bilityoftbe witnesses and of the weight to be attached to their testimony; and in civil suits, such as the present Olle. you may predicate your finding Upon a preponderance of evidence. It uniow your duty, gentlemen of the jury, to render such a verdict as will be just and right, in view of the testimony, and the law as em· bodied in these instructions.
(Oire'll/It Oourt, So D. New York. November 11,1890,)
80 as to entitle them to be received for similar purposes by the ,tribunal of the foreiJll1llOuntry from which the accused party shall have escaped," and that the cer· tif[eate of the principal diplomatic or consular officer of the United States in such foreign country shall be proof that t1)ey are, 80 authenticate\!; , HeZd, that such Qertitlcate is suftl.cient where it follows the of the statute.
to be 1,1sed in extradition proceedings "shall be properly and legally authenticated,
ActCong, Aug. 3 1882, § 5, provides that depositions taken in a foreIgn country
Corpus in Extradition Proceedings. Act' Congo Aug. 3, 1882', § 5, provides that "in allcasegwhere any warrants,' 'or other pa.pers, or copies thereof" shall be offered in upon the heating of any extradition case, under title 66, Rev'. St.,auch depositio#s,iletc., /lahall be received ll.I1d admitted as hearing, if they shall be properly and legally a:uthenticated,so as to entitle' fhem to be received for similar 'purposes by the tri,bunals of the foreigi1 Muntryfromwhich the accusedpurty shall have escaped; and the ceriifietl.te of the principal diplomatic or consular officer of the United Statesr¢sident in such foreign country-shall be proof that .allY depositions sodffered are'authenticated in the manner required by the act." , " , , ".', i " The copies of the depositions' of·Mtnesses taken in Germany were eer"; tified by ,the judge of investigation, attached to the German ,court, as being copies, ahd, as sneW;tralid "pieces of evidence, " under the legal proprevailing in inwhi'ch state of the German empire the were com'mUted.'" The signature of the judge of investigation was certi,fied by the' presiderlt Qf'thecourt; and the latter's signature by tha niinisterof Justice: 'Thepfollowed thecertifica,te of the foreign office, cop.slating' "Certified." " The final certificate was that of Mr, -Phelps, envoy extraOl'dinary and minister plEfliipotelltiary of the States at Berlin , in: the words following: ', ' ,
voy: 'extraordinary p\pnij'lotentiary of thE! trnited bf.An'llirica at ;BerIin, beIng the pfincipaI dilliotnatiti officer of the Unitl'd States of America resident in 'Pru,ssia, do 'hereby certify tl1'!1tHellwig Is. and was,:a:t',the date ofhiscerLitlcateto the foregoing docu. ment.,a, director lJl foreiga otJice. and a privy councilor of lega'..
'1J1fiTED STATES ·17.·
tion, and to said documents, by him so certified, full and credit ought to be given, arid· that the signature of the said Hellwig is:genuine; and I further certify that the foregoing docnments, which are intended to be offered in evidence upon the hearing 'within the United States of an application for the extradition of Julius and Simon Krojanker, under title sixty-six of the Revised Statutes of tile· said United States, and for· aU the purposes of such hl,'ari,ng, are properly and so as to entitle them to be receiv'ed,ior similarpurpost's by the trilju"als of Prussia. . "In testimony whereof I have hereunto set my hand and seal· of office at Berlin, Germany, this 4th day of August, A. D. Itl90.
"WH. WALTER P!u;LPS."
Hellwig, whose sigimture was certified by Mr. Phelps, istheoflicer who signed the certificate of the foreign office. ' A. J. Dittenhoefer, in support. AdolPh DUlim, iii opposition. i.'
LACOMBE, Circuit Judge. The objections to the form. of certificate seem to be sufficiently answered in the opinion of this court in Re Bell7'(J71dt, 23 Blatchf. 40,22 Fed. Rep. 699. The case against Simon seems reasonably clear. As against Julins, it is very weak, and it may be doubtful whether the evidence submitted fairly warrants the conclusion arrived at by the commissioner. The question, however, is one not as to the competency of the ,evidence, but as to its weight, and his decision thereon is not reviewable. In reOteiza y Cortes, 136 U. S. 330, 10 Sup. Ct. Rep. 1031·. Let the writs be discharged.
STATES 17. STEWART.
(DI8t7ict Court, E. D. South. Carolina. .ranuary 7, 1891.)
ClmmUL LAW-WITNESSES FOR INDIGENT PERSON. Rev. St. U. S. § 878, authorizing a judge to order witnesses to be subp<enaed In behalf of an indicted indigent person, gives no authority to order sUbpcenal lor one against whom a bill of indictment ia before a grand jurI'.
Indictment. Samuel J. Lee, for motion. SIMONTON, J. This is an application for witnesses on behalf of Stew-: art, under section 878, Rev. St., as an indigent persoll. It appears that an indictment has been given out against Stewart, which is now in the hands of the grand jury. The grand jury have not acted on it. The section (878) permits ajndge, upon proper affidavit, to order witnesses to be subprenaed in bepalf of a person indicted; that is to say, after indictment found. If a case be not given to the grand jury, or if they find no bill, the person is not indicted. The section does not apply, and the judge has no authority to order subprenas at the expense of United States. Motion refused.