Ex parte Fudera
| Decision Date | 24 June 1908 |
| Citation | 162 F. 591 |
| Parties | Ex parte FUDERA. |
| Court | U.S. District Court — Southern District of New York |
Marx Houghton & Byrne, for petitioner.
Gino G Speranzo, for demanding government.
This is a petition of Vincenzo Fudera, in the custody of the United States marshal for the Southern District of New York, under the application of the Italian Ambassador for the extradition of one Girolamo Asaro on the charge of murder, to be discharged under a writ of habeas corpus. The papers sent forward by the Italian government show that on October 4 1896, Giuseppe Costa of Castellammare del Golfo was murdered. July 12, 1898 a warrant of arrest was issued in Italy for the apprehension of Girolamo Asaro, 'charged with participating in intentional premeditated homicide in that with the intent of killing and with premeditation he together with others, directed one Buccellato Martino, since dead, to murderously shoot on the night of October 4, 1896, in Bada street (territory of Castellammare), one Giuseppe Costa, thereby killing him instantly. ' December 3, 1898, Girolamo Asaro was convicted in his absence in contumaciam of having contributed to the murder of Costa by directing one Buccellato Martino to commit the unlawful act, and sentenced to life imprisonment.
Article 1 of the extradition treaty of 1868 between the United States and the Kingdom of Italy (Act March 23, 1868, 15 Stat. 629) provides that each party shall deliver up to the other 'persons who, having been convicted of or charged with the crimes specified in the following article (of which murder is one) committed within the jurisdiction of one of the contracting parties, shall seek an asylum or be found within the territories of the other, provided that this shall be done only upon such evidence of criminality as according to the laws of the place where the fugitive or person so charged shall be found would justify his or her apprehension and commitment for trial if the crime had been there committed.'
One who has been convicted in contumaciam in foreign countries is to be regarded not as convicted of, but only charged with, the offense. Moore on Extradition, art. 102.
The petitioner contends that no evidence has been offered, as required by the treaty, which would justify a magistrate of this country in committing Girolamo Asaro for trial if the crime had been committed here. The only testimony on the subject is that of a policeman and...
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