I dissent. The petitioner, Foss, was indicted by the grand jury of Plumas county, in this state, for the crime of embezzlement. At the time of the indictment he was in the Hawaiian Islands. A requisition was made upon the government of the islands for his extradition here to answer the charge preferred by said indictment; and under extradition proceedings he was returned to said Plumas county. He moved to set aside the indictment, and his motion was granted, and he was discharged from custody. • Within two hours afterwards a complaint for embezzlement was made before a justice of the peace, and he was arrested upon a warrant issued by said justice. He now applies to this court under the proceeding of habeas corpus to be discharged.
There is a treaty between the government of the *355Hawaiian Islands and the government of the United States for the return from .one to the other country of persons charged with certain enumerated crimes; but the crime of embezzlement is not one of the crimes so enumerated. (Said treaty to be found in 7 Am. & Eng. Ency. of Law, p. 606.)
The first point made by the petitioner is that he cannot be returned to this country and tried here for any crime not enumerated in the treaty. There are certain very strong authorities to sustain this point, particularly Commonwealth v. Hawes, 13 Bush, 697; 26 Am. Rep. 242; United States v. Watts, 8 Saw. 370; Holmes v. Jennison, 14 Pet. 540, 593; United States v. Rauscher, 119 U. S. 407; Spear on Extraditions, pp. 221, 205 etseq. The questions raised by this point need not, however, be here passed -upon definitely, because we think that the petitioner should be discharged upon the second point made by his counsel, to wit, that the indictment upon which the extradition was secured having been set aside, and the petitioner entirely discharged, he cannot afterwards be held upon the complaint before a justice of the peace, without having been given reasonable time to return to the country from whence he was brought. The treaty above mentioned provides that a person charged with crime shall be extradited only “ upon such evidence of criminality as according to the laws of the place where the person so charged shall be found would justify his apprehension and commitment for trial if the crime had been committed there.” It further provides that the person demanded shall be brought before a court of the country in which he is “to the end that the evidence of criminality may be heard and considered.” And if upon such hearing the magistrate is satisfied that the evidence sustains the charge, he may issue a warrant for the surrender of the fugitive. Now, in the case at bar, it appears that the judge at the Hawaiian Islands was presented with a certified copy of the indictment that had been found against the petitioner, with the affidavit of the foreman of the grand jury, and that he acted entirely *356upon the sufficiency of the evidence as afforded by said indictment. And the indictment upon which the authorities of the Hawaiian Islands acted, and which it may reasonably be supposed was considered as sufficient evidence for action there, having been set aside and held invalid by the court in .Plumas county, and the prisoner having been discharged under said indictment, upon which the extradition papers were based, he could not be held upon a complaint before a magistrate and proceedings which were entirely unknown to the authorities of the Hawaiian Islands, and upon which their order for the arrest of the fugitive was not in any way based. As was said in Commonwealth v. Hawes, 13 Bush, 697, 26 Am. Rep. 242, “By providing the terms and conditions upon which a warrant for the arrest of the alleged fugitive may be issued, and confining the duty of making the surrender to cases in which the evidence of criminality is sufficient, according to the laws of the place where such fugitive is found, to justify his commitment for trial, the right of the demanding government to decide finally as to the propriety of the demand and as to the evidences of guilt is as plainly excluded as if that right had been denied by express language. It would scarcely be regarded an abuse of the rules of construction from these manifest restrictions unaided by extraneous considerations, to deduce the conclusion that it was not contemplated by the contracting parties that an extradited prisoner should, under any circumstances, be compelled to defend himself against a charge other than one upon which he is surrendered, much less against one for which his extradition could not be demanded.” And I think the right under -the treaty is one which the petitioner himself may assert.
The petitioner, in my opinion, should be discharged from custody.