The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1886-01-29

filed yesterday of His Honor the Chic
Justice in the Mccarthy case, heard on
Tuesday. At the close of the arguments
on that day His Honor delivered an oral
opinion.
In the Supreme Court OF the Hawaiian
! Islands.
| AT CHAMBERS - BEFORE CHIEF JUSTICE
! JUDD.
In re. John w Mccarthy.
The respondent pleads to the jurisdic-
ton, and says;
LIST That the warrant issued to cause
the probation of John w. Mccarthy sets
forth no crime or accusation of crime.
I'd. That even if the affidavit be taken
in connection with the warrant, it APP
pears that the crime alleged ohave been
committed by John w. Mccarthy, for
which he is sought to be extradited, is
that of "embezzlement." That Gem
bezzlement" committed in a foreign coun-
try, viz. the United States, is not an
Offense or crime for which John w Nc
Carthy can be extradited.
made through the Governor of the State
of California. That there is no authority
in law for said Governor to make this
demand.
4th. That the affidavit and complaint
are made by the Attorney General of
this Kingdom. That the Attorney Gen
eral cannot properly and legally make
such complaint, or be complainant
herein.
BY THE COURT.
L think L ought to overrule the plea.
The statute has been complied with up
to this stage of the case There is before
me complaint under oath; it is sworn
to by the Attorney General, the official
intrusted by law with the prosecution
of offenses. The complaint charges that
respondent has committed crime in
foreign country-to-wit: the State of
California. On the warrant issued in
pursuance of this complaint the respond
ent was arrested, and he is brought be-
fore me for examination. 1t remains for
me to find whether embezzlement of pub
lie funds is crime, and whether there
is evidence to sustain the charge. BY
our Penal Statute enlightenment of pub
lie funds is felony or crime, and pun
ishable in the discretion of the Court
with imprisonment for life or any less
period, and presume it is a grave crime
in the State of California If 1 find suf-
-, ii,
will then become my duty to certify the
same to the Minister of Foreign Affairs,
that he may issue the warrant for the
surrender of the respondent.
The exercise of the discretion whether
the warrant of detention and extradition
shall issue or not is vested in the Min
lister of Foreign Affairs as representing
the executive. This is clear by sections
44S to 452 of the Civil Code Compiled
laws, page 110). Non constat that the
Minister will grant the warrant. He
may find that the crime charged against
the respondent is not one OF the extra
ditable offenses mentioned in the treaty
between the United States and this
Kingdom, and decline to surrender the
fugitive. Or he may, az an act of comfy
and good will, decide to grant the war
rant Until this discretion has been
exercised by the executive and the war
rant has been issued, L cannot view its
legality. l sit merely as an examining
Magistrate, and the case could have been
brought before the Police Justice or any
other Magistrate. The impression which
I suggested to counsel for respondent at
the opening now adhere to.
feel that must take jurisdiction of
the case because the complaint charges
the commission of a crime in a foreign
country. The statute is general for the
purposes of enabling this Kingdom to
surrender criminals of a certain class, and
the crimes which the Court can take
cognizance of are not alone those which
are specified as extraditable offenses in
the American treaty, and the commuters
of which this Government would be
bound to surrender.
As at present advised, l think the
legality of every step in the process OF
extradition could be reviewed by the
Court in another capacity on habeas
corpus. 1t appears to me that without
exception the cases referred to by counsel
on both sides have arisen on habeas
corpus think no case can be found
where question as TO the extraditable
nature of the offenses have been raised
before the examining Magistrate on the
preliminary arrest.
am therefore OF the opinion that it is
not competent for me to pass upon the
legality of the arrest for a crime not
covered by the treaty. For the same
reasons 1 think the question whether a
sovereign State has requested the sur
render of respondent is not now review
able. The plea is Overruled and the
Attorney General may present his evi-
dence. a F. JUDD,
Chief Justice Supreme Court.
Honolulu, January 2S, 1886.