The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1886-01-29
The EXIRADIII0N CASE.

Following is the decision of Chief
Justice Judd ON the respondents
plea IN nc j. w. Mccarthy, on the
2Gth inst: =
think l ought TO override the
plea. The statute has been COM
piled with up TO this stage of the
case. There is before me COM
plant under oath; it is sworn to
by the Attorney-General, the official
entrusted by law with the prosecu-
ton of offenses. The complaint
charges respondent has committed
crime in a foreign country, to wit,
the State of California. On the
warrant issued in pursuance of this
complaint, the respondent was ar
rested and he is brought before me
for examination. 1t remains for me
to find whether embezzlement of
public funds is crime and whether
there is evidence to sustain the
charge. BY our Penal Statute, en-
bezzlement of public funds is
felony or crime and punishable in
the discretion of the Court with i'm
prisonment for life or any less period,
and 1 presume it is grave crime
in the State of California. If l
find sufficient evidence to sustain
the charge, it then will become my
duty to certify the same to the
Minister of Foreign Affairs that he
may issue the warrant for the sur
render of the respondent.
The exercise of the discretion
whether the warrant of detention
and extradition shall issue or not is
vested in the Minister of Foreign
Affairs as representing the Execu-
tive. This is clear by Sections AS
to 452 of the Civil Code Compiled
Laws p. 10Y. 1t is not certain that
the Minister will grant the warrant.
He may find that the crime charged
against the respondent is not one of
the extraditable offenses mentioned
in the Treaty between the United
States and this Kingdom, and de-
cline to surrender the fugitive. Or
he may, as an act of comfy and
good will, decide to grant the war
rant. Until this discretion has been
exercised by the Executive and the
warrant has issued l cannot review
its legality. l sit merely as an ex-
aiming magistrate, and the case
could have been brought before the
Police Justice or any other magis-
trate. The impression which sug-
gested to counsel for respondent at
the opening now adhere to. l feel
that L must take jurisdiction of the
case because the complaint charges
the commission of q crime in for
eign 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 speci,
fed as eXtraditable offenses in the
American Treaty and the commit
tiers of which this Government woult
be bound TO surrender.
AS at present advised / think the
legality of every step in the process
of eXtradition could be reviewed by
the Court in another capacity OIL
habeas corpus. 1t appears to mi
that without exception the cases re
: ferred to by counsel on both side
have arisen on habeaS corpus.
l think no case can be found wher
questions as to the eXtraditabl
nature of the offenses have bee
raised before the examining magis
trate on the preliminary arrest.
l am therefore of opinion that
is not competent for me to pass upo
| the legality of the arrest for GRIM
c not covered by the Treaty. For tn
t same reasons l think the questio
c whether sovereign state has II
: quested the surrender of responder
: is not now renewable.
k The plea is overruled and I'll
y Acknowledgement may present I'll
: evidence.
&c The following, clipped from
l. San Francisco paper, furnishes IL
!: latest estimate of McCarthy's pec'
e lations 1T has been ascertains
81 that the Bank of Los Angeles, wit
a which l. w. Hellman is connecte'
g holds about 81 900 of the warran
: cashed by Mccarthy, which "
l. raise the deficiency up to M
ell Dunn's original estimate of betwe'
rs ! $4,000 and $4,000.