[214 U.S. 113, 114] In No. 241, the plaintiff in error, being imprisoned in the county jail of San Francisco, in the state of California, by the sheriff, applied to the supreme court of that state in banc for a writ of habeas corpus to obtain his discharge from imprisonment. The writ was granted, and, after hearing, was dismissed, and the petitioner remanded to the custody of the sheriff. 151 Cal. 340, 70 Pac. 827, 91 Pac. 397. A writ of error was then sued out from this court and the case brought here.
In No. 320, the appellant applied to the circuit court of the United States for the northern district of California for a similar writ, which was issued, and a hearing had, and the writ dismissed by the court. 149 Fed. 573, and see 151 Fed. 358, 154 Fed. 980. From the order of dismissal an appeal was allowed to this court. The two cases have been heard here as one. [214 U.S. 113, 115] The material facts are these: On July 13, 1905, an indictment was found by the grand jury of San Francisco county, California, against the plaintiff in error charging him with the crime of perjury, alleged to have been committed in San Francisco on June 30 of that year. The plaintiff in error not being found within the state, was subsequently discovered was in Victoria, British Columbia, and proper demand, under the treaty between the United States and Great Britain, being made for his surrender upon that indictment for trial, he was, on October 7, 1905, duly surrendered, and removed from Victoria by one Gibson, the agent designated in the Canadian extradition warrant, to San Francisco, where he was placed in the custody of the then sheriff, who also had a bench warrant issued from the superior court on the perjury indictment against the plaintiff in error.
His trial upon the indictment upon which he had been extradited began in San Francisco in December, 1905, and resulted in the disagreement of the jury on the 23d of December of that year, and the case was then continued, to be thereafter reset for trial, Upon the trial of the indictment for which plaintiff in error was extradited, he was himself sworn, and testified as a witness, and, on the 29th of December, 1905, after he had given such evidence, he was indicted again by the grand jury of San Francisco county, the indictment charging him with perjury committed on December 12, 1905, while testifying on his own behalf on the trial, as already stated. He was arrainged on this indictment in January, 1906, and after he had made all objections to his being arrainged or placed on trial on this second indictment until the conclusion of the first, and until he had then been afforded opportunity to return to Victoria, he was, nevertheless, brought to the bar and the trial proceeded with, resulting in a verdict of guilty on February 27, 1906, upon which judgment was entered that he be imprisoned in the state prison for the term of fourteen years.
From that judgment he appealed to the district court of [214 U.S. 113, 116] appeal of California, where it was affirmed, and thereafter he applied to the state supreme court for a rehearing by that court, which was denied. People v. Collins, 6 Cal. App. 492, 92 Pac. 513.
Thereupon the plaintiff in error, being restrained of his liberty, as well under the judgment of conviction, as otherwise under the extradition warrant, applied to the state supreme court for a writ of habeas corpus, as above stated, contending that his conviction and sentence were void and in excess of the jurisdiction of the state court, as being in contravention of his extradition rights under the treaty between the United States and Great Britain, and 5275 of the United States Revised Statutes (U. S. Comp. Stat. 1901, p. 3596), set forth in the margin. 1
The writ was issued and a return made, denying many of the allegations of the petition, and, after hearing, it was finally dismissed, and the plaintiff in error remanded to the custody of the sheriff. 154 Fed. 980.
Mr. George D. Collins in propria persona for plaintiff in error and appellant.
1 U. S. Rev. Stat. 5275, U. S. Comp. Stat. 1901, p. 3596
[214 U.S. 113, 119] Mr. William Hoff Cook for defendants in error and appellees.
Mr. Justice Peckham after making the foregoing statement, delivered the opinion of the court:
The objections which the plaintiff in error urges to his further imprisonment are founded upon what he insists is implied from the provisions of the treaties between the United States and Great Britain ( 1842-1889 [8 Stat. at L. 572, 26 Stat. at L. 1508]), and he contends that, under those treaties, the state of California had no right or jurisdiction to try him for any offense whatever other than the one for which he was extradited and delivered to the Government of the United States for trial, even though he committed an offense subsequently to the extradition; and he further asserts that after a trial has been had for the offense for which he was extradited, he is entitled to be afforded reasonable time and opportunity after his final release on that charge to return to the country of asylum, and that the trial of the crime for which he was extradited must be had within a reasonable time after his extradition, or he is, for that reason, entitled to his discharge. In other words, the plaintiff in error claims immunity, under the treaties, from arrest or detention for any crime com- [214 U.S. 113, 121] mitted by him after he had been brought back upon the extradition warrant until he has been allowed a reasonable time to return to the place from which he was taken. He contends that the duty originally resting upon the demanding country to try him only for the offense for which he was extradited, and to then afford him reasonable opportunity to return, is unaffected by the fact that he committed another crime after his extradition.
The treaty of 1842, August 9 (8 Stat. at L. 576, 10), is the one in regard to which discussions as to its meaning have arisen. United States v. Rauscher, 119 U.S. 407 , 30 L. ed. 425, 7 Sup. Ct. Rep. 234. Subsequently to the treaty, Great Britain passed the extradition act of 1870 (32 and 33 Vict. chap. 52), and also in 1873 an act to amend the extradition act of 1870 (36 and 37 Vict. chap. 60). Both these acts are cited as the extradition acts of 1870 and 1873. See 1 Moore, Extradition, 1891, pp. 741, 755. In subdivision 2 of 3 of the act of 1870 it is provided: '(2) A fugitive criminal shall not be surrendered to a foreign state unless provision is made by the law of that state, or by arrangement, that the fugitive criminal shall not, until he has been restored or had an opportunity of returning to her Majesty's dominions, be detained or tried in that foreign state for any offense committed prior to his surrender, other than the extradition crime proved by the facts on which the surrender is grounded.'
Article 3 of the treaty or convention of 1889, July 12, between Great Britain and the United States, is to be found in 26 Stat. at L. 1508, 1509, and is also, among others, set out in Johnson v. Browne, 205 U.S. 309, 319 , 51 S. L. ed. 816, 819, 27 Sup. Ct. Rep. 539, 542, 10 A. & E. Ann. Cas. 636, 638, as follows: 'Article 3. No person surrendered by or to either of the high contracting parties shall be triable or be tried for any crime or offense committed prior to his extradition, other than the offense for which he was surrendered, until he shall have had an opportunity of returning to the country from which he was surrendered.' The treatment of the criminal for all acts committed or said to have been committed by him prior to extradition is thus fully provided for. [214 U.S. 113, 122] The contention of the plaintiff in error that the duty to afford opportunity to return after a trial or other termination of the case upon which he was extradited is unaffected by any subsequent crime he may have committed is not even plausible. Nothing in the Rauscher Case (supra) is authority for any such contention. The duty to afford opportunity to return after trial, as stated, is limited to matters which happened before extradition; and, in the nature of things, such duty cannot be extended by implication so as to cover a totally different state of facts. Because, in some cases, in construing the treaty, it has been stated that a person extradited can be tried only for the offense for which he was surrendered for trial until he has had an opportunity of returning, it is assumed by the plaintiff in error that such language prohibits the trial of a person so extradited for any crime committed by him subsequently as well as prior to the surrender, without an opportunity for his return to the other country. The whole question is simply one as to the meaning of the treaty, and we cannot doubt for a single moment what that meaning is.
Much is said by the plaintiff in error as to his right to an asylum, as if it inhered in himself. The right is, however, simply provided for by treaty, and must be found therein, so far alone as the criminal is concerned.
The question then is, does either the treaty or convention, by express provision or by inference, provide for a return of the criminal to the surrendering country after his surrender, and after a subsequent commission of a crime in the country to which he was surrendered? To ask the question is to answer it. The plaintiff in error contends for the treaty right to leave the country, notwithstanding his commission of the subsequent crime. This we cannot assent to. It is impossible to conceive of representatives of two civilized countries solemnly entering into a treaty of extradition, and therein providing that a criminal surrendered according to demand, for a crime that he has committed, if, subsequently to his surrender, he is guilty of murder or treason or other crime, is, nevertheless, to [214 U.S. 113, 123] have the right graranteed to him to return unmolested to the country which surrendered him. We can imagine no country, by treaty, as desirous of exacting such a condition of surrender, or any country as willing to accept it. When a treaty or statute contains a provision that the party surrendered shall be tried for no other offense until he has had an opportunity to leave the country, the meaning of such a provision is perfectly plain, and must receive a reasonable and sensible construction. The party proceeded against must not be tried for any other offense existing at the time when he was extradited (whether, at the time of such extradition, it had or had not been discovered), until he shall have had a reasonable time to return to the country from which he was taken, after his trial or other termination of the proceeding. That such privilege should be accorded to one who commits a crime after his surrender to a demanding government lacks all semblance of reason or sense.
Spear, in the second edition of his work on the Law of Extradition, says, at page 84, that the party extradited is not 'protected against trial for any offenses which he may commit against the receiving government subsequently to his extradition, and while in its custody, or after his discharge therefrom.' Such a criminal has no asylum, because he never had an asylum within the jurisdiction of the government delivering him, with regard to the crime which he committed since such delivery. Ibid.
The contention is also without merit that he has, at any rate, the right to a trial to a conclusion of the case for which he was extradited, before he can be tried for a crime subsequently committed. The matter lies within the jurisdiction of the state whose laws he has violated since his extradition, and we cannot see that it is a matter of any interest to the surrendering government.
There is nothing in the section of the U. S. Rev. Stat., supra, which gives the least countenance to the claims of the plaintiff in error. [214 U.S. 113, 124] The other objections made by him in regard to the person who now has him in custody under the various warrants and processes, copies of which are returned in the record, we regard as unimportant.
As soon as the judgments herein are affirmed the plaintiff in error will, of course, pursuant to the judgment entered upon the verdict of conviction against him, be taken to the state prison in California, provided for in the sentence, and there confined according to law. The orders and judgments in the two cases are affirmed.