
    (81 Hun, 336.)
    PEOPLE ex rel. YOUNG v. STOUT.
    (Supreme Court, General Term, Fifth Department.
    November 13, 1894.)
    Extradition—Conviction of Crime not Specified.
    " Under the treaty between the United States and Great Britain which, provides for the extradition of persons “charged with the crime of murder or assault with intent to commit murder,” a person extradited on a charge of “assault with intent to commit murder” cannot be convicted of an assault with intent to do great bodily harm.
    
      Application by Charles Young for writ of habeas corpus to James C. Stout, agent and warden of state prison at Auburn, to inquire into the cause of relator’s imprisonment. Relator discharged.
    For report of decision on application to special term, see 30 JN. Y. Supp. 370.
    Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.
    H. J. & W. H. Sullivan, for relator.
    Howard H. Widener and E. C. Aiken, for defendant.
   BRADLEY, J.

By indictment found by the grand jury of Monroe county in June, 1893, containing three counts, the relator was charged (1) with the crime of assault in the first degree, made with a loaded revolver, with intent to kill Herbert Guering; (2) with assault in the second degree, upon the same person, with a loaded revolver, and the infliction of grievous bodily harm; (3) with assault in the second degree, with an instrument likely to produce grievous bodily harm upon the same person. The relator was tried upon the indictment in April, 1894, in the court of sessions of that county, and, by the verdict of the jury, found guilty of assault in the second degree. The judgment of the court thereon was that he be imprisoned in the state prison at Auburn for the term of four years and five months, and he was committed accordingly. After the rendition of the verdict, and before sentence, the relator moved in arrest of judgment that the court had no lawful right or jurisdiction to render it, for the reason that, having been extradited from England on the specific charge of assault with intent to commit murder, and having been acquitted of such charge, he was entitled to and demanded his liberty, that he might have a' reasonable time to return to England, in accordance with the provisions of the treaty existing between Great Britain and the United States. The motion was overruled, and the judgment before mentioned followed. The facts upon which the relator seeks to be relieved from the judgment and imprisonment are that, shortly after the commission of the act constituting the alleged offense, he left this country, and went to England, from where he was extradited, and brought back to the county of Monroe, pursuant to the provisions of a treaty between the two governments whereby it was agreed that the United States and her Britannic majesty should, upon mutual requisitions respectively made, “deliver up to justice all persons who, being charged with the crime of murder or assault with intent to commit murder, shall seek an asylum or shall be found within the territories of the other.” It also provides for the manner and means of accomplishing its purpose. Treaty of 1842, art. 10. By a further treaty supplementary to that article, it was provided that “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.” Treaty of 1889, art. 3. And further provision was made by the federal statute for accomplishing the purpose of extradition treaties with foreign countries. Rev. St. U. S., tit. 66, §§ 5270-5279. In the requisition and warrant of the executive of the United States upon which action was taken in England pursuant to the treaty, with a view to the surrender of the relator, the offense with which he was charged was specifically stated as that of “assault with intent to commit murder”; and the warrant there issued for the surrender of him to the agent commissioned to receive and bring him to the United States in like manner described the alleged offense upon which the extradition proceedings were had.

The question upon the merits is whether the court of .sessions of Monroe county exceeded its jurisdiction of the person of the relator in the rendition and execution of the judgment which consigned him to imprisonment. He was not extraditable under the treaty upon the charge of the offense of assault in the second degree. The alleged crime upon which the extradition proceedings were taken and had was assault in the' first degree, as defined by our statute. Pen. Code, § 217. The relator was therefore properly put upon trial and tried under the indictment, but he was convicted of a lesser offense only than that for which he had been extradited, and a lesser offense than that for which he was extraditable by virtue of the treaty between the United States and Great Britain. How, then, in view of its provisions, could he lawfully be subjected to the judgment pronounced upon the verdict? The treaty is the supreme law of the land, and of it the court was required to take judicial notice. Const. U. S. art. 6, § 1, subd. 2. It must be assumed that the relator could not lawfully, by the judgment of the court, be punished for an offense not extraditable by the treaty until his failure, after opportunity to do so, to return to the country in which he had been surrendered. U. S. v. Rauscher, 119 U. S. 407, 7 Sup. Ct. 234. He was not convicted of that offense; but it is urged upon the part of the defendant that, as the court had jurisdiction to try him upon the indictment as for assault in the first degree, it was within the power of the court to punish the relator for any lesser degree of the crime of assault for which he should by the jury be convicted on such trial. It is true that, upon an indictment charging only the higher degree of the crime, a person may be convicted of any lesser degree of it. Pen. Code, §§ 10, 35; Code Cr. Proc. §§ 390, 444. This is upon the theory that the lesser is included in the higher degree of the offense. Code Cr. Proc. § 445. But, nevertheless, the minor is not the major offense; and, unless the conviction of an assault less in degree than that with intent to commit murder was within the contemplation of the extradition treaty, it is not seen that the relation of it to such extraditable charge can bring the lower degree within the purpose or effect of the surrender made pursuant to the treaty. The purpose of the international compact evidently was to confine its execution to those charged with the graver crimes; and it is entitled to no construction which will justify the trial, conviction, or punishment of a person surrendered pursuant to it of any degree of assault other than that there mentioned. If anything further in that respect had been intended, it may be assumed that such purpose would have been in some manner expressed in the treaty. The effect of the verdict of conviction for assault in the second degree was acquittal of Young on the charge of assault in the first degree. People v. McDonald, 49 Hun, 67, 1 N. Y. Supp. 703; People v. Willson, 109 N. Y. 347, 16 N. E. 540. Before the supplemental treaty of 1889 was made, that of 1842 was in many cases so construed as not to permit the trial of a person delivered up in execution of the treaty for any offense other than that for which he was extradited, while his custody taken by such surrender continued (Com. v. Hawes, 13 Bush. 697; State v. Vanderpool, 39 Ohio St. 273; Ex parte Hibbs, 26 Fed. 421, 431); and such is the import of the federal statute on the subject (Rev. St. U. S. 5272, 5275). ,

In U. S. v. Rauscher, 119 U. S. 407, 432, 7 Sup. Ct. 234, decided in 1886, where the court distinctly so held, it was said:

“We do not think the circumstance that the same evidence might be sufficient to convict of the minor offense, which was produced before the committing magistrate to support the graver charge, justifies the departure from the principle of the treaty.”

This construction of the treaty, as well as such effect of it, was, by expression obiter, recognized with approval in People v. Cross, 135 N. Y. 540, 32 N. E. 246. The view expressed by Chief Judge Church in Adriance v. Largrave, 59 N. Y. 110, 115, that there was no treaty provision denying the right to try for any other than the extraditable offense, is not necessarily applicable to the situation afterwards produced by the supplemental provision of the convention of 1889. The limitation of the jurisdiction to try here a j person delivered up in a foreign country is dependent upon his surrender pursuant to a treaty having such effect. If he is otherwise taken into custody, and brought into the jurisdiction of our courts, no extradition treaty is violated by the trial of him for any offense (Kerr v. Illinois, 119 U. . 436, 7 Sup. Ct. 225); and the same rule would be applicable to the trial of a person voluntarily surrendered by the government of a foreign country without reference to the treaty on that subject betwen that and this country.

It is here urged by the defendant’s counsel that the surrender of the relator should be treated as having been so made as not to confine the right of trial. to the extraditable offense of the treaty. The reason asserted for such contention is that the indictment was present at the hearing had preliminarily to the surrender, and it should be assumed that he was delivered up for trial on the charge of assault in any of the degrees alleged in the indictment. Nothing appears to justify such inference or conclusion. The proceedings in England, as they appear by the documentary evidence, were had pursuant to the treaty; and this appears by the warrant there issued, wherein the alleged offense upon which he was surrendered is distinctly stated to be that of ^ assault with intent to commit murder.

The further question is raised whether relief can be had by habeas corpus; and it is insisted that the only remedy available to the relator is in review of the judgment by appeal, and that, at all events, that remedy should first be exhausted. The statute provides that the court before which a person is brought by virtue of the writ of habeas corpus must examine into the facts alleged in the return, and into the cause of the imprisonment, and must malee a final order to discharge him therefrom if no lawful cause for the imprisonment is shown (Code Civ. Proc. § 2031); but that, if it appears that he is detained “by virtue of a final judgment of a competent tribunal of civil or criminal jurisdiction,” he must be remanded (Id. § 2032). Habeas corpus is a common-law writ, and the privilege of it is preserved by the organic law of the state (Const, art. 1, § 4); and therefore its legitimate purpose cannot be denied by statute. It is not available to inquire into the mere legality or justice of a judgment or mandate. For that purpose the remedy of the prisoner is by review. People v. Protestant Episcopal House of Mercy, 128 N. Y. 180, 28 N. E. 473; People v. Webster, 75 Hun, 278, 26 N. Y. Supp. 1007; Ex parte Fonda, 117 U. S. 516, 6 Sup. Ct. 848; In re Wood, 140 U. S. 278, 11 Sup. Ct. 738. But the term “legality” or “justice,” in the sense so used, is not deemed to include questions of jurisdiction or power; and the want of jurisdiction of the tribunal to pronounce the judgment or mandate by which the prisoner is placed and detained in custody furnishes to him the right to resort to the writ for relief, and that is the only subject of inquiry. People ex rel. Tweed v. Liscomb, 60 N. Y. 559; People v. Warden of County Jail, 100 N. Y. 20, 2 N. E. 870; People v. Protestant Episcopal House of Mercy, supra. In the present case the jurisdiction of the court of sessions, as respects the person and subject-matter, to try the relator upon the charge of assault with intent to kill, cannot be questioned. This was the offense alleged in the first count of the indictment. He was therefore properly put upon trial in that court; but by virtue of the supreme law of the land, the custody of the relator was so qualified as not to exist other than for the purposes of his trial upon that specific charge. For any other purpose his person was beyond the legitimate control of the court, excluded from it by force of the international treaty before mentioned. If that charge had been stricken from the bill, the lawful custody and jurisdiction would have ceased, to enable him to return to the country from which he had been extradited. The like effect followed his acquittal of that offense, which was the result given by the verdict for an assault in a minor degree only. In that view it would seem that the question is no different than it would have been if the indictment upon which he was tried had not contained the' count for assault in the first degree. Then he could not have been tried without violation of the treaty pursuant to which he was extradited, and, as held in IT. S. v. Eauscher, he was clothed with' the right of exemption from trial for any other charge than the one offense until he had the opportunity to return to the country from which he was taken. It follows that there was no jurisdiction to pronounce the judgment for its execution against the relator; and as said by Judge Allen in the Tweed Case, 60 N. Y. 591:

“A party held only by virtue of judgments thus pronounced, and therefore void for want of jurisdiction, or by reason of excess of jurisdiction, is not put to his writ of error (appeal), but may be released by habeas corpus.”

These views lead to the conclusion that the relator is entitled to his discharge from imprisonment. All concur.  