Turner, J.
On the twenty-second Inst, the relator presented his application for a writ of habeas corpus on the alleged ground that he was unlawfully restrained of his liberty by the sheriff of Bexar county, Texas. The petitioner, in brief, stated that the relator liad been extradited from the republic of Mexico upon the charge of the murder of S. L. Elder and Bud Elder, and for no other or different offense; that he has been admitted to bail in said cases, but that he is now restrained of his liberty upon a charge of the murder of one James Jackson; that, having been extradited upon the charge of the murder of the two Elders, ho is protected from arrest for any other or different offense than those for which he ivas extradited; that he had instituted proceedings for his release by applying to the Honorable Judge McCormick, district judge of the state of Texas, for a writ of habeas corpus, but that he had abandoned his suit thus instituted, and luid paid all costs incident thereto.
These are, in brief, the facts stated in the application presented to me during the present sitting of this court, and upon that showing I directed the writ to issue, which was accordingly done. Under the statement of facts thus presented there can bo no doubt but that relator has the right to claim exemption from trial upon any other charge than those mentioned in the extradition proceedings; and, inasmuch as the question arises under a treaty with our sister republic, the federal court lias jurisdiction to issue the writ, and inquire into the cause of detention, and to discharge the relator from such confinement, if the facts in the case, when fully made known, show' that justice and law require it. The question [916]*916of the right of this court so to act is conceded; the propriety of such action in this case is challenged and seriously questioned. It is claimed, and justly claimed, that the state courts have concurrent jurisdiction with the federal courts, and that that comity which does, and of necessity must, exist between the federal and state courts, would suggest the propriety of a careful exercise of that power by the federal courts when the relator is held by virtue of state authority, unless it should be made manifest that the state courts might reasonably be regarded as unwilling to observe the treaty stipulations referred to as the supreme law of the land.
The agreed statement of facts shows that relator was extradited upon the charge of the murder of the two Elders only. The statement further shows that relator had dismissed his suit or action taken with a view to his release by Judge McCormick, and had paid all the costs incident thereto. This he might lawfully do, and that left his case the same as if he had made no application to the state judge for the writ of habeas •corpus. The statement of facts further shows that the Wilson county case, that was tried, resulted in a mistrial upon the charge of the murder of James Jackson, and that he (relator) has since said trial filed in the state court, where that indictment is pending, his plea to the jurisdiction or right of the state court to proceed to try him upon that charge, because not embraced 'in the extradition proceedings.
That the state courts have concurrent jurisdiction with this court in the premises is conceded; and that, if relator does not obtain his release therein, he may remove the case ultimately into the supreme court of the United States, and there secure immunity from trial upon the charge of the murder of James Jackson until opportunity be given him to return to Mexico, where he sought asylum. The question presents itself to this court, not as one of the abstract right to release, but whether the exercise of that right, under the facts of this case, would be the exercise of a sound discretion, considering the comity that does and should exist between the federal and state courts. There is nothing in evidence before me tending to show that the state judge will disregard the obligations of treaty stipulations, and treat them other than the supreme law of the land, and, upon the same showing made here, discharge the relator from detention and trial upon the charge of the murder of James Jackson until he shall have had reasonable time to return to Mexico. To assume that it will not, in advance, is to distrust the integrity of the state court. If it shall transpire that the state court shall be remiss in the discharge of a duty devolving upon it with reference to questions arising under the constitution of the United States, treaty stipulations, or the laws of congress, the federal courts will still be accessible. See Ex parte Royall, 117 U. S. 241 et seq., 6 Sup. Ct. Rep. 734, and cases there cited. See, also, U. S. v. Rauscher, 119 U. S. 409, 7 Sup. Ct. Rep. 234, and case there cited; Blandford v. State, 10 Tex. App. 627.
The views thus expressed avoid the necessity of recurring to another point strenuously urged here with apparent earnestness, viz., the proposition that the relator has waived his immunity from punishment for other offenses not embraced in the extradition proceedings. If it were [917]*917true that the only question involved related to how Mr. Coy should he treated we might listen with propriety to what might he said upon that point. Mr. Coy, while entitled to all the benefits of the law in his favor, is not a very important factor in considering this question. This government lias entered into solemn treaty stipulations with Mexico with reference to refugees from justice. These stipulations are, hy a declaration of the constitution of the United States, the supreme law of the land, state constitutions and laws to the contrary notwithstanding. These stipulations this government cannot forget, nor can it justify their violation, without justly incurring the contempt of the civilized world: and yet wc are seriously told that Mr. Coy has waived this binding obligation on the part of the United States, and has canceled the right of Mexico to expect the government of the United States to keep its plighted faith. This is not all; the political authorities of the United States have made the declaration to the world, contained in section 5275, Rev. St., which reads as follows:
NOTE.
Extradition — For Oxe Offense — Trial por Another, independent of treaty stipulations, no absolute obligation of public duty rests upon a nation to surrender fugitives from justice to the country whose laws they have violated, and the general rule is that a person whose extradition has been obtained cannot be field to answer for any other crime than the one for which he was surrendered, until reasonable opportunity has been given him, after his release or trial upon the charge for which he was extradited, to return to the country from whose asylum he was taken. U. 8. v. Rauscher, 7 Sup. Ot. Rep. 234. This rule is recognized in People v. Gray, (Cal.) 5 Rae. ltep. 24Ü, a case arising under the treaty with Mexico, and in cases arising under the extradition treaty with Great Britain. Ex parte Hibbs, 26 Fed. Rep. 421; TJ. S. v. Watts, 14 Fed. Rep. 130. But see dissenting opinion in the ease of U. S. v. Rauscher, supra. With regard to extradition between the states, it is held that in the application of the rule above cited no distinction is to be made between international and interstate extradition. In re Gannon, (Mich.) 11 N. W. Rep. 280. But in Harland v. Territory, (Wash. T.) 13 Pae. Rep. Free access — add to your briefcase to read the full text and ask questions with AI
Turner, J.
On the twenty-second Inst, the relator presented his application for a writ of habeas corpus on the alleged ground that he was unlawfully restrained of his liberty by the sheriff of Bexar county, Texas. The petitioner, in brief, stated that the relator liad been extradited from the republic of Mexico upon the charge of the murder of S. L. Elder and Bud Elder, and for no other or different offense; that he has been admitted to bail in said cases, but that he is now restrained of his liberty upon a charge of the murder of one James Jackson; that, having been extradited upon the charge of the murder of the two Elders, ho is protected from arrest for any other or different offense than those for which he ivas extradited; that he had instituted proceedings for his release by applying to the Honorable Judge McCormick, district judge of the state of Texas, for a writ of habeas corpus, but that he had abandoned his suit thus instituted, and luid paid all costs incident thereto.
These are, in brief, the facts stated in the application presented to me during the present sitting of this court, and upon that showing I directed the writ to issue, which was accordingly done. Under the statement of facts thus presented there can bo no doubt but that relator has the right to claim exemption from trial upon any other charge than those mentioned in the extradition proceedings; and, inasmuch as the question arises under a treaty with our sister republic, the federal court lias jurisdiction to issue the writ, and inquire into the cause of detention, and to discharge the relator from such confinement, if the facts in the case, when fully made known, show' that justice and law require it. The question [916]*916of the right of this court so to act is conceded; the propriety of such action in this case is challenged and seriously questioned. It is claimed, and justly claimed, that the state courts have concurrent jurisdiction with the federal courts, and that that comity which does, and of necessity must, exist between the federal and state courts, would suggest the propriety of a careful exercise of that power by the federal courts when the relator is held by virtue of state authority, unless it should be made manifest that the state courts might reasonably be regarded as unwilling to observe the treaty stipulations referred to as the supreme law of the land.
The agreed statement of facts shows that relator was extradited upon the charge of the murder of the two Elders only. The statement further shows that relator had dismissed his suit or action taken with a view to his release by Judge McCormick, and had paid all the costs incident thereto. This he might lawfully do, and that left his case the same as if he had made no application to the state judge for the writ of habeas •corpus. The statement of facts further shows that the Wilson county case, that was tried, resulted in a mistrial upon the charge of the murder of James Jackson, and that he (relator) has since said trial filed in the state court, where that indictment is pending, his plea to the jurisdiction or right of the state court to proceed to try him upon that charge, because not embraced 'in the extradition proceedings.
That the state courts have concurrent jurisdiction with this court in the premises is conceded; and that, if relator does not obtain his release therein, he may remove the case ultimately into the supreme court of the United States, and there secure immunity from trial upon the charge of the murder of James Jackson until opportunity be given him to return to Mexico, where he sought asylum. The question presents itself to this court, not as one of the abstract right to release, but whether the exercise of that right, under the facts of this case, would be the exercise of a sound discretion, considering the comity that does and should exist between the federal and state courts. There is nothing in evidence before me tending to show that the state judge will disregard the obligations of treaty stipulations, and treat them other than the supreme law of the land, and, upon the same showing made here, discharge the relator from detention and trial upon the charge of the murder of James Jackson until he shall have had reasonable time to return to Mexico. To assume that it will not, in advance, is to distrust the integrity of the state court. If it shall transpire that the state court shall be remiss in the discharge of a duty devolving upon it with reference to questions arising under the constitution of the United States, treaty stipulations, or the laws of congress, the federal courts will still be accessible. See Ex parte Royall, 117 U. S. 241 et seq., 6 Sup. Ct. Rep. 734, and cases there cited. See, also, U. S. v. Rauscher, 119 U. S. 409, 7 Sup. Ct. Rep. 234, and case there cited; Blandford v. State, 10 Tex. App. 627.
The views thus expressed avoid the necessity of recurring to another point strenuously urged here with apparent earnestness, viz., the proposition that the relator has waived his immunity from punishment for other offenses not embraced in the extradition proceedings. If it were [917]*917true that the only question involved related to how Mr. Coy should he treated we might listen with propriety to what might he said upon that point. Mr. Coy, while entitled to all the benefits of the law in his favor, is not a very important factor in considering this question. This government lias entered into solemn treaty stipulations with Mexico with reference to refugees from justice. These stipulations are, hy a declaration of the constitution of the United States, the supreme law of the land, state constitutions and laws to the contrary notwithstanding. These stipulations this government cannot forget, nor can it justify their violation, without justly incurring the contempt of the civilized world: and yet wc are seriously told that Mr. Coy has waived this binding obligation on the part of the United States, and has canceled the right of Mexico to expect the government of the United States to keep its plighted faith. This is not all; the political authorities of the United States have made the declaration to the world, contained in section 5275, Rev. St., which reads as follows:
NOTE.
Extradition — For Oxe Offense — Trial por Another, independent of treaty stipulations, no absolute obligation of public duty rests upon a nation to surrender fugitives from justice to the country whose laws they have violated, and the general rule is that a person whose extradition has been obtained cannot be field to answer for any other crime than the one for which he was surrendered, until reasonable opportunity has been given him, after his release or trial upon the charge for which he was extradited, to return to the country from whose asylum he was taken. U. 8. v. Rauscher, 7 Sup. Ot. Rep. 234. This rule is recognized in People v. Gray, (Cal.) 5 Rae. ltep. 24Ü, a case arising under the treaty with Mexico, and in cases arising under the extradition treaty with Great Britain. Ex parte Hibbs, 26 Fed. Rep. 421; TJ. S. v. Watts, 14 Fed. Rep. 130. But see dissenting opinion in the ease of U. S. v. Rauscher, supra. With regard to extradition between the states, it is held that in the application of the rule above cited no distinction is to be made between international and interstate extradition. In re Gannon, (Mich.) 11 N. W. Rep. 280. But in Harland v. Territory, (Wash. T.) 13 Pae. Rep. 453, it is held that the comity of the states, with regard to extradition, is exercised with more liberality than that which characterizes the relations between foreign nations, and that a man may he tried for a slightly different offense from the one for which he was extradited, there being nothing to suggest fraud. And in Wisconsin the court holds that a man who has been extradited on the charge of the commission of a particular crime, and, on trial, acquitted, may be immediately rearrested for an entirely different offense, without being allowed a chance to return to the state from whip)» £ie was extradited. State v. Stewart, 19 N. W. Rep. 429.
[917]*917“When any person is delivered by auy foreign government to an agent of the United States, for the purpose of being brought within the the United States, and tried for any crime of which lie is duly accused, the president shall liave power to take all necessary measures for the transportation and keeping of such accused person, and for liis security against lawless violence, until the final conclusion of his trial for the crime or offenses specified in the warrant of extradition, and until the 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 safe-keeping and protection of the accused.”
And again we are gravely told that Mr. Coy has released the government from this solemn declaration hy a waiver. Was Mr. Coya pari of the treaty stipulations with Mexico? Is Mr. Coy able to hind and unbind the government from its duties and obligations towards other nations by any act that ho can perform? The statement of the proposition discloses its absurdity.
The relator will ho remanded to the custody of the sheriff of Bexar county, trusting and confiding in the intelligence, virtue, and wisdom of the state courts for such action as law and pride of eouhtry shall demand.