Where a provision in a treaty or convention is plain, it must
receive a reasonable and sensible construction, and not one which
it is impossible to conceive that the representatives of civilized
countries would enter into.
Page 214 U. S. 114
The rule that a person extradited under treaty provisions cannot
be tried for an offense other than that for which he was extradited
until after he has had opportunity to leave the country to which he
was surrendered does not apply to an offense committed after he
arrives in the latter country.
United States v. Rouscher,
119 U. S. 407.
Whether a person extradited and who thereafter commits a crime in
the country to which he is surrendered shall be first tried for the
earlier or later crime is a matter wholly within the jurisdiction
of the country to which he is surrendered, and is of no interest to
the surrendering country.
A fugitive from justice has no inherent right of asylum; his
rights in that respect depend wholly upon the treaty between the
countries demanding and surrendering him.
Under the Treaty of 1842 and convention of 1889 with Great
Britain, a surrendered person can be tried for an offense committed
in this country after his arrival, and the trial for such offense
does not have to await the conclusion of the trial of the offense
for which he was surrendered, and so
held that one who, on
the trial of the offense for which he was surrendered and which
resulted in a disagreement, committed perjury could be indicted and
tried for that offense without being allowed an opportunity to
leave this country and without waiting for the final conclusion of
the trial for the crime for which he was surrendered.
151 Cal. 340, and 154 F. 980, affirmed.
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. 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 F. 573,
and see 151 F. 358; 154 F. 980.
From the order of dismissal, an appeal was allowed to this Court.
The two cases have been heard here as one.
Page 214 U. S. 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 twenty-third 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 twenty-ninth 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 arraigned on this
indictment in January, 1906, and after he had made all objections
to his being arraigned 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
Page 214 U. S. 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.
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, set
forth in the margin.
*
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 F. 980.
Page 214 U. S. 120
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), 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 committed
Page 214 U. S. 121
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. 576, § 10), is the one in
regard to which discussions as to its meaning have arisen.
United States v. Rauscher, 119 U.
S. 407. Subsequently to the treaty, Great Britain passed
the extradition act of 1870 (32 and 33 Victoria, chapter 52), and
also in 1873 an act to amend the extradition act of 1870 (36 and 37
Victoria, chapter 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.
1508, 1509, and is also, among others, set out in
Johnson v.
Browne, 205 U. S. 309,
205 U. S.
319:
"Article III. 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.
Page 214 U. S. 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
Page 214 U. S. 123
have the right guaranteed 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 5275, Rev.Stat.,
supra,
which gives the least countenance to the claims of the plaintiff in
error.
Page 214 U. S. 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.
* Section 5275, Rev.Stat., U.S. Compiled Statutes, page
3596.
"Whenever any person is delivered by any foreign government to
an agent of the United States, for the purpose of being brought
within the United States and tried for any crime of which he is
duly accused, the President shall have power to take all necessary
measures for the transportation and safekeeping of such accused
person, and for his security against lawless violence, until the
final conclusion of his trial for the crimes or offenses specified
in the warrant of extradition, and until his final discharge from
custody or imprisonment for or on account of such crimes or
offenses, and for a reasonable time thereafter, and may employ such
portion of the land or naval forces of the United States, or of the
militia thereof, as may be necessary for the safekeeping and
protection of the accused."
