1. International Extradition — Preliminary Proof.

Bev. St. U. S. § 5270, relating to extradition, provides that if the committing- magistrate deems the evidence sufficient to sustain the charge, under the proper treaty, he shall certify the same, etc. The treaty between the United States and Salvador provides that fugitives from justice shall be delivered up only on such evidence of criminality as, according to the laws of the place where the fugitive is found, would justify his commitment for trial if the crime had been there committed. Bev. St. U. S. § 1014, provides that persons charged with crimes against the United States may be arrested and imprisoned or bailed “agreeable to the usual mode of process against offenders in such state.” Pen. Code Cal. § 872, provides that if it appears that a public offense has been committed, and there is sufficient cause to believe defendant guilty thereof, the magistrate shall make an order to that effect, and that defendant be held to answer. HAZ, that in the examination of persons found in California, charged with being fugitives from the justice of Salvador, the evidence of criminality must conform to, and be weighed and judged by, the laws of this country, and particularly the laws of California, and that the evidence of criminality which will justify holding the accused need be such only as ordinarily obtains at a preliminary examination, and amounts to probable cause, or such as would justify a cautious man in believing the accused guilty.

2. Same — Examination op Accused — Depositions—When Admissible.

Act Aug. 3, 1882 (22 Stat. 216) § 5, provides that any depositions or other papers, or copies thereof, shall be received in evidence' on the hearing of any extradition case under Bev. St. U. S. tit. 26, if they are properly and legally authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused shall have escaxied, and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that they are authenticated in the manner required by this act.- Held, that papers purporting to be depositions, so certified, are admissible on such hearing, though the recitals contained in the introductory part thereof show that they are mere statements, and not depositions.

8. Same — Attempt to Murder — Evidence—Sufficiency.

J. O., a military officer of Salvador, was accused of attempt to murder one A. in front of the latter’s residence in Salvador, while Carlos Ezeta was president, and Antonio Ezeta was general of the army, and four months before the revolution of 1894. Q., a police officer, testified the day after the alleged attempt that he hoard several shots while near A.’s residence, and saw three persons running; that he found J. C. and another person together; that he captured J. C., but the other person escaped; that J. C. had a revolver in his hand, from which three shots had been fired by him at A.; and that he could not identify the person who was with J. C. The record contained a statement by J. O., desigual od as a deposition, made to the authorities upon his arrest, to the effect that, while ho, one C., and throe others were passing opposite the porch of A.’s residence, A. shot at the group; that C. instantly fired a shot, and afterwards two more; that ffeclarant fired two shots at A.; that his companions scattered,' and he appeared before Q., handed him his revolver, and told him he had fired two shots at A.; that he was constantly escorting O., by order of Gen. Ezeta, to guard him from harm, and especially in consequence of1 a misunderstanding between C, and A.: and that he fired the shots at A. to defend 0. The accused testified to substantially the same facts contained in such statement. The record showed that the court ordered that he should remain in temporaiy custody. He testified also that, soon after his arrest, Gen- Ezeta procured his release; that an hour later he was rearrested by order of President Ezeta; that throe days afterwards he was released by insiruc-tions of the president; and that he was never rearrested. Held,, that the evidence showed probable cause of J. O.’s guilt.

4. Same — Justification.

One accused of an attempt to murder in Salvador admitted that he twice shot at a person as charged, but claimed that he did so in defense of himself and another whom he was ordered by his superior military officers to protect. Held, that the accused should be held for extradition, his justification being matter of defense for the courts of Salvador.

5. Same — Release of Accused without Trial — Effect.

The release of the accused by Ms superior officers, without being tried or pardoned, construed as a privilege conferred on him by executive authority equivalent to an order entered only by judicial authority in the United states, permitting him to go on his own recognizance, affords no legal objection to his arrest and trial on such charge; and the magistrate cannot consider the fact, if it exists, that the renewal of the prosecution is an effort by the present government of Salvador to secure the accused’s person for the purpose of wreaking vengeance on him for the part he took against the revolutionists in the late war.

6. Same — Murdkii—Sufficiency of Evidence.

U. and F., officers under Gen. Ezeta, were accused of hanging four unknown persons Hay 29, 1894, in Pulgas ravine. M., whose deposition was taken June 24, 1894, testified that‘“what he knows from ocular evidence only is” that F., by order of L., hung four persons in Pulgas ravine at: the end of May, whose names he does not know; that seme soldiers had found those persons hidden in little houses in P. canton, and L. ordered F. to hang them; that F. took them out of the house, and accomplislted their death; that L. was present; and that one E. and others could testify to the matter. E., in his deposition, did not allude to such hanging, and the testimony of no other witness was produced. The accused denied their connection with such hanging. Held, that the evidence failed to show probable cause to believe the accused guilty.

7. Same.

Gen. Antonio Ezeta, vice president anti commander in chief of the army of Salvador, and J. 0., L., and If., officers under him, were charged with the murder of 0. H., at the village of Coatepeque, Salvador, JuneS, 1894, during the revolutionary hostilities. The statement of C. H.’s father, not under oath, showed that Gen. A., an officer under Ezeta, took his son from his. house on such day; that, on reaching- the army, A. turned his son over to L., who ordered him delivered to Ezeta; that, on being told that his son was a spy, Ezeta struck him, and ordered him hung; that he was then taken to the plaza of Coatepeque, and hung; that F. cut the rope to set' the corpse fall, and .T. 0. fired several shots into the body; and that his son took no part in the revolution, nor with Ezeta’s forces. R. testified that Ezeta ordered G. H. to be hung, believing he was a spy and enemy, and that J. 0., F., and one S. took part in carrying out the order. E. testified he saw 0. H. carried away by A., J. C., and F. towards Ezeta’s headquarters; that soon afterwards the same party went to the middle of the plaza, where they hung O. II. to a lamp-post; that J. O., F., and S. hung him. O. testified that Ezeta ordered 0. H. hung, and delivered him -to the populace to- do as they wished with him.' The accused all testified that they had nothing whatever to do with, and did not see, the hanging of O. H., but F. contradicted himself by afierwards stating that he saw the hanging. Ezeta testified that the forces that captured Ó. H. carried him through the streets; that on hearing the noise he learned of the capture; that he was afterwards informed that he was killed; and that he did not order him hung, or see him hung. Held, that the evidence showed probable cause to believe the guilt of Ezeta, J. C., and E., considered without reference to any political aspect of the acts, but failed to show the guilt of L.

8. Same — Robbery—Sufficiency of Evidence.

Gen. Ezeta, then president of Salvador, was charged with robbery of the International Bank of Salvador & Nicaragua on June 5, 1894. R. testified that the agency of such bank in Santa Tecla was in charge of the house of A. & R., in which he was a partner; that on June 5, 1894, an officer and witness’ clerk came to him, and told him he was wanted at such agency by a superior officer; that he went to the agency, and met a colonel and many more of Ezeta’s officers; that such colonel said that, pursuant to orders of President Ezeta, the witness should hand over to him §10,000, threatening him at once if he did not do so; that he told the officer there was not $10,000 there; that the officer then told him, in an insolent way, and always threatening him, to hand over what there was without delay ; that he was forced to give what there was in the vault; that he ordered the vault opened, and such officers took the money, §2,584, and carried it to Ezeta, accompanied by witness; and that Ezeta gave the money to the paymaster of his forces, who gave witness a receipt for it by Ezeta’s order. R. was corroborated in all important particulars by the testimony of his clerk and partner. Held, that there was probable cause to believe the accused guilty.

9. Same — Robbery—What Constitutes.

The treaty between the United States and Salvador defines robbery as “the action of feloniously and forcibly taking from the person of another goods or money by violence, or putting him in fear.” Held, that taking money or goods from the presence or view of the party robbed, by violence, or by putting him in fear, was robbery, within the meaning of such treaty.

10. Same — Murder—Sufficiency of Evidence.

President Ezeta, of Salvador, and J. C., his officer, were charged with the murder of one C., June 6,1894, on the road from Santa Tecla to La Liber-tad. The evidence of the prosecution was that Ezeta and staff met C. on such road; that C. approached Ezeta, and told him that the enemy wanted his head; that both Ezeta and C.. drew revolvers, and Ezeta fired a shot at C; that J. C. immediately followed with three shots; and that C.was killed. Whicfi (Ezeta or C.) made the first movement to draw his revolver did not appear, but C. did not shoot. The accused admitted that they shot and killed C., but claimed that they did it in self-defense; that C., as an officer under Ezeta, had been traitorous to his trust; that he surrendered the soldiers, etc., under his command to the enemy that morning; that when he met the accused he was intoxicated, and said to Ezeta, “General, Manuel Rivas wants your head;” that he then seized Ezeta by the throat, and made á movement as if to draw his revolver; that J. C. attempted to prevent him from drawing it; that Ezeta immediately fired a shot at C.; and that J. C. followed with three shots. Held that, considering the act charged merely as a common crime, and eliminating the question as to whether it may be regarded as a military act; and therefore a political offense, the evidence showed probable cause to believe the accused guilty.

XI. Same — Murder—What Constitutes.

Thetreaty between the United States and Salvador (article 3) defines murder as “comprehending the crimes designated in the penal codes of the contracting parties by the terms homicide, parricide, assassination, poisoning, and infanticide.” The Penal Code of Salvador provides: “Art. 360. Murder is homicide committed with premeditation, and under one of the following circumstances: (1) With perfidy or breach of trust; (2) for a price or promise of reward; (3) by means of flood, fire or poison. The crime of murder will be punished with the penalty of death. Homicide, Art. 361. He who kills another with premeditation, and without any of the circumstances enumerated in the preceding article, or under some one of said circumstances and without premeditation, will be punished with the penalty of imprisonment at hard labor. In any other case the penalty of imprisonment at hat’d labor shall be Imposed on the offender.” Held, that homicide, as defined in the Penal Code of Salvador (article 301), constitutes murder, as defined in such treaty.

!& Same — Committing Magistrate — Determination that Offense is POLITICAL.

The treaty between the United States and Salvador provides that persons charged with or convicted of any of the extraditable offenses shall be delivered up only “upon such evidence of criminality as according to the laws of the place where the fugitive or person so charged shall be found would justify his or her apprehension and commitment for trial if the crime had been there committed;” that its provisions “shall not apply to any crime or offense of a political character; that a warrant for the apprehension of a fugitive may issue, in order that he may be brought before the proper judicial authority for examination; and that if it should then be decided that according to law and the evidence the extradition is due, pursuant to the treaty, he may be given up. Rev. St U. S. § 5270, provides that any person charged with an extraditable crime under any treaty may be arrested and brought before tbo magistrate, “to the end that the evidence of criminality may be heard and considered.” and that if it is sufficient the magistrate must certify the same, together with a copy of all the testimony taken before him, to the secretary of state, that warrant may issue on the requisition of the proper authorities for the surrender of such person, according to the stipulations of the treaty. Held, that the committing magistrate has Jurisdiction, and it is his duly, to determine whether the offense charged is political, and not subject to extradition.

13. Same — Political Offenses — What are.

The testimony showed that the alleged hanging of four persons, Ma y 2Í), 1894, by L. and F., officers of President Ezeta; the killing of O. II., June 3,1891, at Coatepeque plaza, by President Ezeta and the other defendants, his officers; the robbery of a bank, June 5, 1894, by President Ezeta; and the killing of C., June 6, 1894, by President Ezeta and J. C., his officer, — were all committed during the existence of a state of siege in the republic of Salvador, proclaimed April 29, 1894, and the progress of actual hostilities between the contending forces, wherein Ezeta and liis companions were seeking to maintain the authority of the then existing government against a revolutionary uprising; that such acts were associated with the actual conflict of such armed forces; that the four persons were hung because they did not assist in defending the government; that C. II. was killed because he was considered a spy; that the robbery of the bank was for the purpose of paying Ezeta’s soldiers, and was what is known in the Central and South American states as a “forced loan,” recognized by the treaty between tile United States and Salvador; and that the killing of C. was the result of a report that he had gone over to the enemy. Held, that such offenses were of a political character, and not subject to extradition.

14. Same — Military Offenses and Jurisdiction.

The killing of 0. by President Ezeta and his officer, being within the jurisdiction of the military law of Salvador, is not subject to extradition.

15. Same — Change of Government — Effect.

The overthrow of the Ezeta government by such revolution, and the dissolution of its army, did not change the status of ihe question as to whether such offenses were within such military jurisdiction.