WINNIPEG, October 18, 1910.

MATHERS, C.J.K.B.:-The Russian depositions are, in my opinion, sufficiently authenticated. They make it clear that, on the 5th day of January, 1908, at the village of Levkovka, in the district of Uman, in the Empire of Russia, one Savaa Fedorenko, shot and killed Samson Osadchuk, a village watchman, under circumstances which according to the law of Canada, would make the offence murder. The extradition to Russia of the accused for this crime is resisted upon two principal grounds:

First, it is said the accused has not been identified with the man who did the shooting. On this point, although the evidence is not as conclusive as it might be, I am satisfied the accused is the Savaa Fedorenko referred to in the Russian depositions. In appearance he answers the description given in these depositions. The name is the same; he belonged to the same village; he left Russia accompanied by a man of the same name as the man who was accessory to his shooting Osadchuk. These, with other circumstances disclosed in the evidence, make a primâ facie case of identity.

The principal ground on which extradition is resisted is that the offence disclosed in the evidence is of a political character, for which, under article VI. of the Treaty with Russia of the 24th November, 1886, a fugitive shall not be surrendered. What constitutes a crime of a political character within the meaning of the various Extradition treaties, has been the subject of judicial comment.

In Re Castioni, [1891] 1 Q.B. 156, Denman, J., said: "I think that to bring the case within the words of the Act and to exclude extradition for such an act as murder it must at least be shewn that the act is done in furtherance of, done with the intention of assistance, as a sort of overt act in the course of acting in, a political matter, a political rising, or a dispute between two parties in the state as to which is to have

the government in its hands, before it can be brought within the meaning of the words used in the Act."

Was the crime of the accused committed in the furtherance of a political object? He belonged to the social democratic party, whose object was, not only to alter the form of government, but also to do away with private ownership of property. A propaganda was carried on by them throughout the country and numerous revolutionary outrages were perpetrated by them.

In the district where this crime was committed, martial law had been proclaimed and was then in force. Whether or not the accused had been implicated in any other crime punishable the law of Russia does not appear. On the night in question, he and his friend were staying in the house of one Volkodor, in the village of Levkovka. The village constable, hearing that two strange men were in the house of Volkodor, went with the deceased and several other watchmen to investigate. At first they were satisfied by the representations of Volkodor as to the peaceable character of his guests, but after coming out of the house, one of the watchmen expressed his belief that they were "bad men" because one of them had a watch and they were well dressed. It was then decided to take them to the village administration office. On being informed of this intention the accused and his companion dressed and left the house with the watchmen. When they got outside, the accused shot Osadchuk and they started to run. They were pursued and fired several more shots at their pursuers, but escaped. They had been accused of no offence and were not taken for any, but being strangers were asked to go to the administration office and account for themselves.

Can it be said that this killing was in furtherance of a political object? I think not. Nor do I think the fact that the crime of the accused would, in the demanding State, be called a political crime and be tried by a special tribunal makes it a crime of a political character within the meaning of the Treaty. The crime of killing a policeman by a person in no way identi

fied with any political movement would in Russia be so described, and would be tried by the same tribunal.

The conclusion I have come to is that the demanding State has made a case for the extradition of the accused for the crime laid in the information.

The accused will, therefore, be remanded to the provincial jail at Winnipeg, there to remain until surrendered to the foreign state, or discharged according to law.

I now inform him that he will not be surrendered until after the expiration of fifteen days, and he has a right to apply for a writ of habeas corpus.

Extradition ordered.

NOTE: See Re Fedorenko (No. 2), following.

[COURT OF KING'S BENCH, MANITOBA.]

BEFORE ROBSON, J.

Re FEDORENKO (No. 2).

Extradition-Treaty providing for requisition by demanding countryCommittal for extradition without formal requisition being madeDischarge on habeas corpus-Russian Extradition Treaty of 1886 (20 Can. Gazette 1918)-Extradition Act, R.S.C. 1906, ch. 155.

1. As the Extradition Treaty of 1886 with Russia expressly provides for a requisition by the demanding country for the extradition of an accused person, the prisoner committed for extradition without such requisition must be discharged.

2. The provisions of the Canadian Extradition Act are controlled by those of the particular treaty under which extradition is sought.

DECIDED: December 17, 1910.*

Application on a writ of habeas corpus for discharge of accused, who had been remanded for extradition. (Re Fedorenko (No. 1), ante.)

*Also reported, 20 Man. R. 224.

N. F. Hagel, K.C., and M. J. Finkelstein for the accused cited Nash's Case, 4 B. & Ald. 295; Re Zink, 6 Q.L.R. 260; Re Anderson, 11 U.C.C.P. 10; Mash's Case, 2 Wm. Bl. 805; Re Royston, 18 M.R. 543; Re Castioni, [1891] 1 Q.B. 149; Re Herris, 32 Fed. 583; In re Kaine, 14 How (U.S.) 147.

E. L. Howell, for the Emperor of Russia, cited Re Zink, 6 Q.L.R. 260; Ex parte Seitz, 3 Can. Cr. Cas. 54; vol. 21, Cyc. 294; Reg. v. St. Clair, 27 A.R. 308; Rex v. Simmons, 17 O.L.R. 239; Ex parte Feinberg, 4 Can. Cr. Cas. 270; Re Collins (No. 3), 10 Can. Cr. Cas. 80; In re Siletti, 71 L.J.K.B. 935; Clarke on Extradition, 251; Roscoe, Evidence, 128; Re Lazier, 3 Can. Cr. Cas. 167; Re Meunier, [1894] 2 Q.B. 415; In re Ezeta, 62 Fed. 972; Ornelas v. Ruiz, 161 U.S.R. 502, and vol. 19, Cyc. 56.

WINNIPEG, December 17, 1910.

ROBSON, J.:-Pursuant to a writ of habeas corpus directed to W. H. Lindsay, the keeper of the common jail at Winnipeg, and to Henry H. Crofts, sheriff's officer, also of the city of Winnipeg, there was brought before me the body of Savaa Fedorenko, the return to the writ stating that the said Fedorenko was detained by the said W. H. Lindsay and Henry H. Crofts under a warrant of the Chief Justice of this Court, acting as Extradition Commissioner under the provisions of the Extradition Act, directing him, the said Crofts, to convey and deliver the said Savaa Fedorenko into the custody of the said W. H. Lindsay, and the latter to receive and safely keep in his custody the said Savaa Fedorenko until he is thence delivered, pursuant to the provisions of the said Extradition Act.

A motion was thereupon made by counsel for Fedorenko for his discharge on divers grounds.

On hearing of the motion it appeared that the committal under the warrant above referred to was the result of proceedings instituted under the Extradition Act, against Fedorenko on behalf of the Empire of Russia, wherein it is said that Jacob

Seel, a police officer of the city of Winnipeg, in the province of Manitoba, has reason to believe, and doth verily believe that Savaa Fedorenko, at the village of Levkovka, in the district of Uman, in the Empire of Russia, on the fifth day of January, in the year of our Lord, one thousand, nine hundred and eight, did unlawfully, wilfully and with malice aforethought, kill and murder one Samson Ozadchuk, contrary to the law of the said Russian Empire.

The evidence and proceedings which had been taken before Chief Justice Mathers, were produced on the motion for discharge. This motion was opposed by counsel for the demanding government.

Various objections to the extradition proceedings, and to the warrant of commitment, were urged by prisoner's counsel. Among these was the objection that no proper requisition had been made, as by the treaty between the high contracting parties and by law required.

The Treaty in question will be found in volume 20 of The Canada Gazette, 1887, at page 1918.

Article VIII. of the Treaty declares:

"The requisition for extradition shall be made through the diplomatic agents of the high contracting parties.

"The requisition for the extradition of an accused person must be accompanied by a warrant of arrest, issued by the competent authority of the state requiring the extradition, and by such evidence as, according to the place where the accused is found, would justify his arrest, if the crime had been committed there."

Then follow certain provisions, having no bearing here.

Article IX. of the Treaty reads thus:

"If the requisition for extradition be in accordance with the foregoing stipulations, the competent authorities of the state applied to shall proceed to the arrest of the fugitive."

No such requisition appears in the evidence and proceedings in this case. There is no reference to any such in the notes of evidence. In fact there was no such requisition.