The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1886-02-05

provisions of the treaty = to proof o
criminality do not apply But 1t was
never intended in cases OF the eXtradita-
BILE offenses under the treaty that wit
nesses from the foreign country should
be sent here to give their oral testimony
in presence of the accuse, which is the
only evidence competent to be adduced
by our Constitution and laws against
domestic offender. This would be inn
practible, if not impossible. Under the
treaty between Great Britain and the
United States, similar in wording to that
of this Kingdom and the United States,
statutes have been enacted in both those
countries authorizing the reception as evil
dence OF warrants, indictments, deposit
tions, etc, duly authenticated. We have
no such statute here, but we ought to
have L think l must be governed by
the statute law, to-wit Section 449 OF the
Civil Code. / find that the evidence OF
the criminaGty of the accused is an in
dictment found by Grand Jury, who
having, it is to be presumed, done its
! duty, has, according to the law OF Cali
/ fornia, taken the evidence, in legal meth
| DDS of witnesses, and in the opinion OF
| twelve of its number, the evidence, if un
explained and uncontradicted, would war
rant conviction by trial jury.
1.-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 devolved upon the Justices OF the Su-
preme Court, who find the Indictment to
| be true or not upon the evidence taken
before the committing magistrates, but
| are not bound by it or confined to it.
| Though the question is not without
serious difficulty, it seems to be 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
the State of California, against whom
/ the indictment for embezzlement of pub
| lie funds is found, and that he is fugi-
tive from justice. That evidence adj
duced would not be sufficient to convict
! him of this offense if committed here, l
am free to admit.
GO 1 notice in the instructions issued for
the Department of State in relation to
applications for the extradition of foreign
criminals, if no trial has been had, and
an indictment has been found, copy Of
the indictment, together with a copy Of
the dispositions adduced before the
Grand Jury, and upon which the indiCt-
ment was found, with copy of bench
warrant, if any has issued, and the return
! thereto, certified and authenticated, is
sufficient evidence in the preliminary ex-
animation.
4 " But if the dispositions taken before the
Grand Jury had been sent [ cannot see
how they could be considered as of any
greater force and effect than the indict-
ment found in pursuance of them.
&" The instructions issued by the Gov
ernor of the State of California, in
reference to Interstate extraditions spec
fly that where the fugitive has been in
dicted certified copy of the Indictment
must be produced, not mentioning that
the dispositions upon which tits founded
are necessary.
90 shall certify to the Minister of
Foreign Affairs that deem the evidence
sufficient to sustain the charge, in order
that he may issue warrant for the sur
render of the fugitive
Late yesterday afternoon His Honor
the Chief Justice sent his certificate to
the Minister of Foreign Affairs. At 10
again come before the Court