the State of California by the Secretary Of State
of California, under the great seal Of the State,
dated the 10th of January, 1886, 10 His Royal
Highness" the King of the Hawaiian 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 embeZzlemeut, committed within the
county Of San Francisco.
.. 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 embezzlemunt
3. Copy Of 4 bench warrant issued on the indict-
meut by order of the Court and attested by JAS q.
Flynn the clerk, dated the 18th OF January. 1856,
for the arrest forthwith Of said John W. Nc
Carthy.
4. Original affidavit or return Of William Trough
ton, police officer of the city and county OF san
tr lnciscO, that he received the annexed warrant
for the arrest of John W. Mccarthy and That he
made digent search for him. etc, and AYERS upon
information aud belief that he has fled from JUS
tCe IN the State Of California nnd taken refuge in
the Kingdom OF Hawaii.
These three last papers, tD-wit: the Indictment,
1f fsF
are certified to bY Jas. q. Flynn, ClerS uf tha
Third Circuit Ourt, under the seal OF the aid
Court a full and complete exempliicItipa OF .hc
papers and proceedings III the case of tue People
OF the otate Of California vs.. j. w. Mccarthy
The testimony of Joseph Bee, police officer Of
the CITY and county of San Francisco, was taken,
before me, that he knew the John W. Mccarthy,
who WAS in February, 1885, Clerl. Of the Supreme
Court OF the State of California, and who is charg-
ed in the indictment with cmbeEzlement of pub
lie 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
1t, and tue nature of the crime charged WAS also
given.
Mr. W. Austin Whiting, counsel for tue prisoner,
contends that the foregoing Is not sufficient cYid-
enCe of the criminality of the accused. de urges
that the treaty Of 1850 between the United States
and this Kingdom, article NV, provides that per
sons charged with certain named crimes are agreed
TO be surrendered, provided, that this shall only
be done upon such evidence OF criminality as, ac-
c0rding to the laws of the place where the person
so charged shall be found, would justify his ap-
prehensiOn and commitment for trial if the crime
had there been committed.
1t is answered by the Attorney General that as
embezzlement is not one of the crimes named in
the Treaty the provisions of the treaty to proof
of crtmiuality do not apply.
think / must be governed by the statute law
tO-wit: Section 4i9 Of the Civil Code. find that
the evidence of the Crimiuality Of the accused is
an Indictment found by Grand jury, who hay
ing, 1t Is TO be presumed, done its duty, has ac-
cordlng to the law of California taken the eyid-
ence, in legal methods Of witnesses, and IN the
opinion of twelve of Its number, the evidence, If
unexplained and UnCOntradlCted, would warrant Il
conviction by trial jury.
The dispositions of the witnesses sworn by the
Grand jury have not been sent. We have no
Grand Jury in our system of Jurisprudence, This
function is devOiyed upon the Justices of the Su-
preme Court, who ind the indictment 10 be true
or not upon the evidence taken before tho COM
hitting magistrates, but are not bound by it or
confined to it. But if the dispositions taken be-
fore the Grand Jury had been sent | cannot see
how they could be considered as of any greater
force and effect than the indictment found IN
pursuance of them.
Though the question Is not without serious
1t seems to me that sufficient evidence
has been introduced to sustain the charge. There
Is no doubt that the prisoner is the John W. Nc
Carthy, Clerk of the Supreme Court of tine State
OF California, against whom the Indictment for
of public funds is found, and that
be is fugitive from justice. That the evidence
adduced would not be sufficient to convict him of
this Otfenso if committed here, ! am free to admit
notice in the instructions issued for the De
partment of State in relation TO applications for
the extradltion of foreign criminals, if no trial has
been had, and an Indictment has been found,
copy of the indictment, together with a copy of
tue dispositions adduced before the Grand Jury,
and upon which the indictment was found, with q
copy of bench warrant, If any has issued, and the
return thereto, certified and authenticated, Is suf
hcent evidence in the preliminary examination.
The instructions issued by the Governor OF the
State of California, in reference to Interstate ex-
traditions specify that where the fugitive has been
indicted a certified copy of the indictment must
be produced, not mentioning that the depositious
upon which 1t Is founded are necessary.
shall certify to the Minister of Foreign Affairs
that deem the evidence sufficient to sustain the
charge in order that he may issue a warrant for
the surrender of the fugitive"
Judge Judd forwarded his decision in the mat
ter to the Minister of Foreign Affairs, and "a war
rant of arrest was issued by that official retunable
to the Court at 10 a. on the 9th inst Delay was
had until noon, when Mr.. Whiting issued out
writ of habeas corpus, arguments on which were
heard on the 9Th INST, and both counsel filing
briefs, the Court, by Judge Judd, promising de
cisiOu at an early date