(concurring).
This case involves a question of the construction of a United States statute, R. S. § 5270 (18 USCA § 651), controlling the consideration of evidence by a United States Commissioner entertaining an application for extradition under the WebsterAshburton Treaty of 1842. The statute is paramount to all the prior existing treaties. Charlton v. Kelly, 229 U. S. 447, 463, 33 S. Ct. 945, 57 L. Ed. 1274, 46 L. R. A. (N. S.) 397; Grin v. Shine, 187 U. S. 181, 191, 23 S. Ct. 98, 47 L. Ed. 130. The section to be construed is, “If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he shall certify,” etc.
The question is whether the words “under the provisions of the proper treaty” refer to the provisions in the instant treaty making “murder” extraditable, in which event “evidence sufficient to sustain the charge” of mtxrder would be required, or whether the word “provisions” refers to the portion of the treaty which provides for extradition “xipon such evidence of criminality as” (in California in this case) “would justify his apprehension and commitment for trial.” That is to say, shall there be a prima facie case of murder as suggested, but not held, in Charlton v. Kelly, 229 U. S. 447, 461, 33 S. Ct. 945, 57 L. Ed. 1274, 46 L. R. A. (N. S.) 397, or is it sufficient to show probable cause?
It is obvious that there is here a clear ambiguity, and if the statute were an ordinary criminal enactment this ambiguity would have to be resolved in favor of the accused. In that event, the evidence would have to be sufficient to sustain the charge of murder. Under the laws of California, such a charge could not be sustained on the mere testimony of an accomplice. Cal. P. C. § 1111; People v. Coffey, 161 Cal. 433, 119 P. 901, 39 L. R. A. (N. S.) 704.
The treaties themselves, even those involving criminal extradition, are to be liberally interpreted in favor of the demand*134ing party to the treaty. Factor v. Laubenheimer, 290 U. S. 276, 293, 54 S. Ct. 191, 78 L. Ed. 315. It would seem that the statute which simply implements the treaty should receive the same interpretation in favor of the demanding government. It therefore follows that in states requiring only probable cause as a condition of apprehension and commitment, nothing beyond such showing of probable cause is required by R. S. § 5270 (18 USCA § 651).
The question here seems to be foreclosed by the decision of the Supreme Court in the case of McNamara v. Henkel, 226 U. S. 520, 523, 33 S. Ct. 146, 57 L. Ed. 330, followed in Collins v. Loisel, 259 U. S. 309, 315, 42 S. Ct. 469, 66 L. Ed. 956. There the treaty under consideration was the Webster-Ashburton Treaty as affected by the ■ provisions of R. S. § 5270. The proceedings sought to have the accused removed from New York to British Columbia. Mr. Justice Hughes’ opinion states:
“ * * * Examination was demanded, and after hearing the evidence submitted on both sides, the United States commissioner found probable cause and issued an order of commitment for extradition. * t- *
“The question simply is whether there was any competent evidence before the commissioner entitling him to act under the statute. The weight of the evidence was for his determination. The statute provides that if, on the hearing, 'he deems the evidence sufficient to. sustain the charge,’ he shall certify the same to the Secretary of the State, and issue his warrant for the commitment of the accused pending surrender according to the stipulations of the treaty. Rev. Stat. § 5270.”
The facts proved as to probable cause for apprehending the accused on a charge of burglary were that he was cranking the car shortly after the burglary, in the vicinity of the garage which had been broken and entered. The criterion governing was, not that this was sufficient for conviction, but that it “tended to show guilty participation.” His language is: “The evidence pointed to the appellant as one having control of the car and engaged in the endeavor to secure the fruits of the burglarious entry. Possession in these circumstances tended to show guilty participation in the burglary.”
It is elementary that evidence may tend to show guilt, which evidence, without more, will not sustain a conviction.
It would therefore appear that the Supreme Court interprets the words “evidence sufficient to sustain the charge” as not requiring the proof of a prima facie case of guilt. It is enough to show probable cause by acts tending to show guilty participation. California does not require for commitment that a prima facie case of guilt be made out, but merely facts tending to show participation. In re Lottie McCarty, 140 Cal. App. 473, 35 P.(2d) 568; Ex parte Heacock, 8 Cal. App. 420, 97 P. 77.
The testimony of an accomplice is ,enough for commitment, In re Schwitalla, 36 Cal. App. 511, 172 P. 617, as is also a confession, upon which evidence alone a conviction cannot rest. People v. Cokahnour, 120 Cal. 253, 52 P. 505. At the trial proper the evidence is properly admissible as tending to show guilt, though insufficient in itself to sustain a verdict. “ * * * The objection that a witness was an accomplice does not go to the admissibility, but only to the effect, of his evidence.” People v. Grundell, 75 Cal. 301, 305, 17 P. 214, 217; People v. Clough, 73 Cal. 348, 353, 15 P. 5; People v. Barnnovich, 16 Cal. App. 427, 430, 117 P. 572. In the case of In re Oxley, 38 Nev. 379, 149 P. 992, 994, which held such evidence would not establish probable cause, the court failed to consider the decisions of the California Supreme Court holding it admissible as tending to show guilt; nor the decision of that court in the Cokahnour Case, holding a confession sufficient evidence of probable cause.
The controlling question, whether the R. S. § 5270 (18 USCA § 651) has added to the California law, which demands only a showing of probable cause, the showing of a prima facie case, must' be answered in the negative and-the
Order .sustained.