Ex Parte Foss

Citations

• 102 Cal. 347
• 25 L.R.A. 593
• 36 P. 669
• 1894 Cal. LEXIS 649

Syllabus

<p>Criminal Law—Extradition of Fugitives From Justice—Crimes Not Specified in Treaty—Discretion of Extraditing Government.— When a treaty with a foreign government provides for the extradition of fugitives charged with particular crimes, the reciprocal duty of delivering up persons charged with crime is confined to the particular cases for which the treaty has provided; but the existence of a treaty providing for extradition for certain specified crimes does not deprive either nation of the power and right to exercise its own discretion in surrendering fugitives from justice in cases not coming within the terms of the treaty.</p> <p>Id.—Incident of Sovereignty—Comity—Presumption.—In relation to persons charged with offenses not named in the treat)', each government, as an'incident of its sovereignty, may either grant or deny to the fugitive an asylum within its sovereignty or jurisdiction; and when a criminal is surrendered upon charge of a crime which is not extraditable under the treaty, it must be presumed that the surrender was made in the exercise of its own sovereign discretion, and as an act of comity.</p> <p>Id.—Surrender Not in Pursuance of Treaty—Order Setting Aside Indictment—Rearrest for Same Offense—Habeas Corpus.—The rule that when a defendant has been surrendered in pursuance of a treaty, for trial for a specified charge named therein, he cannot be placed upon trial for any other than the particular offense named in the extradition proceeding, does not apply where the defendant has not been surrendered in pursuance of the treaty; and the fact that he was surrendered for trial upon a particular indictment referred to in the warrant of arrest for extradition, and that such indictment was set aside upon his motion after extradition, does not entitle him to a discharge upon habeas corpus when rearrested upon a complaint charging him with the identical offense named in the indictment set aside.</p> <p>Id.—Obdbr Setting Aside Indictment—Res Ad judicata.—An