Ex Parte Foss

The petitioner, Foss, was indicted by the grand jury of the county of Plumas for the crime of embezzlement. At the date of the finding of this indictment the petitioner was in Honolulu, and there remained until February, 1894, when, upon the request of the American minister, and upon “ a requisition to that effect” from the governor of the state of California, he was surrendered by the provisional government of the Hawaiian Islands to the agent appointed by the governor to receive and convey him back to this state, there to be tried for the offense with which he was charged in the indictment referred to.

The treaty between the United States and the government of the Hawaiian Islands in relation to the ex *350 tradition of fugitives from the justice of either of such countries does not provide for the extradition of a person charged with the crime of embezzlement, and the warrant issued by the Hawaiian government for the arrest of the petitioner, and for his delivery to the agent appointed by the governor of this state to receive him into custody, does not refer to the treaty, but the proceedings preliminary to the issuance of such warrant were conducted in accordance with the…

I dissent. The petitioner, Foss, was indicted by the grand jury of Plumas county, in this state, for the crime of embezzlement. At the time of the indictment he was in the Hawaiian Islands. A requisition was made upon the government of the islands for his extradition here to answer the charge preferred by said indictment; and under extradition proceedings he was returned to said Plumas county. He moved to set aside the indictment, and his motion was granted, and he was discharged from custody. • Within two hours afterwards a complaint for embezzlement was made before a justice of the peace, and he was arrested upon a warrant issued by said justice. He now applies to this court under the proceeding of habeas corpus to be discharged.

There is a treaty between the government of the *355 Hawaiian Islands and the government of the United States for the return from .one to the other country of persons charged with certain enumerated crimes; but the crime of embezzlement is not one of the crimes so enumerated. (Said treaty to be found in 7 Am. & Eng. Ency. of Law, p. 606.)

The first point made by the petitioner is that he cannot be returned to this country and tried here for any crime…