This was an appeal from a judgment of the circuit court for the northern district of California, dismissing a writ of habeas corpus sued out by Grin, and remanding him to the custody of the defendant, marshal for the northern district of California, who held him under a mittimus issued by a commissioner in certain proceedings under a treaty with the Emperor of Russia for the extradition of criminals, proclaimed June 5, 1893. 28 Stat. at L. 1071.
These proceedings were begun by a complaint of Paul Kosakevitch, Russian consul at the city of San Francisco, stating, in substance, that on March 6, 1901, Grin, a Cossack of the Don and a Russian subject, in the employment of the firm of E. L. Zeefo & Co., doing business in the city of Rostov, on the river Don, in the Empire of Russia, embezzled the sum of 25,000 roubles, 'intrusted to and received by' him in his capacity as 'clerk' of such firm, and that he had subsequently absconded and taken refuge in San Francisco; that he had been indicted in Russia for the embezzlement of the money, and that a mandate had been issued by the Department of State in Washington directing the necessary proceedings to be had in pursuance of the laws of the United States, in order that the evidence of his criminality might be heard and considered. The complaint was sworn to before George E. Morse, United States commissioner, with the usual power to take affidavits, but not specially authorized by any court of the United States to take proceedings in extradition; that upon such complaint the judge of the district court for the northern district of California issued a warrant of arrest, and directed that petitioner, when arrested, should be brought before E. H. Heacock, Esquire, United States commissioner, for examination and further proceedings; that, at the time such warrant was issued, Heacock was not authorized to take jurisdiction of extradition proceedings, and that the evidence before him failed to show that the petitioner had committed the crime of embezzlement.
Several other defects in the extradition proceedings are set forth in the petition, and so far as they are deemed material, appear hereafter in the opinion.
Upon a hearing upon this petition the circuit court made an order remanding the petitioner to the custody of the marshal, and an appeal was thereupon taken to this court. Re Grin, 112 Fed. 790.
Mr. George D. Collins for appellant.
Messrs. H. G. Platt and Richard Bayne for the Russian Government.
Mr. Justice Brown delivered the opinion of the court: We shall only notice such alleged defects in the extradition proceedings as are pressed upon our attention in the briefs of counsel. While these defects are of a technical character, they are certainly entitled to respectful and deliberate consideration. Good faith toward foreign powers, with which we have entered into treaties of extradition, does not require us to surrender persons charged with crime in violation of those well-settled principles of criminal procedure which from time immemorial have characterized Anglo-Saxon jurisprudence. Persons charged with crime in foreign countries, who have taken refuge here, are entitled to the same defenses as others accused of crime within our own jurisdiction.
We are not prepared, however, to yield our assent to the suggestion that treaties of extradition are invasions of the right of political habitation within our territory, or that every intendment in proceedings to carry out these treaties shall be in favor of the party accused. Such treaties are rather exceptions to the general right of political asylum, and an extension of our immigration laws prohibiting the introduction of persons convicted of crimes (18 Stat. at L. 477 [chap. 141, U.S.C.omp. Stat. 1901, p. 1285]), by providing for their deportation and return to their own country, even before conviction, when their surrender is demanded in the interests of public justice. There is such a general acknowledgment of the necessity of such treaties that of late, and since the facilities for the escape of criminals have so greatly increased, most civilized powers have entered into conventions for the mutual surrender of persons charged with the most serious nonpolitical crimes. These treaties should be faithfully observed, and interpreted with a view to fulfil our just obligations to other powers, without sacrificing the legal or constitutional rights of the accused.