-■r;rh.n:^i-"-iir".f: l5Sig?H? rtSIVViUiBiir •■gtiifiJiS:-.;: Kasji :;Hii-:i:: (Jnnt^U ICam ^rbool SItbtarg Cornell University Library KF 9635.S42 The law of interstate rendition, erroneo 3 1924 020 181 677 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924020181677 THE LAW OF INTERSTATE RENDITION Erroneously Referred to as INTERSTATE EXTRADITION A TREATISE ON THE ARREST AND SURRENDER OP FUGITIVES FROM THE JUSTICE OF ONE STATE TO ANOTHER; THE REMOVAL, OF FEDERAL PRISONERS FROM ONE DISTRICT TO ANOTHER; AND THE EXEMPTION OF PERSONS FROM SERVICE OF CIVIL PROCESS; WITH AN APPENDIX OF THE STATUTES OF THE STATES AND TERRITORIES ON FUGITIVES FROM JUSTICE BY JAMES A.JCOTT, OF THE CHICAGO BAE, AND FOKMEE ASSISTANT STATE'S ATTOENET, COOK COUNTY, ILLINOIS. SHERMAN HIGHT, FUBUSHEB, CHICAGO, ILLINOIS 1917 Copyright, 1917, By JAMES A. SCOTT. PREFACE The subject of Interstate Rendition is not a new branch of the law, in fact, from the earliest period of the governmental existence of the country, the arrest of fugitive criminals and their return to the jurisdiction where the alleged crime is charged to have been com- mitted, has been one of paramount and growing Importance, com- manding, at all times, the best efforts of the officials of both the demanding and surrendering States, that the law might be faithfully and fairly executed. The safety of society and the maintenance of law and order demand that no State, Territory or Possession of the United States, shall, under any circumstances, afford an asylum where this class of criminals shall be immune from prosecution and punish- ment for crimes committed. And alt^^ough this proposition Is funda- mental in its very nature, ii^itettfie^gs, any legislation or judicial decisions which give undue force to the right of the State to arrest, surrender and deport the alleged fugitive Is objectionable, more or less. Daniel Webster, a great lawyer in his day, must have had this thought in mind in defining the meaning of "due process of law", to be, "a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial". As stated elsewhere in this work, the arrest and surrender of a fugitive from the justice of one State to another, is controlled entirely by the Constitution and laws of the United States on this subject, and hence, no question arising thereunder is finally and authoritatively settled until the Supreme Court of the United States has passed upon the same. During the past fifty-five years, from the case of Kentucky V. Dennison, (1860), down to the case of Innes v. Tobin, (1916), that court has settled many of the questions upon 'Which there has been a noticeable lack of harmony in the different State court decisions. The grouping of these Supreme Court cases in Chapter XXI, enables one to see and determine, at a glance, just what that court has decided is the law in Interstate Rendition. In the preparation of this work the author's labors have been directed toward the production of a treatise, simple, accurate and helpful to the busy lawyer, who may be called upon to resist, b^ court procedure, the deportation of one charged with being a fugitive from justice. The works on this subject by Spear, Moore and Hawley, were published more than twenty-five years ago, and many of the author- ities cited as law therein, have been overruled in later Cftses; there- fore, there is an urgent necessity of a work on Interstate Rendition, modern and up-to-date. An experience of several years In the office of the State's Attorney, of Cook County, Illinois, as an Assistant In charge of habeas corpus and rendition, brought to the author's attention the need of such a work, based on the latest court decisions, legislative enactments and rules of practice, pertaining to this branch of the law. It should not be inferred that the following pages are specifically from a prose- cuting officer's standpoint, and solely for their benefit and guidance, a cursory glance at the table of contents, will prove the converse to be true. JAMES A. SCOTT. Reaper Block, Chicago, Illinois. June, 1917. TABLE OF CONTENTS CHAPTER I. INTRODUCTION. PAOE. § 1. Rendition, not "Extradition" 1 § 2. Seven Fundamental Points of Difference 2-4 1. Source of Authority 2 2. Action how Effected 2 3. Charge of Crime 3 4. Extraditable Offenses 3 5. Crimes for which Fugitive may be Tried 3 6. Political Offenses 3 7. When Right to Surrender of Fugitive is Absolute.. 4 t 3. Authorities Sustaining the Author's Position 5 § 4. Early Disputes on Rendition 5 § 5. President Washington Ends Controversy 6-7 § 6. Court Rulings Follow Disputes 8 1. "Treason, Felony, or Other Crime," Defined 8 > 2. Duty of Executive of Asylum State 9 3. Asylum Executive no Discretion 9 4. Word "Duty," in Act of 1793 Defined .9 5. No Power to Force Governor to Honor Requisition. 9 § 7. Kentucky v. Dennison, Supra, Its Authority Considered. .9 § 8. The U. S. Supreme Court Ruling Controls 10 § 9. Power of States to Arrest and Surrender Fugitives 10 § 10. Slavery and Rendition 11 §11. Unadjudicated Questions 12 CHAPTER n. THE CONSTITUTION AND RENDITION. § 12. Constitutional Provision 13-14 § 13. Rendition Historically Considered 15 §14. Fugitives under the Confederation and Constitution 16 § 15. Distinction between Rendition and Extradition 17 §16. An Additional Interpretation by the Highest Court 18-19 1. Judicial Supremacy 19 2. Congressional Authority 19-20 § 17. The General Government and the States 20 § 19. Offenses and Rendition 21 (V) VI TABLE OP CONTENTS. CHAPTER III. CONGRESSIONAL LEGISLATION PAGE. S 20. The Origin and Purpose 23 § 21. The Act of Congress of February 12, 1793 24 § 22. The Law as in U. S. Revised Statutes 25 § 23. Randolph's Ideas Adopted by Congress 26 S 24. No Debate In Congress when Bill Passed 26 § 25. Randolph's Interpretation of the Constitution on Inter- state Rendition 27-30 1. "A Person Charged" 27 2. "Or Other Crime" 28 3. "Who shall Flee from Justice" 28 4. "Found in another State" 29 5. "The State having Jurisdiction" 29 § 26, The Act of Congress of 1793 Constitutional 30 CHAPTER IV. FUGITIVES AND THE DISTRICT OF COLUMBIA. 5 27. Special Law by Congress 31 § 28. Return of Fugitives to the District of Columbia 32 § 29. The General Removal Law 33 § 30. The Method, though Sustained by the Supreme Court, is yet Open to Criticism 33 § 31. Is the District of Columbia a "district" within the Mean- ing of Section 1014? 34 § 32. Had Congress Muddled the Whole Matter? 35 5 33. Even the Senate Judiciary Committee Denied its Val- idity 36 § 34. Sec. 1014 as Expounded by a Federal Judge 37-42 CHAPTER V. LEGISLATION BY THE STATES. § 35. Federal Law Supreme 43 § 36. The Right of States to Legislate 44 5 37. The Law Prior to the Confederation and Constitution. .45 § 38. The Federal Supreme Court on State Legislation 46 § 39. State Power to Legislate as Viewed by State Supreme Courts 47-54 a. Massachusetts 47-48 b. New York 49 c. Ohio 50 TABLE OP CONTENTS. VU PAGE. d. Nevada 50 e. Virginia 51 t. Alabama 51 g. Indiana 51-52 h. North Carolina 52-53 i. Texas , 53 j. California 53-54 CHAPTER VL EXECUTIVE DUTY AND POWER. § 40. Origin of Executive Duty 55 § 41. Statute Strictly Construed 56 § 42. No Delegation of Power .57 §43. Extent of Executive Authority 58 § 44. Governor CuUom on Executive Duty 59-61 § 45. Conditions Precedent to Honoring Requisitions 61 §46. The Demand Discretionary with the Governor 62 § 47. The Surrender — No Discretion with Governor 62-63 CHAPTER Vn. WHO ARE FUGITIVES FROM JUSTICE? § 48. Misconception of the Law 64-67 § 49. Executive Carelessness 67 §50. Persons held to be Fugitives 68-69 § 51. The Fugitive Doctrine Discussed 70 § 52. A Noticeable Difference of Opinion 71 §53. A Final Determination by the Supreme Court 72-74 § 54. A Waiver of Jurisdictional Defects 75 § 55. "Constructive I*resence" 75-76 § 56. Presence in State when Crime is Committed Necessary. .77 §57. Unreasonable Conclusion by the Supreme Court 78 §58. A Celebrated Case 79-81 § 59. A summary of Supreme Court Decisions 81-83 1. A Fugitive from Justice 81 2. Demand for his Arrest and Surrender 82 3. Proof of Crime and Flight Essential 82 4. Executive Determination 82 5. Prima Facie Case 83 6. Habeas Corpus a Proper Remedy 83 7. Legality of Arrest and Detention 83 § 60. An Escaped Convict or Person under Parole, when a Fugi- tive 83-84 yill TABLE OP CONTENTS. FAOE. §61. A Late Decision by the Supreme Court 84-85 § 62. The Earlier Cases of Flight 85-86 §63. Rendition of Witnesses 86-88 CHAPTER VIII. THE REQUISITION. § 64. The Demand and Its Requisites 90-91 § 65. The Rule as Fixed by the Supreme Court 91 § 66. Executive Discretion 91-92 §67. Authority of Governor of Asylum State 92 § 68. Review by Courts of Governor's Finding 93 § 69. The Requisition must be Accompanied with Other Papers. 94 § 70. Authority of States Involved 95 § 71. A Requisition Based on Forgery 95-96 §72. State Fees and State Regulations 96-123 1. Alabama 97 2. Arizona 98 3. Arkansas 98 4. California 98-100 5. Colorado 100 6. Connecticut 100 7. Delaware 100 8. Florida 100 9. Georgia 101 10. Idaho 101 11. Illinois 101 12. Indiana 101 13. Iowa 101-102 14. Kansas 102 15. Kentucky 102 16. Louisiana 102 17. Maine 102 18. Maryland 102-104 19. Massachusetts 104 20. Michigan 104 21. Minnesota' 104 22. Mississippi 104 23. Missouri 104 24. Montana 105 25. Nebraska 105 26. New Hampshire 105 27. New Jersey 105 28. New Mexico 105 29. Nevada 105 TABLE OP CONTENTS. IX PAGE. 30. New York 105 31. North Carolina 105 32. North Dakota 105 33. Ohio 105-109 34. Oklahoma 109 35. Oregon 109-111 36. Pennsylvania Ill 37. Rhode Island 111-113 38. South Carolina 113 39. South Dakota 113 40. Tennessee 113 41. Texas 113 42. Utah .' 113 43. Vermont ....113-116 44. Virginia 116 45. "Washington 116 46. West Virginia 116-119 47. Wisconsin 120-122 48. Wyoming 122 49. District of Columbia 122 50. Alaska, Territory of 122 51. Hawaii, Territory of 122 52. Porto Rico 122 53. Philippine Islands 122 CHAPTEE IX. AUTHENTICATION. § 73. "Certified as Authentic" 124 § 74. Force and Effect of Authentication 124-125 §75. The Governor's Power and Authority 125-126 § 76. The Purpose of Authentication 126-127 § 77. Presumptions 127-128 CHAPTER X. THE CHARGE OF CRIME. §78. Fundamental and Jurisdictional 129 § 79. The Charge must be by Indictment or Affidavit 130 § 80. Validity of an Information as a Charge of Crime 131 §81. The Supreme Court's Estimate of an Information 132 § 82. An Extra Judicial Opinion 133-134 § 83. The Constitution and Act of Congress Construed together. 135 § 84. The Decision in the Hart Case Sound in Reason 135-142 § 85. An Indictment as an Accusation 142 § 86. The Supreme Court on a Charge by Indictment 143-144 S TABIiE OF CONTENTS. FAQG. I 87. The Date when Crime is Committed 144-145 I 88. The Right to Examine Indictment or Affidavit as to Legal- ity 145 5 89. Delay in Preferring Charge of Crime 146 5 90. A Formal and Sufficient Charge Necessary 147 I 91. An Affidavit as a Charge of Crime 148-150 5 92. Insufficient Affidavits 150 I 93. Affidavits upon Information and Belief 150-152 5 94. Attempt to Evade Federal Law 152-154 CHAPTER XI. THE GOVERNOR'S WARRANT. i 95. Essentials of the Process 155-156 I 96. Must be Legally Issued 156-157 5 97. Its Recitals Evidence of Legality of Issuance 157 I 98. Wto May Serve "Warrant 158 §99. Entitled to no Greater Sanctity than other Process 158-159 ] 100. Revocation and Alias Warrants 159 5101. Rules Relating to the Governor's Warrant 160 CHAPTER XII. THE ARREST OF THE FUGITIVE. 5 102. The Recognized Rule 161-162 §103. Arrest Before Demand, with or without Warrant 162-163 5104. Official Courtesy and Unlawful Arrests 163-164 ; 105. Arrest from a Constitutional Viewpoint 164-165 j 106. Duty of Officer Making Arrest 165-167 1107. Summary : 167 CHAPTER XIII. IDENTITY OF THE FUGITIVE. 1108. In Rendition Identity of Fugitive all Important 168 )109. Identification of Fugitive in New York 169-171 i 110. Identification of Fugitive in Pennsylvania 171-173 i 111. Identification of Fugitive in Indiana 173-174 i 112. Identification of Fugitive in Ohio 174-175 i 113. Identification of Fugitive in Kentucky 176 i 114. Identification of Fugitive in Delaware 176 i 115. In other States Fugitive is Protected by Habeas Corpus, One Exception 177 i 116. Question of Identity how Raised 177 i 117. In Absence of Proof Prima Fade Case Conclusive 178 118. Judicial Protection of the Accused 179 TABLE OP CONTENTS. XI CHAPTER XIV. THE RIGHT OF ASYLUM. PAGE. 8119. The Origin of this Doctrine 180 8120. The First Compact (1643) 181 S 121. The Second Compact (1670) 182 § 122. The Third Compact of Articles of Confederation (1778) .183 §123. The Fourth Compact, the U. S. Constitution (1789) 184 5 124. No Immunity from Criminal Prosecution 185 §125. Judge Cooley on Immunity 186 § 126. An Author's Error 187 § 127. Lascelles' Case the Rule in all States 188 § 128. Method of Return not Open to Complaint 189-191 §129. A Noted Illinois Case 191 § 130. The Court's Ruling in the Lascelles' Case 192-194 §131. Extradition and Rendition, the Difference 194 § 132. Courts in Accord on the Lascelles' Ruling 195 §133. Michigan Abandons her Former Position 195 §134. Abuse of Power; Oppression 196 CHAPTER XV. EXEMPTION FROM SERVICE OF CIVIL PROCESS. § 135. Origin of Right 197 § 136. Returned Fugitive and Civil Process 198 § 137. Induced by Fraud to Return and Civil Process 199 § 138. Suitors and Witnesses Entitled to Immunity 200 § 139. Exemption as Viewed by the Court of Appeals of New York 201-202 CHAPTER XVI. PROOF OF ALIBI TO DEFEAT RENDITION. § 140. Preliminary Observations 203 §141. Proof of Alibi a Distinction 204 §142. The Inadmissibility of Alibi Testimony 204-206 §143. The Supreme Court of New York on this Question 206-215 1. Statement of Case 206-208 2. Determination of Particular Issues 208-210 3. Previous Decisions as Controlling 210-214 4. Weight and Sufficiency of Evidence 215 CHAPTER XVII. FOOD FAITH OF THE PROSECUTION. i 144. Scope of Inquiry in the Asylum State 216 §145. Questions for the (Jovemor's Consideration 217 XU TABLE OF CONTENTS. PAGE. § 146. May the Governor or Courts Look Beyond the Records?. 217-220 §147. A Noted Case and a Fearless Judge 221-223 § 148. Ruling of the Michigan Supreme Court 223 § 149. No Rendition Unless Good Faith is Shown, Ohio Rule. .224-228 CHAPTEE XVIII. GUILT OR INNOCENCE OF FUGITIVE. § 150. No such Inquiry on Habeas Corpus 229 §151. Hearing Limited in Florida 230 § 152. When Proof of Crime is Prohibited 230 § 153. Other Decisions on the Subject 231 8154. Aflldavit Showing no Crime — no Rendition 232 § 155. The Offense must be Plainly Charged 232 §156. The Effect of Court Ruling 233 §157. The Court often Misled 233 § 158. Federal Rule Reasonable 234 CHAPTER XIX. POWER TO REVIEW BY HABEAS CORPUS. § 159. Jurisdiction of the Judiciary 235-237 §160. Federal Law on Rendition Silent as to Habeas Corpus. 2Z7 §161. Power of State Courts Derived from State Statutes. . .237-239 § 162. Early Federal View 239-241 § 163. Decisions of State Courts 241-246 1. New York 241-24S 2. Florida 243-244 3. Texas 244 4. Iowa 245 5. Connecticut 245 6. Alabama 245-246 § 164. The Supreme Court on Power of Review ' 246 § 165. Federal and State Courts Invested With Right 247 § 166. All Doubt Removed 248-250 CHAPTER XX. RENDITION: PLEADING AND PRACTICE. §167. Relief from Illegal Arrest 252 §168. The U. S. Supreme Court Sustains this View 252 §169. Waiver of Rights. Relator and Respondent 253 §170. Petition for the Writ 253 § 171. Respondent's Return to the Writ 254 TABLE OP CONTENTS. -JTin PAOE. § 172. Relator's Traverse 255 § 173. At Hearing how Papers may be Produced 255 §174. Pleading and Issue 256 §175. The Hearing 256-257 §176. The Order of Discharge may be Vacated 257 §177. Form of Petition to United States Judge 258-259 §178. Form of Writ In United States Court 260 §179. Form of Petition for Writ to State Court or Judge 261-262 §180. Form of State Writ of Habeas Corpus 263 § 181. Form of Officer's Return to the Writ 264 §182. Form of Prisoner's Traverse 264-265 § 183. Suggestions for Resisting Rendition 265-270 1. Identity 265 2. Arrest 265 3. Arrest Prior to Demand 266 4. Governor's Warrant of Rendition 266 5. Requisites of the Papers 266 6. Charge of Ctlme 266 7. Information and Belief 267 8. The Authentication 267 9. Jurisdictional Question 268 10. Physical Presence Necessary 268 11. "Complaint" 268 12. Information 269' 13. Information instead of Indictment 269 14. Governor must Personally Sign Warrant 269 15. "Great Seal" of State 269 16. • When Accused not a Fugitive 269 17. Mob Violence 270 18. Failure to Annex Charge of Crime 270 19. Accused and Charged with Crime a Distinction. .270 § 184. Final Appeal to U. S. Supreme Court 270 § 185. Appeal in State Courts 271-274 1. States Holding Writ Reviewable 271-273 2. States Holding Writ not Reviewable 273-274 CHAPTER XXI. SUPREME COURT OF THE UNITED STATES AND RENDITION. §186. Judicial Ruling Favorable to Demanding States 275-276 § 187. A Remarkable State of Facts 276-277 § 188. Rule as to Jurisdiction of the Supreme Court 277 § 189. What has the Supreme Court Decided in Rendition Cases? 278 §190. Kentucky v. Dennlson 278 XIV TABLE OF CONTENTS. PAGE. §191. Robb V. Connolly 279 § 192. Ex parte Reggel 28ft § 193. Roberts v. Reilly 281-283 § 194. Cook T. Hart 283-285 §195. Lascelles v. Georgia 285-286 § 196. Pearce v. Texas 286-287 §197. Whitten v. Tomlinson 288-289 §198. Hyatt v. People ex rel. Corkran 289-291 §199. Munsey v. Clough 292 § 200. Dennison v. Christian 293-295 § 201. In re Strauss 296-297 § 202. Pettlbone t. Nichols 298-300 § 203. Haywood v. Nichols 300 § 204. Moyer v. Nichols 300 §205. Morey v. Whitney , 300 § 206. Appleyard t. Massachusetts 300-302 § 207. McNichols v. Pease 302-304 § 208. Bassing v. Cady 304-306 § 209. Pierce v. Creecy 306-307 § 210. Kopel V. Bingham 308-309 § 211. Compton v. Alabama 309-310 § 212. Marbles v. Creecy 311-312 § 213. Ex parte Hoffstot 312-314 § 214. Strassheim v. Daily 314-316 § 215. Drew V. Thaw 316-319 I 215a. Innes v. Tobin 320-322 CHAPITER XXII. ARREST AND RETURN OP FEDERAL PRISONERS. §216. Interstate Rendition and Federal Removal 323 § 217. The Removal Statute 323-324 § 218. Proceedings for Removal 324-325 § 219. Power of the District Court 325 { 220. Rights of the Accused 325-326 §221. Removal to and from the Philippine Islands 326-327 Addenda: Latest Cases 328-330 Appendix: State Statutes 331-493 Table of Cases 494 Index 509-534 The Law of Interstate Rendition CHAPTER I INTEODUCTION § 1. Rendition not "Extradition." I 2. Seven Fundamental Points of Difference. 1. Source of Authority. 2. Action how Effected. 3. Charge of Crime. 4. Extraditable Offenses. 5. Crimes for Which Fugitive May Be Tried. '6. Political Offenses. 7. When Right to Surrender of Fugitive Is Absolute. } 3. Authorities Sustaining the Author's Position. S 4. Early Dispute on Rendition. i 6. President Washington Ends Controversy. I 6. Court Rulings Follow Disputes. 1. "Treason, Felony or Other Ci'lme," Defined. 2. Duty of ExeciitlVe of Asylum State. 3. Asylum Executive no Discretion. 4. The Word "Duty," in Act of 1793, Defined. 5. No Power to Force Governor to Honor Requisition. { 7. Kentucky v. Denrilson, Supra, its Authority Considered. i 8. The U. S. Supreme Court, Ruling Controls. { 9. Power of States to Arrest and Surrender Fugitives. f 10. Slavery and Rendition. S 11. Unadjudicated Questions. §1. Rendition not "Extradition." — Interstate rendi- tion, frequently but inaccurately referred to as "inter- state extradition," is the right of one State to deinand and the duty of another State to surrender fugitives from justice from the former State unto the latter, (1) ^ THE LAW OF INTEBSTATE EBNDITION where they stand charged by the constituted authorities thereof, with the commission of crime. To characterize the procedure under this definition as "interstate extra- dition," is plainly to misapply the real meaning of the word "extradition," as derived and understood from its long usage in connection with international law. It is fully realized by the author that such a radical change as the substitution of the word "rendition," for the commonly used word "extradition," may not be received with general favor; yet, accuracy and precision in the use of words demand the adoption of "rendition" — the meaning of which is clear and unmistakable. It is now almost universally conceded, in the light of the decisions of the Supreme Court of the United States, that the two methods of demanding, arresting and surrendering fugi- tives from justice, foreign and domestic, are widely different in every respect. §2. Seven Fundamental Points of Difference. 1. Source of Authority. 1. Interstate rendition 1. International extra- depends entirely upon par. dition depends absolutely 2, sec. 2, art. IV, of the upon the terms of the Constitution of the United treaty existing between States and sections 5278 guch foreign government and 5279, of the Eevised , and the United States of Statutes. America. 2. Action how Effected. 2. Interstate rendition 2. International extra- is effected and controlled dition is effected by the absolutely by the action of government of the United the State authorities with- States alone without the out the consent of or refer- consent of or reference to ence to the government of the authorities of the State the United States. wherein the person to be extradited is found. Introduction 3. Charge of Crime. 3. In interstate rendi- tion only a charge of crime is essential and where an indictment is found or an affidavit is made against the fugitive, no evidentiary facts by deposition, as to the commission of the crime, is required. (Pierce V. Creecy, (1908), 210 U. S. 387.) 3. For international ex- tradition the demand must be accompanied with evi- dence not only that the al- leged fugitive is charged with crime but there must be proof making out a prima facie case that the crime charged has been committed. 4. Extraditable Offenses. 4. In interstate rendi- tion, if the acts charged constitute a crime in the demanding State, however frivolous, the fugitive must be surrendered, should all the lawful requirements be observed in his demand. Kentucky v. Dennison, (1860), 24 How. 66. 4. In international ex- tradition between foreign governments and the Unit- ed States fugitives are ex- traditable onlif for such crimes as are covered by the treaty. 5. Crimes for Which Fugitive May Be Tried. 5. In international ex- tradition the fugitive sur- rendered to the demanding nation can onlt/ be tried for the crime for which he was extradited. 5. In interstate rendi- tion the fugitive surren- dered may be tried in the demanding State for a crime or crimes other than the one for which he was surrendered. (Lascelles v. Georgia, (1893), 148 U. S. 543.) 6. Political Oifenses. 6. In interstate rendi- 6. In international ex- tion a fugitive may be ar- tradition all treaties be- THE LAW OP INTERSTATE RENDITION rested and surrendered to another State for a politi- cal offense — treason. (Par. 2, sec. 2, art. IV, Constitu- tion.) 7. When Right to Surrender of Fugitive is Absolute tween foreign governments and the United States positively exclude offend- ers charged with political crimes. 7. In international ex- tradition in a proper case inquiry will go beyond the face of the papers to ascer- tain if in reality the charge apparently one of ordinary crime is in fact a cloak to hide a prosecution for a political offense or one not included in the treaty. 7. In interstate rendi- tion the motive or purpose of the authorities of the demanding State in asking the arrest and return of the fugitive is not a subject for inquiry or investiga- tion in the asylimi State. Do the requisition and the accompanying papers meet the conditions specified in the Constitution and laws of the United States? If so the right to have the fu- gitive surrendered is an absolute legal right. The distinction being so marked it is now contended that greater exactness will be secured by the use of the word ' ' rendition, ' ' as the more accui-ate and appropriate word to be employed, being less liable to be confused with "international extradition." The Hon. John Bas- sett Moore, an international lawyer and author of repu- tation, in his book on "International Extradition and Interstate Rendition," held to the same view. In Vol. 2, page 516, it is said : "The use of the term 'extradition' to describe the rendition of fugitives from justice from one State to another is convenient and firmly established, but it is nevertheless inaccurate and misleading. On the theory that they were dealing with a matter of ex- tradition in the international sense, public officers and law writers have been led to consult the prin- Zbttkodtjctton 5 ciples of international law and to apply them to a subjeqt whick they do not govern. The transfer of an aecusgd person from one part of a country to an- other haying a common supreme government does not bring into operation the principles of interna- tional law." See also Yoorhees on the Law of Arrest, Sec, 213, page 177. §3, Authorities Sustaining the Author's Position. — The Supreme Court of the United States in Lascelles V. Georgia, (1893), 148 U. S. 543, 13 Sup. Ct. 687, 37 L. ed. 549, held that "rendition" and not "extradi- tion," was the proper word to be used when referring to the arrest and surrender of interstate criminals. And in People ex rel. Lawrence v. Brady, (1875), 56 N. Y. 182; Knox v. State, (1904), 164 Ind. 230, 73 N. E. 255, 108 Am. St. 29; Mark v. Browning, (1911),— Utah— , 115 Pac. 275; In re, Flack, (1913), 88 Kan. 616, 129 Pac. 541, 32 Ann. Cas. 789, 47 L. R. A. (N. S.) 807, the word rendition is used and "extradition," is entirely dis- carded. Since such authorities sanction the use of the term "interstate rendition," instead of "interstate ex- tradition," no hesitancy is fel,t in omitting the word "extradition" from the remaining pages of this work, except when, used in a quotation. §4. Eaxly Dispute on Rendition, — ^The enforcement of the law of interstate rendition has been productive of many bitter and acrimonious controversies between the chief executives of many of the States of the Union, Indeed, from the very earliest colonial times, the ar- rest and return of fleeing criminals by the so-called asylum authorities has been attended with many ob- stacles and difficulties, so much so, that, near the middle of President Washington's first term of office, in 1790, the governor of Pennsylvania and the governor of Vir- ginia became involved in a heated controversy. The refusal of the latter to arrest and surrender three alleged fugitives from justice, who had fled from the former b THE LAW OP INTERSTATE KENDITION State, after the commission of a crime, and had found safe refuge and asylum in the State of Virginia. This controversy lasted for several months, many sharp and stinging official communications passed between the two governors and much bad feeling was engendered, but the Virginia executive stood firm and steadfastly refused to surrender the three alleged fugitives to the Pennsyl- vania authorities, stoutly maintaining that the crime charged was not an offense against the laws of Virginia and therefore did not fall within the purview of the constitutional provision on interstate rendition. This position of the governor of Virginia was based on an elaborate and learned opinion of the attorney-general of that State, who held to the doctrine that to kidnap a free Negro, bring him into Virginia and sell him into slavery was no crime under the laws of that State, but merely a "trespass or a breach of the peace." §5. President WJa^ington Ends Controversy. — ^In view of this remarkable position of the Virginia au- thorities, the governor of Pennsylvania made a direct appeal to President Washington, and submitted to him all the documents in the controversy, and the President in turn transmitted them to the Attorney-General of the United States for an opinion as to who was right — the governor of Virginia or the governor of Penn- sylvania. (It is a noticeable historical fact that the Attorney-General of the United States at that time, and the governor of Virginia, were both Randolphs, and closely related.) The Attorney-General of the United States decided that the clause of the Constitution, relat- ing to interstate rendition, was not self-executing and that there was no legal method by which its mandate could be enforced, except by an act of Congress. Thereupon the first. President, in person, delivered to Congress a special message, embodying all the docu- meiits submitted to him by the two governors, as well as the opinion of the Attorney-General of the United States, with an earnest recommendation that Congress Introduotton 7 at once take such action as would forever put an end to such disputes. The result was the passage of the act of Congress of 1793, in aid of the constitutional provision on interstate rendition, and President Washington ap- proved the same on the 12th day of February of the same year and it became the law and is now known as sections 5278 and 5279 of the Revised Statutes of the United States. Many subsequent attempts have been made in Congress to amend and enlarge this enactment, but all such efforts have failed for the reason that the people apparently are satisfied with the operation of the law of 1793. In 1887 a so-called "interstate extradition conference," was held in New York City, composed of del- egates, said to have had large experience in rendition pro- cedure, appointed by the governors of the various States and Territories, for the purpose of formulating such amendments to sections 5278 and 5279 of the Revised Statutes of the United States, as might be thought proper. After several days of deliberatiop the confer- ence presented an elaborate system of interstate rendi- tion in the form of a bill to supersede the old law, which subsequently was introduced in the house of representa- tives at Washington. This branch of Congress paid but little attention to the proposed measure and the bill itself died in the committee to which it had been referred. This so-called "interstate extradition conference," has met annually since then and efforts have been made to restrict interstate rendition to certain crimes or to elim- inate wife abandonment and other "trivial offenses" from rendition. No State or governor of a State has any authority under the Constitution of the United States, to enter into an agreement with another State or governor of a State for the purpose of restricting the enforcement of the law. AH such agreements are abso- lutely void and of no force and effect. Congress so regarded the work of this "conference," hence, no at- tention was paid to its recommendations. 8 THE LAW OF INTERSTATE BENDITION §6. Court Rulings Follow Disputes. — The present law, passed by Congress in 1793, which grew out of the controversy between the gpvemors of Pennsylvania and Virginia, for a time at least, ended such disputes. Never- theless, there were many ■w^de differences of opinion as to the interpretation of this law, in aid of the Constitu- tional provision, relating to interstate rendition, and the courts were ]?ept busy for many years, thereafter, pass- ing upon the various phases of rendition. The most noteworthy of the earlier cases on this subject, Kentucky v. Dennison, (1860), 24 How. 66. This was an applica- tion direct to the Supreme Court of the United States by the governor of Kentucky, for a writ of mcmdamuSf directed to the governor of Ohio, commanding him to comply with the requisition of the governor of Ken- tucky, for the surrender of a fugitive from justice, charged with crime in the latter State. The writ was de- nied because of the lack of jurisdiction, the court holding that there was no power delegated to the General Govern- ment to compel the governor of a State to surrender a fugitive from, justice, Mr. Chief Justice Taney, a lawyer and jurist of renown, speaking for the court, delivered an elaborate opinion, which being practically the first general pronouncement of that court on interstate ren- dition, is regarded by lawyers and courts as a controlling authority on the subject. With no seeming desire to dodge any of the questions raised, the court with great care and labor, reviewed at length every aspect or angle to interstate rendition, holding among other things : 1. "Treason, Felony or Other Crime," Defined. That the words "treason, felony, or other crime," in the second clause of the secpnd section of the fourth article of the Constitution of the United States, include every offense forbidden and made punishable by the laws of the State where the of- fense is committed. iNTEODtrOTTON 9 2. Duty of Executive of Asylum State. That it was tlie duty of the executive authority in each State or Territory, upon the demand made by another executive, accompanied by an indictment or affidavit, duly authenticated, to cause to be arrested and delivered to the agent of such executive the al- leged fugitive. 3. Asylum Executive no Discretion. That the duty of the governor of the asylum State was merely ministerial and that he had no right un- der the law to exercise any discretionary power as to the nature or character of the crime charged. 4. The Word "Duty," in Act of 1793, Defined. That the word "duty," in the act of 1793, means the moral obligation of the State to perform the compact in the Constitution, when Congress had, by that act, regulated the mode in which the duty was to be performed. 5. No Povirer to Force Governor to Honor Requisi- tion. That neither Congress nor the Judiciary or any other department of the General Government, can coerce or compel the governor of a State or Terri- tory to surrender an alleged fugitive. It is a moral obligation which he may perform or not as he may see proper. § 7. Kentucky v. Dennison, Supra, its Authority Con- sidered. — Courts have been known to criticise and ques- tion the authority of this case, because the petition for mandamus was dismissed by the Supreme Court of the United States for la^k of jurisdiction and hence, could not decide any of the other questions, for the reason that, they were not properly before the court for adju- dication. In the case of In re Voorhees, (1867), 3 Vroom, 142, the supreme court of the State of New Jersey, in discussing this objection, said: "Although this case is subject to the criticism of counsel, that the court finally 10 THE LAW OF INTEESTATB RENDITION determined that it had no jurisdiction, still, as the case was fully argued and evidently considered with much care, I cannot but regard the views expressed on this subject of constitutional exposition as possessed of little less than the force of absolute authority." And in Brown's Case, (1873), 112 Mass. 409, the supreme court of Massachusetts in speaking of this case, said: "Al^ though that opinion was in one sense extra-judicial, be- cause not necessary to the judgment which dismissed the petition for mandamus, it is proper to refer to it as supporting our reasoning and conclusions. ' ' § 8. The U. S. Supreme Court Ruling Controls. — Since interstate rendition, or the demand, arrest and surrender of an alleged fugitive from the justice of one State to an- other, is based entirely upon the Constitution and laws of the United States, so all disputed questions arising in the subordinate Federal courts on habeas corpus, as well as in the State supreme courts, on this subject, cannot be authoritatively determined until such cases, embody- ing these questions, are carried to the Supreme Court of the United States, by writ of error or appeal, for final adjudication. This court alone is the tribunal of last re- sort and when it speaks, within jurisdictional limits, its enunciation is the supreme law of the Union, and its ad- judication of disputed questions must be received as such by the courts of the States, as well as the courts of the Federal government. Therefore, when an alleged fugitive, rich or poor, high or low, against whom a final judgment has been so pronounced by a Federal or State supreme court, and if such judgment is violative of a positive right or privilege claimed by him under the Constitution and laws of the United States, then, and in that event, he may have the same heard and reviewed by this highest court of the land, and the controverted ques- tions growing out of his arrest and detention as an al- leged fugitive finally and positively settled. §9. Power of States to Arrest and Surrender Fugi- tives. — It has been the uniform opinion that the States Inteoduotion 11 of the Union, on the formation of the Constitution, had the power and authority to arrest and surrender fugi- tives froin justice, found in the asylum State and charged with the commission of "treason, felony, or other crime," in another State. It was never intended that this right of the States should be curtailed in any respect, and that, so far from taking it away, the Consti- tution itself provided for its exercise, contrary to the will of a State, in the case of a refusal to honor a demand; thereby settling, as amongst the States, the contested question whether on proper demand, the obligation to surrender was perfect and imperative, or whether it rested on comity and was discretionary. Mr. Chief Jus- tice Green, of the supreme court of New Jersey, in In re Fetter, (1852), 3 Zab. 311, referring to this subject, said: "This clause of the Constitution of the United States does not contain a grant of power. It confers no right. It is the regulation of a previously existing right." § 10. Slavery and Rendition. — Controversies between officials of various States, growing out of attempted ren- dition of alleged fugitives from justice, similar to the Virginia and Pennsylvania dispute, have been frequent and often bitterly contested and the final result, in many instances, has been the entire suspension, for a time at least, of all rendition of fleeing criminals between certain States. The States of the North and the States of the South were generally the parties to such conflicts, and alleged crinies against slavery were always responsible for such disputes. Happily for the American people the great cause of the trouble between States of the two sec- tions has been permanently removed. Negro slavery has been forever abolished in the United States to the satisfaction of all the people. Sectional lines do not now form a barrier against the arrest and surrender of fugi- tives from justice, and judicial opinions are no longer swayed by passion and prejudice fostered and encour- aged by human slavery. The past fifty years or since the abolition of slavery, is remarkable in this, that, this period has witnessed the development of a judicial in- 12 THE LAW OF INTEESTATE RENDITION terpretation, relating to interstate rendition of fugitives from justice, in strict conformity to the Constitution and laws of the United States. §11. Unadjudicated Questions. — While many dis- puted questions of interstate rendition have been author- itatively settled by the Supreme Court of the United States, thereby removing the cause for friction and dis- putes between the States, still many other undetermined propositions are constantly arising to harass and annoy courts and officials in dealing with fugitives from justice. Among such unsettled questions may be mentioned the following : 1. The validity of State legislation concerning inter- state rendition. 2. The identity of fugitive when raised, how to be finally determined. 3. The governor's finding that a party is a fugitive from justice, how far reviewable by the courts. 4. The power of a governor to recall or revoke war- rant of rendition, before removal of fugitive. 5. The validity of the statutes of New York, Pennsyl- vania, Ohio, Indiana, Kentucky and Delaware relating to identification of alleged fugitives. 6. The legality of arrests made on authority of war- rant issued by magistrates before "demand." 7. The legality of State legislation providing for the rendition of witnesses, alleged to have fled from a State. 8. The validity of an "information" as a substitute for an indictment as a charge of crime in rendition. 9. The ' ' Territory, ' ' has it an identical meaning with that of State, in rendition procedure. 10. The legality of a State statute restricting inter- state rendition to felonies. H. The extent to which a court may inquire into the validity of an indictment as a charge of crime. CHAPTER II. THE CONSTITUTION AND RENDITION. § 12. The Consliitutional Provision. § 13. Rendition Historically Considered. § 14. Distinction Between Rendition and Extradition. { 15. Fugitives under the Confederation and Constitution. § 16. An Additional Interpretation by the Highest Court. 1. Judicial Supremacy. 2. Congressional Authority. . § 17. The General Government and the States. § 18. Supremacy of the Constitution. § 19. Offenses and Rendition. "A person charged in any State with, treason, felony, or other crime, who shall flee from justice, and be found in another State, shall on demand of the executive authority of the State from which he fled, be delivered up to be removed to the State hav- ing jurisdiction of the crime." §12. The Constitutional Provision. — This single sen- tence composed of fifty-one plain and simple words is the sole constitutional provision, relating to interstate rendition, and is regarded as a confirmation of a previ- ous surrender of authority by the States, to the confed- erated government, the original grant being the Articles of Confederation, of all power pertaining to the arrest and surrender of a fugitive from justice charged with the commission of crime in one State and who has fled to another. This renunciation of the transfer of au- thority had been productive of many days of earnest and thoughtful consideration in America's first and only constitutional convention, which formed and promulgated that incomparable contract between separate and inde- pendent States and now esteemed as that matchless char- ter of American liberty — the Constitution of the United (13) 14 THE LAW OF INTERSTATE BENDITIOlir States. While there may have been many divergent in- terests contending for the mastery, in that august body, yet it is generally conceded that self aggrandisement and personal ambition had but little to do with the formation of the Constitution. The general welfare of the entire country and the perpetuity of the governmental system thus inaugurated, commanded the best efforts of its un- divided membership. No body of men ever assembled had been more intensely interested in a work and more thoroughly equipped for its accomplishment. Lawyers, judges, doctors, ministers, school-teachers, merchants and farmers mingled and labored together harmoniously for the common good and finally presented to the people of the various States, a fundamental law, as perfect and symmetrical, in all of its details, as was possible for man to form. The whole structure itself being based on a guarantee of "life, liberty and the pursuit of happi- ness," so far as the people were concerned, individually and collectively. This Constitution has stood the test for more than a hundred and twenty-five years, and but few successful efforts have been made, in that time, to modify any of its provisions. Such amendments as have been adopted during this period, have greatly strength- ened and added to the origi];ial power of the general government, without apparently impairing the conceded sovereignty of the States, or abridging the vested rights of the people to "life, liberty and the pursuit of happi- ness." The flight of years brings added reverence and veneration from the living of to-day for its wise, just and humane provisions, which have done so much for the development of this system of government and the gen- eral advancement of the material interests of the coun- try ; and whUe many of its precepts have fallen into dis- use, yet the spirit that animated the men who framed this fundamental law, and the men who afterwards so gallantly defended it, will always live, and the Constitu- tion itself wiU ever remain to the present and future generations as a priceless heritage of wisdom, justice and equality. THE CONSTITTJTION AND BBNDITION. 15 §13. Rendition Historically Considered. — The much discussed subject of sovereignty resides wholly and en- tirely in and with the people and may be exercised only in such manner as they have provided by the Constitu- tion, and this instrument itself was not ordained and established by the States in their sovereign capacities, but as the preamble declares, hy the people of the United States, and its adoption by them carried with it an ac- quiescence of certain rights restricted therein. Among these rights was that granting the power to arrest and surrender fleeing criminals — the earliest exercise of this authority by the various plantations of New England, as these independent governments were then called, dates back to the first part of the seventeenth centilry, and the right to make such arrests and delivery of fugitives from justice came to them directly from the common law, based on the "common welfare and safety of society" doctrine, and resting entirely upon comity. Subsequent- ly these plantations or separate governments, by solemn agreement, entered into and ratified by them in 1643, made the arrest and surrender of fleeing criminals ab- solutely obligatory upon each sovereignty, as the plan- tations were at that time, and thus early comity between these separate governments, gave place to a positive agreement or quasi treaty by which all persons accused of crime and who became fugitives from justice should be arrested and returned to the plantation from which they had fled. In 1670 this agreement was somewhat modified, but the essential features of arrest and sur- render upon judicial demand of fugitives from justice was continued for over one hundred years. The next agreement, relating to fugitives, was made in 1778, when the articles of Confederation were adopted by the Amer- ican colonies, as the plantations were then styled, and ever afterwards each Colony was designated as a State, and the general government as the United States of America. This peculiar system of a unified government of separate and independent States — a Confederation controlled by a Congress of delegates from each State — 16 THE LAW OP INTEESTATE EENDITION continued in existence a little over ten years; and al- though mtended to be a "perpetual union," of the then thirteen States and Canada, should she accede to the Con- federation, (which she did not,) the apparent weakness of the government itself, and a lack of unity and good feeling between the States, was the primary cause for the abandonment of the Confederation, and in its place the real government of the United States of America was inaugurated when the Constitution was adopted in 1789. §14. Fugitives under the Confederation and Consti- tution. — The fourth article of the Confederation compact was as follows: "If any person g^iilty of, or charged with, treason, felony, or other high misdemeanor in any State, shall flee from justice and be found in any of the TJnited States, he shall, upon the demand of the Governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offense." The substantial difference between the clause of the Constitution and the clause of the Articles of Confeder- ation, which the former superseded, is the omission of the words, "guilty of" and "high misdemeanor," and, the substitution in their place of the more easily under- stood words, "other crime." This proved 'to be a wise change, greatly relieving the judiciary of innumerable legal tangles, growing out of the arrest and deportation of fugitives from justice. In the past, the construction of this clause by the courts of the colonies, had been a continual source of judicial annoyance, resulting in the escape of many fugi- tives ; but when this change was made all doubt was re- moved as to the interpretation to be given to the meaning of "treason, felony, or other crime." However, it was soon apparent that, though plain and simple as this paragraph of the Constitution might be, it was not self- executing. No statement was made therein as to the manner ia which the charge of crime shall be made, or THE CONSTITUTION AND RENDITION. 17 as to what evidence is necessary to establish the fact that the person is a fugitive from justice, or as to the actual authority upon which the demand is made and which must be exercised in ordering the arrest and mak- ing the delivery of the alleged fugitive. These vital points in rendition between the States remained unset- tled, as far as the Constitution was concerned, until the passage of the act of Congress of 1793, which gave force and effect to this constitutional provision and made interstate rendition not merely a dream, but an actual fact, capable of legal and positive execution. § 15. Distinction Between Rendition and Extradition. — The obligation of arrest and rendition thus imposed upon the States and Territories of the United States is not, like treaties between independent nations, limited to certain criminal offenses, specifically set forth in such treaties, but includes all crimes committed by the fugi- tives in the State or Territory from which he fled, and by no means is the duty, imposed upon the executive au- thority of the surrendering State, merely a matter of discretion, but whenever the demand is, in all respects, in strict compliance with the requirements of the Federal law, then the alleged fugitive from justice must "be delivered up to be removed to the State having juris- diction of the crime." The clause of the Constitution, quoted at the beginning of this chapter, is absolutely mandatory in this regard, so far as the governor of the asylum State is concerned, and the history of interstate rendition leaves no room for doubt but that this was the purpose and intention of the framers of our fundamental law. Upon this subject in one of the earlier cases, Holmes v. Johnson, (1840), 14 Pet. 540, Mr. Justice Catron, of the Supreme Court of the United States, said: "The uniform opinion heretofore has been that the States, on the formation of the Constitution, had the power to arrest and surrender in such cases, (referring to interstate rendition) and that, so far from taking it away, the Constitution had provided for its exercise contrary to the will of a State in 18 THE LAW OF INTEESTATB EENDITION case of an unjust refusal thereby settling, as amongst the States, the contested question whether on de- mand, the obligation to surrender was perfect and imperative, or whether it rested on comity and was discretionary." §16. An Additional Interpretation by the Highest Court. — ^And in a still later case, Kentucky v. Dennison, (1860), 24 How. 104, the Supreme Court of the United States, through Mr. Chief Justice Taney, in again con- struing this clause of the Constitution relating to the demand, arrest and surrender of an alleged fugitive from justice, said: 1. Judicial Supremacy. ' ' The Constitution having established the right on one part and the obligation on the other, it became necessary, to provide by law the mode of carrying it into execution. The governor of the State could not, upon a charge made before him, demand the fugitive ; for according to the principles upon which all of our institutions are founded, the Executive Department can act only in subordination to the Judicial Department, where rights of persons and property are concerned, and its duty in those cases consists only in aiding to support the judicial proc- ess in enforcing its authority, when its interposition, for that purpose becomes necessary, and is called for by the Judicial Department. The Executive author- ity of the State, therefore, was not authorized by this article to make the demand unless the party was charged in the regular course of judicial proceed- ings. And it was equally necessary that the Execu- tive authority of the State upon which the demand was made, when called on to render his aid, should be satisfied by competent proof that the party was so charged. This proceeding, when duly authenti- cated is his authority for arresting the offender. 2. Congressional Authority. "The duty of providing by law the regulations necessary to carry this compact into execution, from THE CONSTITTmON AND EENDITION. 19 the nature of the duty and the object in view, was manifestly devolved upon Congress ; for if it was left to the States, each State might require different proof to authenticate the judicial proceeding upon which the demand was founded; and as the duty of the governor of the State where the fugitive was found is, in such cases, merely ministerial, without right to exercise either executive or judicial discre- tion, he could not lawfully issue a warrant to arrest an individual without a law of the State or Con- gress to authorize it. These difficulties presented themselves as early as 1791, in a demand made by the governor of Pennsylvania, upon the governor of Virginia, and both of them admitted the propriety of bringing the subject before the President, who immediately submitted the matter to the considera- tion of Congress, and this led to the act of 1793, of which we are now speaking. All difficulty as to the mode of authenticating the judicial proceeding was removed by the article of the Constitution, which declares 'that fuU faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State; and the Congress may by general laws prescribe the manner in which acts, records and proceedings shall be proved, and the effect thereof. ' And without doubt the provision of which we are now speaking, that is for the de- livery of a fugitive, which requires official communi- cation between States, and the authentication of official documents, was in the minds of the framers of the Constitution, and had its influence in inducing them to give this power to Congress." This interpretation of the clause of the Constitution and the act of Congress of 1793, pertaining to interstate rendition, coming from the court of last resort, has had a tendency to remove aU doubt as to the exact purpose and intent of the law. Uncertainty and difference of opinion largely characterized the judicial utterances of the courts, prior to the time when this decision was rendered; but, since that time, the questions then passed upon by the Supreme Court of the United States, have 20 THE LAW OF INTEESTATB EENDITION been recognized as finally and authoritatively settled — tlie controlling law of the land. §17. The General Government and the States. — The Constitution of the United States is in itself a specific enumeration of powers expressly surrendered by the peo- ple to the Federal government, and where such power has been given, as is evidenced by the language of the grant, no other authority can assume the right to exer- cise the same. Clearly this would prevent the several States from, in any manner, interfering with interstate rendition by legislation or otherwise ; but, the long silence of the general government in asserting and maintaining its right to exclusive control over matters relating to the arrest and surrender of fugitives from justice, fleeing from one State to another, and the acquiescence in the passage of auxiliary laws by the States on the subject, has operated as an admission by the general government that the subject of interstate rendition is a concurrent field of legislation. And without yielding any of the substantial delegated rights as mentioned in par. 2, sec. 2, article IV, of the Constitution, and without, in any way, impairing the efficiency of the methods of arrest and surrender of fugitive criminals, the Federal govern- ment has apparently abandoned all further efforts at leg- islation on this subject, being satisfied with the execution of the law as it now stands. It is generally admitted that the auxiliary laws passed by the several States of the Union are a great aid in interstate rendition procedure. § 18. The Supremacy of the Oonstitution of the United States. — At the time of the adoption of the Constitution it was the wish and will of the American people, openly expressed, that the Constitution itself should be the para- mount and all-controlling law of every State of the Union; hence, by its own mandate (Article VI, sec. 2,) it is declared to be "the supreme law of the land;" and, therefore, binding upon all officers and departments of both Federal and State governments, including every court, whether it derives its authority from a State or THE CONSTITirTIOlir AND EENDITIOSr. 21 from the United States. Tlius the supremacy of the Federal Constitution is unquestioned and absolute. The whole people of the United States must bow to its man- dates and yield willing obedience to its commands, their senators and representatives in Congress, as well as their representatives in the various State legislatures, must see to it that no law is passed by Congress or a State legislature, which runs counter or contravenes the express or implied provisions of that instrument — all such acts or laws are void and of no effect whatever. In this connection it is proper to say that the adoption of the present Constitution entirely changed the form of the government then in existence, without altering in any way the name under which it operated under the Articles of Confederation — ^the "United States of America," The essential difference between the two forms of govern- ment, was that the government under the Confederation was a government of the States; while the government of the Constitution is a government "of the people, for the people and by the people." §19. Offenses and Rendition. — ^The authorities are practically unanimous and unquestioned in holding, in view of the facts brought out in the discussion of this provision in the constitutional convention, that it applies to aU persons charged with the commission of any crime whatever in the State or Territory from which he may have fled. No State, by its governor or legislature, can place any limitation on the character of the crime charged against a fugitive from the justice of another State or Territory. K the offense charged in the demanding State, however frivolous, is a crime according to the statutes of that State, that establishes its legality be- yond question in the asylum State, and is a sufficient justification for the arrest and surrender of the accused person under rendition procedure. See Kentucky v. Dennison, (1860), 24 How. 66; Brown Case, (1873), 112 Mass. 409; In re Leary, (1879), 10 Ben. 197; Ex parte Reggel, (1885), 114 U. S. 642, 5 Sup. Ct. 1148, 29 L. ed. 22 THE I/AW OP INTEESTATE RENDITION 250; Lascelles v. Georgia, (1895), 148 U. S. 537, 13 Sup. Ct. 687, 37 L. ed. 283; State v. Hudson, (1893), 20 Ohio N, P. 1, aflBrmed by the supreme court of Ohio in Hudson V. State, (1893), 52 Ohio St. 673; Drinkall v. Speigel, (1896), 68 Conn. 441; People ex rel. Marshall v. Moore, (1915), 153 N. Y. Supp. 10. CHAPTER in. CONGEESSIONAL LEGISLATION. f 20. The Origin and Purpose. 5 21. Tlie Act of Congress of February 12, 1793. § 22. The Law as in U. S. Revised Statutes. i 23. Randolph's Ideas Adopted by Congress. S 24. No Debate in Congress when BiU Passed. f 25. Randolph's Interpretation of the Constitution on Interstate Rendition. 1. "A Person Charged." 2. "Or Other Crime." 3. "Who Shall Flee from Justice." 4. "Found in Another State." 5. "The State Having Jurisdiction." § 26. The Act of Congress of 1793 Constitutional. §20. The Origin and Purpose.— Shortly ^ after'^^'the adoption of the Constitution of the United States it hecame evident that a wide difference of opinion existed as to the meaning of the clause relating to fugitives from justice, charged with the commission of "treason, felony or other crime" in one State and fleeing to another State. Many conflicts and controversies arose between the executives of different States, whenever the arrest and surrender of fugitives from justice were demanded. With the governor of one State making an oflficial de- mand on the executive authority of a sister State, for the arrest and rendition of an alleged fugitive, and the latter refusing to comply with the demand, giving as his reason that the Constitution imposed no obligation upon him to make such arrest and delivery, and the clause in question being absolutely silent in this regard and no provision being made as to the manner in which the charge of crime should be made. Under these con- ditions what else could be expected but conflicts and differences? Only the prompt and determined action (23) 24 THE LAW OF INTEBSTATB EENDITION of President Washington, in submitting the Pennsyl- vania and Virginia controversy to Congress and Ms earnest appeal, in person, to that body to enact a law covering the points in dispute, and the readiness of Congress in complying with his request, settled for all time to come this and similar disputes as to the proper construction to be given to this clause of the Constitu- tion, § 21. The Act of Congress of February 12, 1793.— The act as passed by Congress and approved by President Washington is as follows: Section 1. That whenever the executive author- ity of any State in the Union, or of either of the Territories North-west or South of the Eiver Ohio, shall demand any person as a fugitive from justice, of the executive authority of any such State or Ter- ritory to which such person shall have fled and shall moreover produce a copy of an indictment found, or an affidavit made before a magistrate of any State or Territory as aforesaid, charging the person so demanded with having committed treason, felony, or other crime, certified as authentic by the Governor or Chief Magistrate of the State or Territory from whence the person so charged fled, it shall be the duty of the executive authority of the State or Ter- ritory to which such person shall have fled, to cause him or her to be arrested and secured and notice of the arrest to be given to the executive authority making such demand or to the agent of such author- ity appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. But if no such agent shall appear within six months from the time of the arrest the prisoner may be discharged. And all costs or ex- penses incurred in the apprehending, securing, and transmitting such fugitive to the State or Territory making such demand shall be paid by such State or Territory. Section 2. That any agent, appointed as afore- said, who shall receive the fugitive into his custody, shall be empowered to transport him or her to the OONGBESSIONAI. LEGISLATION. 25 State or Territory from which he or she shall have fled. And if any person or persons shall hy force set at liberty or rescue the fugitive from such agent while transporting, as aforesaid, the person or per- sons so offending shall, on conviction, be fined not exceeding five hundred dollars, and be imprisoned not exceeding one year. The remaining sections of the act, relating to arrest and return of fugitive slaves, have been repealed by Con- gress, and since the adoption of the Thirteenth Amend- ment to the Constitution of the United States, could not possibly have any effect anywhere in the Union, hence they are omitted from these pages. However, it may not be out of place to mention the fact that the act of Congress of 1850, known as the fugitive slave law, just referred to, was declared to be constitutional by the Su- preme Court of the United States in the case of Ableman V. Booth, (1858), 21 How. 506. §22. The Law as in U. S. Revised Statutes.— The first and second sections of the act of Congress of Feb- ruary 12, 1793, are, with slight modifications, reproduced in the Eevised Statutes of the United States, and are as follows : Section 5278. Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or Chief Magistrate of the State or Territory from whence the person so charged has fled, it shall be the duty of the execu- tive authority of the State or Territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such 26 THE LAW OF INTBESTATE RENDITION agent appears within six months from the time of the arrestj the prisoner may be discharged. All costs or expenses incurred in the apprehending, se- curing, and transmitting such fugitive to the State or Territory making such demand, shall be paid by such State or Territory. Section 5279. Any ag:ent so appointed who re- ceives the fugitive into his custody shall be empow- ered to transport him to the State or Territory from which he has fled. And every person who, by force, sets at liberty or rescues the fugitive from such agent while so transporting him, shall be fined not more than five hundred dollars, or imprisoned not more than one year. §23. Randolph's Ideas Adopted by Congress. — ^An examination of the act of Congress, just set forth, shows what was deemed necessary to supplement the provision of the Constitution and to secure the performance of the duty enjoined therein, without friction and disputes be- tween the States. Attorney-General Eandolph's opin- ion may be regarded as a suggestion to Congress to clear up, by legislation, certain points in interstate rendition, somewhat obscured by par. 2, sec. 2, art. IV, of the Con- stitution. And a careful reading of the constitutional provision, the act of Congress and the extracts from his opinion following, will at once demonstrate that the first Attorney-General was pre-eminently correct in his in- terpretation of the fundamental law on this subject, and the act itself bears witness to the fact that Congress adopted his views in framing the statute of 1793 in aid of the clause of the Constitution relating to fugitives from justice. § 24. No Debate in Congress when Bill Passed. — Con- nected in the same bill with the provision for the arrest and surrender of fugitives from justice, was that for the surrender of fugitive slaves, destined to be, from an his- torical standpoint, of tremendous importance to the whole country. Nevertheless, there was no discussion, in the House of Representatives, on the advisability of the CONGEESSIONAIi LEGISLATION, 27 passage of the bill, its provisions were accepted as a matter of coxirse, because President Washington urged its adoption. Whether it was debated in the Senate there are no means of knowing, as the deliberations of that body were not opened to the general public until the year 1794. While Congress may have maintained a re- markable silence on this provision for the rendition of fugitives from justice, yet the preliminary discussions out of Congress, prior to the passage of the act of 1793, were full and satisfactory, so much so that, the intent and scope of the enactment could be fully determined. The act of 1793 was almost contemporaneous with the Constitution itself, and, like all the early legislation for the construction and enforcement of the provisions of that instrument, it was passed while Congress still con- tained many former members of the constitutional con- vention. § 25. Randolph's Interpretation of the Constitution on Rendition. — ^Edmxmd Eandolph, the Attorney-General of the United States, at the special request of President Washington, during the Pennsylvania and Virginia con- troversy, prepared an elaborate opinion upon the ques- tions presented and suggested by the authorities of the two respective States. Mr. Randolph, himself a dis- tinguished member of the convention that formed or framed the Constitution, was in every way capable of giving the true meaning, from a contemporaneous view- point, to this much discussed clause of the organic law on fugitives from justice. He considered successively the interpretation of the following phrases occurring in clause 2, section 2, article IV, of the Constitution: (1) "A person charged;" (2) "or other crime;" (3) "who shall flee from justice;" (4) "found in another State;" and (5) "the State having jurisdiction." 1. "A Person Charged." Taking up the first proposition Mr. Eandolph said, "this term is sufficiently technical to exclude any wanton 28 THE LAW OP INTEBSTATE BBNDITION or unauthorized accusation from becoming the basis of the demand. It would, in the language of mere legal entries, be applicable where a bill had been found by a grand jury. It must be interpreted under the Constitu- tion, as at least requiring some sanction to be given to the suspicion of guilt by a previous investigation. * * * Should such a procedure as this be declared to be in- competent as a charge, the object of this article in the Constitution must be either defeated or be truly oppres- sive. ' ' 2. "Or other Crime." The second proposition, "or other crime," he con- tended "being associated with treason and felony, ought not to be confined to crimes having some quality conunon to them and treason and felony. Such a common quality does not exist, unless it be that of felony itself. Why, then, are the words or other crime added, if felonies alone were contemplated? In the penal code of almost every State, the catalogue of felonies is undergoing a daily dimunition. But it is not by the class of punishment that the malignity of an offense is always to be deter- mined. Crimes, going deep into the public peace, may bear a milder name and consequence; and yet it would be singular to shelter those who were guilty of them, because they were not called and punished as felonies." 3. " Who Shall Flee from Justice. ' ' In giving his views on the third proposition, "who shall flee from justice," he said, "Some species of proof is indispensable; otherwise, the most innocent citizen may be carried in chains from his own to another State. It cannot be denied that every assertion of a governor ought to produce assent. But, upon a judicial subject, testimony, according to the judicial course, is alone ade- quate; and the demand is the only thing which is referred to an executive absolutely. The governor of Virginia is responsible for the just use of his discretion ; and if he should yield to informal evidence, he must yield at his peril." CONGRKSSIONAL LEGISIjATION. 29 4. "Found in Another State." On the fourth proposition, "found in another State," he held that, "at first it may seem unimportant whether he is so found or not ; because if he be not there, he can sustain no injury from an arrest. I will not decide how far his character may suffer, if he be proclaimed through- out a State as a fugitive, when he may never have en- tered it; nor yet what other inconveniences he may undergo. But if the probability of these be striking, he ought not to be hunted by public authority at random. * * * Hence, it is made a pre-requisite to a demand, that the culprit shall be found in the State ; that is, that some satisfaction be given that the government wiU. not be put upon a frivolous search." 5. "The State Having Jurisdiction." And in discussing the fifth and last proposition, "the State having jurisdiction," the Attorney-General said, "It is notorious, that the crime is cognizable in Pennsyl- vania only; for crimes are peculiarly of a local nature. * * * But if it were conceived, that Virginia might chastise offenses against Pennsylvania, or, that an action might be maintained in Virginia for what is a crime in Pennsylvania, it would not follow that the latter could not demand a malefactor from the former ; for the clause in the Constitution was obviously dictated by a wish to prevent that distrust which one State would certainly harbor against another, in situations so capable of abuse. Besides, it corresponds with the words of the Constitu- tion, if the State demanding has a jurisdiction, although it might not be an exclusive one. And these observations would have equal weight if the Federal courts in Vir- ginia could animadvert on crimes arising within the limits of Pennsylvania. But the Constitution directs that trials shall he held in the State where crimes shall have been cominiUed. I differ further in not discovering the disability of Virginia to deliver up the offenders. It has been sometimes fancied that, by delivering up, is meant 30 THE LAW OP INTEESTATE RENDITION only that the State from which the demand is made should express an approbation that they may be appre- hended within its territories. But as a State cannot be said to deliver up without being active, and it might dis- turb the tranquillity of one State if the officers of another were at liberty to seize a criminal within its limits, the natural and safe interpretation is, that the delivery must come from Virginia." This extensive quotation is made from Mr. Eandolph's official opinion because it is absolutely worthy of repro- duction in these pages and the further reason is given that, the document itself should be carefully studied be- cause it doubtless served as a hint to Congress in formu- lating and passing the act of 1793, relating to interstate rendition. §26, The Act of Congress of 1793 Constitutional.— The Supreme Court of the United States, seventy-three years ago, in Prigg v. Commonwealth of Pennsylvania, (1842), 16 Pet. 539, unhesitatingly upheld the constitu- tionality of the act of Congress of 1793, so far as it related to the arrest and surrender of fugitives from justice. So pronounced was the court in its determina- tion of this question that Mr. Justice Story, in delivering the opinion of the court, said : "From that time (1793) down to the present hour not a doubt has been breathed upon the constitu- tionality of this part of the act, and every executive in the Union has constantly acted upon and admitted its validity." CHAPTEE IV. FUGITIVES AND THE DISTEICT OF COLUMBIA. I 27. Special Law by Congress. S 28. Return of Fugitive to the District of Columbia. f 29. The General Removal Law. I 30. This Method Though Sustained by the Supreme Court, is Yet Open to Criticism. § 31. Is the District of Columbia a "District" Within the Meaning of Section 1014? § 32. Had Congress Muddled the Whole Matter? i 33. Even the Senate Judiciary Committee Denied its Validity. § 34. Section 1014 as Expounded by a United States Judge. §27. Special Law by Congress. — The city of WaBh- ington — ^the capital of the United States — ^territorially included in and known as the District of Colnmbia, being neither a State nor a Territory, was not included within the pale of the law of interstate rendition and for a time no provision was made for the arrest and surrender or for the demand and return of fleeing criminals. This condition, however, did not exist for any length of time. Congress, the supreme law-making power of the District of Columbia, early took this matter in hand in the in- terests of public justice that criminals, fleeing to or from the District, should not thereby secure immunity from punishment. On March 3, 1801, Congress legislated on this subject, (2 United States Statutes at Large, 115.) This act of Congress of 1801, is now reproduced as sec- tions 930 and 931, chapter XX, Code of Law of the Dis- trict of Columbia, (1911) and is as follows: "Section 930. In aU cases where the laws of the United States provide that fugitives from justice shall be delivered up, the chief justice of the supreme court of the District of Columbia shall cause to be apprehended and delivered up such fugitives from justice who shall be found within the District, in the same manner and under the same regulations as (31) 32 THE LAW OF INTBESTATB BENDITION. the executive authorities of the several States are required to do by the provisions of sections fifty-two hundred and seventy-eight, (5278) and fifty-two hun- dred and seventy-nine, (5279), title sixty-six, (66), of the Eevised Statutes of the United States, 'Ex- tradition,' and all executive and judicial officers are required to obey the lawful precepts or other process issued for that purpose, and to aid and assist in such delivery. Section 931. Any associate justice of said court shall have like, power, in case of illness, absence or other disability of the chief justice, or when any such application shall be certified to him by the chief justice." And although this law requires the arrest and surren- der of fugitives from justice of any State or Territory, found in the District of Columbia, upon the requisition of the executive authority of the State or Territory where such crime has been committed, similar in every respect to rendition from one State or Territory to an- other, yet in the same statute no provision is made for the arrest and return of the fugitive fleeing from the District of Columbia. The chief justice of the supreme court of the District of Columbia performing like duties as are exercised by the governors of the various States and Territories. § 28. Return of Fugitives to the District of Columbia. — But when it comes to the arrest and return of a fugi- tive, who may be charged with violating the local laws of the District of Columbia, or the general laws of the national government, and flees from the District and is afterwards found in any State or Territory of the United States, then it is that the Constitution and laws relating to interstate rendition cease to become operative, and section 1014, of the Eevised Statutes, providing for the removal of offenders against the laws of the United States to the district where the crime is committed, is relied upon as the authority for the return of such crim- inals to the District of Columbia for trial. The District being under the control of the Federal government and FUGITIVES AND THE DISTRICT OF COLUMBIA. 33 the violation of all laws being against tlie laws of the United States, the offender when arrested in any State or Territory is brought before a Federal court and an order of removal secured — thus his deportation to the District of Columbia is the result. And while interstate rendition may have had nothing to do with the return of the fleeing criminal to the District, the same result is accomplished and with less effort, though by a different law. § 29. The General Removal Law. — Section 1014 of the Eevised Statutes of the United States, previously known as section 33 of the judiciary act of 1789, is as foUows : "For any crime or offense against the United States, the offender may by any Justice, or Judge of the United States, or by any commissioner of a circuit court to take bail, or by any chancellor, judge of a supreme or superior court, chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate, of any State where he may be found, and agreeably to the usual mode of process against offenders in such State, at the ex- pense of the United States, be arrested and impris- oned, or bailed, as the case may be, for trial before such court of the United States as by law has rec- ognizance of the offense. Copies of the process shall be returned as speedily as may be into the clerk's office of such court, together with the recognizances of the witnesses for their appearance to testify in the case. And where any offender or witness is committed in any district other than where the of- fense is to be tried, it shaU be the duty of the judge of the district where such offender or witness is imprisoned, seasonably to issue, and of the marshal to execute a warrant for his removal to the district where the trial is to be had." § 30. This Method Though Sustained by the Supreme Court, is Yet Open to Criticism. — This method of return- ing fugitive criminals, charged with violating the local laws of the District of Columbia, by authority of section 1014, though long in use, apparently sanctioned by con- 34 THE LAW OP INTEBSTATB EENDITION. gressional enactments, (act of Congress, 1871 — 16 St., 426; act of Congress, 1874^1 Supp. Rev. St. 38; and act of Congress, 1902 — Code of District of Columbia, sections 1 and 61;) and approved by judicial decisions, {In re Buell, (1875), 3 Dill. 116; In re Benson, (1904), 130 Fed. 486; United States v. Campbell, (1910), 179 Fed. 762,) and finally upheld and sustained by the Supreme Court of the United States, (Benson v. Henkel, (1904), 198 U. S. 1,) nevertheless, the method has not been free from criticism and attack. Its validity has been strongly assailed by a Federal court, (United States V. Dana, (1895), 68 Fed. 886,) and the judiciary commit- tee of the United States senate, (see Report No. 658 — February 16, 1875,) positively declared in an official re- port to that body that there was no authority for such return of fugitive criminals to the District of Columbia. But the Supreme Court of the United States having finally in Benson v. Henkel, supra, held that the District of Columbia was a Federal district, within the meaning of section 1014, and that a fugitive arrested and returned to the District of Columbia under its provisions could not complain of unlawful removal. This decision should end the matter but upon reflection it has been thought proper to give the points herewith, very briefly, made against the validity of section 1014, so far as attempts have been made to make it apply to the District of Columbia. § 31. Is the District of Columbia a "District" Within the Meaning of 1014? — If the District of Columbia has been made a Federal "district" within the meaning of section 1014 and now authorizes the arrest and return of fugitives to the District of Columbia, by the various acts of Congress, it must be admitted that Congress made several imsuccessful attempts before it accom- plished its purpose. Section 33 of the judiciary act, now section 1014 of the Revised Statutes of the United States, was passed by Congress two years before the State of Maryland ceded rrrGinvBS and the distbict of coltjmbia. 35 the territory now known as the District of Columbia to the United States, hence that law was enacted without any reference whatever to the District of Columbia, and specifically related only to "districts," created by the act itself. No effort had been made by Congress to bring the District of Columbia within the purview of sec- tion 33 of the judiciary act, now section 1014 of the U. S. Revised Statutes, until possibly 1871 — ^from that time and including 1874, Congress had divested itself of the right to enact local laws for the government of the District of Columbia, and during this period the District of Columbia was a Territory, with the same form of territorial government as other Territories of the United States. Then it was that Congress passed an act in 1871, (16 Stat. 426,) now section 93 of the Code of the District of Coliunbia, which is as follows: "Section 93. The Constitution and laws of the United States, which are not locally inapplicable, shall have the same force and effect within the Dis- trict of Columbia as elsewhere within the United States." §32. Had Congress Muddled the Whole Matter?— Evidently section 33 of the judiciary act, now as then section 1014 of the Eevised Statutes, for returning flee- ing criminals to the "district," where the crime is charged to have been committed, was regarded as "lo cally inapplicable" by Congress to the District of Colum- bia; and in an attempt to remedy the inapplicability, Congress again undertook to bring the District of Colum- bia under the protecting care of section 33 of the ju- diciary act or section 1014 of the Eevised Statutes. This act of Congress was passed on June 22, 1874, (1 Supp. Eev. Stat. 38), the second section of which act declares that "the provisions of the thirty-third section of the judiciary act shall apply to courts created by act of Con- gress in the District of Columbia." This serious attempt by Congress to provide for the arrest and return of a fleeing criminal, who had violated the laws of the Dis- 36 THE LAW OF INTEBSTATB EENDITION. trict of Columbia, fled from its justice and afterwards found in another part of the United States, was regarded as an atonement for long congressional neglect. Sev- enty years had passed without there being upon the statute books any adequate law in this regard. But even the act of 1874 is apparently open to criticism of a very grave nature, in the case of the United States V. Dana, (1895), supra, the learned Federal judge in referring to this act of Congress declared that the stat- ute was so vague and indefinite that it was difficult to determine its intention or effect. And further on in his opinion the distinguished jurist said that the act "was more noticeable for what it omits than for what it con- tains. It does not make the District of Columbia a Federal district, nor declare that offenders may be re- moved thither in like manner as other Federal districts, nor removed thither for violations of the local law; nor does it purport to enlarge the class of offenses contem- plated by section 33 of the judiciary act. It does not even make the provisions of section 33 applicable in general to the District of Columbia but only to courts created hy Congress im the District of Columbia." §33. Even the Senate Judiciary Committee Denied its Validity. — In the early part of the year 1875, the District of Columbia was very much agitated because Charles A. Dana, editor of the New York Sun, one of the leading newspapers of that city, had been arrested in New York charged with libel alleged to have been committed in the District of Columbia, and was enlarged by a Federal judge in New York because Dana would not be tried by a jury if returned to Washington. (See In re Dana, (1875), 7 Ben. 1.) The senate of the United States, a co-ordinate branch of Congress, the law-making power of the Union, became interested in the general discussion of the Dana case and submitted the matter to its judiciary committee for examination and report. This committee consisted of George F. Edmunds, Eoscoe Conkling, F. T. Frelinghuysen, Allen G. Thurman and others — ^all noted for statesmanship and abOity as con- FTTGITIVES AND THE DISTEICT OP COLUMBIA. 37 stitutional lawyers. The report of this cominittee (No. 658), is a very remarkable document and as a contem- poraneous estimate of the legality of the act of 1874 falls but a grade below a judicial decision. The concluding portions of the report are as follows : "The sum of the matter, therefore, is, that the second section of the act of June 22, 1874, confers upon the courts of the District of Columbia the power to arrest offenders found in the District, who are charged with crime committed in the District, and hold them for trial, (which was the law before,) and to arrest offenders found in the District, who have committed crimes against the United States in some judicial district of the United States, and to send them to such district for trial. And that is alL No person can be brought into the District of Colum- bia under it, either for libel or any other crime. The committee are of opinion that both the sections of the act are necessary and proper, and in perfect ac- cordance with the principles of justice and the course of civilized jurisprudence. Without provisions of this character the District of Columbia would be an asylum for offenders committing crimes against the laws of the United States and escaping hither. ' ' It also remains to report, as directed by the reso- lution of the senate, 'whether said act has any appli- cation to prosecution or indictment for the crime of libel.' ' ' We are of opinion that, as before stated, no per- son charged with the crime of libel can be brought into the District of Columbia under it, for no person can be brought here under it, for any crime what- ever. * * * " §34. Section 1014 as Expounded by a United States Judge. — ^In the case of In re Dana, et al., (1895), supra Mr. Dana, editor of the New York Sun, was indicted in Washington for an alleged libel published first in New York and afterwards circulated in Washington. On an af&davit, stating the indictment and annexing a copy, he was arrested in New York under a warrant issued by a United States commissioner, and held for trial in 38 THE LAW OF INTERSTATE EBNDITION. Washington upon proof of identity. Subsequently an application was made to the Honorable Addison Brown, United States district court judge for the southern dis- trict of New York, for an order of removal of Dana from New York to Washington, which was elaborately argued before the district judge. In interpreting section 1014 of the Revised Statutes of the United States, quoted above, Judge Brown said: "The whole structure of this section, its provis- ions in regard to bail, recognizances, witnesses, and commitment, and the express provision that the pro- ceeding shall be 'agreeably to the usual mode of process against offenders in such State,' show that the familiar common-law proceeding upon complaint for the arrest and commitment of offenders by com- mitting magistrates was intended to be adopted and followed, subject to the provision adopting the pro- cedure of the several States. Even the magistrates named are almost identical with those named in the State Statutes. ' ' The proceeding contemplated by section 1014 is, moreover, an original and independent proceeding. It makes no reference to any indictment found else- where, nor is there any different provision for such cases. In those cases, by the common-law practice, and by State practice, the defendant, if within the State or Kingdom, was arrested upon a bench war- rant, or a warrant signed by a justice of the peace, issued directly upon the finding of the grand jury. The bench warrant ran throughout the State or Kingdom; a justice's warrant had to be 'backed,' or indorsed, by a justice in the county where the de- fendant was found. 1 Chit. Cr. Law, 342 ; Code Cr. Pro. N. Y. sec. 304, as Congress has not authorized that mode of proceeding upon Federal indictments, if the defendant is not within the district where the indictment is found, resort must be had, as it is now considered, to an original proceeding by complaint under section 1014; and whenever that section is appealed to, the procedure required by it must be observed, whether there has been a previous indict- ment found elsewhere, or not. The requiremnt that FUGITIVES AlID THE DISTRICT OF COLUMBIA. 39 the proceeding shall be 'agreeably to the usual mode of process against offenders in such State.' 'was designed,' says Mr. Justice Curtis, in United States V. Rundlett, (1854), 2 Curt. 41, Fed. Cas. No. 16,208, 'to assimilate all the proceedings for holding ac- cused persons * * * to the proceedings had for similar purposes by the laws of the State where the proceedings should take place.' The words 'mode of process,' he says, are synonymous with 'mode of proceeding.' "This must embrace the preliminary examination usual in the State, including the taking of evidence, depositions, and the examination of witnesses, and the duty of the magistrate in finding probable cause ; because, aside from this clause, there is no rule on those subjects; and it cannot have been intended that the proceedings should be conducted arbitrarily, and without any rule at all. The provision also for the commitment of witnesses, contemplates their presence and examination. In making this provision for an observance of the practice in use in the State where the arrest is made, it may be reasonably pre- sumed that the intention of the judiciary act was to prevent the hateful appearance of employing sum- mary and arbitrary methods of removal, and to avoid creating prejudice against the new govern- ment which would be likely to be engendered through courses of procedure to which the people of the sev- eral States were not accustomed, and against which they had just successfully fought. The construction of treaty stipulations is analogous. In re Farez, (1870), 7 Blanche. 345, 357, Fed. Cas. No. 4,645. "Although the State rules of evidence are not applicable in criminal proceedings in Federal cases, unless Congress has so provided, the above clause of section 1014 sufficiently shows the intent of Con- gress in this instance. It also imports that the rules of procedure to be followed in proceedings un- der section 1014 are those in force in the State at the time and place of the removal proceeding. This construction has been adjudged either directly, or by necessary implication in many cases: by Wood- ruff, J., in U. S. V. Case, (1871), 8 Blatchf. 251, Fed. 40 THE LAW OP INTEESTATE BENDITION. Cas. Mo. 14,742 ; by Judge Dillon, in U. S. v. Horton, (1873), 2 Dill. 94, Fed. Cas. 15,393; by Judge Ham- mond, in U. S. V. Browner, (1881), 7 Fed. 86, 90; by Judge Deady, in U. S. v. Martin, (1883), 17 Fed. 150, 156; and by Dyer, J., in Re Burkhardt, (1887), 33 Fed. 25, 26. It is implied also in Mr. Justice Miller's language in the Case of Bailey, (1869), 1 Woolw. 422, 426, Fed. Cas. No. 730, holding that although no examination is provided for in express terms by section 1014, it is necessarily implied in the refer- ence to the State practice. 'It would be a waste of time,' he says, 'to attempt to show that an impris- onment or order for bail is never made in any State, without a previous examination into the probable guilt of the prisoner, unless he voluntarily waives such examination.' Hammond, J., says, 'That the preliminary examination is to be in accordance with the usages of the district, seems to be a plain re- quirement of the statute.' Dfeady, J., referring to the clause in question, says, 'The validity, etc., is to be determined by the law of Oregon for the arrest, examination, and commitment of offenders;' and Dyer, J., says that the act 'requires a preliminary examination, so that the committing magistrate, and the judge signing the order of removal, may be sat- isfied of the probable guilt of the accused.' I do not find any reported case dissenting from these views. The State practice, therefore, as regards ex- aminations before committing magistrates, must be followed, so far as applicable, in proceedings under section 1014. "At common law a magistrate could not lawfully commit except upon oath. Wlien the witnesses were brought before him, he was required to take their depositions as to the facts and circumstances within their knowledge showing criminality; the defendant at length acquired the right to cross-examine the complainant's witnesses, and to produce witnesses in his own behalf; and on the facts thus ascertained, the magistrate was to determine the question of probable cause. 1 Chit. Cr. Law, 33, 34, 78, 79; 1 Tayl. Ev. sec. 484, note 2. Provisions to this effect were early incorporated in the statutes of New York, FUGITIVES AND THE DISTBICT OP COLUMBIA. 41 were re-enacted in the Eevised Statutes (2 Eev. Stat. 706), and are all stated in fuller detail in the existing Code of Criminal Procedure, adopted in 1881 (Laws 1881, c. 442; Code Cr. Pro. sees. 148, 150, 194, 207, 208). If a magistrate commits upon oath of belief or suspicion only, without any statement of facts and circumstances showing probable guilt, he is liable to an action of false imprisonment. 1 Chit. Cr. Law, 34; Blodgett v. Race, (1879), 18 Hun. 132. See In re Rothaker, (1882), 11 Abb. N. C. 122. ' ' The construction given to the fourth amendment of the Constitution is to the same effect. Chief Jus- tice Marshall, in the Case of BoUman, (1807), 4 Cranch, 129, says: This probable cause, therefore, ought to be proved by testimony in itself legal, and which, though from the nature of the case must be ex parte, ought in most other respects to be such as a court and jury might hear. "In re Rule of Court, (1877), 3 Woods, 502, Fed. Cas. No. 12,126, Mr. Justice Bradley says: It is plain upon this fundamental enunciation * * • that the probable cause referred to, which must be supported by oath or affirmation, must be submitted to the committing magistrate himself, and not mere- ly to an official accuser; so that he, the magistrate, may exercise his own judgment on the sufficiency of the grounds shown for believing the accused person guilty. In other words, the magistrate ought to have before him the oath of the real accuser, pre- sented either in the form of an affidavit, or taken down by himself by personal examination, exhibit- ing the facts on which the charge is based, and on which the belief or suspicion of guUt is foxmded. The magistrate can then judge for himself and not trust to the judgment of another, whether sufficient and probable cause exists for issuing the warrant. "Accordingly, a rule was formally established in that circuit that — "No warrant of arrest shaU be issued by any com- missioner upon mere belief or suspicion of the per- son making such charge; but only upon probable cause, supported by oath or affirmation of such per- son, in which shall be stated the facts within his own 42 THE LAW OP INTEESTATE EENDITION. knowledge constituting the grounds for such a be- lief or suspicion. "The same rule applies as on informations. U. S. V. Tureaund, (1884), 20 Fed. 621; U. S. v. Polite, (1888), 35 Fed. 58. "The fundamental requirements, therefore, of the fourth amendment to the Constitution of the United States, and of the practice of this State, made ap- plicable by section 1014, are that the facts and cir- cumstances tending to show criminality shall be made to appear to the magistrate on oath, whether upon examination by the magistrate himself, or by affidavit, or deposition ; that if the defendant demand an examination, the complainant's witnesses if with- in the county, shall be recalled, if desired, for cross- examination, and the defendant allowed witnesses in his own behalf; and that the magistrate must himself find in the facts thus shown sufficient prob- able cause, independent of the belief of other per- sons. "There is no express provision either by Con- gress, or by the law of this State, as to the reception or effect of an indictment found in another State or district as evidence before a committing magistrate ; though in California a State statute is said to make such an indictment legal evidence. U. S. v. Haskins, (1875), 2 Sawy. 262, Fed. Cas. No. 15,322. In New York such a question in the State practice never arises ; because after indictment found in one county the offender, if in another county, is removed by a bench warrant, and not by proceedings before a committing magistrate. In proceedings under sec- tion 1014 in this State, therefore, a certified copy of a foreign indictment must stand upon the gen- eral rules applicable to preliminary examinations; and by these rules it is at best, as stated by Lowell, J., in U. S. V. Pope, supra, but secondary evidence of the facts constituting the offense, and hence in no way conclusive. ' ' CHAPTEE V. LEGISLATION BY THE STATES. §35. Federal Law Supreme. §36. The Right of States to Legislate. §37. The Law Prior to the Confederation and Constitution. §38. The Supreme Court on State Legislation. 5 39. State Power to Legislate as Viewed by State Supreme Courts, a. Massachusetts. b. New York. c. Ohio. d. Nevada. e. Virginia. f. Alabama. g. Indiana. h. North Carolina. I. Texas. J. California. §35. Federal Law Supreme. — ^It is tmiversally con- ceded that the clause of the Constitution referring to fugitives from the justice of one State to another, and the act of Congress of 1793, in aid thereof, and known as sections 5278 and 5279, Revised Statutes of the United States, constitute the supreme law of the land on this suhject. Its force and effect is not only paramount, so far as the Federal government is concerned, but it is equally as binding upon each and every State as is the individual constitution of each State. No State by con- stitutional provision or statutory enactment can, in the least manner, limit or modify this Federal law pertaimng to the arrest and surrender of fugitive criminals from one State to another. It is true that every State has enacted statutes on this subject, in aid of and auxiliary to the Federal law, nevertheless, in order that such stat- utes may have any validity or authority as law and com- mand any respect from the courts, they must not, in any (43) 44 THE LAW OP INTERSTATE RENDITION. respect, run counter to the Constitution of the United States and to sections 5278 and 5279 of the Eevised Statutes. This assumption of power by the States to regulate certain phases of interstate rendition, by leg- islative enactments, has never been seriously disputed or controverted because such State legislation has been largely free from all encroachments against this law; and has tended to promote the accomplishment of the very purpose contemplated by the passage of the original law, namely, the arrest, surrender, and punishment of the guilty, who may flee from justice. §36. Right of States to Legislate. — A casual glance at the article of the Constitution of the United States, relating to fugitives from justice, and to the act of Con- gress of 1793, in aid thereof, it will be observed that, upon many phases of this subject, both are silent: 1. As to what shall be done with a furtive from jus- tice prior to the demand for his arrest and rendition. 2. As to the mode of procedure in securing the arrest of the person demanded and making the delivery to the demanding State. 3. As to compelling executive compliance to a requisi- tion of the demanding State, having all the requirements of the law. 4. As to the manner of ascertaining whether the ac- cused, within the meaning of the Constitution, is a fugi- tive from justice or not. 5. As to how the question of identity, when raised, shall be determined. 6. As to the scope and extent of the inquiry on a writ of habeas corpus. 7. As to the particular form of the certificate of au- thentication. Clearly under the Constitution Congress was invested with exclusive authority to legislate on interstate rendi- tion, if not by the express terms of article IV, section 2, then unquestionably by implication. And in exercise of that right the act of 1793 was passed and since that time, LEGISLATION BY STATES. 45 Congress has not deemed it necessary to legislate upon any of tlie phases herein mentioned. Why this remark- able legislative silence by Congress? Is it not possible that it was intended to share this legislative jurisdiction with the several States of the Union? The States them- selves have regarded interstate rendition as a concurrent field of legislation, and therefore, they have not hesitated to enact laws covering the phases omitted by Congress, as well as other laws auxiliary to the Constitution and laws of the United States on this subject. §37. The Law Prior to the Confederation and Con- stitution. — ^Prior to the adoption of the Articles of Con- federation and before the ratification of the Constitution of the United States, all power relating to the arrest and surrender of fleeing criminals from one State to another, was lodged exclusively in the States themselves, by a joint agreement entered into by and between the several municipalities or colonies or States, which had been long in effect, and was practically an extension of jurisdic- tional power of one State into that of another — in other words, the officers of one State by permission of the proper authorities of the State to be invaded and in which the fugitive had taken refuge, might enter such State, arrest and bring back the fugitive criminal guilty of a crime against the laws of the pursuing State. Under this arrangement the judiciary alone was invested with the power to demand, pursue and bring back fleeing criminals. From 1643, the year of the first colonial agreement, until 1777, the year of the adoption of the Articles of Confederation, one hundred and thirty-four years, this judicial system of rendition remained in full force and effect. The formation of the "United States of America" — 1778 — ^marked the end of State control over interstate rendition of fugitives from justice, and 1793 — ^when the act of Congress was passed — ^was the be- ginning of Federal rendition vested in and confided to the executive power of the State from which the fugitive fled and that of the State where he has taken refuge. In 46 THE LAW OF INTEBSTATE EENDITION. consequence of this surrender of State jurisdiction over fleeing criminals, it has been constantly intimated by the courts, and especially the Federal courts, that there was some doubt as to the legality of State legislation relating to interstate rendition. But the great weight of judicial authority. Federal and State, hold to the doctrine that State legislation, auxiliary to interstate rendition, is not in violation of the Constitution except when repugnant to the plain letter of the Federal law on that subject. §38. The Supreme Court on State Legislation. — One of the early cases to deny the right of the States to leg- islate on this subject was that of Prigg v. The Common- wealth of Pennsylvania, (1842), 16 Pet. 539. Mr. Justice Story in delivering the opinion of the Supreme Court of the United States, used the following language : "If Congress have a constitutional power to reg- ulate a particular subject,, and they do actually reg- ulate it in a given manner, and in a certain form, it cannot be that the State legislatures have a right to interfere, and, as it were, by way of complement to the legislation of Congress, to prescribe additional regulation, and what they deem auxiliary provisions for the same purpose. In such a case, the legislation of Congress, in what it does not prescribe, mani- festly indicates that it does not intend that there shall be any further legislation to act upon the sub- ject-matter. Its silence as to what it does not do is as expressive of what its intention is as the direct provisions made by it. This doctrine was fully rec- ognized by this court, in the case of Houston v. Moore, (1820), 5 Wheat. 1, 21, 22, where it was expressly held that, when Congress have exercised a power over a particular subject given them by the Constitution, it is not competent for State legisla- tion to add to the provisions of Congress on that subject ; for that the will of Congress upon the whole subject is as clearly established by what it had not declared as by what it had expressed." Plain and unmistakable as these words may be and imposing as they do, according to the general meaning LEGISIATION BY STATES. 47 of the same, a complete prohibition against all legislation by the States on interstate rendition; stiU the language of the opinion, just quoted, has not been regarded nor considered as anything like authority, either by the State Legislatures or by the courts, for excludiag or prohibit- ing any and all legislation by the States of the Union on that particular subject. Like many of the pronounce- ments of that august tribunal, it must be admitted, that Mr. Justice Story's words are without the slightest au- thority and binding force, because that question was not properly before the court for decision and therefore, the court itself was without jurisdiction to pass upon the question as decided, and hence, the utterance was merely dictum. This question remains undecided by the court of last resort. §39. State Power to Legislate as Viewed by State Supreme Courts. — ^The supreme judicial court of the State of Massachusetts was among the first State courts to as- sert and maintain that the legislature had the power and authority to enact such statutes, not inconsistent with the Federal law, as might be thought necessary. In the Commonwealth v. Tracy, (1843), 5 Met. 549, the chief justice speaking for the supreme court, said : (a) Massachusetts. "It is competent for any State to make aU such laws, (in aid of interstate rendition) as in the judg- ment of the legislature may be necessary to secure the peace, and promote good order, within its bor- ders. The provisions in question are primarily intended, no doubt, to aid in the discharge of the important duty due to other States, of surrendering fugitives from justice, by taking precautionary measures to secure their persons. But we think it manifest, that this is not the sole object. The per- sons described are those who have recently com- mitted known crimes in adjoining States, and fled into this. Being liable to be demanded and surren- dered, as fugitives from justice, may be considered as descriptio personantm; and it significantly de- 48 THE LAW OF INTERSTATE EENDITION. scribes a class of persons dangerous to the security and peace of our own community. Their presence is likely to cause disturbances. A wise government, bound to maintain peace and good order within its territories and authorized to exercise a salutary vigilance and restraint over all persons within its jurisdiction, may well provide for arresting such persons, and subjecting them to a judicial examina- tion, and requiring them to give bail for their ap- pearance and good behavior, or be imprisoned, if they be found to have committed capital offenses in other States, until due inquiry can be made, and all persons injured by them have an opportunity to institute such proceedings, criminal or civil, as jus- tice may require. A government is not bound to wait till its own laws are violated. Reasonable appre- hension of danger is sufficient to justify a prelimin- ary interposition to prevent it. It is analogous to the case of persons, who by their language or con- duct have shown themselves dangerous; they may be secured by bail, or by actual imprisonment, to prevent mischief. "With this view of the power of the State, and the purposes of the law, the court are of the opinion, that the provision of the Eev. Sts., c. 142, sec. 8, au- thorizing any court or magistrate, on complaint against any person found within this State, charged with an offense committed in any other State and liable by the Constitution and laws of the United States to be delivered over &c., to issue a warrant and cause such person to be held for examination, and imprisoned or bailed for a limited time, is a wise law and one which the legislature are competent to make and enforce, independently of their constitu- tional obligation to surrender such person to other States, for trial and punishment. It is a provision obviously not repugnant to the Constitution and laws of the United States, nor tending to impair the rights, or relax the duties, intended to be secured by them. To this extent therefore, the court are of the opinion that this law is constitutional and valid; one that the legislature had the authority to pass." LEGISLATION BY STATES. 49 (b) New York. The court of appeals of the State of New York in People ex rel. Corkran v. Hyatt, (1902), 172 N. Y. 182, 64 N. E. 825, 92 Am. St. 706, 60 L. E. A. 774, Judge Cullen, long an ornament to the bench of New York, in delivering the opinion in this case, used the following lan- guage: "The Constitution and laws of the State of New York, therefore, control the decision of the question we are now considering. In the Matter of Guden, (1871), 171 N. Y. 529, we held that the power given to the governor to remove a sheriff upon charges and after a hearing, was executive discretion, and the exercise of that power was not subject to review by the courts. But the question here is of an entirely different character. It involves the liberty of the citizen. Speaking of the division of powers among the three branches of the government, Mr. Chief Justice Parker, in the Guden case, said: 'There resides in the people of this and every State an ab- solute power to prescribe rules of action, through legislation, to enforce rules of action and to transact generally the affairs of government, through execu- tive acts, and to determine controversies between, enforce rights belonging to and redress wrongs done to, citizens of the State, through the courts.' * * * The writ of habeas corpus, is in this State available to every person imprisoned or deprived of his lib- erty, unless he is restrained under the authority of the Federal government or unless he is committed by virtue of a final judgment or decree of a com- petent tribunal of jurisdiction, or the final order of such a tribunal punishing him for contempt. The warrant of the governor is not a final judgment nor a decree, and even were it such it would be the duty of the court to see whether the jurisdictional facts exist which are necessary to authorize the action of the governor. The provision of section 827 of the Code of Criminal Procedure, directing that any per- son arrested on the governor's warrant shall be brought before a judge of a court of record and in- formed of his right to a writ of habeas corpus to 50 THE liAW OF INTERSTATE EENDITION. inquire into Ms identity with the person named in the warrant does not assume to limit the inquiry on a writ of habeas corpus to the questions of identity. It was enacted for the benefit of any person arrested under such warrant and solely as an additional safe- guard against illegal removal from the State." (c) Ohio. The supreme court of the State of Ohio, unanimously held, in Ex parte Ammons, (1878), 34 Ohio St. 518, that the act of the general assembly of March 23, 1875, (75 Ohio L. 79), relating to fugitives from justice, was a valid enactment, in so far as it is in aid of the provisions of the Constitution of the United States and act of Con- gress on that subject. The means by which the fugitive is "to be arrested and secured" are not provided by the act of Congress; hence, the legislation of a State may and should provide proper and adequate means and facilities for the accomplishment of such rendition. Ad- mitting that it is not within the power of a State legis- lature to make provisions in conflict with the laws of Congress on this subject, it is quite clear that State legislation in aid of congressional enactments is not ob- jectional. In Thomas v. Evans, (1905), 73 Ohio St. 145, 76 N. E. 862, Ammons case approved. (d) Nevada. The supreme court of the State of Nevada in Ex parte Lorraine, (1881), 16 Nev. &Z, held that the State statute requiring that, "in order to hold a fugitive from justice to await requisition of the governor of another State, it must affirmatively appear from the complaint filed before the committing magistrate in this State: 1. That a crime has been committed in the other State. 2. That the accused has been charged in that State with the commission of such crime. 3. That he has fled from justice and is within this State," was valid and in no way conflicted with the Federal law. LEGISIATION BY STATES. 51 (e) Virginia. In the United States district court of the eastern dis- trict of Virginia, in the case of Ex parte McKean, (1878), 3 Hughes, (U. S.) 23, in the course of a well considered opinion in a habeas corpus case, wherein it was sought to secure the release of one McKean, an alleged fugitive from justice, the district judge said: The State of Virginia has adopted provisions sim- ilar to, if not identical, with those of the Constitution and laws of the United States on this subject, and whether she has done so expressly or not, these lat- ter provisions are a part of her law and are obliga- tory upon her officers and courts. It has been held that the power of Congress to legislate on this sub- ject is exclusive, and that its law is the paramount law of the subject. (f) Alabama. The supreme court of the State of Alabama in the case of In re Mohr, (1883), 73 Ala. 503, 2 Ala. L. J. 457, 49 Am. Rep. 63, through Judge Somerville, one of the jus- tices of that court, it was said: "It now seems to be the better opinion that where State laws on this subject, (interstate rendition), are not repugnant, but auxiliary, to those passed by Congress, they may be upheld upon the principle of the right to exercise the power of do- mestic police." (g) Indiana. The supreme court of the State of Indiana in EobLn- son V. Flanders, (1867), 29 Ind. 10, held that, inasmuch as Congress had not prescribed the precise steps to be taken in securing the arrest and delivery of the party demanded, it was competent and proper for the legisla- ture of the State to adopt such reasonable laws on the subject as would be calculated to give effect to the obliga- tion imposed by the Constitution, and that, to this end, a State law requiring the officer making the arrest to take the party before a judge for the purpose of identi- 52 THE LAW OP INTEESTATB EENDITION. fication, and also the judge to determine this question, is to be deemed valid. In a later case Hyland v. Eochelle, (1913), 179 Ind. 695, 100 N. E. 842, Judge Oox of the supreme court, in a dis- senting opinion, in referring to the right of States to legislate on interstate rendition, gave the following con- vincing reason showing that the Supreme Court of the United States had recognized such right : "It is true that the Supreme Court of the United States has decided that no obligation is imposed by the Constitution and laivs of the United States on the agent of the demanding State to so time the arrest of one alleged to be a fugitive from justice and so conduct his deportation from the surrender- ing State, as to afford him a convenient opportunity before some tribunal, sitting in the latter State, upon habeas corpus or otherwise, to test the question whether he was a fugitive from justice and as such liable, under the act of Congress, to be conveyed to the demanding State for trial there. (Pettibone v. Nichols, 1906), 203 U. S. 192, 27 Sup. Ct. Ill, 57 L. ed. 148.) But it will be observed by a glance at the official report of that case, that in the opinion of the court written by Mr. Justice Harlan, the words 'by the Constitution and laws of the United States,' are italicised as they are given above. Why was the court so particular to place stress upon these words ? It seems to me to be clear that it was done to obtrude the implication that State laws might impose the obligation to afford opportunity for a hearing on such question 'upon habeas corpus or otherwise.' " (h) North Carolina. The supreme court of the State of North Carolina in a remarkable case. State v. Hall, (1894), 115 N. C. 811, 20 S. E. 729, 44 Am. St. 501, 28 L. E. A. 289, not only upholds the right of a State to legislate upon the sub- ject of interstate rendition, but goes a step further, and declares that a State may provide by statute, for the arrest and surrender upon requisition of persons indict- UEGISIATION BY STATES. 53 able for crime in another State, although they may not be fugitives from justice. Such a statute, if passed by the legislature of North Carolina, would be about as absurd, as the law enacted by the State of Illinois in 1845, requiring the governor at his discretion, to surrender certain fugitives "without requiring a copy of an indictment to accompany the de- mand." Both in conflict with the Federal law and ab- solutely void. (i) Texas. The criminal court of appeals of the State of Texas, in Ex parte Bergman, (1910), 60 Tex. Grim. 8, 130 S. W. 174, held that matters of interstate rendition are under the Federal Constitution and laws, and while State statutes in aid and furtherance of such Constitution and laws have been upheld and should be when called into use, it nevertheless does not affect the validity of the writ, issued under the authority of the Federal Consti- tution and laws, that the detailed provisions of the State statutes are not in any given case required or used. And that where, in accordance with a warrant properly and legally issued by the governor of this State upon due and legal request from the chief executive of another State, the relator was held in custody, he cannot be heard to complain that he was not originally arrested in a par- ticular manner directed by State statute. The Texas court further held that the Federal Constitution and laws define as to who is a fugitive from justice, and are not controlled by State legislation in any respect. (j) California. The supreme court of the State of California, in Ex parte Cubreth, (1875), 49 Cal. 436, held that the State law, "authorizing the arrest of a fugitive from justice who has fled from another State, before a demand for his surrender by the executive authority of the State from which he fled, and his detention for a reasonable time to afford an opportunity for such executive de- 54 THE LAW OP INTEESTATE EENDITION. mand," is not in conflict with the second section of arti- cle four of the Constitution of the United States. In rendering the opinion of the court the chief justice said : "That while the provision of the Constitution re- ferred to, required that the fugitive should be sur- rendered upon the demand of the executive of the State in which the crime is charged to have been com- mitted, it did not otherwise, or in the absence of the executive demand, undertake to define the duties or limit the authority of the State within which the fugitive from justice might be found. The Consti- tution of the United States does not assume to deal with the question, before the proper executive de- mand shall have been made, while, upon the other hand, the statute provides for the detention of the fugitive for a reasonable length of time in advance of, and to afford an opportunity for, the executive demand upon which the surrender is to be made. * * * The paramount constitutional duty of the State to make the surrender upon proper executive demand was in nowise in conflict with its reserved power to deal with the fugitive in the absence of such demand." CHAPTER VI. EXECUTIVE DUTY AND POWER. § 40. Origin of Executive Authority § 41. Statute Strictly Construed. § 42. No Deregation of Power. \ § 43. Extent of Executive Authority. § 44. Governor CuUom on Executive Duty. S 45. Conditions Precedent to Honoring Requisitions. § 46. The Demand Discretionary with the Governor. § 47. The Surrender — ^No Discretion with Governor. §40. Origin of Executive Authority. — ^Whatever of authority the governor of the demanding State or Terri- tory, or the governor of the surrendering State or Ter- ritory, may have in rendition procedure is derived solely and entirely from paragraph 2, section 2, article IV of the Federal Constitution and section 5278 of the Revised Statutes of the United States. (People ex rel. Marshall V. Moore, (1915), 153 N. Y. Supp. 10.) The power of the former to demand the apprehension and return of the fleeing criminal or fugitive from justice, found in another jurisdiction, as well as the right of the latter to cause the arrest and deportation of such criminal or fugitive from justice, is a constitutional and statutory grant of power to these State executives, and they alone — each in his respective State and official capacity — must carefully and legally conform to every requirement of this law, otherwise every act which they may perform is absolutely void and may result in the discharge of the fugitive by the courts on haheas corpus. The courts, both Federal and State, have uniformly guarded with care the rights and liberties of the citizen in interstate rendition proceedings and have generally insisted upon the strictest compliance with every requirement of the law pertaining to the arrest and rendition of fugitives from justice. Before the governor of the demanding (55) 56 THE LAW OF INTERSTATE EENDITION. State can take one legal step towards the rendition of a person known and charged to be a fugitive from justice from his State, there must have been begun judicial pro- ceedings against the alleged fugitive, either by an in- dictment found or an, affidavit made before a magistrate, substantially charging him with the commission of "trea^ son, felony, or other crime," The governor also must certify as authentic the copy of the indictment or affi- davit charging crime against the fugitive and the gov- ernor must also be satisfied that the party charged with crime in his State is, beyond question, a fugitive from the justice of his State, in other words that the criminal has fled from the jurisdiction of the home State to avoid arrest and punishment for the alleged crime. The gov- ernor is also empowered to appoint an agent or mes- senger to represent him in receiving the fugitive, and holding hinoj in custody while being transported from the place of his arrest to the county of the State wherein the crime was committed. Such authority is derived from the act of Congress of 1793, and from certain legislation passed by! the various legislatures of all the States. The person so acting as such agent or messenger is not a Federal official, though appointed by the authority of the laws of the United States, but merely a State officer of the State making the demand for the arrest and return of the alleged fugitive. See Robb v. Connolly, (1884), 111 TJ. S. 624, An action for false imprisonment will not lie against the agent, in the event that the fugi- tive is discharged by a court or judge of the asylum State on habeas corpus. See Matter of Titus, (1878), 8 Ben. (U, S.) 411; Pettus v. State, (1871), 42 Ga. 358; In re Bull, (1877), 4 Dill. 323. §41, Statute Strictly Construed. — These prerequi- sites must be carefully followed by the governor maldng the demand for the rendition of the fleeing criminal, even to the slightest detail, for unless he conforms strictly to section 5278, he wiU not only deprive himself of juris- diction to cause the arrest and return of the fugitive, EXEorrnvB duty and poweb. 57 but will absolutely destroy the rigbt and authority of the chief executive of the asylum or surrenderiug State to act. Therefore, it has been held in Hartman v. Aveline, (1879), 63 Ind. 344, 30 Am. 217, that the mere recitals contained iu the requisition for an alleged fugitive from justice are not suflicient of themselves to authorize the arrest and surrender of the fugitive. In Ex parte Smith, (1843), 3 McLean, 121, it was held that the statements of the governor in his requisition cannot aid a defective affidavit charging the commission of a crime, and a req- uisition is not of itself sufficient authority for the arrest and imprisonment of the alleged fugitive but the papers accompanying the same are all-important and taken to- gether may justify the right of arrest and imprisonment. Nor is the affidavit of an attorney communicating in- formation received by telegraph that the accused is charged in the other State with the commission of an offense against its laws sufficient. See In re Butter, (1869), 7 Abb. Pr. N. S. 67. The fact that the requisition does not state that the affidavit was made before a mag- istrate or that there was a criminal proceeding pending iu a proper court, will not vitiate the proceedings if it refers to annexed papers which are certified to be au- thentic, and which show upon their face that the pro- ceedings were actually begun in a proper court, so held in In re White, (1891), 45 Fed. 237. The representa- tions of the governor of the demanding State are of no effect unless supported by a duly authenticated copy of an indictment found or an affidavit made before a mag- istrate. The absence of either an indictment or an affi- davit makes the whole demand void. {Ex parte Morgan, (1883), 20 Fed. 298; Ex parte Thornton, (1853), 9 Tex. Grim. 635.) § 42. No Delegation of Power. — The supreme court of the State of South Dakota, in the course of an interesting opinion on interstate rendition, in In re Tod, (1900), 12 S. D. 386, 12 Am. Grim. 303, 47 L. E. A. 566, 81 N. W. 637, clearly and plainly defined the duty of the governor 58 THE LAW OP INTEESTATE EENDITION. of the asylum State when a requisition is presented to him demanding the arrest and surrender of an alleged fugitive from justice, as follows : "It was also shown on the hearing that the war- rant purporting to be signed by the executive of this State was never in fact issued by him, but was issued by some person other than the governor. The duty of examining requisition papers, passing upon their validity, and issiung his warrant devolves upon the governor personally. It is a power that cannot be delegated to any other person. The liberty of the citizen is involved and he can only be restrained of that liberty by the personal act of the governor, upon whom the power has been conferred by the Constitution and laws of the United States, and the Constitution and laws of this State. The execution of the power requires careful examination of the requisition papers, and involves the exercise of a sound judgment, aided, in case of necessity, by the advice of the attorney general of the State. The liberty of the citizen would be in great danger if any person could be allowed to issue such extradi- tion warrant in the absence of the governor." §43. Extent of Executive Authority.— In 1879, the late Hon. Shelby M. CuUom was governor of the State of Illinois, and an effort was made in the latter part of that year to arrest and surrender two citizens of the State upon the requisition of the executive of Pennsyl- vania. The alleged fugitives were charged with the crime of murder committed fourteen years prior to the time above stated in the State mentioned. Gov. Cullom, upon examination of the requisition and accompanying papers, issued his warrant for the arrest and deporta- tion of the accused men, they were taken into custody, but before they were removed from the State of Illinois, the governor granted them a hearing on a motion to re- voke his warrant. After a hearing covering several days, wherein counsel both for the State of Pennsylvania and the alleged fugitives ably argued the law proposi- tions arising from the facts of this peculiar case. Gov. EXECUTIVE DUTY AND POWBE. 59 Culloni in an able and well-considered opinion, showing great researcli and fairness, revoked his warrant and ordered the discharge of the alleged fugitives. The opin- ion itself is worthy of the greatest publicity because of its sound reasoning and clear exposition of the law per- taining to the duty of governors of asylum States, arisiag from interstate rendition. § 44. Governor Cullom on Executive Duty. — ^Eef erring to executive duty Gov. Cullom said: "It is undoubtedly the duty of the executive of each State to give fuU effect to that provision of the Federal Constitution which requires the return of the fugitive from justice, and to respect all laws for the purpose of enforcing that provision. I have no inchnation to disregard the obligation thus cre- ated, even though no power exists by which my ac- tion could be controlled. On the other hand, the seizure of a citizen of this State and his forcible transportation to a distant jurisdiction, beyond aU protection from the laws of his own State, is a pro- ceeding so serious that it can only be justified by positive law and the concurrence of all the facts required by law. The governor of a State has a very solenm duty to perform toward his own people, as well as toward other States. He should see tiiat no violent proceedings be taken against citizens who rely upon bim for protection, imless such proceed- ings be fully warranted by law. * * * "It is urged by those who support the requisition of the governor of Pennsylvania that I have no dis- cretion in the matter, but must surrender the men if the papers presented are regular upon their face. And this is to my mind the most important question. Have I the right to consider any extraneous facts — the lapse of time, the passiveness of the public prose- cutor of Pennsylvania, the hardships of respectable families in this State, or any other matter beyond the very letter of the record? "The Supreme Court of the United States, in the celebrated case of Kentucky v. Dennison, (1860), 24 Howard 66, made use of language which would seem 60 THE LAW OP INTEESTATE RENDITION. to justify the conclusion that the governor of a State to whom a requisition is directed, demanding the return of an alleged fugitive, has only a ministerial duty to perform and has no authority to look beyond the record. "The words used by the court are very strong, and if they are to be taken without qualification, , would seem to be conclusive. Yet it is entirely cer- tain that notwithstanding that decision it has been the practice of the governors of many States to look beyond the papers presented. It is clear that where a prisoner is held to answer a criminal charge, in the State where found, he will not be surrendered upon the demand of the executive authority of an- other State. This has always been the practice in Illinois, as well as in all other States so far as I know. But since the case of Kentucky v. Dennison, the Supreme Court of the United States itself has conclusively shown that the words used by the court, in the case last cited, are not to be taken without qualification. In Taylor v. Taintor, (1872), 16 Wal- lace, p. 366, a peculiar state of facts was shown. One McGuire was indicted in Connecticut and gave bail. He then went to the State of New York, but was taken from there on a requisition from the gov- ernor of Maine, and was imprisoned in the State. He did not appear to answer the indictment in Con- necticut, and forfeited his recognizance. Judgment being given against his bondsmen, they carried the case to the United States Supreme Court, where the judgment was affirmed. In discussing the questions presented the court say: " 'Had the facts been made known to the execu- tive of New York in time it is, to be presumed he would have ordered McGuire to be delivered to them (the bondsmen) and not the authority of Maine.' "Again on page 374 the court say: 'It is true the constitutional provision and the law of Congress under which the arrest and delivery were made are obligatory on every State, and a part of the law of every State. But the duty enjoined is several and not joint, and every governor acts independently and for himself. There can be no joint demand or EXEOTTTTVB DUTY AND POWEB. 61 refusal. In the event of refusal, the State making the demand must submit. There is no alternative. In the ease of McGuire no impediment appeared to the governor of New York, and he properly yielded obedience. The governor of Connecticut, if applied to, might have rightfully postponed compliance. If advised in season he might have intervened and by a requisition have asserted the claim of Connecticut. It would then have been for the governor of New York to decide between the conflicting demands. "Whatever the decision, if the proceedings were reg- ular, it would have been conclusive. There could have been no review and no inquiry going behind it.'" "It thus appears that the language used in Ken- tucky V. Dennison is not unqualified, that an execu- tive officer to whom a requisition is presented may do something more than inquire into the regularity of the record, and that however regular the record there still may be impediments of which the execu- tive of whom the demand is made must be the judge. I refer to this case, and to the practice in this and other States, for the purpose of showing that whether my duties be regarded as purely ministerial or quasi judicial, I am not only empowered, but re- quired to consider certain extraneous facts not ap- pearing in the record presented to me." There can be no question but that Gov. Cullom was clearly right in his interpretation of the law, with ref- erence to the duty of the executive of the asylum State, the great weight of authorities sustain him, and the lapse of years, since his opinion was written, have strengthened rather than weakened his position. § 45. Conditions Precedent to Honoring Requisition. — There is much uncertainty in the decisions as to the ne- cessity and sufficiency of proof of flight by the fugitive to be presented to the governors before rendition can be invoked. It has been stated that the governor must be satisfied that the accused person fled from justice. And that in addition to proof that a person is charged with crime it was held in the case of In re Jackson, (1878), 2 62 THE LAW OF INTERSTATE RENDITION. Flipp. 183, that it is necessary to show that he has fled from justice, and this must be done by sworn evidence such as will authorize a warrant of arrest in any other case. In Ex parte Reggel, supra, Mr. Justice Harlan said the act of Congress did not impose upon the execu- tive authority of the territory the duty of surrendering the appellant, (the fugitive) unless it was made to ap- pear in some proper way that he was a fugitive from justice. §46. The Demand Discretionary with Governor. — ^It is generally conceded that whether the executive of a State or Territory shall actually make a demand upon the executive authority of another State or Territory, for the arrest and return of a fugitive from justice, is & question which both the Constitution and the act of Congress leave wholly to his discretion. He alone is the judge, and when he decides either for rendition or against rendition, that settles the matter, and from his decision there is no appeal. However, it has been held in Ex parte Cubreth, (1875), 49 Cal. 436, that this dis- cretion left with the executive, may be regulated by State laws, provided they are not inconsistent with the Con- stitution and laws of the United States. § 47. The Surrender — No Discretion with Governor. — It is also a fact, uniformly held so by the courts, that the executive of the surrendering Sta^e, more generally referred to as the "asylum State," is clothed with no discretion whatever by the law on rendition, but is com- manded to do the act required to be done. Chief Justice Taney, in the celebrated case of Kentucky v. Dennison, supra, referring to the executive of the surrendering State, said: "It never has been supposed that this duty involved any discretionary power or made him anything more than a mere ministerial officer." The act required to be done is the arrest and surrender of the fugitive and although he may have no discretion in the matter — his duty being merely ministerial — ^yet, the governor of the surrendering State must be satisfied of certain facts EXECUTIVE DUTY AND POWBE. 63 — ^that the accused is a fugitive from justice, that he is substantially charged with crime and that the indictment or aflBdavit is duly authenticated — ^before he dare honor the requisition. {Ex parte Denniug, (1907), 50 Tex. Crim. 629.) CHAPTEE VII. WHO ARE FUGITIVES FEOM JUSTICE? I 48. Misconception of the Law. § 49. Executive Carelessness. I 50. Persons Held to be Fugitives. § 51. The Fugitive Doctrine Discussed. § 52. A Noticeable Difference of Opinion, i § 53. A Final Determination by the Supreme Court. § 54. A "Waiver of Jurisdictional Defects. i 55. "Constructive Presence." > § 56. Presence in State when Crime Is Committed Is Necessary. § 57. Unreasonable Conclusion by the Supreme Court. § 58. A Celebrated Case. i 59. A Summary of Supreme Court Decisions. 1. A Fugitive from Justice. 2. Demand for His Arrest and Surrender. 3. Proof of Crime and Proof of Flight Essential. 4. Executive Determination. 5. Prima Facie Case. 6.. Habeas Corpus a Proper Remedy. 7. Legality of Arrest and Detention. § 60. An Escape Convict or Person under Parole, when a Fugitive. § 61. A Late Decision by the Supreme Court. § 62. The Earlier Cases of Flight. § 63. Kendition of Witnesses. §48. Misconception of the Law. — The more or less uncertainty that surrounds the answer to this question, is due largely to a misconception as to just what the courts have held is the law, in interstate rendition pro- ceedings. The controlling cases, fully and explicitly an- swering this question, are not so numerous as to obscure the legal horizon; and yet, many lawyers, and even judges on the bench, have fallen into the error of holding that, because the alleged fugitive is found, in the asylum State, he is therefore a fugitive from the justice of the demanding State. The existence of the fact that, the accused is found in the asylum State, is not always con- clusive that he is a fugitive from the justice of the de- (64) WHO ABE FUGITIVES FBOM JXTSTICB. 65 mandiag State. A careless consideration of the author- ities and hastily formed conclusions, are mainly respon- sihle for such errors, which frequently result in the miscarriage of justice. The sufferers generally heing poor and unfortunate persons, financially unable to bear the expense of a prolonged legal contest. The conse- quence is that the alleged fugitive is forced to go to the demanding State, hundreds of miles from home and friends, there to remain in prison for an indefinite length of time, before having an opportunity to establish his innocence of the crime charged. The author appeared as counsel for an alleged fugitive from justice in Chi- cago in 1913, and the facts as set forth in the subjoined communication, which was published in the "Chicago Daily Law Bulletin," under date of April 1, 1914, clearly shows one of the instances referred to in the text of in- justice too frequently suffered by this class of so-called criminals. The article appearing in the Bulletin is as follows : "In July, 1913, Roy Blackburn of Chicago, and one of his friends, George Franklin, went to the country near Grand Eapids, Michigan, to spend a few days fishing and enjoying the country air and during their sojourn near Grand Rapids, they fre- quently visited that city, and as a matter of course they met and became acquainted with many people there. They remained there only about two weeks. ' ' On September 10, 1913, between the hours of six and seven o'clock in the evening, in Grand Rapids, Michigan, two men entered the jewelry store of Wm. J. Townsend, shot Mr. Townsend and two of his clerks, the latter two being killed instantly, Mr. Townsend dying several days after being shot. The store was said to have been robbed of considerable jewelry and diamonds. Many people are said to have witnessed the hold-up and shooting. "A month or so after the shooting and robbery, Roy Blackburn and George Franklin were arrested in Chicago, charged with the commission of the crime. A complaint had been filed ia the municipal court of Chicago, in accordance with the statute of 66 THE LAW OF INTEESTATE RENDITION. Illinois, charging these men with murder in Grand Eapids, Michigan, on the 10th day of September, 1913, and with being fugitives from the justice of that State. The court having the jurisdiction to hear and determine this question in Illinois was the municipal court of Chicago, no extradition had been demanded by the State of Michigan at this time, and so the case came on to be heard by that court. Judge Stewart presiding. Witnesses appeared from Grand Rapids, who testified that Eoy Blackburn was one of the persons guilty of the crime. Only one witness was able positively to identify George Franklin as the other. The case was dismissed as to George Franklin at the request of the prosecuting attorney from Grand Eapids. Sixteen witnesses were care- fully examined and cross-examined and clearly es- tablished the fact that Eoy Blackburn was not per- sonally present in Michigan on the day and date the crime was committed. Judge Stewart finally found both Blackburn and Franklin 'not guilty,' and or- dered the sheriff of Cook county to discharge them. While the hearing was in progress before Judge Stewart, covering a period of several days, the gov- ernor of Illinois issued his warrant of rendition for both Blackburn and Franklin, therefore the sheriff declined to obey the order of the municipal court judge. "A habeas corpus writ had been previously issued from the superior court upon the petition of Black- bum and Franklin, claiming that they were being unlawfully restrained of their liberty. The superior court judge flatly refused to hear this case while the other was pending in the municipal court. After the termination of this latter hearing, the superior court judge heard the case ab initio, so far as it referred to Eoy Blackburn, and after a repetition of all the evidence heard by Judge Stewart, and argu- ment of counsel, Eoy Blackburn was remanded to the custody of the sheriff and ordered delivered to the messenger from Michigan as a fugitive from the justice of that state. In less than three hours Black- bum was landed in jail at Grand Eapids. During the past month he was arraigned and tried for this WHO ABE FUGITIVES FEIOM JUSTICE. 67 horrible and atrocious crime in the circuit court at Grand Rapids. The jury did not agree on a verdict — eleven for acquittal and one for conviction. "The hearing before Judge Stewari; of the Mu- nicipal court was clearly in compliance with the laws of Illinois, relating to fugitives from justice prior to demand on the governor for extradition, and his finding of 'not guUty' should have ended the whole proceeding, yet this citizen of Illinois was held in the jail at Grand Rapids for six months, innocent of the crime charged. Last Saturday, he was re- leased and returned to Chicago a free man. "It is not the intent or purpose of the writer to criticise the finding of the judge, ordering the sur- render of Blackburn as a fugitive from justice from the state of Michigan but to suggest to the bench and bar of the State the necessity of a statute per- mitting an appeal directly to the supreme court, in aU habeas corpus cases. Justice and fair-play to all parties concerned demand this. James A. Scott." In view of this state of facts, it is not surprising that the Supreme Court of the United States, in Ex parte Reggel, (1885), 114 U. S. 642, 5 Sup. Ct. 1148, 29 L. ed. 250, warned aU governors to be cautious in honoring requisitions, and that something more than mere regu- larity in the papers presented, should be required — Proof — absolute and positive, that the party demanded is in fact a fugitive from justice. The language of the Court is as follows: "Upon the executive of the State in which the accused is found rests the responsibility of deter- mining, in some legal mode, whether he is a fugitive from the justice of the demanding State. He does not faU in duty if he makes it a condition precedent to the surrender of the accused that it be shown to him, by competent proof, that the accused is, in fact, a fugitive from the justice of the demanding State." § 49. Executive Carelessness. — ^In many of the States, in nine applications out of ten, the executive delegates to a clerk in his office the task of examining requisitions, and the accompanying papers, fuU reliance is placed in 68 THE LAW OF INTEBSTATE EBNDITION. the judgment of the clerk, and as a matter of course the requisition is honored and the governor's warrant is issued. The liberty of the citizen is thus jeopardized by an ex parte hearing in the demanding State, and an unauthorized finding in the asylum State. Too little per- sonal attention is given by governors themselves to req- uisitions. On this subject it was said by the Supreme Court of the United States in Munsey v. Clough, (1904), 196 U. S. 364, that no governor's warrant can be legally issued for the arrest of an alleged fugitive unless the executive himself is satisfied and so finds — 1. That the party accused is a fugitive from the justice of the demanding State. 2. That the alleged fugitive is substantially charged with the commission of a crime in that State. 3. That the requisition and the accompanying papers are regular in form and fully comply with the Federal Law on interstate rendition. § 50. Persons Held to be Fugitives. — ^But who are fugitives from justice? In the light of the decisions of State courts, with few exceptions, it has been held that to be a fugitive from justice one must have committed a crime in the demanding State, and when wanted to answer for such crime he has left one jurisdiction and is found in another jurisdiction. For example, in the State of New Jersey, in In re Voorhees, (1867), 32 N. J. L. 142, it was held that "a fugitive from justice is defined to be a person who commits a crime within a State, and withdraws himself from such jurisdiction without awaiting to abide the consequences of such act. ' ' In the State of Texas, in Hibler v. State, (1895), 43 Texas, 197, it was said that "a person who commits a crime in one State for which he is indicted, and departs therefrom, and is found in another State, may well be regarded as a fugitive from justice." In New York, in People ex rel. Draper v. Pinkerton, (1879), 17 Hun. 199, the supreme court said that "the charge that he com- mitted a crime in that State, coupled with the fact that WHO ABE FUGITIVES FROM JUSTICE. 69 he is found in this State, is conclusive upon the question whether he is a fugitive from justice." The Massachu- setts supreme court, in Kingsbury's Case, (1871), 106 Mass. 223, held that "one who goes into a State, com- mits a crime and then returns home, is as much a fugi- tive from justice as though he had committed a crime in the State in which he resided and then fled to some other State." The supreme court of the State of Iowa in Taylor v. Wise, (1910), 126 N. W. 1126, held that a per- son found in another State on institution of a prosecu- tion against him, who refuses to return volimtarily, is a fugitive from justice within the rendition law, though he left the State openly, not in flight or with any intent to avoid arrest, the manner of his leaving being imma- terial. The supreme court of Nevada apparently has gone the limit in declaring who may be a fugitive from justice. In the case of In re Kuhns, (1913), 36 Nev. 487, 137 Pac. 83, 50 L. R. A. (N. S.) 507, it was held that "a person, though not within the foreign State at the time he is charged in rendition papers with the commission of a crime therein, may nevertheless be a fugitive from jus- tice of such foreign State, if he was an accessory to such crime or the same was committed through his agent." In South Dakota the supreme court, in In re Tod, (1900), 12 S. D. 386, 47 L. E. A. 566, 81 N. W. 637, 12 Am. Grim. 303, held that "while it may be necessary, to make a person a fugitive from justice, that he should leave the State where the offense is alleged to have been com- mitted, with the intention or for the purpose of avoiding a prosecution, stiU we think it must appear that he left the State without the knowledge or consent, actual or implied, of the parties alleged to have been defrauded." The supreme court of North Dakota held to the reverse —see In re Galbreath, (1913), 24 N. D. 582, 139 N. W. 1050. A person returned to the demanding State accused of the commission of a crime and is enlarged on bail and afterwards forfeits such baU by again fleeing from the State is a fugitive from the justice of such State. In re Hughes, (1867), PhiL L. (N. C.) 57. 70 THE LAW OF INTERSTATE EENDITIOIT. §51. The Fugitive Doctrine Discussed. — The first twenty-three words of art. IV, sec. 2, par. 2 of the United States Constitution, plainly and without equivocation, de- fine who are fugitives from justice, in the following words : "A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State * * *." The important and essential elements in this definition are the words — "who shall flee from justice" — the per- son alleged to he a fugitive from justice must actually have fled from the State where the crime was committed, in order to bring him clearly within the meaning of this clause of the Constitution. The act of Congress of 1793, now known as section 5278 of the Revised Statutes of the United States, passed in aid of the provision just quoted, was intended, beyond question, to emphasize this doctrine of flight, for it will be observed that the words "has fled," are used three times in this section in referring to the fugitive. A care- ful study of this constitutional provision, together with the enactment of Congress in aid thereof, will fully dem- onstrate that it was unmistakably contemplated by the early law-makers that a person, to be arrested and sur- rendered, must have committed a crime in the territory of the demanding State, and must have fled from the justice of that State. These facts constitute a prerequi- site of the right of any one State to lawfully demand from another State the surrender of any person, to be transported for trial to the State making the demand. Without the existence of these facts, the crime and flight, there is no right to the requisition — no authority or power to arrest and surrender the fugitive — under the Constitution and laws of the United States. This was the ruling of the Supreme Court of the United States in Hyatt v. People ex rel. Corkran, (1903), 188 U. S. 691, 23 Sup. Ct. 456, 47 L. ed. 637, affirming People ex rel. Corkran v. Hyatt, (1902), 172 N. Y. 176, 64 N. E. 824, 92 Am. St. 706, 60 L. E. A. 774. WHO ABE PTJGinVBS PBOM JUSTICE. 71 § 52. A Noticeable Difference of Opinion. — In the de- cisions on this question, by the courts of the United States and those of the several States, there is a notice- able difference of opinion, some holding that if a party is charged with crime in a State, and is found in another State or Territory, this, without any other evidence, suffi- ciently establishes the fact that he is a fugitive from justice. This was the rule ia the People ex rel. Draper V. Pinkerton, supra. Other decisions apparently based upon the theory that the finding of the governor of the asylum State, that the party wanted is a fugitive from justice, when so stated in the warrant of rendition, is absolutely conclusive. This proposition might be tenable, if not unassailable, when the governor grants a hearing to both sides and evidence pro and con is introduced before bim and he makes a finding on the facts as in- troduced. In re WiUiard, (1913), 92 Neb. 298, 140 N. W. 170. The Supreme Court of the United States, in Hyatt V. Corkran, supra, strongly intimated that the courts in habeas corpus might not be justified in reviewing the de- cision of the governor in such cases. It should, never- theless, be borne in mind that in Illinois, and many other States, no provision is made by the law, for a hearing by the fugitive before the governor; but in Illinois, for the past half a century, the governor has invariably heard both sides when application is so made for such hearing. But no Federal right is denied the fugitive when such hearing is refused him. Ex parte Chung Kin Tow, (1914), 218 Fed. 185. However, the vast majority of decisions, both Federal and State, hold that in habeas corpus proceedings, in rendition cases, the alleged fugi- tive may deny the fact that he is a fugitive from justice or that he was personally present in the demanding State or Territory at the time when the crime is charged to have been committed, and that the courts may hear and consider oral evidence, outside of the papers that were before the governor, in the final adjudication of this question of fact. This view is unquestionably the cor- rect one — fully sustained by a long line of decisions as 72 THE LAW OF INTERSTATE RENDITION. will be observed from the following: In re Keller, (1888), 36 Fed. 681; State ex rel. Arnold v. Justus, (1901), 84 Minn. 237, 87 N. W. 770; 7w re Strauss, (1903), 126 Fed. 327; Dennison v. Christain, (1904), 72 Neb. 703; Appleyard v. Commonwealth of Massachusetts, (1906), 203 U. S. 222, 27 Sup. Ct. 122, 51 L. ed. 161; Depoilly v. Palmer, (1906), 28 App. Cas. 324; McNichols v. Pease, (1907), 207 U. S. 110, 28 Sup. Ct. 58, 52 L. ed. 121; Com- monwealth ex rel. Burlingame v. Hare, (1908), 36 Pa. Sup. Ct. 125; Coleman v. State, (1908), 53 Tex. Crim. 93; Morrison v. Dwyer, (1909), 143 Iowa, 502, 121 N. W. 1064; People ex rel. Genua v. McLaughlin, (1911), 145 App. Div. (N. Y.) 513; Eyan v. Rogers, (1913), 21 Wyo. 311, 132 Pac. 95; Ex parte Law, (1911), 2 Ala. App. 257. § 53. A Final Determination by the Supreme Court. — On two different occasions the United States Supreme Court in Ex parte Reggel, (1885), supra, and Roberts v. Reilly, (1885), 116 U. S. 80, 6 Sup. Ct. 291, 29 L. ed. 544, refrained from deciding in each case, how far the gov- ernor's decision in the surrendering State that the ac- cused was a fugitive from justice, might be reviewed judicially in proceedings of habeas corpus or whether such finding by the governor was not final. However, in several later decisions, by the same court, this question was squarely met and determined, notably in Pettibone V. Nichols, (1906), 203 U. S. 192, 27 Sup. Ct. Ill, 51 L. ed. 148, in which the governor of Colorado issued his warrant of rendition for the arrest of the alleged fugi- tive, who was arrested and hurried out of the State and no opportunity allowed him to test the legality of his detention and to show that he was not a fugitive from justice. The Supreme Court said: "It is equally true that even after the issuing of such warrant, before his deportation from Colorado, it was competent for a court, Federal or State, to inquire whether he was in fact a fugitive from justice and if found not to be to discharge him from custody of the Idaho agent and prevent his deportation from Colorado." WHO ABE FUGITIVES FEOM JUSTICE. 73 And in McNicliols v. Pease, (1907), supra, a still later case, the same court spoke out on the same question, leaving absolutely no room for doubt whatever as to its position touching the rights of alleged fugitives from justice in habeas cor pits proceedings. The court said: "One arrested and held as a fugitive from justice, is entitled of right, upon habeas corpus, to question the law- fulness of his arrest and imprisonment, showing by com- petent evidence as a ground for his release, that he was not, within the meaning of the Constitution and laws of the United States, a fugitive from justice of the demand- ing State, and thereby overcoming the presumption to the contrary arising from the face of the extradition warrant." In Ex parte Eeggel, (1885), supra, Mr. Justice Harlan, in speaking for the Supreme Court, in the course of an elaborate opinion on this subject, said : "The only question remaining to be considered relates to the alleged want of competent evidence before the governor of Utah, at the time he issued the warrant of arrest, to prove that the appellant was a fugitive from the justice of Pennsylvania. Undoubtedly, the act of Congress did not impose upon the executive authority of the Territory the duty of surrendering the appellant, unless it was made to appear, in some proper way, that he was a fugitive from justice. In other words, the appel- lant was entitled, under the act of Congress, to insist upon proof that he was within the demanding State at the time he is alleged to have committed the crime charged and subsequently withdrew from her juris- diction, so that he could not be reached by her crim- inal process. The statute, it is to be observed, does not prescribe the character of such proof; but that the executive authority of the Territory was not required, by the act of Congress, to cause the arrest of appellant, and his delivery to the agent appointed by the governor of Pennsylvania, without proof of the fact that he was a fugitive from justice, is, in our judgment, clear from the language of the act. Any other interpretation would lead to the conclu- 74 THE LAW OF INTERSTATE EENDITION. sion that the mere requisition by the executive of the demanding State, accompanied by the copy of an indictment, or an affidavit before a magistrate, cer- tified by him to be authentic, charging the accused with crime committed within the limits, imposes upon the executive of the State or Territory, where the accused is found the duty of surrendering him, al- though he may be satisfied, from incontestable proof, that the accused had, in fact, never been in the de- manding State, and therefore could not be said to have fled from its justice. Upon the executive of the State in which the accused is found rests the responsibility of determining, in some legal mode, whether he is a fugitive from the justice of the de- manding State. He does not fail in duty if he makes it a condition precedent to the surrender of the ac- cused that it be shown to him, by competent proof, that the accused is, in fact, a fugitive from the justice of the demanding State." The same year, the same court, in Eoberts v. Reilly, (1885), supra, held that "to be a fugitive from justice in the sense of the act of Congress regulating the sub- ject, under consideration, it is .not necessary that the party charged should have left the State in which the crime is alleged to have been committed, after an indict- ment found, or for the purpose of avoiding a prosecu- tion anticipated or begun, but simply that having within a State committed that which by the laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offense, he has left its juris- diction and is found within the territory of another." To the same effect see In re White, (1893), 55 Fed. 54; Ex parte Brown, (1886), 28 Fed. 653 ; In re Bloch, (1898), 87 Fed. 981; Hibler v. State, (1875), supra; State v. Hall, (1894), 115 N. C. 811, 28 L. E. A. 289; State v. HaU, (1894), 114 N. C. 909, 28 L. E. A. 59; State v. Eichter, 37 Minn. 436; Drinkall v. Spiegel, (1896), 68 Conn. 441; In re Sultan, (1894), 115 N. C. 57; DepoiUy v. Palmer, (1906), supra; Commonwealth ex rel. Burlingame v. Hare, (1908), supra; In re Voorhees, (1867), supra. WHO ABE FtJGITIVES FROM JUSTICE. 75 §54. A Waiver of Jurisdictional Defects. — Some years later — ^in 1892 — the United States Supreme Court again proclaimed its views on this subject. In Cook v. Hart, (1892), 146 U. S. 183, 36 L. ed. 934, 13 Sup. Ct. 40, the court besides commending the position of that court in Ex parte Reggel, (1885), supra, and Eoberts v. Eeilly, (1885), supra, held that it is too late for the alleged fugitive from justice to object to even jurisdictional de- fects, after he is brought within the territory of the de- manding State and further declared that, the authorities tended to support the theory that the executive warrant has spent its force, when the accused has been delivered to the demanding State. § 55. " Constructive Presence. ' ' — In Hyatt v. Corkran, (1903), supra, the Supreme Court in reviewing the case of the People ex rel. Corkran v. Hyatt, (1902), 172 N. T. 176, wherein the supreme court of New York had dis- charged the accused on the ground that he was not a fugi- tive from justice, on writ of error affirmed the latter judgment, and again reasserted full faith in the doctrine enunciated in. the Eeggel and Roberts v. Eeilly cases, relating to fugitives from justice. Mr. Justice Peckham, in delivering the opinion of the court, thus settled the question of "constructive pres- ence" in the demanding State in rendition eases : "The language of section 5278, Revised Statutes, provides, as we think, that the act shall have been committed by an individual who was at the time of its commission personally present within the State which demands his surrender. It speaks of a de- mand by the executive authority of a State for the surrender of a person as a fugitive from justice, by the executive authority of a State to which such per- son has fled, and it provides that a copy of the in- dictment found, or affidavit made before a magis- trate of any State, charging the person demanded with having committed treason, etc., certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, shall be produced, and it makes it 76 THE LAW OP INTEBSTATE EENDITION. the duty of tlie executive authority of the State to which such person has fled to cause him to be ar- rested and secured. Thus the person who is sought must be one that has fled from the demanding State, and he must have fled (not necessarily directly) to the State where he is found. It is difficult to see how a person can be said to have fled from the State in which he is charged to have committed some act amounting to a crime against that State, when in fact he was not within the State at the time the act is said to have been committed. How can a person flee from a place that he was not in? " He could avoid a place that he had not been in ; he could omit to go to it; but how can it be said with accuracy that he has fled from a place in which he had not been pres- ent? This is, neither a narrow, nor, as we think, an incorrect interpretation of the statute, it has been in existence since 1793, and we have found no case decided by this court wherein it has been held that the statute covered a case where the party was not in the State at the time when the act is alleged to have been committed. We think the plain meaning of the act requires such presence, and that it was not intended to include, as a fugitive from the justice of a State, one who has not been in the State at the time when, if ever, the offense was committed, and who had not, therefore, in fact fled therefrom. * * * He must have been there when the crime was com- mitted, as alleged, and if not, a subsequent going there and coming away is not a flight." This clean-cut and emphatic declaration, set at rest the so-called doctrine of "constructive presence," how- ever, in holding that the person demanded must have been in fact "personally present" in the demanding State, when the crime was committed, the Supreme Court was only following the well-beaten path previously marked out by both Federal and State courts. Clearly upholding the doctrine enunciated by the supreme court of Iowa in Jones v. Leonard, (1878), 50 Iowa, 106, 32 Am. Rep. 116. WHO ARE FUGITIVES FROM JUSTICE. 77 § 56. Presence in State when Crime is Committed Nec- essary. — Several State legislatures have undertaken to enact statutes providing for the punishment of persons for certain crimes committed while not ' ' personally pres- ent" within the jurisdiction of such States, and with a great show of righteousness the governors of these States, have held up their hands in horror, when the courts have refused to sanction the rendition of such alleged fugitives. In the very opinion just referred to Mr. Jus- tice Peckham facetiously, yet truthfully, reminded these executives of their error in these words : "The exercise of jurisdiction by a State to make an act committed outside its borders a crime against the State is one thing, but to assert that the party committing such act comes under the Federal statute, and is to be delivered up as a fugitive from the justice of that State, is quite a different proposi- tion." However, a man may commit any number of crimes in a State without being personally present in such State. A person to be a fugitive from the justice of a State or Territory must have been personally present in such State or Territory at the time when the alleged crime is charged to have been committed and to have fled there- from. This is an absolute prerequisite to interstate ren- dition. The point of personal presence is an important one, as a man can, as just stated, commit any number of crimes and yet remain in his home State and for which he carmot be arrested and surrendered as a fugitive from justice. This was the point decided in the case of Jones V. Leonard, (1878), supra. In Hartman v. Aveline, (1878), 63 Ind. 344, 30 Am. Rep. 217; Wilcox v. Nolze, (1878), 34 Ohio St. 520; Tennessee v. Jackson, (1888), 36 Fed. 258; and In re Lyon, (1896), 24 Wash. Law R. (D. C.) 679, the same doctrine was upheld and there is no question as to it being the law. But a person who, being in one State and has thus committed a crime in another State, is certainly not entitled to immunity from the consequences of his crime. Should he afterwards be 78 THE LAW OP IKTEBSTATB EENDITIOlir. found in the State where the crime was committed, he would be amenable to its laws and subject to prosecu- tion. — Ham V. State, (1878), 4 Tex. App. 645; Benson v, Pahner, (1908), 31 App. Cas. (D. C.) 561. § 57. Unreasonable Conclusion by the Supreme Court. In Munsey v. Clough, (1904), supra, affirming the find- ing of the supreme court of New Hampshire, in State ex rel. Munsey v. Clough, (1903), 71 N. H. 594, the Supreme Court of the United States inferentially de- cided that habeas corpus was the proper remedy to test the question whether the accused was a fugitive from justice, with this qualifying explanation: "But the court will not discharge a defendant arrested under the governor's warrant where there is merely contradictory evidence on the subject of presence in or absence from the State, as habeas corpus is not the proper proceeding to try the ques- tion of alibi, or any question as to the guilt or in- nocence of the accused. As a prima facie case ex- isted for the return of the plaintiff in error and she refused to give any evidence upon the return of writ which she had herself sued out, other than the papers before the governor, no case was made out for her discharge, and the judgment of the supreme court of New Hampshire refusing to grant it must, therefore, be affirmed." How such a contradictory and unreasonable statement could find its way into a decision of the great court of last resort is beyond comprehension. The first sentence in the quotation just made, clearly and plainly con- demns proof of an "alibi," in habeas corpus, to defeat a governor's warrant of rendition, and in the very next sentence indirectly upholds the right of the fugitive to introduce such testimony in this language, "she refused to give any evidence upon the return of the writ which she herself had sued out." What evidence coidd have been offered in her behalf? Only that pertaining to the question of fact — ^whether or not she was personally pres- ent in the demanding State at the time charged when the WHO ABE FUGITIVES FBOM JTJSTICB. 79 alleged crime was committed. If the first proposition as set forth in this quotation were the law of the land the liberty of the citizen, in interstate rendition proceedings, would rest on a very shaky foundation, abrogating that fundamental rule, given by Broom's Maxims, that "there can- be no such thiag as a conclusive finding or adjudica- tion of fact against a person, depriving him of a valuable right, especially personal liberty, who has not been heard or had an opportunity of being heard. ' ' § 58. A Celebrated Case. — The case which attracted very general attention at the time and caused consider- able criticism, because of the prominence of the alleged fugitives in labor circles, was that of Moyer, Pettibone, Haywood and SimpMns, these men were charged with the murder of ex-Gov. Steunnenberg in the State of Idaho, on the thirtieth day of December, 1905. They were each arrested about the same time, in the State of Colorado, on a governor's fugitive warrant, and without any ceremony placed aboard a train and transported to the demanding State, without opportunity to confer with counsel or to invoke the aid of the law in showing that they were not fugitives from the justice of Idaho. When they arrived ia the State of Idaho, in charge of the mes- sengers, they were at once placed in the State peniten- tiary, the county jail being declared insecure, and shortly afterwards petitions for writs of habeas corpus were pre- sented for each one of the alleged fugitives, to the su- preme court of Idaho, and it was earnestly claimed on their behalf, that, they had been brought into the State unlawfully, by the connivance, conspiracy and fraud on the part of the executive officers of the two States and that neither one of prisoners was a fugitive from justice in the sense of the Federal Constitution and statutes. At the hearing before the supreme court of the State of Idaho, the officers having the accused men in custody moved to strike from the answer and petition of the accused all allegations relating to the manner and method of obtaining their presence within the State. That mo- 80 THE LAW OP INTERSTATE EENDITION. tion was sustained and each of the prisoners was re- manded. Subsequently other petitions for writs of habeas corpiis were filed in the circuit court of the United States, for the district of Idaho, for each of the prisoners, alleging among other things that, "he was not in the State of Idaho on the thirtieth day of December, 1905, nor at any time near that date," and therefore, "is not and was not a fugitive from justice ; that he was not present in the State of Idaho when the alleged crime was alleged to have been committed, nor for months prior thereto, nor thereafter, until brought into the State as aforesaid." The Federal circuit court declined to interfere with the arrest, detention and imprisonment of the alleged fugi- tives. An appeal was taken to the United States Su- preme Court and on October 3, 1906, that court in Petti- bone v. Nichols, (1906), 203 U. S. 192, 51 L. ed. 148, 27 Sup. Ct. Ill, with remarkable unanimity affirmed the ruling of the Federal circuit court of Idaho, in the fol- lowing strong and forceful language : "The duty of a Federal court, to interfere, on habeas corpus, for the protection of one alleged to be restrained of his liberty in violation of the Con- stitution or laws of the United States must often be controlled by the special circumstances of the case and except in an emergency demanding prompt action, the party held in custody by a State, charged with crime against its laws, will be left to stand his trial in the State court, which, it will be assumed, will enforce, as it has the power to do equally with a Federal court, any right asserted under and se- cured by the supreme law of the land. And even if the arrest and deportation of one alleged to be a fugitive from justice may have been effected by fraud and connivance arranged between the execu- tive authorities of the demanding and surrendering States so as to deprive him of any opportunity to apply before deportation to a court in the surrender- ing State for his discharge, and even if on such application to any court. State or Federal, he would have been discharged, he cannot so far as the Con- WHO ABB FCTGrriVES FROM JUSTICE. 81 stitution or the laws of the United States are con- cerned — ^when actually in the demanding State, in the custody of its authorities for trial, and subject to the jurisdiction thereof, — ^be discharged on habeas corpus by the Federal court. It would be improper and inappropriate in the circuit court to inquire as to the motives guiding or controlling the action of the governors of the demanding or surrendering States. No obligation is imposed by the Constitu- tion or laws of the United States on the agent of a demanding State to so time the arrest of one alleged to be a fugitive from justice and so conduct his deportation from the surrendering State as to afford biTn a convenient opportunity, before some judicial tribunal, sitting in the latter State, upon habeas corpus or otherwise, to test the question whether he was a fugitive from justice and as such liable, under the act of Congress, to be conveyed to the demand- ing State for trial there." § 59. A Summary of Supreme Court Decisions. — ^In McNichols V. Pease, (1907), supra, the Supreme Court aside from directly passing upon the so-caUed "alibi" testimony to overcome the prima facie showing made by the requisition papers, to defeat the governor's warrant, also contains a clever and complete summary of prin- ciples to be deduced from previous decisions of the court in rendition cases. These principles as enunciated are as follows : 1. A Fugitive from Justice. A person charged with crime against the laws of a State and who flees from justice, that is, after committing the crime, leaves the State, in whatever way or for what- ever reason, and is found in another State, may, under the authority of the Constitution and laws of the United States, be brought back to the State in which he stands charged with crime, to be there dealt with according to law. Eobb v. Connolly, (1884), 111 U. S. 624. 82 THE LAW OP INTEESTATB RENDITION. 2. Demand for His Arrest and Surrender. When the executive authority of the State whose laws have been thus violated makes such a demand upon the Executive of the State in which the alleged fugitive is found as is indicated by the above section (5278) of the Eevised Statutes — producing at the time of such demand a copy of the indictment, or an affidavit certified as au- thentic and made before a magistrate charging the per- son demanded with a crime against the laws of the de- manding State — ^it becomes, under the Constitution and laws of the United States, the duty of the executive of the State where the fugitive is found to cause him to be arrested, surrendered and delivered to the appointed agent of the demanding State, to be taken to that State. Ex parte Eeggel, (1885), 114 TJ. S. 642. 3. Proof of Crime and Proof of Flight Essential. Nevertheless, the executive, upon whom such demand is made, not being authorized by the Constitution and laws of the United States to cause the arrest of one charged with crime in another State unless he is a fugi- tive from justice, may decline to issue an extradition warrant, unless it is made to appear to him, by compe- tent proof, that the accused is substantially charged with crime against the laws of the demanding State, and is, in fact, a fugitive from the justice of that State. Eoberts V. Eeilly, (1885), 116 U. S. 80. 4, Executive Determination. Whether the alleged criminal is or is not such fugitive from justice may, so far as the Constitution and laws of the United States are concerned, be determined by the executive upon whom the demand is made in such way as he deems satisfactory, and he is not obliged to demand proof apart from proper requisition papers from the demanding State, that the accused is a fugitive from justice. Hyatt v. Corkran, (1903), 188 U. S. 691. WHO AKB FUGITIVES FEOM JUSTICE. 83 5. Prima Facie Case. If it be determined that the alleged crimiiial is a fugitive from justice — whether such detennination he based upon the requisition and accompanying papers in proper form, or after an original, independent inquiry into the facts — and if a warrant of arrest is issued after such determination, the warrant will be regarded as making a prima facie case in favor of the demanding State and as requiring the removal of the alleged crim- inal to the State in which he stands charged with crime, unless in some appropriate proceeding it is made to ap- pear that he is not a fugitive from the justice of the demanding State. Munsey v. Clough, (1904), 196 U. S. 364. 6. Habeas Corpus a Proper Remedy. A proceeding by habeas corpus in a court of competent jurisdiction is appropriate for detennining whether the accused is subject, in virtue of the warrant of arrest, to be taken as a fugitive from the justice of the State in which he is found to the State whose laws he is charged with violating. Pettibone v. Nichols, (1906), 203 U. S. 192. 7. Legality of Arrest and Detention. One arrested and held as a fugitive from justice is entitled, of right, upon habeas corpus, to question the lawfulness of his arrest and imprisonment, showing by competent evidence, as a ground for his release, that he was not, within the meaning of the Constitution and laws of the tjnited States, a fugitive from the justice of the demanding State, and thereby overcoming the presump- tion to the contrary arising from the face of an extradi- tion warrant. Appleyard v. Massachusetts, (1906), 203 U. S. 222. §60. An Escaped Convict or Person under Parole when a Fugitive. — ^A person who is convicted of a crime in a State and is permitted to go at large in that State, 84 THE LAW OF INTERSTATE BENDITION. under parole, and who leaves the State before he is released from such parole, is a fugitive from the justice of the State from which he fled, and a certified copy of the record in such criminal case, duly authenticated by the governor of the demanding State, is held to be a sufficient charge of crime to justify his arrest and sur- render to the authorities of the demanding State. A per- son who has been convicted of a crime in a State and escapes therefrom before the expiration of his sentence and is found in another State or Territory, is also a fugi- tive from the justice of the State from which he fled and may be arrested and returned to the demanding State the same as the person charged with violating his parole. (Drinkall v. Spiegel, (1896), 68 Conn. 441, 36 Atl. 832, 36 L. E. A. 488; Hughes v. Pflanz, (1905), 138 Fed. 980, 71 C. C. A. 234; Ex parte Williams, (1913), 10 Okl. Crim. 344, 136 Pac. 597,' 51 L. E. A. (N. S.) 668.) § 61. A Late Decision by the Supreme Court. — One of the late utterances by the Supreme Court on this subject, is decidedly drawing the line on the fugitive from justice as close as the Constitution and laws of the United States will permit. In Strassheim v. Daily, (1910), 221 U. S. 280, 31 Sup. Ct. 558, 55 L. ed. 735, that court reverses Judge K. M. Landis, of the United States district court of the northern district of the State of Illinois, who had previously discharged one Daily, on a writ of habeas corpus, on the ground that he was not a fugitive from the justice of the State of Michigan. Daily had been arrested in Chicago on a charge of bribery, brought against him by the authorities of that State. In 1909 Michigan officials determined to install certain new ma- chinery in one of her public institutions, bids were ad- vertised for, and Daily being the best and lowest bidder secured the contract. He went to Michigan before any of the machinery was shipped from Chicago, and while in that State made an agreement with the superintendent that for a certain sum of money old and second-hand machinery was to be accepted for new, and this was done. WHO ABE FUGITIVES FROM JUSTICE. 85 Daily was indicted for bribery by a Michigan grand jury but it was claimed by his attorney on the habeas corpus hearing before Judge Landis, that no crime was com- mitted in Michigan until the installation of the machin- ery and Daily not being in that State at or during that time was therefore not a fugitive from justice. The opinion of the court tightens the grip of the law upon fugitives from justice, holding that "one who does, within the State, an overt act which is, and is intended to be, a material step towards accomplishing a crime, and then absents himself from the State, and does the rest elsewhere, becomes a fugitive from justice, for ex- tradition purposes when the crime is complete, if not before." §62. The Earlier Cases of Flight.— In the earlier cases the element of flight, in order to escape detection and punishment, was always prominent in the findings of the courts, ia rendition cases. As early as 1837, the judges of the supreme court of the State of Maine, in response to the request of the governor of that State, said: "In our opinion it is the duty of the executive of this State to cause to be delivered over to the agent of another State, at the request of the executive thereof, a citizen of this State, charged by indictment with the fraud before set forth, which being indicted in such State may be presumed to be there regarded as a crime, if the executive of this State is satisfied that such citizen has fled from justice from the State making the demand, and not otherwise." In Ex parte Smith, (1843), 3 McLean, 121, the United States circuit court, sitting at Chicago, Illinois, Judge Nathanial Pope, presiding, in the course of a very able opinion held that the accused party must have been actu- ally and physically present in the State by which the demand is made and in which the crime is alleged to have been committed, at the time of such commission, and thereafter have fled therefrom. The United States district court for the western dis- 86 THE liAW OP INTEESTATE EENDITION. trict of the State of MioMgan, in In re Jackson, (1878), 2 Flip. 183, declared that before the executive of one State is authorized to issue his warrant to cause to be arrested and secured a person charged in another State with crime, it should be shown by evidence making a prima facie case that such person has fled from the demanding State. This should be shown by competent evidence, as the fact of fleeing lies at the foundation of the right to issue a warrant of rendition. The certificate of the de- manding governor is no evidence of the flight of the fugitive. The evidence that the person has fled from justilje must not only be satisfactory to the governor, but must be legally sufficient before the executive author- ity can be exercised. Mr. Spear, in his "Law of Extradition," speaking of the evidence of flight, says, "this evidence, in respect to both governors, must be legal evidence, not mere hear- say, or suspicion, or mere rumor, and must hence be under oath, and must at least be sufficient to create a prima facie case of flight. Without such evidence, it cannot be known to either governor that such a fact exists at all; and until this is reasonably known there is no occasion for any action on the part of either." § 63. Rendition of Witnesses. — The brotherly feeling long existing between the original colonies of New Eng- land and New York, prior to the establishment of the present system of government, resulted in their entering into a defensive alliance in 1644, and this spirit has been fostered and encouraged, during the intervening years, to such an extent that many reciprocal laws are to be found upon the statute books of Massachusetts, New Hampshire, Vermont, Maine, Pennsylvania, Rhode Island and New York. This feeling of comity and friendship is responsible, no doubt, for the enactment in the States named of a law, similar in every respect in each State, providing for the rendition of witnesses in criminal cases, who may have left one of the States named to keep from testifying in a case pending in any court of record and WHO ABE FUGITIVES PEOM JUSTICE. 87 is found in either one of the other States. It may not have been the intention of the framers of our laws on interstate rendition, to include absconding witnesses in criminal cases as fugitives from justice; nevertheless, it must be conceded that such an interpretation would greatly facilitate the administration of justice through- out the land. The statute as it stands in New York un- der section 618a of the Code of Criminal Procedure, and passed by the legislature in 1902, reads as f oUows : "If a judge of a court of record in any State bor- dering on this State which by its laws has heretofore made provision for commanding persons within its borders to attend and testify in criminal actions in this State, certifies under the seal of such court that there is a criminal action pending in such court, wherein the defendant is charged with a crime of the grade of a felony, and that a person residing or being within this State is believed to be a material and necessary witness iu such action, a judge of a court of record in this State, upon the presentation of such certificate and such proof of the materiality and necessity of such witness as he may require, opportunity being given such witness to appear be- fore such judge and be heard ia opposition thereto, and upon request so to do by the clerk of the court issuing such certificate a subpoena commanding such witness to appear and testify in the court where such criminal action is pending at the time and place to be stated therein. If any person on whom such sub- poena has been served in the manner provided by this chapter, having been tendered by the party ask- ing for the subpoena the sum of ten cents for each mile to be traveled to and from such court, and the sum of five dollars for each day that his attendance is required, the number of days to be specified in the subpoena, shall unreasonably neglect to attend and testify at such court, he shall be punished iu the manner provided for the punishment of disobedience of any other subpoena issued from a clerk, of a court of record in this State, provided, however, that the laws of the State in which the trial is to be held gives to persons coming in the State under such sub- 88 THE LAW OF INTEESTATE EBNDITION. poena, protection from the service of papers and arrest." In 1911 an application was made to a justice of the supreme court, sitting at special term in New York City, for an order for the issuance of a subpoena requiring one Rembrandt Beale, a person within the State of New York, to appear and testify in a criminal action pending in the State of Massachusetts. The motion was denied by the justice because of the supposed invalidity of the statute for constitutional reasons. See Commonwealth of Massachusetts v. Klaus, (1911), 129 N. Y. Supp. 1117. An appeal was taken to the appellate division, first de- partment, supreme court of New York and the statute was fiercely assailed by counsel representing the recal- citrant witness but the court reversed the order of the special term and upheld the constitutionality of the statute in every respect. See Commonwealth of Massa- chusetts V. Klaus, (1911), 145 App. D. 798, 130 N. Y. Supp. 713. CHAPTER Vm. THE REQUISITION. § 64. The Demand and its Requisites. § 65. The Rule as Fixed by the Supreme Court. § 66. Executive Discretion. S 67. Authority of Governor of Asylum State. S 68. Review by Courts of Governor's Finding. § 69. The Requisition Must Be Accompanied with Other Papers. § 70. Authority of States Involved. § 71. A Requisition Based on Forgery. § 72. State Fees and Regulations. 1. Alabama. 2. Arizona. 3. Arkansas. 4. California. 5. Colorado. 6. Connecticut. 7. Delaware. 8. Florida, 9. Georgia. 10. Idaho. 11. Illinois. 12. Indiana. 13. Iowa. 14. Kansas. 15. Kentucky. 16. Louisiana. 17. Maine. 18. Maryland. 19. Massachusetts. 20. Michigan. 21. Minnesota. 22. Mississippi. 23. Missouri. 24. Montana. 25. Nebraska. 26. New Hampshire. 27. New Jersey. 28. New Mexico. (89) 90 THE LAW OF INTEESTATB KENDITIOH". 29. Nevada. 30. New York. 31. North Carolina. 32. North Dakota. 33. Ohio. 34. Oklahoma. 35. Oregon. 36. Pennsylvania. 37. Rhode Island. 38. South Carolina. 39. South Dakota. 40. Tennessee. 41. Texas. 42. Utah. 43. Vermont. 44. Virginia. 45. Washington. 46. West Virginia. 47. Wisconsin. 48. Wyoming. 49. District of Columbia. 50. Alaska, Territory of. 51. Hawaii, Territory of. 52. Porto Kico. 53. Philippine Islands. §64. The Demand and its Requisites. — The requi- sition is the formal and official demand of the executive authority of the State, where the crime is committed, and from which the fugitive criminal has fled, directed to the governor of the State where such fugitive is found, re- questing him to cause his arrest and detention, with the ultimate view of his surrender and deportation to the demanding State, where he is to be arraigned and tried for the crime committed. The requisition itself is pred- icated upon a petition by the prosecuting attorney of the county, wherein the crime is alleged to have been committed, accompanied by a specific charge of crime, in the form of an indictment found by a grand jury, or an affidavit made before a magistrate, together with certain and positive proof, showing that the accused was personally present in the demanding State, on the day and date when the crime was committed, and that he has THE EEQTJISinON. 91 been fotmd in the asylmn State, and is therefore, a fngi- tive from the justice of the State making the demand. The act of Congress requires of the executive making the demand, to fnmish evidence of the charge, not to make the charge : and on that to make the demand. He is not only to see that a charge of crime has been made in conformity with the act of Congress, bnt he is to show that the evidence has been furnished him — and this evi- dence is to be of such a character as to satisfy the mind, that the party has been legally charged in the courts of the State whence he fled, with the crime for which it is sought to apprehend him. § 65. The Rule as Fixed by the Supreme Court. — ^In Eoberts v. EeOly, (1885), 116 U. S. 80, 6 Sup. Ct. 291, 29 L. ed. 544, the Supreme Court of the United States, in passing upon the right of a governor to honor a req- uisition and issue his warrant thereon, laid down the following mandatory rule for the guidance of the execu- tive authority of the several States: "It must appear, therefore, to the governor of a State to whom such demand is presented, before he can lawfully comply with it : Mrst, that the person demanded is substantially charged with a crime against the laws of the State from whose justice he is alleged to have fled by an indictment or an affi- davit, certified as authentic by the governor of the State making the demand; and, second, that the person demanded is a fugitive from the justice of the State the executive authority of which makes the demand. The first of these prerequisites is a ques- tion of law and is always open upon the face of the papers to judicial inquiry on an application for a writ of habeas corpus." §66. Executive Discretion. — ^Upon the governor of the demanding State rests the responsibility for the com- mencement of rendition proceedings. He alone has the legal right to determine, after examining the petition or application of the prosecuting attorney and the ac- companying documents, whether or not he will set in 92 THE LAW OF INTERSTATE EENDITION. motion tlie macliinery of the law for the arrest and re- turn of the fugitive criminal, by the issuance of a req- uisition directed to the executive of the asylum State. That determination, however, must be based upon the fact that every essential requirement of the Federal law, relating to interstate rendition, has been complied with, unless this is manifest from the papers before him, he is wholly withd^t jurisdiction to act. Should a requisi- tion be issued on defective and insufficient papers, cre- ates no obligation whatever upon the governor of the asylum State, to honor the demand for the arrest and detention of the alleged fugitive. The jurisdiction to issue a warrant of rendition by the executive of the State where the fugitive is found, is derived solely from the regularity and legality of the requisition and papers from the governor of the State making the demand. It will be observed that the action of the executive of the demanding State, in issuing or refusing a requisition, is purely a matter left to his own discretion and no power can be brought to bear upon him to force him to do or not to do that particular thing. § 67. Authority of Governor of Asylum State. — The governor of the asyltun State is also clothed with the authority to pass upon the legality and the sufficiency of the requisition and accompanying papers from the de- manding State, and also determine for himself as to whether or not he will issue his warrant of rendition for the arrest and deportation of the alleged fugitive. Do the requisition and accompanying papers, from the de- manding State, create such a legal demand as is con- templated by the Constitution of the United States and the act of Congress pertaining to this subject? And can it be truly said that the requisition and documents meet all the requirements of that law? If after a careful ex- amination of all the papers by the governor of the asylum State and these questions are answered in the affirma- tive, then such governor is in duty bound to comply with the requisition from the demanding State. The THE EEQTJISITION. 93 duty of surrendering fugitive criminals on the part of the States, it would seem from the use of the word "shall" in the clause of the Constitution, relating to interstate rendition, is absolutely compulsory. And yet there being no power lodged in the United States to compel the execution by the States of that clause, the obligation imposed is apparently one of discretion and duty so far as the United States is concerned. (Kentucky V. Dennison, (1860), 24 How. 66, 16 L. ed. 717.) How- ever, some of the individual States have passed local statutes which, in effect, make the constitutional pro- vision binding and free from all discretion, upon their officers, who are charged with the execution of the same, and this in a large measure has resulted in less friction between the States, caused by disagreements from the failure to honor requisitions. §68. Review by Courts of Governors' Finding. — Whatever action the executive of the demanding State may take, regarding the issuance or non-issuance of a requisition for a fugitive criminal, as already stated, the courts of that State have no authority to review his finding nor to control his judgment, in the performance of this particular duty. While this is the law as to the demanding executive, on the other hand, if the governor of the asylum State, decides to honor the requisition and orders the issuance of his warrant of rendition, his find- ing is subject to review by the courts of his State on habeas corpus; and should it appear that the charge of crime is not substantially made, or that the person ar- rested is not in fact a fugitive from the justice of the demanding State, then in either event, the governor's warrant may be declared void and the alleged fugitive discharged. In the case of Ex parte Smith, (1842), 3 McLean, 121, the Federal judge at Chicago, Ulinois, de- clared the governor's warrant void and ordered the dis- charge of Smith because the affidavit failed to charge a crime under the statutes of Missouri, the demanding State. This was one of the earliest cases to review the 94 THE LAW OF INTEESTATE EENDITION. action of the governor in honoring a requisition from a sister State and is often cited as a ruling case. §69. The Requisition Must Be Accompanied with Other Papers. — The requisition, though indispensable, if not accompanied by the proper papers, has no legal force whatever. The governor to whom it is addressed has the right to know on what basis and for what reasons the demand for the arrest and deportation of the fugitive is asked, and for this purpose it is not enough that the demanding governor has simply made a statement of facts, unless that statement is accompanied with docu- mentary evidence showing it to be true, it is of no effect. The statements by themselves in the requisition prove nothing, and are absolutely of no value whatever. In reviewing this proposition in Ex parte Thornton, (1863), 9 Texas, 635, it was so held by the supreme court of Texas, and in Hartman v. Aveline, (1878), 63 Ind. 344, the supreme court of Indiana held practically the same. In the case of In re Doo Woon, (1883), 18 Fed. 898, the Federal district court of the State of Oregon, discharged the relator as a fugitive upon the ground that no indict- ment or affidavit accompanied the requisition. In a ren- dition case in New York, in In re Eutter, (1869), 7 Abb. Pr. (N. S.) 67, it was shown from the return of the respondent, to the writ of habeas corpus, that the alleged fugitive was held by the governor's warrant and this alone was based on simply the requisition, it was ac- companied by no other papers. The court held that "the mere requisition of the governor of the State of Tenne- see, of itself, and without more affords no authority or justification for the arrest and detention of the alleged fugitive." The supreme court of the State of Ohio, in Work V. Corrington, (1877), 34 Ohio St. 64, held that, "if the governor of one State makes a requisition on the governor of another State for the surrender of a fugitive from justice, and the case is shown to be within the pro- visions of the Constitution of the United States and the act of Congress on the subject, no discretion is vested THE REQUISITION, 95 in the latter governor, but it is his imperative duty to issue his warrant of extradition." See also State v. Currie, (1911), 174 Ala. 1, 56 So. 735; Ex parte Faiht- inger, (1914), Tex. Crim. App. , 163 S. W. 441; Ex parte Walters, (1914), 106 Miss. 439, 64 So. 2. § 70. Authority of States Involved. — ^In every case of interstate rendition it is evident that only two sovereign States — each independent of the other and each acting through its supreme executive authority — ^is involved. No other State has any interest or concern and the Gen- eral Government is without power to interpose in behalf of any State, or any person in interstate rendition. The State wherein the fugitive is found is unable to try and punish him because he has violated none of its laws. State V. CutshaJl, (1892), 110 N. C. 536, 15 S. E. 261, and the State against whose laws he has committed an offense, is also powerless to try and punish him, because he is corporally beyond the jurisdiction of its court. It therefore becomes necessary for the latter State to make requisition for the arrest and surrender of the fugitive criminal, directed to the governor of the asylum State, in order that the required custody may be obtained of his person, and that he may be returned to the demand- ing State, and there tried for the crime he is charged with having committed. § 71. A Requisition Based on Forgery. — THiuois alone, so far as a close search discloses, is the only State to furnish an instance of a governor's requisition being issued upon a forged request or petition from the prose- cuting attorney. In 1889 one Langdon, a citizen of EZan- kakee county, Illinois, went before a justice of the peace and made an affidavit against his former housekeeper, charging her with larceny as bailee and a warrant for her arrest was duly issued and after diligent search and in- quiry it was ascertained that she had fled the State of niinois and was living in the State of Arkansas. Lang- don, the complaining witness, went before the grand jury and asked for her indictment but for some reason or 96 THE LAW OP INTERSTATE EENDITION. other a "no bill" was returned. Langdon then requested the State's attorney of Kankakee county to prepare and present to the governor of Illinois a petition for a req- uisition, on the governor of the State of Arkansas, asking for her arrest and surrender as a fugitive from justice. The State's attorney refused this request. Then it was that Langdon, not to be outdone, employed an attorney both in Kankakee, Illinois, and in the State of Arkansas and ultimately the governor of Illinois issued a requisi- tion on the governor of Arkansas and the latter honored the same and issued his warrant for the arrest and de- portation of the alleged fugitive from justice. Langdon, the prosecutor, was made the messenger of the State of Illinois, and made one or two trips to Arkansas but the alleged fugitive eluded arrest and fled from that State. About this time it was discovered that the State's attor- ney's name and the name of the county judge of Kan- kakee county, had been forged to the petition for requi- sition sent to the governor of Illinois. The requisition was recalled and cancelled. Langdon was indicted in Kankakee county for forgery, tried, convicted and sen- tenced to the penitentiary, in the face of the fact that his attorney pleaded insanity. Surely no one but an insane man would have attempted such a scheme. See Langdon V. People, (1890), 133 111. 383, 24 N. E. 874. § 72, State Fees and Regulations. — Many of the States of the Union have adopted certain specific rules for the guidance of the executive in issuing requisitions and a strict compliance with the same is required before the official demand for the arrest and surrender of the alleged fugitive from justice is made. Several years ago an effort at uniformity of such regulations was attempted by the governors of the several States, resulting in the adoption of a code of rules, which greatly facilitated and simplified the arrest and surrender of fleeing criminals and thereby producing a spirit of co-operation between the States so far as the rendition of fugitives from jus- tice were concerned. A knowledge of these regulations THE BBQUISinON. 97 is essential to a thorough understaiidiiig of the practice in the several States and Territories relating to the rendition of fugitives from justice — Whence their insertion. 1. Alabama. No fee is charged in Alabama for the original requisi- tion or for honoring an outside requisition. The rules are as follows: Application for a demand by the governor of this State upon the governor of any other State for the extradition of a fugitive from justice of this State, must clearly and succinctly set forth: — 1. The name of the person to be demanded. 2. The offense with which he is charged. 3. The county in which the offense is laid. 4. The State to which the accused has escaped. 5. The name of a suit- able person to be commissioned as the agent of this State in the extradition, and u/ithout special and satisfactory reason therefor, no person tviU be appointed and cowr- missioned as such agent, in a/ny case, who has a personal or private interest in the apprehension of the fugitive, or who has a strong motive for making any adjustment, settlement, or compromise with him by which the object of the requisition would be defeated. The application must come from, or be approved by, the solicitor of the circuit or his representative in the county, giving his opinion whether or not a conviction will be secured if fugitive is brought back; and it must aver, under oath, that the accused person has fled the State, that the ends of justice require that he be brought to trial, and that the process will not be used to coUect a debt or to enforce a claim, but for the punishment of crime. The State will not pay the eoc/penses of bringing fugi- tives to justice unless som^ public good is to be subserved thereby, amd will not in amy case poAf the expenses of a guard unless specicMy authorised by the governor in advance. With the application, there must be filed here two cer- tified copies of an indictment, or, if no indictment has 98 THE LAW OP INTEESTATB EENDITIOW. been found, two certified copies of an affidavit made be- fore a magistrate of competent jurisdiction, charging the person to be extradited with having committed trea- son, felony or other crime — one copy to be retained in this department, the other to be attached to and made part of the requisition, 2. Arizona. No fee and no rules or special regulations. 3. Arkansas. Fee $2, no regulations. 4. California. No fee. Eegulations as follows : The application for the requisition must be made by the district or prosecuting attorney for the county or district in which the offense was committed, and must be in duplicate original papers or certified copies thereof. The following must appear by the certificate of the district or prosecuting attorney: (a) The full name of the person for whom extradition is asked, together with the name of the agent proposed, to be properly spelled, in capital letters, for example: John Doe. (b) That in his opinion the ends of public justice re- quire that the alleged criminal be brought to this State for trial at the public expense. (c) That he believes he has sufficient evidence to se- cure the conviction of the fugitive. (d) That the person named as agent is a proper per- son, and that he has no private interest in the arrest of the fugitive. (e) If there has been any former application for a requisition for the same person, growing out of the same transaction, it must be so stated, with an explanation of the reasons for a second request, together with the date of such application, as near as may be. THE BEQUISmON. 99 (f ) If the fugitive is known to be under either civil or criminal arrest in the State or Territory to which he is alleged to have fled, the fact of such arrest and the nature of the proceedings on which it is based must be stated. (g) That the application is not made for the purpose of enforcing the collection of a debt, or for any private purpose whatever, and that if the requisition applied for be granted, the criminal proceedings shall not be used for any of said objects. (h) The nature of the crime charged, with a reference, when practicable to the particular statute defining and punishing the same. (i) If the offense charged is not of recent occurrence, a satisfactory reason must be given for the delay in making the application. 1. In all cases of fraud, false pretenses, embezzlement or forgery, when made a crime by the common law, or any penal code or statute, the affidavit of the principal complaining witness or informant, that the application is rnade in good faith, for the sole purpose of punishing the accused, and that he does not desire or expect to use the prosecution for the purpose of collecting a debt, or for any private purpose, and will not directly or indi- rectly use the same for any of said purposes, shall be required or a sufficient reason be given for the absence of such affidavit. 2. Proof by affidavit, of facts and circumstances satis- fying the executive that the alleged criminal has fled from the justice of the State, and is in the State on whose executive the demand is requested to be made, must be given. The fact that the alleged criminal was in the State where the alleged crime was committed at the time of the com m ission thereof, and is found in the State upon which the requisition was made, shall be sufficient evi- dence, in the absence of other proof, that he is a fugitive from justice. 3. If an indictment has been found, certified copies in duplicate must accompany the application. 100 THE LAW OP INTEKSTATE EENDITION. 4. If an indictment has not been found by a grand jury, the facts and circumstances showing the commis- sion of the crime charged, and that the accused per- petrated the same, must be shown by affidavits taken be- fore a magistrate (a notary public is not a magistrate within the meaning of the statutes), and that a warrant has been issued and duplicate certified copies of the same, together with the returns thereto, if any, must be furnished upon an application. 5. The official character of the officer taking the affi- davits or depositions, and of the officer who issued the warrant, must be duly certified. 6. Upon the renewal of an application, for example: On the ground that the fugitive has fled to another State, not having been found in the State on which the first was granted, new or certified copies of the papers in con- formity with the above rules must be furnished. 7. In the case of any person who has been convicted of any crime and escapes after conviction, or while serv- ing his sentence, the application may be made by the jailer, sheriff or other officer having him in custody, And shall be accompanied by certified copies of the indictment or information, record of conviction and sentence, upon which the person is held, with the affidavit of such per- son having him in custody, showing such escape, with the circumstances attending the same. 8. No requisition will be made for the extradition of any fugitive, except in compliance with these rules. 5. Colorado. Fee $5. Rules of practice same as California. 6. Connecticut. No fee. No rules. 7. Delaware. Fee $2. No rules. 8. Florida. No fee. No rules. THE EBQUISinON. 101 9. Georgia. No fee. No rules. Fee $5. No rules. Fee $3. No rules. Fee $3. No rules. 10. Idaho. 11. Ulinois. 12. Indiana. 13. Iowa. Fee $2. All papers must be in duplicate and applica- tions must be made by county attorney. Rules of prac- tice as follows: When tbe application is based upon indictment the application must be accompanied by duly attested copies of the indictment. When application is based upon information the appli- cation must be accompanied by certified copies of the information and warrant of arrest certified to by the magistrate, and a certificate from the clerk of courts as to the official character of the magistrate and the genu- ineness of his signature; and such information must be supported and accompanied by affidavit or affidavits, sworn to before the magistrate (a Notary Public is not a magistrate within the meaning of the statute) by some person or persons having knowledge, setting forth the details of the commission of the crime. In all cases of fraud, false pretenses, embezzlement or forgery, the affidavit of the principal complaining witness or informant, that the application is made in good faith, for the sole purpose of punishing the accused, and that he does not desire or expect to use the prosecution for the purpose of collecting a debt, or for any private pur- pose, and will not directly or indirectly use the same for any of said purposes, should accompany the application, whether based on indictment or information. 102 THE LAW OP INTERSTATE EENDITION. An affidavit should also accompany the application even though based on indictment where requisition is made upon the State of Pennsylvania and the crime of seduction. If there has been any former application for a requi- sition for the same person, growing out of the same transaction, it should be so stated, with an explanation of the reasons for a second request, together with the date of such application, as near as may be. If the offense charged is not of recent occurence a satisfactory reason should be given for the delay in mak- ing the application. 14. Kansas. No fee. No rules. 15. Kentucky. Fee $4. No special rules or regulations. 16. Louisiana. Fee $2. No rules whatever. 17. Maine. No fee. Same rules as California. 18. Maryland. No fee. Rules and regulations as follows: To avoid the frequent irregularities and denials conse- quent from defects in applications to the governor for requisitions for the surrender of fugitives from justice, the following rules, which have been substantially pro- mulgated and enforced by the preceding executives, will be strictly adhered to ; and any application not complying with them in all respects will be rejected, without inquiry into its intrinsic merits. The application must in all cases be made by the state's attorney, and must state that the party com- plained of is a fugitive from jiistice, having fled from this THE BEQTJISITION. 103 State before arrest could be made, and that the ends of justice require tbat be sbould be brougbt back for trial. If the application is made upon an indictment, a cer- tified copy thereof must be furnished by the clerk of the court in which it was found. In cases where no indictment has been foimd, the affi- davits charging the offense upon the accused must be in such express terms as to justify the belief that the grand jury, if in session, would be fully authorized to find a true bill; the justice of the peace taking the affi- davits must certify that in his opinion the parties making them are entitled to full credit, and that they present a proper case for a requisition; and the official character of the Justice must be duly attested by the certificate of the clerk of the court. The state's attorney must further certify that if the facts stated in the affidavit are true, they would ia his opinion result in a conviction. He must also name the State (or District of Columbia) upon which the requisi- tion is asked, and a proper officer be authorized as agent of the State to take charge of the prisoner. If the offense is not of recent occurrence, sufficient rea- son must be given why the application has been delayed ; and if a prior application has been made and refused, any new facts appearing in the papers must be specially pointed out. Application for the extradition of criminals who have committed trifling offenses wiU not be encouraged. In all cases of rejected applications the papers will be retaiaed in this office, and if a requisition shall have been improperly or unadvisedly granted, there will be no hesi- tation in revoking it. In all cases of false pretenses, embezzlement, conspir- acy, and crimes of like character, no requisition will be granted unless a certified copy of the indictment accom- panies the application, or unless the evidence exhibited clearly and unequivocally establishes the fact that the object is not to collect a private debt. In executing a requisition the sheriff will be allowed 104 THE LAW OP INTERSTATE EENDITION. a fair compensation for his services, and in no case wUl the expenses of an assistant be paid except where there are more prisoners than one, and then only when the necessity for assistance is made apparent. The amoimt allowed the oflScer will be $3 per diem for the time nec- essarily employed, and the actual traveling expenses of himself and prisoner ; and in all cases the biU of expenses shall set forth the items, be verified by the affidavit of the officer, and accompanied by the proper vouchers. As applications for requisitions may be sent in the mails with equal safety and effect, no expenses for trans- portation to and from Annapolis will be allowed. The state's attorney must state explicitly the locality where the fugitive is known to be, and in no case will a requisition be granted at the same time for the same offender, upon the governor of more than a single State. Duplicates of all papers necessary upon the applica- tion must be furnished, that one set may be retained in the department and the other attached to the requisition, though but one set need be certified. 19. Massachusetts. No fee. Rules same as California. 20. Michigan. Fee $2. Rules same as California with this addition : ' ' Substantially the same showing wiU be required in ap- plications received from the governors of other States for the extradition from this State of persons charged with crime." 21. Minnesota. Fee $5. Rules of practice same as California. 22. Mississippi. No fee. No rules. 23. Missouri. Fee $1. No rules. THE BEQTHSinOlSr. 105 24. Montana. Fee $5. No rules. 25. Nebraska. Fee $2. Rules same as California. 26. Nevada. No fee. No rules. 27. New Hampshire. No fee. Enles same as California. 28. New Jersey. No fee. No roles. 29. New Mexico. Fee $3. Enles same as California. 30. New York. No fee. Rules same as California. 31. North Carolina. Fee $3. Eules same as CaUfomia. 32. North Dakota. Fee $3. No rules. 33. Ohio. Fee $5. Bnles of practice as follows : 1. Applications must be made by the prosecuting at- torney, except in eases of convicts escaped from the Penitentiary. 2. The statutes of Obio provide for requisitions in cases of felony only; but the governor may issue extra- dition warrants without regard to our classification of offenses. 3. Applications and accompanying papers must be in duplicate. 106 THE LAW OF INTERSTATE EENDITION. 4. The prosecuting attorney must designate a person to be appointed agent. As a rule, the sheriff should be designated; and whoever the person may be, he should be instructed not to permit a compromise of the case under any circumstances. 5. The employment of the extradition process as a means of collecting debts, in cases of real or assumed false pretense, is so general that a proper use of it is a rare exception. Creditors invoke the process with no other purpose in view. This abuse has been carried to such an extent that the governors of the several states feel the necessity of putting an end to it; and even the refusal to either demand or surrender fugitives so charged has been suggested as the only sure remedy, prosecuting attorneys, wiU, therefore, notify persons who request them to make application in cases of this kind, that the governor will not issue a requisition unless convinced that the sole intention is to prosecute the al- leged fugitives for the offense charged. 6. Every application must be accompanied by the affi- davit required by statute, as to the purpose for which the extradition of the fugitive is desired. It should be made by the prosecuting attorney, because the prosecution is under his control. In aU cases of frmtd, false pretenses, embezzlement, or forgery, however, the affidavit of the principal complaining witness that the application is made in good faith, etc., will also be required, or a suffi- cient reason be given for the absence of such affidavit. These affidavits are printed on the same sheet with the blank application, and should be made before the clerk of court, to facilitate authentication by the governor, as he can make one certificate cover the whole case. 7. If the offense charged is not of recent occurrence, a satisfactory reason must be given for the delay in making the application. (See paragraph 16.) 8. Eequisitions will be issued only upon the condition that no portion of the expense pertaining to the extradi- tion shall be paid by the State. 9. Eequisitions wiU be recalled, and warrants re- THE EEQUISITION". 107 voked, when it is discovered that fraud or deception has been practiced. 10. When the application is based upon an indictment, the only papers required are the application, copy of indictment duly authenticated, and affidavit mentioned in the 6th paragraph — all in duplicate. 11. When based upon a complaint, duplicate copies of the instrument, certified and authenticated as specified in paragraph 15 and 18, and affidavits (in duplicate) specified in paragraphs 6 and 14, must accompany the application. 12. Although mayors and police judges are magis- trates, under the statutes of Ohio, complaints upon which requisitions are to be made should be made before jus- tices of the peace only, because (1) justices are recog- nized everywhere without question, as magistrates, and because (2) this is essential to a due authentication — neither the governor nor clerks of courts of common pleas having official knowledge of the election and qual- ification of mayors and police judges. 13. In some counties, the practice of making affidavits before notaries public, and filing them with justices of the peace, as complaints, prevails. This is certainly not based upon a correct interpretation of the statutes of Ohio; and besides, the statutes of the United States, which govern in the matter of extradition, provide that complaints shall fee made before a magistrate. 14. The statute requires, in case of complaint, "an affidavit or affidavits, to the facts constituting the offense charged, by persons having actual knowledge thereof." The meaning of this is, that an affidavit or affidavits giving in detail all Tcnown facts and circumstances having a hearing upon a case, shall be furnished, in support of and to strengthen the complaint, which, generally and properly, is simply a brief statement, charging the of- fense, and by whom, when, where, and by what means it was committed. If no person other than the complainant possesses the necessary information, there can, of course, 108 THE LAW OF INTERSTATE BENDITIOlir. be but one such affidavit. These affidavits to be originals and in duplicate. 15. The copies of the complaint which accompany the application must be certified by the justice of the peace before whom the complaint was made, to be true copies of the original instrument on file in his office. Some- times the original complaint is taken in triplicate, and two of them transmitted with the application, under the mistaken notion that they are better than copies; but the statute requires certified copies. 16. An application based upon a complaint, when there has been a session of the grand jury after the commission of the offense, and an opportunity afforded thereby to procure an indictment, will be regarded with disfavor, and a satisfactory explanation of the failure to procure an indictment will be required. 17. In case of indictment, the clerk of court must make duplicate copies of the instrument, and certify, un- der his official seal, that each is a true copy of the original indictment on file in his office. 18. In case of complaint, the clerk of court must at- tach to each copy of the instrument, following the cer- tificate of the justice of the peace, the usual certificate as to the election, qualifications, etc., of that office. This must not be omitted upon the theory that such certificate can be made by the governor or secretary of state, as the statute (Vol. 80, 0. L., p. 186) provides that "no officer other than the clerk of court of common pleas shall certify to the signature and qualification of justices of the peace." 19. The certificates referred to in the last two para- graphs should, invariably, be signed by the clerk him^ self, as the papers must receive a final authentication by the governor, who has no official knowledge of the appointment of deputies. Although the clerk's seal im- ports verity, and is, therefore, for general purposes, a sufficient verification when used by the deputy, the gov- ernor, in a case where a deputy signs the name of the clerk, can certify only as to the statutory authority of THE EBQXJISITIOIT. 109 deputies, and that tlie principal is clerk; bnt in snch case, or where a deputy makes the certificate himself, he cannot certify that such person is deputy clerk. Extra- dition papers undergo the scrutiny of able lawyers, es- pecially when the surrender of a fugitive is resisted; and opportunity must not he afforded them to defeat or delay justice, and cause unnecessary expense, upon a claim of insufficiency in any respect. 20. Fugitive criminals from other States sometimes avoid arrest, after they are discovered, or secure their release, after arrest, because of delay in obtaining a req- uisition. Such escape or release may be prevented by proceedings under sections 7156, 7157 and 7158 of the Revised Statutes of Ohio. 21. Upon the renewal of an application, for example : On the ground that the fugitive has fled to another State, not having been found in the State on which the first was granted, new or certified copies of papers, in conformity with the above rules must be furnished. 22. The sections of the Eevised Statutes of Ohio re- lating to the extradition of fugitives are 95, 96, 97, 7156, 7157 and 7158. Section 95 has been amended since the revision of the Statutes, and will be found in Vol. 81, 0. L., page 23. Also, see Vol. 81, 0. L., page 208. 34. Oklahoma. Fee $2.50. Etdes same as California. 35. Oregon. Fee $3. The rules of practice are as follows : An application to the governor of this State for a req- uisition upon the governor of another State or Territory, for the rendition of an alleged fugitive, must, if the per- son whose extradition is sought has been indicted, he accompanied hy the following documents, in duplicate: 1. A duly attested copy of the indictment made by the clerk of the court having jurisdiction to try the party charged. 2. An affidavit or affidavits that the party charged is 110 THE LAW OF INTERSTATE EENDITION, a fugitive from justice and that the demand is made in good faith, for the punishment of crime, and not for the purpose of collecting a debt, or of removing the alleged fugitive to a foreign jurisdiction with a view there to serve him with a civil process, or for any pecuniary or private end. In case no indictment has been presented, and the application is based upon an information or complaint made before an examining court or magistrate, such application m-ust he accompanied by the following docih ments im, duplicate: 1. A duly attested copy by the examining magistrate of the information or complaint filed with him. 2. An affidavit or affidavits, as specified in paragraph 2, above. 3. An affidavit or affidavits, to the facts constituting the offense charged, by persons having actual knowledge thereof, ' 4. A certificate from the magistrate before whom the complaint was made that, in his opinion, the character of the complaint and the merits of the case presented, warrant the application. Each application must be accompanied also by duplir- cate certificates of the district attorney (or deputy) of the district in which the offense is alleged to have been committed, showing all the material circimistances, together with his opinion upon the expediency of allow- ing the application; also by duplicate certificates of the county clerk, showing the official character of the magistrate before whom the complaint was made. When application is made by a deputy district attorney, there should be a certificate of the county clerk as to the official character of said deputy. In all cases the greatest care will be exercised by this department to ascertain beyond a doubt that the object in seeking a requisition is not to collect a debt, nor to answer any other private end. In all cases of false pretense, embezzlement, conspir- acy, and similar crimes, the strongest affirmative evi- THE BEQtnSinON. Ill dence will be required to show that the real object is not the collection of a private debt. If the offense is not of recent occurrence, sufficient rea- son must be given why the application has been delayed, Eequisitions will not be granted upon two or more States at the same time for the rendition of the same person. In all cases of rejected applications the papers will be retained in this department. In making application for a requisition, a suitable per- son should be recommended for state agent to receive and return the fugitive, 36. P^nsylvania. Fee $1. Rides same as California, 37. Rhode Island. No fee. The following rules have been established for issTung requisitions upon the executive authority of any other State or Territory, and for issuing warrants upon requisitions from such executive authority, for the ap- prehension of fugitives from justice: Every application to the governor for a requisition upon the executive authority of any other State or Ter- ritory, for the delivery up and return of any offender who has fled from the justice of this State, must be in writing, and must be accompanied by the following docu- ments and proofs : — 1. A duly attested copy of the indictment, if the in- dictment has been found against the offender. 2. If no indictment has been found, then the appli- cation must be accompanied by a duly attested copy of the complaint, made before a court or magistrate au- thorized to receive the same. And if a copy of a com- plaint is presented, such copy must be accompanied by affidavits to the facts constituting the offense charged, 3. There must in every case be sworn evidence that the person charged is a fugitive from justice; that is, that he has fled from the State to avoid arrest. 112 THE LAW OF ISTTEESTATE KENDITION. The copy of the indictment or complaint should be attested by the clerk or a justice of the court or by the magistrate. If no indictment has been found, and a copy of a com- plaint is presented, the affidavits to support thereof must be sufficient to establish a prima facie case — such as would justify a grand jury in finding an indictment. The affidavits to show that the person charged is a fugitive from justice should show, as particularly as may be, the time and circumstances of his flight, and in what State or Territory he now is. If the offense was not of recent occurrence, sufficient reasons must be given why the application has been de- layed. All cases should be first submitted to the attorney general or the assistant attorney general and his recom- mendation as to the issuance of a requisition and the proper agent to be appointed should be secured. The governor in his discretion, will require evidence of the character of the persons taking the affidavits. The purpose in granting requisitions is to aid in the administration of the criminal law. No requisition wiU be issued in any case to aid in collecting a debt or en- forcing a civil remedy against a person who has left the State. In aU cases where indictments have not been found and where the conduct of the prosecution is not in the hands of the law officers of the State, it must be made to appear that the application for a requisition is made in good faith, not for any private ends, but with a view to enforce the charge of crime against the of- fender. This rule will be applied with especial strictness in all cases of cheating, obtaining money by false pre- tenses, embezzlement, forgery, and the like. The governor has no power to require the surrender of fugitives who have taken refuge in the British Prov- inces, or other foreign dominions. Duplicates of all papers furnished to the governor will he required, in order that one set may be retained here, and the other attached to the requisition. THE BEQinSinON. 113 The governor of this State will deliver over to the executive of any other State or Territory, persons charged therein with crime, only when the demand is accompanied by the same documents and proofs which are mentioned above, in paragraphs 1, 2 and 3. He will require satisfactory evidence that the only object of the requisition is to pxmish the criminal, and that the process is not sought for the purpose of enforcing a civil remedy. 38. South Carolina. No fee. No rules. 39. South Dakota. Fee $3. No rules. 40. Tennessee. Fee $5. No rules. 41. Texas. Fee $2. No rules. No fee. No rules. 42. Utah. 43. Vermont. No fee. Eules are as foUows: Application must be made by the state's attorney of the county ru which the offense was committed, and must be in duplicate original papers, except indictments, which must be certified copies, also in duplicate. The following must appear from the certificate of the state's attorney. 1. The full name of the person for whom extradition is asked, together with the full name of the agent pro- posed, the same to be accurately speUed and plainly written. 2. That in his opinion, the ends of public justice re- quire that the alleged criminal be brought to this State for trial. 114 THE LAW OF INTEBSTATB EENDITION. 3. That he believes that he has sufficient evidence to secure a conviction of the fugitive, and that he is familiar with the facts, circumstances and proof relating to the alleged crime. 4. That the person named as agent is a proper person, naming his official position, and that he has no interest in the arrest of the fugitive. 5. If there has been a former application for a req- uisition for the same person, growing out of the same transaction, it must be so stated, with an explanation of the reasons for a second request, together with the date of such former application, as near as may be. 6. If the fugitive is known to be under either civil or criminal arrest, the fact of such arrest, and the nature of the proceedings upon which it is based, must be stated. 7. That the application is not made for the purpose of enforcing the collection of a debt, or for any private purpose whatever, and that if the requisition applied for be granted, the criminal proceedings shall not be used for any such purpose. 8. That all papers in duplicate have been compared with each other, and are in all respects exact counter- parts. 9. "Whether the offense charged is felony or a mis- demeanor, with a concise definition thereof, and a par- ticular reference to the Statute, giving the Section, to- gether with any amendments of the law in question, and stating the punishment for the alleged crime. 10. When more than one year has elapsed since the commission of the crime, a full explanation of the delay must be given; and when no indictment has been found, the reason why must be stated. If the matter has been before, or considered by, the grand jury of the county, and a bill not found, this fact must be so stated. If the matter has been before, or considered by, the grand jury of the county and a bill found, this fact must be stated. a. Proof by affidavit of facts and circumstcmces satis- fying the executive that the alleged criminal has fled from the justice of this State, and is in the State on THE BEQUISITION. 115 whose executive the demand is requested to he made, must he furnished. No mere unsupported allegations will he received or accepted as conclusive on this point. In addition to the facts and circumstances required it must appear aflBrmatively what the occupation of the accused at the time of the flight was ; whether he was a resident, or only in this State transiently; whether he was mar- ried; when the alleged fugitive left the State, and in gen- eral the previous history of the accused s6 far as it can he ascertained, and whether he is in the surrendering State transiently, or making it his residence, and his oc- cupation therein that the reasons of the affiant for his be- lief that the accused is a fugitive from justice may be before the executive for his consideration. As to all affidavits not made by the state 's attorney, or some pub- lic officer, the state's attorney must certify that the affi- ant is a respectable person and entitled to credit. b. If an indictment has been found, certified copies in duplicate must accompany the application. c. If an indictment has not been found, the facts and circumstances showing the commission of the crime charged, a/nd that the accused perpetrated the same, must be shown by affidavit or deposition. No application will be considered based on an information or complaint, and not properly supported by affidavits. Conclusions will not be considered except in connection with the facts and circumstances from which they are drawn. d. If the crime of forgery is charged, an affidavit of the person whose name is alleged to have been forged must be furnished, or its absence satisfactorily explained. e. Applications will not be considered unless it affirm- atively appears that the alleged fugitive was in this State at the time of the commission of the offense. Con- structive crime is not within the extradition law. f. The official character of the officer taking deposi- tions or affidavits, or administering oaths, or signing or issuing warrants must be duly certified. , g. The ' state 's attorney asking a requisition must within three months, unless sooner requested, after it is 116 THE LAW OP INTEBSTATE BJENDITION. issued, make report to the executive of all proceedings had thereunder. h. Upon the renewal of an application, for example: on the ground that the fugitive has fled to another State, not having been found in the State upon the executive of which the first was granted, new papers in conformity with the foregoing regulations must be furnished. 44. Virginia. Fee $4. Rules same as California. 45. Washington. Fee $2. No rules. 46. West Virginia. Fee $2. The rules are as follows : The laws of (West Virginia concerning this subject will be found in Chap. 14 of the Code. All Papers Must be in DwpUcate. 1. Applications must be made by the prosecuting at- torney. See blanks. "Application of Prosecuting At- torney," and "Affidavit of Prosecuting Attorney." In case of a person who has been convicted of any crime, and escapes after conviction, or while serving his sen- tence, the application may be made by the jailer, sheriff, warden of the penitentiary, or other officer having him in custody, and shall be accompanied by certified copies of the indictment or information, record of conviction, and sentence, upon which the person is held, with the affidavit of such person having him in custody, showing such escape, and the circumstances attending the same. 2. Applications and all accompanying papers must be in duplicate. 3. The prosecuting attorney must designate a person to be appointed, agent. As a rule, the sheriff should be designated; and whoever the person may be, he should be instructed not to permit a compromise of the case under any circumstances. 4. The employment of the extradition process as a THE EEQtrlSITION. 117 means of collecting debts, in cases of real or assmned false pretense, is so general that a proper use of it is a rare exception. Creditors invoke the process with no other purpose in view. This abuse has been carried to such an extent that the governors of the several States feel the necessity of putting an end to it ; and even the re- fusal to either demand or surrender fugitives so charged has been suggested as the only sure remedy. Prosecuting attorneys will, therefore, notify persons who request them to make application in cases of this kind, that the governor will not issue a requisition unless convinced that the sole intention is to prosecute the alleged fugi- tives for the offense charged. 5. Every application must be accompanied by the affi- davit required by statute, as to the purpose for which the extradition of the fugitive is desired. (See blank, "Affidavit of Proseeutrug Attorney.") It should be made by the prosecuting attorney, because the prosecution is under his control. In all cases of fraud, false pretenses, embezzlement, or forgery, how- ever, the affidavit of the principal complaining witness that the application is made in good faith, for the sole purpose of punishing the accused, and that he does not desire or expect to use the prosecution for the purpose of collecting a debt, or for any private purpose, and will not directly or indirectly use the same for any of said purposes, shall be required, or a sufficient reason be given for the absence of such affidavit. These affidavits should be made before the clerk of the court (county or circuit), and certified under the seal of the court. 6. If the offense charged is not of recent occurrence, a satisfactory reason must be given for the delay in mak- ing the application. (See paragraph 13.) 7. "When the application is based upon an indictment, the only papers required are the application, copy of indictment duly authenticated, and affidavit mentioned in the 5th paragraph — all in duplicate. 8. When based upon a complaint, duplicate copies of the instrument, certified and authenticated as specified 118 THE LAW OF INTEESTATE BENDITION. in paragraphs 12 and 15, and affidavits (in duplicate) specified in paragraphs 5 and 11, must accompany the application. 9. Complaints upon which requisitions are to be made should be made before justices of the peace only, and not before notaries public, mayors, or police judges. (See paragraph 10.) 10. In some counties, the practice of making affida- vits before notaries public, and filing them with justices of the peace as complaints, prevails. This is certainly not based upon a correct interpretation of the statutes of West Virginia ; and besides, the statutes of the United States, which govern in the matter of extradition, provide that complaints shall be made before a magistrate. Jus- tices of the peace are everywhere recognized as magis- trates. 11. The statute requires, in case of complaint, "an affidavit or affidavits, to the facts constituting the offense charged, by persons having actual knowledge thereof." The meaning of this is, that an affidavit or affidavits giv- ing in detail all knoimi facts and circumsta/nces having a bearing upon a case, shall be furnished, in support of and to strengthen the complaint, which, generally and prop- erly, is simply a brief statement, charging the offense, and by whom, when, where, and by what means it was committed. If no person other than the complainant possesses the necessary information, there can, of course, be but one such affidavit. These affidavits to be original and in duplicate. 12. The copies of the complaint which accompany the application must be certified by the justice of the peace before whom the complaint was made, to be true copies of the original instrument on file in his office. Some- times the original complaint is taken in triplicate, and two of them transmitted with the application, under the mistaken motion that they are better than copies; but the statute requires duly attested copies. 13. An application based upon complaint, when there has been a session of the grand jury after the commission THE BBQUISITIOlSr. 119 of the offense, and an opportunity afforded thereby to procure an indictment, will be regarded with disfavor, and a satisfactory explanation of the failure to procure an indictment will be required. 14. In case of indictment, the clerk of the court must make duplicate copies of the instrument, and certify, un- der his official seal, that each is a true copy of the orig- inal indictment on file in his office. 15. In case of complaint, the clerk of the court must attach to each copy of the instrument, following the cer- tificate of the justice of the peace, the usual certificate as to the qualification, etc., of that officer, which may be in this form : State of TTest Virginia, coimty, to wit: I, , clerk of the county court of said county, do hereby certify that , whose signature as justice of the peace is attached to the foregoing (or attached) , was at the date thereof a duly commissioned and quali- fied justice of the peace in and for said county, and that I am acquainted with his handwriting, and believe that the signature to the foregoing (or attached) is genuine. Given under my hand and the seal of said court, at , this day of , 19 — . 16. The certificates referred to in the last two para- graphs should invariably he signed by the clerk himself, and not by a deputy. Extradition papers undergo the scrutiny of able laioyers, especially when the surrender of a fugitive is resisted; and opportv/nity must not be afforded them to defeat or delay justice, and cause u/rmec- essary expense, upon a claim of insufficiency in a/ny re- spect. 17. Upon the renewal of an application, for example : On the ground that the fugitive has fled to another State not having been found in the State on which the first was granted, new or certified copies of papers, in conformity with the above rules must be furnished. 120 THE LAW OP INTERSTATE EENDITION. 47. Wisconsin. No fee. The rules are as follows: 1. Every application to the governor for a requisi- tion must be made in writing by the district attorney or other prosecuting officer of the county in which the crime was committed; provided, that if in any case such Dis- trict attorney or other officer shall refuse to make the application, it may be made by any other person, but must then be accompanied by the affidavit of at least two credible persons, stating, so far as can be ascertained, the reason of such refusal, and all the circumstances con- nected therewith. 2. The district attorney or other prosecuting officer must, in addition to the requirements of the statute, cer- tify that he is content that said fugitive shall be brought back to the State for trial at the public expense, that such expense shall be a county charge, and that he believes he has within his reach and will be able to produce at the trial the evidence necessary to secure a conviction. 3. Such officer must name in the application a proper person to whom the warrant may issue as agent of the State, and must certify that such person has no private interest in the arrest of the fugitive. 4. The facts and circumstances constituting the of- fense charged must appear by affidavit and must be suffi- cient to establish prima facie evidence of guilt against the partly accused. 5. Statements made on information and belief should be distinctly defined and the sources of information and grounds of belief must be set forth in detaU. 6. If the crime charged be forgery, the affidavit of the person whose name is alleged to be forged must be produced or a sufficient reason given for its absence. 7. It must appear satisfactorily that the object in seeking a requisition is not to collect a debt nor for any private end, but that the application is made in good faith, and with a view to enforce the charge of crime against the offender. This rule will be applied with espe- THE BEQTJISinON'. 121 cial strictness in all cases of false pretenses embezzle- ment, and like crimes. 8. It mnst be affirmatively stated, whether any appli- cation for a requisition for the same person for an of- fense arising out of the same transaction has been pre- viously made, and, if a prior application has been made and denied, any new facts appearing in the papers must be especially pointed out. 9. If the application is based on an information, it must be accompanied by an affidavit containing a detailed statement of the facts and circumstances constituting the offense charged. 10. It must appear by affidavit that the accused was in this State at the time the offense is charged to have been committed, and that he subsequently fled therefrom, and the time and circumstances of his departure must be shown as particularly as may be. It must also appear where the accused is, or is believed to be, at the time the application is made. 11. If known, it must appear whether the fugitive has ever been a resident of this State, or has only been tran- siently here ; and if transiently here, for what length of time and on what business, and under what circumstances he departed. 12. If the offense was not of recent occurrence, satis- factory reasons must be given why the application has been delayed. 13. The magistrate before whom the affidavits are taken must certify whether, in his opinion, the parties making the same are to be believed. 14. The official character of the officer before whom the affidavits are taken must be certified to by the clerk of the circuit court. 15. AH papers should be duplicate originals, except the complaint and warrant, which should be certified copies. Duplicate originals, or certified copies of all papers necessary upon the application must be furnished to the governor, that one set may be retained in this de- partment and the other attached to the requisition. This 122 THE LAW OF INTERSTATE BBNDITION. requirement is designed to embrace all the papers, in tlie case, including the formal application. In case tlie ap- plication is for a requisition upon the governor of Ohio, triplicate originals or certified copies of all the papers must be furnished. When certified copies of papers are given, they must be authenticated as prescribed in Sec- tion 4140 of the Eevised Statutes. 16. It having been decided that notaries public are not "magistrates" within the meaning of Federal Law, no requisition based upon affidavits made before a no- tary public will be granted. 17. No requisition will be granted for a fugitive who has taken refuge in the British Provinces. 18. As bastardy is not sufficiently well defined by the laws of this State as a crime within the meaning of Chap- ter 7 of the Act of Congress of February 12, 1793, no requisition will be granted for the surrender of a fugi- tive charged with this offense. 19. No requisition will be granted in a case in which the offense is of such trivial character as to leave a doubt of the granting a mandate thereon by the executive au- thority in other States and Territories. 20. If a requisition shall have been improperly or unadvisedly granted, there will be no hesitation in re- voking it. 21. Any application not complying with the require- ments of law and these rules, will be rejected, without inquiring into its intrinsic merit, unless noncompliance is satisfactorily explained. 22. In all cases of rejected applications for requisi- tions, the papers will be retained in this department. 48. Wyoming. Fee $5. Eules same as California. 49. District of Columbia. Fee $10. See chapter IV, on "Fugitives and the Dis- trict of Columbia." No rules. THE EEQXJISinOlir, 123 50. Alaska, Territory of. No fee. No rules or regulations. 51. Hawaii, Territory of. No fee. No rules or regulations. 52. Porto Rico. No fee. No rules or regulations. 53. Philippine Islands. No fee. No rules or regulations. CHAPTER IX. AUTHENTICATION. § 73. "Certified as Authentic." § 74. Force and Effect of Authentication. § 75. The Governor's Power and Authority. § 76. The Purpose of Authentication. § 77. Presumptions. § 73. "Certified as Authentic."— The act of Congress of 1793 provides that, "whenever the executive authority of any State or Territory demands any person as a fugi- tive from justice, of the executive authority of any State or Territory to which such person has fled, and produces a copy of an indictment found or affidavit made before a magistrate of any State or Territory, charging the per- son demanded with having committed treason, felony, or other crime, certified as authentic by the governor," when this condition arises then a duty is imposed upon the governor of the asylum State or Territory by the Federal statute, requiring such executive to cause the arrest and detention of the alleged fugitive. But before this judicial accusation, in the form of an indictment or affidavit, becomes effective for interstate rendition beyond the limits of the demanding State, the governor's certifi- cate of authenticity must be attached thereto — ^the failure to annex such certificate is fatal to the legality of the requisition and confers no jurisdiction upon the governor of the surrendering State to arrest and surrender the alleged fugitive. It was so held in Kingsbury's Case, (1871), 106 Mass. 233; Hackney v. Welsh, (1886), 107 Ind. 253, 8 N. E. 141, 36 L. E. A. 488, 57 Am. Rep. 191; Ex parte Hampton, (1895), 1 Ohio N. P. 181. § 74. Force and Effect of Authentication. — Just what form this authentication shall take, or what specific (124) AtrTHENTIOATION. 125 words shall be used the Constitution and the act of Con- gress in aid thereof, are both silent. In Kurtz v. State, (1886), 22 Fla. 36, the supreme court of the State of Florida, in a well-considered opinion, held that, "certi- fied as authentic," the identical language of the act of Congress, means nothing more nor less than that the judicial proceedings, instituted in the demanding State, are absolutely genuine — hona fide — and consequently en- titied to "full faith and credit" outside of the jurisdic- tion of such State. And when so "certified as authen- tic," by the executive making the demand or requisition, is absolutely conclusive as to that fact, on the governor and courts of the surrendering State and no question tending to cast any doubt or suspicion upon the genuine- ness of the proceedings can be entertained by either. The conclusiveness of the law on this question of authen- tication, on all parties concerned in interstate rendition cases, has been fully recognized and sustained by the courts. Federal and State, wherever and whenever the same has been brought forward for adjudication. (Ken- tucky V. Dennison, (1860), 24 How. &&; Ex parte Eeggel, (1885), 114 U. S. 642; Ex parte Stanley, (1888), 25 Tex. App. 372, 8 S. W. 645, 8 Am. St. 440; State ex rel. Den- ton V. Curtis, (1910), 111 Minn. 240, 126 N. W. 719.) §75. The Governor's Power and Authority. — ^The chief executive of the State issuing the requisition for the arrest and surrender of the alleged fugitive from justice is the sole judge as to the genuineness of the affidavit, charging the commission of a crime, where it appears to have been made before a magistrate in his State. And he may, or may not, as he may deem proper, issue or cause to be issued a requisition on the executive of the asylum State, asking for the arrest and surrender of the person found in such State and charged with being a fugitive from his State. The demanding govern- or's conclusion on this proposition is beyond the pale of judicial investigation in his own State — ^it is conclu- sive! But should he issue his requisition, based on an affidavit chargLug a crime, without being properly sworn 126 THE LAW OP INTEBSTATB RENDITION. to before the magistrate, by the party maMng tbe charge, what effect would this have upon the authentication by the governor of the demanding State? While the govern- or's authentication might be Regarded as conclusive, yet the courts have held repeatedly that such an affidavit — without the magistrate's jurat, for instance — gives the governor no jurisdiction whatever to demand the arrest and deportation of the fugitive, for the reason that not being sworn to it fails to be an affidawit within the mean- ing of the law. The supreme court of the State of Flor- ida so held in Ex parte Powell, (1884), 20 Fla. 806. In Soloman's Case, (1866), 1 Abb. Pr. (N. S.) 347, it was held by Judge Eussell, city judge of New York, that the act of Congress of 1793 is summary in its effect, and must be strictly complied with; otherwise a warrant issued under it would be absolutely void. Therefore, where a governor's warrant of renc^tion is issued on a requisi- tion based on an affidavit, charging a certain crime and sworn to before a justice of the peace, with a certificate of the secretary of state certifying that he was a justice of the peace and that his attestation was in due form of law, declared not to be a sufficient compliance with such act of Congress and governor's warrant held void and the alleged fugitive discharged from custody. § 76. The Purpose of Authentication. — The object and purpose of authentication by the governor of the demand- ing State, aside from establishing the genuineness of the papers, is to enable the executive upon whom the demand is made to determine for himself whether there is probable cause for believing that a crime has been in fact committed, and that a prosecution has been actu- ally begun against the fugitive in the courts of the State making the demand for his rendition. The fact that the party demanded is charged with crime is to be estab- lished by a copy of an affidavit made before a magistrate, or an indictment found by a grand jury, duly certified by the governor of the demanding State as authentic; therefore, it was held by the Federal district court of the AUTHENTICATION. 127 southern district of New York, in tlie ease of In re Leary, (1879), 10 Ben. 197, that authentication xmder the provi- sions of the judiciary act, as to proof of records of one State in another, can not be required either by the gov- ernor or by the courts on habeas corpus in the asylum State in interstate rendition cases. The only reason that can be given as to why the certificate of authenticity of the affidavit or indictment is conclusive, is that the stat- ute of the United States makes it so. It is the evidence which that statute requires and makes absolutely suffi- cient. §77. Presumptions. — ^lu Kemper v. Metzger, (1907), 169 Lid. 112, 81 N. E. 663, it was held by the supreme court of Indiana, that the presumption is that one authen- ticating an affidavit or indictment, made a part of requi- sition papers, as governor of the demanding State, was so acting and holding such office at the time, thus follow- ing the ruling of the supreme court of the State of Washington, in Armstrong v. VanDeventer, (1899), 21 Wash. €82, 59 Paa 510, 12 Am. Crim 327. In Ex parte Stanley, (1888), supra, the criminal court of appeals of the State of Texas said that where the governor's warrant recited that it was issued upon the requisition of a State executive, and that a copy of the indictment of the accused accompanied such requisition, and that the executive of the State asking for rendition had certified that such copy was "in due form," it was held that the expression "certified to be in due form" was virtually the same as the words in the statute, "certi- fied as authentic," and that, therefore, the governor's warrant of rendition was sufficient. See Ex parte Daw- son, (1897), 83 Fed. 306. The supreme court of the State of New Jersey along the same Unes, in Katyuga V. Gosgrove, (1901), 67 N. J. L. 213, 50 AtL 679, con- tended that the objection to the surrender of the fugitive that the affidavit annexed to the requisition, alle^ng the prisoner to have been a fugitive from justice, was inade- quately and improperly authenticated, where the affidavit 128 THE LAW OF INTEESTATE EESTDITION. is not the only evidence before the governor of sncli fact, and it being the presumption that the governor informed himself of the law in the premises, is not sufficient to authorize the fugitive's release under habeas corpus. Where a requisition for a surrender of a fugitive from one State to another stated that "it appears by the annexed papers, which I certify to be authentic and duly authenticated, ' ' that the fugitive stands charged with the crime of murder and there was annexed thereto a paper indorsed as a true bill and claiming to be an indictment wherein the said fugitive was charged with being an accessory before the fact, it was held that, notwithstand- ing, it was not stated whether such paper was an original indictment or copy, the requisition was good, the authen- tication being sufficient. Ex parte Dickson, (1902), 4 Ind. Terr. 481, 69 S. W. 943. CHAPTER X. THE CHAEGE OF CEIME. § 78. Fundamental and Jurisdictional. § 79. The Charge Must Be by Indictment or Affidavit § 80. Validity of an Information as a Charge of Crime. § 81. The Supreme Court's Estimate of an Information. § 82. An Extrajudicial Opinion. § 83. The Constitution and Act of Congress Construed Together. § 84. The Decision in the Hart Case Sound in Reason. § 85. An Indictment as an Accusation. § 86. The Supreme Court on a Charge by Indictment. § 87. The Date when Crime Is Committed. § 88. The Right to Examine Indictment or Affidavit as to Legality. i 89. Delay in Preferring Charge of Crime. § 90. A Formal and Sufficient Charge Necessary. § 91. An Affidavit as a Charge of Crime. § 92. Insufficient Affidavits. § 93. Affidavits Upon Information and Relief. § 94. Attempt to Evade Federal Law. § 78. Fundamental and Jurisdictional. — There can be no legal interstate rendition without a specific charge of Clime, therefore, the subject of this chapter is of para- mount consideration — ^indeed, the charge of crime is not only fimdamental but is jurisdictional as well — for with- out it, neither the governor of the demanding State nor the governor of the surrendering State, can exercise any power whatever towards the arrest and deportation of the alleged fugitive, it is only when a charge of crime, by indictment or affidavit, in due form of law, is lodged against the fugitive in the State from which he fled, that the governor of that State acquires jurisdiction to act. Hearsay, suspicion, telephonic and telegraphic informa- tion may, imder extraordinary circumstances, be suffi- cient to cause the arrest and detention of the accused person; but never can that person be laiv fully trans- ported beyond the limits of the State, wherein the arrest (129) 130 THE LAW OF INTBESTATB EENDITION. is made, Anthout being legally and specifically charged witli "treason, felony, or other crime," committed against the authority of the laws of the State, in which the accused person is assumed to have been at the time of the commission of the offense. A person charged with bastardy in one State and flees into another State or Territory is not subject to arrest and deportation as a fugitive from justice because bastardy is not recognized as a crime under the interstate rendition statutes. The Matter of Cannon, (1882), 47 Mich. 481, 11 N. W. 280. § 79. The Charge Must Be by Indictment or Affidavit, — The charge of crime, as contemplated by the United States Constitution and Section 5278 of the Eevised Stat- utes, relating to interstate rendition, must have as its basis ' ' a copy of an indictment found or an affidavit made before a magistrate * * * charging the person de- manded with having committed treason, felony, or other crime, ' ' either the one or the other of these judicial accu- sations must have been brought against the fugitive in the demanding State, before a single step can be legally taken towards the arrest and rendition of the alleged fugitive from justice. This doctrine has been strongly and learnedly upheld in Ex parte Morgan, (1883), 20 Fed. 298; Tullis v. Fleming, (1879), 69 Ind. lb; Ex parte Lorraine, (1881), 16 Neb. 63; Smith v. State, (1887), 21 Neb. 552, 32 N. W. 594. A mere request by the governor of the demanding State that a certain alleged fugitive be apprehended and returned to the State, where the crime is said to have been committed, is not enough by any means ; a formal complaint must be brought against the fugitive in the courts of the demanding State, having jurisdiction to either bind over or finally hear, determine and punish the accused according to law. Hence the absurdity of the Illinois Statute offering to surrender fugitive without copy of indictment. See section 94, post. This complaint must be in the form of an indictment found by a grand jury or an aflSdavit made before a magistrate — this is the plain and explicit command of the statute — and it is a condition precedent to any action THE CHAB6E OP CKIME. 131 on the subject by the executive authority of either the demandiag or surrendering State. The manner ia which the charge of crime is to be made is thus defined by the act of Congress, and in this respect supplies the omis- sion of the Constitution. Commonwealth v. Johnson, (1892), 2 Pa. Dist. 673; Jackson v. Archibald, (1896), 12 Ohio C. C. 155. It is further provided that "a copy" of the indictment or affidavit, making the charge, "certi- fied as authentic," by the executive authority of the State or Territory from which the person had fled, shall accompany the reqxiisition. (Young v. State, (1908), 155 Ala. 145, 46 So. 580.) The evident intention of these provisions is, in a legal way, to bring to the knowledge of the executive authority on which the demand is made, this form of primn facie evidence that a crime has actu- ally been committed, so as to justify the action of that authority in the arrest and deportation of the alleged fugitive. And also to appraise the fugitive of the nature of the crime charged against him in the demanding State. (Boss V. Crofutt, (1911), 84 Conn. 370, 80 Atl. 90, 24 Ann. Cas. 1295.) § 80. Validity of an Information as a Charge of Crime. — ^A casual glance at the act of Congress of 1793, relat- ing to interstate rendition, wiU at once demonstrate the fact that there is no provision in this statute authorizing the arrest and deportation of an alleged fugitive from justice upon a so-called "information," sworn to and filed by a prosecuting attorney, ex officio or otherwise; although many States have this method of procedure in criminal prosecutions, nevertheless, there is serious doubt as to whether or not a fugitive from justice can be legally rendited from one State to another when a so-caUed in- formation is the foundation of the charge of crime in the demanding State. Beyond all question "an indictment found," and "an aflSdavit made before a magistrate," are the only two forms mentioned by the act of Congress of charging a fugitive from justice with the commission of crime, and upon which can be predicated anything like legal interstate rendition, if the Federal law is to be 132 THE LAW OF INTEESTATE KENDITION. followed. The American Congress in 1793 — ^when this statute was passed — ^knew all about ex officio and criminal informations, in fact, long prior to that time a majority of its members, as well as the people generally, had felt the galling effects of the charge of crime brought against them by corrupt and subservient public prosecutors in the form of ex officio informations. This, apparently, is the real reason why the information does not appear in that statute as a basis for the charge of crime in inter- state rendition; indeed, the act of Congress of 1793, is to be treated and regarded as nothing more than a con- temporaneous construction of the constitutional provi- sion on this subject, and if this view is to be given any consideration whatever, it must be conceded that the in- formation was intentionally and purposely ignored as a basis for the charge of crime in interstate rendition. Even the fifth amendment to the United States Constitu- tion, while in no way relating to rendition, is proof loe- . yond doubt, as to the odious character of informations at that time, for that amendment declares that "no per- son shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury." Nevertheless, the supreme court of Nevada in Ex parte 'Rose, (1911), 34 Nev, 91, declared that an information was valid as a charge of crime in interstate rendition. §81. The Supreme Court's Estimate of an Inform- ation. — Although the Supreme Court of the United States has never been called upon directly to pass upon this question, yet that court on two different occasions, has held that there is no responsible prosecutor behind ex officio informations, and that an information lacks the safeguards of an indictment found by a grand jury. Hurtado v. California, (1884), 110 U. S. 516; Ex parte Bain, (1886), 121 U. S. 1. In the latter case Mr. Justice Miller, speaking for the court, used this forceful lan- guage: "It is never to be forgotten that, in the construc- tion of the language of the Constitution here relied THE CHAEGE OP CBIMB. 133 on, as indeed in all other instances where construc- tion becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed the instrument. Undoubtedly the framers of this article had for a long time been absorbed in considering the arbitrary encroachments of the Crown on the liberty of the subject, and were im- bued with the common law estimate of the value of the grand jury as a part of its system of criminal jurisprudence. They, therefore, must be understood to have used the language which they did iu declar- ing that no person should be called to answer for any capital or otherwise infamous crime, except upon an indictment or presentment of a grand jury, iu the full sense of its necessity and of its value." § 82. An Extrajudicial Opinion. — ^A later case before the same court on an appeal, In re Strauss, (1905), 197 U. S. 324, 25 Sup. Ct. 535, 47 L. ed. 774, is cited here for the purpose of directing attention to the fact that, the great tribunal of last resort, is not removed beyond the pale of error, by reason of the exalted character of the court. Its gratuitous expression in this case, on the value of an information as a charge of crime in rendition procedure, was extrajudicial in the fullest sense and is to be regarded as mere dictimi m. itself, for the reason that that question was not before the court for adjudica- tion. One Strauss had been arrested in New York, as a fugitive from the justice of the State of Ohio, charged by affidavit with obtaining money by false pretenses. It was contended by his attorney that, the justice of the peace before whom the affidavit was made, had no juris- diction to finally try and punish the accused, consequently no rendition was valid based upon such an affidavit. Mr. Justice Brewer, delivering the opinion of the court, said : "Under the Constitution each State was left with full control over its criminal procedure. No one could have anticipated what changes any State might make therein, and doubtless the word 'charged' was used in its broad signification to cover any pro- ceeding which a State might see fit to adopt by which a formal accusation was made against an alleged 134 THE LAW OF INTEBSTATE KENDITION. criminal. In the strictest sense of the term a party is charged with crime when an affidavit is filed,, alleging the commission of an offense and a warrant is issued for his arrest, and this is true whether a final trial may or may not be had upon such charge. It may be, and is true, that in many of the States some farther proceeding is, in the higher grade of offenses at least, necessary before the party can be put upon trial, and that the proceedings before an examining magistrate are preliminary, and only with a view to the arrest and detention of the alleged criminal; but extradition is a mere proceeding in securing the arrest and detention * * * And these preliminary proceedings are not completed un- til the party is brought before the court in which the trial may be had. Why should the State be put to the expense of a grand jury and an indictment before securing possession of the party to be tried. It may be true, as counsel urge, that persons are sometimes wrongfully extradited, particularly in cases like the present ; that a creditor may wantonly swear falsely to an affidavit charging a debtor with obtaining goods under false pretenses. But it is also true that a prosecuting officer may either wantonly or ignorantly file an information charging a like offense. But who would doubt that an information, where that is the statutory pleading for purposes of trial, is sufficient to justify an extradition." The supreme court of the State of Wisconsin, in In re Hooper, (1881), 52 Wis. 699, 58 N. W. 741, held that an ex officio information, filed by a prosecuting officer, was equivalent to the indictment or affidavit required by the Federal statute, and formed a sufficient basis for the rendition of a fugitive from justice. The supreme court of the State of Michigan, in People v. Stockwell, (1904), 135 Mich. 341, 97 N. W. 765, it was also held that an information was a legal substitute for an indictment in rendition proceedings. The same ruling was practically made in the following cases: State v. Hufford, (1869), 28 Iowa, Z'dl;Ex parte White, (1875), 49 Cal. 434; Ex parte Edwards, (1907), 91 Miss. 621, 44 So. 827. THE CHABGE OP CBIME. 135 § 83. The Constitution and Act of Congress Construed Together. — ^It will be observed by a careful examination of the authorities cited, that, the decisions upholding the validity of an information as a charge of crime in rendi- tion, look rather to article IV, section 2, of the Consti- tution for the authority, than to the act of Congress of 1793, in aid thereof, where the manner of the charge of crime is plainly set forth. As has been repeatedly stated the provision of the Constitution, relating to interstate rendition, was not self-executing — the method of charg- ing the fugitive with crime was not mentioned therein — for this and other reasons the attorney-general of the United States in 1792 had declared that provision in- operative, and therefore, the act of 1793 was passed by Congress to give it force and effect. Why shoidd not the constitutional provision and the congressional enactment both be taken together in construing the law as to what is a proper charge of crime in rendition procedure! The word "charged," used in article XV, section 2, of the Constitution, has been given a construction by Congress and that construction determines what is meant by being "charged." To be "charged," means, in the language of the act of Congress, the production of "a copy of an indictment found or affidavit made before a magistrate of any State or Territory charging the person demanded with treason, felony, or other crime." § 84. The Decision in the Hart Case Sound in Reason. — The leading authority on this question and the one most generally quoted, is the case of Ex parte Hart, (1894), 63 Fed. 249, 11 C. C. A. 165, 28 L. E. A. 809. And although twenty years have passed since the opin- ion in this case was rendered, yet during this time, no decision of any court, excepting alone the United States Supreme Court, has been so approvingly cited and com- mended as that in the Hart case, by the United States circuit court of appeals, fourth circuit, denying the valid- ity of an information as a substitute for an indictment or affidavit in interstate rendition, and it is to be re- gretted that this case was not carried up by appeal, to 136 THE LAW OP INTEESTATB BBNDITION, the Mghest court of tlie land, in order that that question might have been finally and authoritatively settled. In 1894, one Samuel H. Hart, filed his petition in the circuit court of the United States of the State of Mary- land, alleging that he was unjustly deprived of his liberty, and illegally confined in the Baltimore city jail, charged with the crime of embezzlement and praying that the writ of habeas corpus issue. The writ was duly is- sued and served. From the return of the respondent it appeared that the said Hart, the petitioner, was held in custody under a warrant, issued by the governor of Maryland, by virtue of a requisition from the governor of the State of Washington, demanding the arrest and rendition of the said Hart as a fugitive from the justice of that State. The demand or requisition was based on a so-called "information," signed and sworn to by the prosecuting attorney of Pierce county, State of Wash- ington. Upon a hearing the writ was quashed and Hart was remanded but. at once prayed an appeal to the United States circuit court of appeals, fourth circuit, consisting of the Honorable Nathan Goff, circuit judge, the Honor- able Charles H. Simonton, circuit judge and the Honor- able Robert W. Hughes, district judge. The three Fed- eral judges heard the case and in an able and well considered opinion overruled the lower court {Ex parte Hart, (1894), 59 Fed. 894;) and held that whUe each State might regulate its own criminal practice, yet it was not entitled to the benefits of the interstate rendition laws unless strict compliance with the statute was ob- served. Judge Goflf, speaking for the court, said: "The removal of a citizen from one State to an- other as a fugitive from justice is a matter of great importance and worthy of serious consideration, yet always to be ordered when a proper case is made. Such action is based upon article IV, section 2 of the Constitution of the United States, and the laws enacted to enable the same to be executed. The pro- vision referred to will be strictly construed, and all the requirements of the statute must be respected. In this case, does it appear that the papers trans- THE CHABGE OP CRTME. 137 mitted and certified to by the governor of the State of Washington were of the character required for the purpose of securing the warrant of arrest and extradition? The first requisition, dated December 23, 1893, recites that it appears by a copy of an 'in- formation,' which is annexed, and certified to be authentic, that the petitioner stands charged with the crime of larceny by embezzlement. We do not consider this a compliance with the act of Congress, which we think requires the copy of an indictment found by a grand jury, and not the copy of an in- formation filed by the attorney for the State. An information cannot be regarded as a substitute for an indictment where the latter is required in the legislation now under consideration. While' it is in the power of the State to provide for the prosecu- tion and punishment of all manner of crime by in- formation, and without indictment by a grand jury, (as was held by the Supreme Court of the United States in Hurtado v. California, (1884), 110 U. S. 516, 4 Sup. Ct. 292), still, if they wish to rely upon the provisions of the Constitution and laws of the United States relating to fugitives from justice, they must strictly observe and respect the conditions of the same. The indictment had in mind by those who framed the Constitution and enacted the statute re- ferred to was 'a written accusation of one or more persons of a crime or misdemeanor preferred to and presented upon oath by a grand jury.' 4 Black. Conun. 299-302. The Supreme Court of the United States has recently described an indictment, as that word is used in the Constitution, as 'the presenta- tion to the proper court, xmder oath, by a grand jury, duly empaneled, of a charge describing an offense against the law for which the party charged may be punished.' Ex parte Bain, (1886), 121 U. S. 1, 7 Sup. Ct. 781. "Holding as we do, that the information cannot be considered as the equivalent of an indictment, we will now examine the argument of counsel for the State of Washington that the verification of the in- formation will be regarded as such an affidavit as is required by the law. The information is verified 138 THE LAW OP INTEBSTATB EENDITION. by the prosecuting attorney, who swears that he be- lieves the contents thereof to be true, and not that they are true. This is not such charging of the com- mission of crime before a magistrate of the State as is contemplated by the statute. For the purposes of an affidavit to be used for the arrest and removal of a fugitive from justice, this is not sufficient. The affidavit required in such cases should set forth the facts and circumstances relied on to prove the crime, under the oath or affirmation of some person familiar with them, whose knowledge relative thereto justi- fies the testimony as to their truthfulness, and should not be the mere verification of a court paper by a public official, who makes no claim to personal in- formation as to the subject-matter of the same. Ex parte Smith, (1842), 3 McLean, 121, Fed. Cas. No. 12,968; In re Doo Woon, (1883), 18 Fed. 898; Ex parte Morgan, (1883), 20 Fed. 298. By requiring such an affidavit the liberty of the citizen is, to a great extent, protected, and the executive upon whom the demand is made is thereby enabled to determine if there is cause to believe that a crime has been com- mitted. To authorize the removal of a citizen of Maryland to the State of Washington for trial on a charge of crime something more than the oath of a party unfamiliar with the facts that he believes the allegations of an information to be true should be required, and is demanded by the law. To hold otherwise would enable irresponsible and designing parties to make false charges with impunity against those who may be the subjects of their enmity, and permit them, after they have caused public officials to believe their representations, on papers regular in character, but without merit and fraudulent in fact. * * * "The claim that the act of the governor of a State in issuing his warrant of removal is conclusive, and that the presumption is that he had the necessary papers, duly authenticated, before him when he acted, cannot be assented to. The act of the governor can be reviewed, and, if he has not followed the di- rections and observed the conditions of the Consti- tution and laws of the United States, pertinent to THE CHABGE OF CBIME. 139 such matters, can be set aside as void. The highest as well as the most obscure official must respect the requirements of the Constitution and laws made thereunder. The acts of the executive are subject to review by the courts by means of the writ of habeas corpus. It is not now necessary to cite au- thorities on this question, nor to recall incidents in English history, showing that this writ will issue, no matter how obscure the prisoner, or how great the power of the official who detains him. "We find that the requisitions issued by the gov- ernor of the State of Washington did not comply with the law, and that the governor of the State of Maryland was not furnished with a copy of either an indictment or affidavit made as required by sec- tion 5278 of the Revised Statutes of the United States and consequently we hold that the warrant of removal is void. The judgment of the circuit court will be reversed, and the petitioner will be discharged from arrest." The opinion in this case is worthy of more than ordi- nary attention, for the reason that the court displayed unusual courage in defending the rights of the citizen, and disregarded the judge-made law, which permits an "information" to be received as a substitute as a charge of crime, for an indictment or affidavit in rendition pro- cedure. It is unquestioned that the provision of the United States Constitution relating to interstate rendi- tion, and the act of Congress in aid thereof, taken to- gether constitute the supreme law of the land on that subject, and must therefore control; and being interfer- ence with personal liberty, it comes within the same rule applying to penal statutes : that aU statutes in derogation of personal liberty must be strictly construed. This was the rule enunciated in Soloman's Case, (1866), 1 Abb. Pr. (N. S.) 347, and upheld by a long line of decisions. In a rendition case lately heard in the criminal court of appeals of the State of Oklahoma, Ex parte Owen, (1913), 10 Okl. Crim. 284, 136 Pac. 199, it was held by a united court, that — 140 THE LAW OF INTERSTATE BENDITION. "This proceeding being based upon a Federal stat- ute, we are not at liberty to foUow tbe rule of con- struction which, we apply to our own statutes, because the common law doctrine of a strict construction of penal statutes is adhered to by the Supreme Court of the United States, and, under this rule, no person can be deprived of a single right or punished for any offense unless the act complained of, and the pro- ceedings thereon, come strictly within the letter as well as the spirit of the law." The only reasonable construction that can be placed upon section 5278, as the proper method of bringing a charge of crime against the fugitive criminal, is to follow the ruling of the United States circuit court of appeals in the Hart case. The doctrine enunciated by the court in that case is in harmony with the letter and spirit of the law, and in accord with the intention of the Congress of 1793, which passed the act relating to fugitive rendi- tion between the several States. But few of the State supreme courts have passed upon this question. The Texas court of criminal appeals is a noted exception — that court has most positively and tm- equivocally sustained the rule as laid down in the Hart case, supra. In Illinois, while the supreme court has not passed upon the validity of an ex officio information, as a charge of crime in interstate rendition proceedings, yet when the question was presented to the attorney-general of that State by the governor for an opinion, that official held as follows; Springfield, HI., November 16, 1909. To His Excellency, Charles S. Deneen, Governor: Sir : — You have submitted to me a requisition made by the governor of the State of Idaho upon you, for the re- turn to the State of Idaho of one A. K. Brown, who, it is alleged, stands charged in the county of Kootenai in said State of Idaho, with the crime of forgery. By an examination of the papers accompanying said requisition, I find an information filed in the district court of the eighth judicial district of the State of Idaho, in and for the county of Kootenai, by C. H. Potts, prose- THE CHABGE OF CBTME. 141 cuting attorney of said Kootenai county, charging in due form, in said information, that A. K. Brown, committed the crime of forgery. From other papers accompanying said requisition, it appears that said Brown is a fugitive from justice. The question arises to whether or not the papers suhmitted are in conformity with the act of the Congress of the United States, relative to extradition between States. The section of the Federal act, under which executives of States act in demanding the return of fugitives from justice, reads in part as follows : "5278. "Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled, and produced a copy of an indictment found or an affidavit made he- fore a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the gov- ernor or chief magistrate of the State or Territory from whence the person so charged has fled, it shall be the duty of the executive authority of the State or Territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive and to cause the fugitive to be delivered to such agent when he shall appear." I am of the opinion that the papers accompanying the requisition in question are not sufficient to authorize the executive of this State to issue his warrant for the appre- hension and delivery of the defendant to the agent of the State of Idaho. No certified copy of an indictment accompanies the pa- pers. There is no affidavit made before a magistrate charging the defendant with the commission of a crime. Instead thereof, the only paper accompanying the requi- sition is a certified copy of an ex officio information, charging said Brown with the commission of the crim.e of forgery. 142 THE LAW OP INTERSTATE EENDITION. While such ex oificio information would be suflScient, no doubt, to place the defendant on trial in the proper court of Idaho, yet suob ex officio information is not suffi- cient, under the Federal statutes, upon which to base an application for a requisition, or to authorize the governor of the State of asylum to honor such requisition. The Federal statute is specific that the charge must be either by indictment or hy an affidavit made before a magistrate. Such showing has not been made in this case and, as above stated, my opinion is that the Gov- ernor of this State is not authorized to grant his execu- tive warrant. Very resjjectfully, W. H. Stead, Attorney General. §85. An Indictment as an Accusation. — But now a word or so concerning an indictment found by a grand jury, as a charge of crime, in interstate rendition. It must be conceded that, when a requisition is based on an indictment, substantially charging the alleged fugitive with the commission of a crime in the demanding State, this form of judicial accusation is not only the safer, but the more certain and satisfactory method of charging a crime against a fugitive from justice. The courts on habeas corpus have not gone near so far in disregarding indictments when accompanying requisitions; as they have affidavits; in fact, it is generally admitted that an indictment possesses a higher validity as evidence of the charge of crime, and is less liable to attack, on the groimd of insufficiency, than any other criminal accusation. In the Davis' Case, (1877), 122 Mass. 324, it was held by the supreme court of Massachusetts that when an indictment is made the basis of the charge of crime in a requisition it is wholly unnecessary to furnish evidence that the act charged is an offense against the laws of the demanding State, the indictment itself is prima facie evidence of this fact. And in reply to the allegation that the indictment from the demanding State did not show a crime against the laws of that State, the court replied: THE CHARGE OF CBIMB. 143 "When an indictment appears to have been re- turned by a grand jnry, and is certified as authentic by the governor of the other State, and substantially charges a crime, this court cannot, on habeas corpus, discharge the prisoner because of formal defects in the indictment ; but the sufficiency of the charge, as a matter of technical pleading, is to be tried and deter- mined in the State in which the indictment is found. ' ' The same rule was practically enunciated in In re Clark, (1832), 9 Wend. 212; In re Greenough, (1858), 31 Vt. 279; Kingsbury's Case, (1871), 106 Mass. 324; In re VanSceiver, (1894), 42 Neb. 772, 60 N. W. 1037, 47 Am. St. 730; Barrenger v. Baum, (1897), 103 Ga. 465, 30 S. E. 529, 68 Am. St. 123; Webb v. York, (1897), 79 Fed. 616, {citing Roberts v. Eeilly, (1885), supra; Ex paHe Pearce, (1893), 32 Tex. Crim. 301; In re Roberts, (1885), 24 Fed. 132; In re White, (1891), 45 Fed. 237; In re KeUer, (1888), 36 Fed. 681; Kurtz v. State, (1886), 22 Fla. 36, 1 Am. St. 778. § 86. The Supreme Court on a Charge by Indictment. — The Supreme Court of the United States in Pearce v. Texas, (1894), 155 U. S. 387, 15 Sup. Ct. 116, 39 L. ed. 164, iu affirming the judgment of the court of appeals of the State of Texas, upholds the validity of the indict- ment, as a charge of crime in the surrendering State, in the following words: "A requisition for the return of a fugitive from justice cannot be denied when the copy of the indict- ment or affidavit attached to the requisition is held sufficient by the courts of the State where the offense was committed, although it would not be held good by the courts of the State where the accused has taken refuge." The enunciation of this principle by the highest tribu- nal of the land has had much to do with practically settling constant and recurring attacks on the legality of indictments and affidavits in the surrendering States. And in a later case, Whitten v. TomHnson, (1895), 160 U. S. 245, 16 Sup. Ct. 297, 40 L. ed. 406, the same court speaking of the indictment as a charge of crime, said: 144 THE LAW OP INTERSTATE BENDITIOM". "A warrant of extradition of the governor of a State, issued upon the requisition of the governor of another State, accompanied by a copy of an indict- ment, is prima facie evidence, at least, that the ac- cused had been indicted and was a fugitive from justice; and, when the court in which the indictment was found has jurisdiction of the offense, is sufficient to make it the duty of the courts of the United States to decline interposition by writ of habeas corpus, and to leave the question of the lawfulness of the detention of the prisoner, in the State in which he was indicted, there to be inquired into and deter- mined in the first instance, by the courts of that State, which are empowered and obliged, equally with the courts of the United States, to recognize and uphold the supremacy of the Constitution and laws of the United States." When however, the indictment does not substantially charge the alleged fugitive with the commission of a crime, under and in accordance with the laws of the de- manding State, the courts of the surrendering State, on habeas corpus proceedings, have the power to declare the governor's warrant void for the lack of a legal charge of crime. In Armstrong v. VanDeventer, (1899), 21 Wash. 682, 59 Pac. 510, 12 Am. Grim. 327, and in In re Waterman, (1907), 29 Nev. 288, 89 Pac. 291, 11 L. E. A. (N. S.) 424, 13 Ami. Gas. 926, the supreme courts of these respective States declared the governor's warrant of rendition in each instance absolutely void because the re- spective indictments did not substantially charge any crime. It is not very often that the courts resort to such drastic measures in passing upon the indictment of an- other State as a charge of crime. § 87. The Date when Crime Is Committed.— The date on which an alleged crime is charged to have been com- mitted in the demanding State, as mentioned in the in- dictment or affidavit, accompanying the requisition, is not always binding upon the authorities of that State. (1 Pomeroy's Archibald's Cr. Pr. & PI. 363.) This was the view of the Supreme Gourt of the United States in the THE CHABGB OF CBIME. 145 case of McNicliols v. Pease, (1907), 207 U. S. 110, 62 L. ed. 121, wherein an attempt had been made to show that the accused was absent from the demanding State, on the day and date, stated in the affidavit as the time when the crime was committed. The supreme court of the State of Minnesota in State ex rel. Rinne v. Gerbes, (1911), 111 Minn. 132, 126 N. W. 482, held that the date on which a crime is charged in the indictment or affidavit to have been committed, when not an essential element of the crime itself, is not in any respect material and that it is sufficient to charge some specific date prior to the finding of the indictment or prior to the making of the affidavit. For instance in the State of Alabama no certain date is required to be specified in the indictment or affidavit, the statute dispensing entirely with time and venue. But where a demand is made by Alabama for the rendition of an alleged fugitive, a fixed date, when the accused is charged to have been in the State and to have committed the crime, is ceri;ainly to be required of the authorities of that State. §88. The Right to Examine Indictment or Affidavit as to Legality. — ^Prior to the decision of the Supreme Court of the United States, some thirty years ago, in Roberts v. ReiUy, (1885), 116 U. S. 80, 6 Sup. Ct. 291, 29 L. ed. 544, there was some doubt as to the right of the courts to go behind the governor's warrant, and examine the indictment or affidavit accompanying the requisition, for the purpose of asceri;aining if a lawful charge of crime was therein set f ori;h against the fugitive criminal. The opinion of the court in this case has set at rest this proposition, and dispelled aU doubt as to the legality of such judicial inquiry. The rule for the guidance of both governors and courts, in interstate rendition procedure, as enunciated by the highest court of the Union, is as follows : "It must appear, therefore, to the governor of the State to whom such demand is presented, before he can lawfully comply with it, First, that the person demanded is substantially charged with a crime 146 THE LAW OF INTERSTATE EENDITIOW. against the laws of tlie State, from whose justice he is alleged to have fled, by an indictment or an affida- vit certified as authentic by the governor of the State making the demand; and, "Second, that the person demanded is a fugitive from the justice of the State the executive authority of which makes the demand. The first of these pre- requisites is a question of law, and is always open upon the face of the papers to judicial inquiry on application under a writ of habeas corpus." See also In re Fairma'n, (1905), 3 Ohio N. P. (N. S.) 485; Harland v. Terr, of Wash. (1887), 3 Wash. Terr. 131, 13 Pac. 453; Worth v. Wheatley, (1915), 183 Ind. 598, 108 N. E. 958. § 89. Delay in Preferring Charge after Crime. — ^Where a person is arrested in a State as a fugitive from the jus- tice of another State, and the requisition of the governor of the demanding State is based upon an indictment or an affidavit, showing that the alleged crime was com- mitted some time long passed, this failure to bring against the accused the charge of crime following its commission, unless fully and satisfactorily explained, should be regarded by the officials of the asylum State with some degree of suspicion and will warrant a close investigation as to the cause of such delay in the de- manding State. And should it appear that, such tardy action on the part of the prosecution is influenced by other motives, than the punishment of the accused for such crime, then and in that event, the demand or requi- sition ceases to fall within the provisions of the Consti- tution and laws of the United States, relating to interstate rendition, and the executive authority of the surrendering State is justified in ignoring the same. When the purpose of the intended custody discloses any other object than the punishment of the fugitive for the crime or crimes committed, the "demand" looses its legality under the law, and the implied obligation of com- pliance on the asylum State no longer exists. THE CHABGE OF CBTME. 147 §90. A Formal and Sufficient Charge Necessary. — It has been held by many courts that the technical suffi- ciency of the indictment as a criminal pleading, charging the fugitive ^rith crime in the demanding State, cannot be passed upon by the courts of the surrendering State, but must be left to the decision of the courts of the State where the crime is alleged to have been committed. This is the law, but it should not be forgotten that there is other law, ^vell and thoroughly established, not only by the common law, but also imder constitutional and stat- utory provisions in aU jurisdictions, that there can be no legal conviction for or punishment of a crime without a formal and sufficient charge of crime; and that, in the absence thereof, a court acquires no jurisdiction what- ever, and if it assumes jurisdiction such trial and con- viction would be absolutely void. The technical suffi- ciency of the indictment as a criminal pleading cannot be inquired into in the asylum State, yet as already stated, if the indictment does not substantially charge a crime, in the particular form and mode required by the statute of the demanding State, then and in that event, it is the duty of the courts of the asylum State to declare the gov- ernor's warrant of rendition void and order the dis- charge of the alleged fugitive. Munsey v. Clough, (1904), 196 U. S. 364, 25 Sup. Ct. 282, 49 L. ed. 515, affirming 71 N. H. 594; Depoily v. Pahner, (1906), 28 App. Cas. 324; In re Strauss, (1903), 126 Fed. 327; McNichols v. Pease, (1907), 207 U. S. 110, 62 L. ed. 121. Where rendition proceedings were instituted by the State of Alabama to prosecute petitioner for an alleged homicide committed in that jurisdiction, under the laws of which it was not essential that the indictment should charge either the time or venue of the offense, it was held that an indictment omitting such elements was not ob- jectionable for that reason in rendition procedure. Cole- man V. State, (1908), 53 Tex. Grim. 93, 113 S. W. 17. In habeas corpus by prisoners held pursuant to an indictment found in a sister State, the burden is on such prisoners to show that the indictment, coming from the 148 THE LAW OP INTEESTATE RENDITION. demanding State, is insufficient by producing, if neces- sary, the statute under which it was found, and hence, the fact that such statute was not submitted with the requisition papers to the governor under whose warrant the prisoners were arrested, will not warrant the pre- sumption that the law of the sister State is the same as that of the forum, under which the indictment would be sufficient. In re Eenshaw, (1904), 18 S. D. 32, 99 N. W. 83, 112 Am. St. 778. In Ex parte Hart, supra, it was held that, where the requisition contains a mere recital that a duly authenticated copy of an indictment is an- nexed, but in reality there is no indictment annexed, such a recital is of no force and effect and any warrant of rendition issued on such a requisition is absolutely void. Ex parte Devine, (1897), 74 Miss. 714, 22 So. 3. The supreme court of the State of Texas in Hibler v. State, (1875), 43 Texas, 197, held that the absence of a file mark on the copy of the indictment or lack of a seal of the clerk of the court where the same was returned, will not invalidate the indictment, if it is duly authen- ticated by the chief executive of the demanding State. §91. An Affidavit as a Charge of Crime. — But when an affidavit is made the basis of the charge of crime in rendition proceedings the courts on habeas corpus are inclined to scrutinize more closely the general form and accusation, holding the accuser or affiant to no less a degree of certainty than is required in an indictment for the same offense. The election of supporting the requi- sition either by an indictment found by a grand jury or an affidavit made before a magistrate, is left wholly and entirely by the Federal law to the authorities of the de- manding State, and the great preponderance of charges by affidavit, is accounted for upon the ground that this form of accusation is usually obtained with the least diffi- culty and in the shortest time. In many instances the consequence is that the document purporting to be an affidavit is but the ranting ebulition of an all-wise justice of the peace, confident of his ability to properly, draft a THE CTTAKGE OF CBIME. 149 charge of crime, which will stand the test in the highest courts of the land. As between charges made by affidavits and charges by indictments a distiaction was suggested in In re Green- nough, (1858), 31 Vt. 279, in these words: "The court, upon habeas corpus, cannot pronounce upon the guilt or innocence of the alleged fugitive. That must be left to the courts of that State where the crime is alleged to have been committed. If the charge is by way of affidavit against the alleged fugitive and it clearly appears from the whole facts stated in the affidavit taken together that no crime has been conmaitted, it might with some show of reason be claimed that the subject matter was not within the provisions of the Constitution and act of Congress, and therefore as to the jurisdiction of the warrant, the whole matter would be non coram judice. But that is far from being the case. Here the charge against the alleged fugitive is by a biU of indictment found by a grand jury, and whether the bill charges an indictable offense under the statutes of Illinois should be left to the determination of the courts of that State. ' ' The supreme court of the State of New York, in Peo- ple ex rel. Lawrence v. Brady, (1874), 56 N. T. 182, I)ointed out the difference between the two forms of charging a fugitive criminal with the commission of an offense, and reaffirmed the doctrine enunciated in Ex parte Smith, (1843), supra, that the courts have the right to interfere, examine the grounds upon which the exec- utive warrant of rendition issued and if there was no legal charge of crime to declare the warrant void and order the discharge of the alleged fugitive. In the course of the opinion the court says : "It cannot be held that any less degree of certainty is admissible in an affidavit charging the conspiracy, than is required in an indictment for the same offense. If any distinction exists in this respect the affidavit should be the more full and specific." With this rule in view, the courts of the surrendering State, Federal and State, have generally regarded the affidavit, as rather a weak and hazardous method of charging 150 THE LAW OP INTERSTATE EENDITION. crime and far from conclusive as to its commission — especially a felony — and hence, care and caution have characterized the ruling of the courts, when an affidavit has been made the basis of a charge of crime, and is at- tacked on habeas corpus, on the ground of insufficiency. §92. Insufficient Affidavits. — The cases which follow are interstate rendition cases — each based on an affidavit — the courts, after a thorough examination, have pro- nounced each affidavit insufficient as a charge of crime, and as a result in each case the alleged fugitive was dis- charged : Ex parte Smith, (1843) , supra; In re Heyward, (1848), 1 Sandf. 701; State v. Hufford, (1869), supra; Soloman's Case, (1866), supra; People ex rel. Lawrence V. Brady, (1874), supra; In re Butter, (1869), 1 Abb. Pr. (N. S.) 67; ^a; parte Dimmig, (1887), 74 Cal. 164, 15 Pac. 619; Smith v. State, (1887), supra; Ex parte Mor- gan, (1883), supra; In re Leland, (1869), 7 Abb. Pr. (N. S.) 64; In re Fitton, (1891), 45 Fed. 474; In re Doo Woon, (1883), supra; Ex parte Spears, (1891), 88 Cal. 640, 26 Pac. 609, 22 Am. St. 341; Ex parte Eowland, (1895), 35 Tex. Crim. 108, 31 S. W. 651; Ex parte Slauson, (1896), 73 Fed. 666; State v. Richardson, (1886), 34 Minn. 115, 24 N. W. 354; Ex parte Pfitzer, (1867), 28 Ind. 450; Ex parte Baker, (1901), 43 Tex. Crim. 281, 65 S. W. 91, 96 Am. St. 871; In re Tod, (1900), 12 S. D. 386, 81 N. W. 637, 76 Am. St. 616, 47 L. R. A. 566; Dennison v. Chris- tian, (1904), 72 Neb. 703, 101 N. W. 1045; Barriere v. State, (1904), 142 Ala. 72, 39 So. 55; ^a; parte Cheatham, (1906), 50 Tex. Crim. 51, 95 S. W. 1077; People ex rel. Comett V. The Warden, (1908), 60 Misc. 525, 112 N. Y. S. 492, 23 N. Y. Crim. 37; Ex parte Owen, (1913), supra; Ex parte Lewis, (1914), Tex. Crim. , 170 S. W. 1098; In re Kuhns, (1914), 36 Neb. 487, 137 Pac. 83; Ex parte Brown, (1915), Tex. Crim. , 178 S. W. 366. §93. Affidavits upon Information and Belief.— The reason why so many affidavits — charges of crime — ^have been judicially declared insufficient, to warrant the rendi- THE CHABGE OP CBTMB. 151 tion of the alleged fugitive from justice, is because the demanding State officials, in their haste and anxiety to secure the arrest and return of the accused, give but little attention to the preparation of the affidavit, the formal and legal basis of the charge of crime brought against the fugitive. The duty of drawing this document is often assigned to persons unfamiliar with the simplest elementary principles of the law, the result is, in nine such cases out of ten, the affidavit, when assailed in habeas corpus proceedings, in the surrendering State, is '"shot to pieces" and the accused goes free, and, a mis- carriage of justice is charged against the court or judge trying such case. Were is possible to examine the affi- davits in the cases cited, it would be seen that most of them are wholly lacking in actual and personal knowledge of facts detaOed therein by the affiants — ^information and belief — ^hearsay and suspicion — supplying tlie greater part of the material for the charge of crime against the alleged fugitives from justice. That such affidavits are utterly worthless as an accusation against a person charged with being a fugitive from justice, is too appa- rent for dispute. In People ex rel. Cornett v. The Warden, etc., (1908), supra, the New York supreme court said : The authorities of this State must be legally ap- praised of the facts upon which the constitutional and statutory duty to deliver a citizen, inhabitant or temporary resident of this State, depends. The law on this subject has been recently restated by the court of appeals, (the court of last resort in New York,) in People ex rel. Livingston v. Wyatt, (1906), 186 N. Y. 386, at page 392: "Suspicion is not enough, and information and belief are not enough, unless facts are stated show- ing the source of the information and the grounds of "belief. The information should fairly warrant the inference by the magistrate that in good faith and on reasonable grounds the complainant believes that a definite crime has been committed by a desig- nated person." 152 THE LAW OP INTEBSTATB EENDITION. In Lipman v. People, (1898), 175 111. 101, 51 N. E. 872, the supreme court of Illinois held that the "affidavit must show probable cause arising from facts within knowledge of affiant, and must exhibit the facts upon which belief is based and that his mere belief is insuffi- cient." In Ex parte Dunmig, (1887), supra, the supreme court of California held that ' ' a mere affidavit in the form of an information, containing no evidence and followed by no deposition stating any fact tending to show guilt, is insufficient to support warrant of rendition." In State v. Gleason, (1884), 32 Kan. 245, 4 Pac. 363, 5 Am. Crim. 172, the supreme court of Kansas said, "A complaint or information filed, verified on nothing but hearsay and belief, is not sufficient to authorize the issu- ance of a warrant. Positive proof is required by affiant having personal knowledge." In United States v. Tureaund, (1884), 20 Fed. 621, it was held by the United States district court of Louisiana that, "informations must be based upon affidavits which show probable cause arising from facts within the knowl- edge of the parties making them; the mere belief of affiant is insufficient." In State ex rel. Eegister v. McGahey, (1903), 12 N. D. 535, 97 N. W. 865, the supreme court held that, "an affi- davit made upon information and belief and not other- wise corroborated, is of no value as a charge of crime." §94. Attempt to Ignore Federal Law. — Illinois has furnished the most striking example of disregard of Federal law, on the subject of interstate rendition, to be found in the general range of legislation of all the States. In 1845 the legislature of that State passed an act which provides that where a party has been arrested by a judicial magistrate, before a demand for his delivery as a fugitive from justice and examined by such magistrate, "if, in the opinion of the executive of this State, the examination so furnished, contains sufficient evidence to warrant the finding of an indictment against such person. THE CHAEGE OF CRIME. 153 he shall forthwith notify the executive of the State or Territory where the crime is alleged to have heen com- mitted, of the proceedings which have been had against such person, and that he will deliver such person on de- mand, without requiring a copy of an indictment to ac- company such demand." The States of Arkansas, Colorado, Kansas, Missouri and Nebraska, each have passed similar statutes to that of Illinois manifestly and unconditionally repugnant to the act of Congress of 1793, relating to fugitives from justice, and therefore absolutely void. In the States named, it is proposed to abrogate the Constitution and laws of the United States, by surrendering the alleged fugitive "without requiring a copy of an indictment to accompany the demand," because the evidence against the accused, in the opinion of the executive, is sufficient to warrant an indictment. The fallacy of this theory is too apparent for argument. No court. State or Federal, would for one moment hesitate in declaring such a stat^ ute wholly unconstitutional. The fact that such a law' could remain unchallenged upon the statute books of Illi- nois for the period of seventy years and not meet such a fate is almost beyond belief. In Eobb v. Connolly, (1884), 111 TJ. S. 624, 4 Sup. Ct. 544, 28 L. ed. 542, the Supreme Court of the United States on this very subject, said: "When a demand (ia iaterstate rendition) has been made in accordance with the Constitution of the United States, by the State from which the fugi- tive has fled upon the executive authority of the State in which he is found, that instrument, indeed, makes it the duty of the latter to cause his arrest and surrender to the executive authority of the de- manding State, or to the agent of such authority. But if it should appear, npon the face of the warrant issued for the arrest of the fugitive, that such de- mand was not accompanied or supported by a copy, certified as authentic, of an iadictment found against the accused, or of any affidavit made before a magis- trate of the demanding State charging the commis- 154 THE LAW OF INTEESTATB KENDITION. sion by him of some crime in the latter State, could it be claimed that the arrest of the fugitive would be in pursuance of the act of Congress, or that the agent of the demanding State had authority from the United States to receive and hold him to be trans- ported to that State? This question could not be answered in the affirmative, except upon the suppo- sition, not to be indulged, that, so far as the Consti- tution and legislation of Congress is concerned, the transporting of a person beyond the limits of the State in which he resides or happens to be, to an- other State, depends entirely upon the arbitrary will of the executive authorities of the State demanding and the State surrendering him." In a later case People ex rel. Corkran v. Hyatt, (1902), 172 N. Y. 182, 64 N. E. 825, 60 L. R. A. 774, 92 Am. St. 706, the court of appeals of the State of New York de- clared that: "No person can or should be extradited from one State to another unless the case falls within the constitutional provision, and that the power which independent nations have to surrender criminals to other nations is not possessed by the States." The decision in this case by the court of appeals was affirmed by the Supreme Court of the TJnited States in the case of Hyatt v. People ex rel. Corkran, (1903), 188 U. S. 691, 23 Sup. Ct. 456, 47 L. ed. 657, 12 Am. Crim. 311, and in such terms that make the words, quoted above, the supreme law of the land, and overruling the decisions in In re Fetter, (1852), 23 N. J. L. 315, 57 Am. Dec. 382, and State v. Hall, (1895), 115 N. C. 818, 20 S. E. 729, 44 Am. St. 501, 28 L. R. A. 289, this was the opinion ex- pressed by Federal Judge Hough, in the case of In re Kopel, (1906), 148 Fed. 505. CHAPTEE XI. THE dOVERNOE'S WARE ANT. I 95. Essentials of the Process. § 96. Must Be Legally Issued. § 97. Its Recitals Evidence of Legality of Issuance. § 98. Who May Serve Warrant. § 99. E3ntitled to no Greater Sanctity Than Other Process. § 100. Revocation and Alias Warrants. § 101. Rules Relating to the Governor's Warrant. §95. Essentials of the Process. — The governor's warrant, sometimes called the executive warrant of ren- dition, is the process generally issued by the secretary of state at the direction of the governor and duly signed by him, upon the requisition of the executive authority of the demanding State, commanding the officer to whom the warrant is directed, to arrest the person charged with being a fugitive from justice and to deliver such person to the agent or messenger of the demanding State or Territory. The form of the warrant is usually pre- scribed by the State statute, relating to fugitives from justice, and in order to be legally binding should always bear the impress of the "great seal" of the State or Territory from which it emanates, as well as the genuine signature of the governor. The absence of the seal or the failure of the governor to personally sign the war- rant, is sufficient to invahdate the process itself, ren- dering it of no force and effect whatever, and a fugitive arrested thereunder may be discharged on habeas corpus because the warrant, upon its face, is void. One of the early cases holding that the impress of the "great seal" of the State was absolutely necessary to the validity of the governor's warrant, was a Missouri case, Vallid v. Sheriff of St. Louis, (1826), 2 Mo. 26, in that State, as in every State of the Union, there was a statutory re- (155) 156 THE LAW OF INTERSTATE EENDITIOlSr. quirement that the governor's warrant of rendition should be under the "great seal," and it appeared that some attempt had been made to place the seal on the warrant, but the impression of the seal was very faint. For this reason the supreme court of Missouri, without any hesitation, declared the warrant void and discharged the alleged fugitive. Now as to the governor's signa- ture to the warrant. In the case of In re Tod, (1900), 12 S. D. 386, 81 N. W. 637, 12 Am. Crim. 310, 47 L. E. A. 566, 76 Am. St. 616, it was held by the supreme court of South Dakota, that, on the governor alone, personally, devolves the duty of examining the papers and passing upon their validity. This duty cannot be delegated to another person. In this case the warrant of rendition, purporting to have been signed by the governor, was signed by some other person, and for this reason the warrant was pronounced void and the prisoner was dis- charged. § 96. Must Be Legally Issued. — The warrant itself, it was held by a Federal court in the case of In re Doo Woon, (1883), 18 Fed. 898, must bear upon its face the evidence of the fact that it was duly and lawfully issued by the executive authority of the surrendering State, and it must further show that it is based upon the de- mand of the governor of the demanding State and that such requisition was accompanied by a copy of an indict- ment fotind by a grand jury or an affidavit made before a magistrate, charging the fugitive with the commission of a crime in such State, otherwise the warrant is void and of no effect. One of the earlier cases. Ex parte Thornton, (1853), 9 Tex. 635, held to the same view, but it was left to the Supreme Court of the United States to finally settle this point, when in Hyatt v. People ex rel. Corkran, (1903), 188 U. S. 691, 23 Sup. Ct. 456, 47 L. ed. 657, 12 Am. Crim. 311, it was held by that court that, "a rendition warrant should not issue, unless the docu- ments, presented by the governor making the requisition, show that the accused was present in the demanding State at the time of the commission of the alleged crime, THE goveenob's wabeant. 157 and that he thereafter fled from such State, and sought refuge in the State upon which demand is made; and that he is lawfully charged hy indictment found or by affidavit made before a magistrate and that a copy of such indictment or affidavit accompanied such requisi- tion." § 97. Its Recitals Evidence of Legality of Issuance. — However, it has been declared by the court of appeals of New York in People ex rel. Jourdan v. Donahue, (1881), 84 N. Y. 438, that it is sufficient if the governor's warrant recites, and does not set forth in full, the indict- ment or affidavit upon which it is issued, and that where the papers, upon which the warrant of rendition is is- sued, are withheld by the executive, as in the State of New York, the warrant itself can be looked to for the evidence that the essential conditions of its issue have been fully and legally complied with in every respect. The warrant need not detail the facts, necessary to justify the detention of the alleged fugitive, with the specific certainty of a criminal pleading. In State ex rel. Arnold V. Justus, (1901), 84 Minn. 237, 87 N. W. 770, 55 L. B. A. 325, it is said, if it appears substantially from the body of the governor's warrant that the right to make the arrest is justified upon legal grounds, it is sufficient to authorize action of the officer to whom it is directed and to protect him in its execution. In Ex parte PoweU, (1884), 20 Fla. 806, it was held by the supreme court of the State of Florida, that when the governor issues a warrant of rendition for the arrest of an alleged fugitive from justice and recites in such warrant that the demanding executive produced and authenticated a copy of affidavits charging the commis- sion of a crime, and not showing that such affidavits were made before a magistrate or judicial officer, it cannot be presumed that the affidavits were made in course of judi- cial proceedings for the prosecution of the person de- manded and upon its face the warrant of arrest fails to show that it was authorized by law, and as a result 158 THE LAW OF INTERSTATE BENDITION. the executive process is declared void and the fugitive discharged. § 98. Who May Serve Warrant.— In the State of Illi- nois this warrant is specifically directed to "any sheriff, coroner or constable," however, the governor may direct that any other designated person may execute the same — ^no other official in that State has the authority to make the arrest under the law — ^yet police officers in Chicago constantly assume the power, and armed with the gov- ernor's warrant, go forth and arrest alleged fugitives from justice, apparently oblivious to the fact that the statutes of Illinois give them no right whatever to make such arrests. In the State of California and many other States police officers are specially mentioned in the war- rant as authorized to execute the same, because they are so empowered by the law of such States. § 99. Entitled to no Greater Sanctity than Other Pro- cess. — It has been contended, with some show of sincerity, that the governor's warrant of arrest was entitled to greater sanctity and respect, by reason of the fact that it was the rendition process of the chief executive of the State. Judge Pope, United States District Judge at Chi- cago, Illinois, at the hearing of that celebrated case. Ex parte Smith, (1842), 3 McLean, 121, replying to this very contention said: "The court cannot assent to this distinction. This is a government of laws, which prescribes a rule of action as obligatory upon the governor as upon the most obscure officer. The character and purpose of the habeas corpus are greatly misunderstood by those who suppose that it does not review the acts of an executive functionary. All who are familiar with English history, must know that it was extorted from an arbitrary monarch, and that it was hailed as second Magna Charta, and that it was to protect the subject from arbitrary imprisomnent by the king and his minions which brought into existence that great palladium of liberty in the latter part of the reign of Charles II. It was indeed a magnificent THE govebnoe's wabbant. 159 achievement over arbitrary power. Magna Cliarta established the principles of liberty; the habeas cor- pus protected them. It matters not how great or obscnre the prisoner, how great or obscure the prison-keeper, this mxmificent writ, wielded by an independent judge, reaches all. It penetrates alike the royal towers and the local prisons, from the garret to the secret recesses of the dungeon. AH doors fly open at its command, and the shackles fall from the limbs of prisoners of state as readily as from those committed by subordinate officers. The warrant of the King and his Secretary of State could claim no more exemption from that searching in- quiry, 'the cause of -his caption and detention,' than a warrant granted by a justice of the peace." § 100. Revocation and Alias Warrants. — ^In Work v. Oorrington, (1877), 34 Ohio St. 64, 32 Am. Eep. 345, the supreme court of the State of Ohio held that the gov- ernor of a State or Territory may, beyond all question, in case the executive warrant has been improperly is- sued, revoke the same, whether it has been issued by him- self or by his predecessor, and even although, the fugitive from justice has been arrested and handed over to the agent or messenger of the demanding State. The su- preme court of Minnesota in the State ex rel. Nisbett v. 'Toole, (1897), 69 Minn. 104, 72 N. W. 53, 65 Am. St. 553, 38 L. E. A. 224, adopted the Ohio view but held that the warrant could only be revoked prior to the removal of the fugitive from the surrendering State. Along the same line see Knowlton's Case, (1883), 5 Grim. Law Mag. 250; CarroU's Case, (1878), Chicago Legal News, Sept. 28, 1878; Gov. CuUom's Ruling in Gaffigan and Merrick Case, (1878), reported in Spear on Extradi- tion, (3rd Ed.) 713; In re Sultan, (1894), 115 N. C. 57, 20 S. E. 375, 28 L. E. A. 294. The courts have held repeatedly, and such decisions are unquestionably based on the law, that the governor of a State may issue a second warrant for the rendition of a fugitive from justice without another requisition from the executive of the demanding State, the first war- 160 THE LAW OF INTBESTATE EENDITION. rant being lost or technically incorrect. (In re Hughes, (1867), Phil. L. (N. C.) 57; Ex parte Hobbs, (1893), 32 Tex. Crim. 312, 22 S. W. 1035, 40 Am. St. 782; Kurtz v. State, (1886), 22 Fla. 36.) §101. Rules Relating to the Governor's Warrant.— The governor's process — the warrant of rendition — in all proceedings for the arrest and surrender of fugitives from justice, is presumptive, but not conclusive evidence of the fact that the person accused is a fugitive from the justice of the demanding State, and like other presump- tions may be overcome by positive proof to the contrary. (People ex rel. Corkran v. Hyatt, (1903), 172 N. Y. 176, 64 N. E. 825, 60 L. E. A. 774, 92 Am. St. 706.) The warrant is prima facie evidence of the regularity of its issuance and is sufficient to hold the accused, until the presumption in its favor is overthrown by compe- tent and positive testimony. (State ex rel. Arnold v. Justus, (1901), 84 Minn. 237, 87 N. W. 770, 55 L. E. A. 325; Ex parte McDaniel, (1915), Tex. Crim. , 173 S. W. 1018.) Where the accused, after the issuance of the govern- or's warrant of rendition, sues out a writ of habeas cor- pus, to test the validity of his arrest and detention, but waives his right to produce evidence showing that he was not a fugitive from the justice of the demanding State, he is thereby concluded by the prima facie case made out against him by the requisition papers, and if they meet all the requirements of the Constitution and laws of the United States, will justify the surrender and removal of such person to the demanding State. (Mun- sey V. Clough, (1904), 196 U. S. 364, 25 Sup. Ct. 282, 49 L. ed. 515.) CHAPTER Xn. THE ARREST OF THE FUGITIVE. 1 102. The Recognized Rule. 1 103. Arrest Before Demand, With or Without Warrant § 104. Official Courtesy and Unlawful Arrests. § 105. Arrest From a Constitutional Viewpoint. § 106. Duty of Officer Making Arrest i 107. Summary. § 102. The Recognized Rule. — ^In practically all of the States special statutes have been enacted, providing for the arrest and detention of persons charged with being fugitives from the justice of another State before the demand has been formally made by the governor of the demanding State. But the well-settled and recognized rule is that, a i)erson charged with the commission of a felony or other crime in a certain State, fleeing to an- other, may, before executive demand for his arrest and return is made on the governor of that State, from which he has fled, be arrested in the State in which he is found. In such a case, he may be arrested and detained in cus- tody for a reasonable length of time, in order to give the governor of the demanding State, an opportunity to issue a requisition for his rendition. The arrest of the alleged fugitives may be made either by virtue of a war- rant issued by a magistrate, or without a warrant, by an officer or a private citizen, but in order to justify such an arrest there must be probable cause to believe that the crime supposed to have been committed is a felony, not a less offense, under the law of the State in which it was committed; and that the person arrested committed it and that he is a fugitive from the justice of that State. In Cunningham v. Baker, (1893), 104 Ala. 160, 16 So. 68, 53 Am - St. 27, it was held by the supreme court of Alabama that without the concurrence of these facts the (161) 162 THE LAW OF INTBBSTATE RENDITION. arrest can not be justified under any circumstances what- ever. In Malcolmson v. Gibbons, (1885), 56 Mich. 459, 23 N. "W. 166, the Michigan supreme court contended that an ofiScer or private citizen can not justify an arrest upon the ground that he had reasonable cause to believe the person arrested had committed a felony, unless he has information of facts, derived from those reasonably presumed to know them, which, if submitted to a judge or magistrate having jurisdiction, would require the is- sue of a warrant of arrest, and the holding of such per- son in custody to await further examination. This doc- trine reiterated by the supreme court of Michigan in Filer V. Smith, (1893), 96 Mich. 347, 55 N. W. 170. In the State of North Carolina the supreme court in State V. Sheldon, (1878), 79 N. C. 605, strongly held that when the matter of the arrest of the alleged fugitive from jus- tice is regulated by statute, the statutory mode of proce- dure must be strictly followed, otherwise the arrest and detention is absolutely void, and the officer or citizen making such arrest does so at his own peril. The same doctrine was upheld in the following cases: Matter of Leland, (1869), 7 Abb. Pr. (N. S.) 64; Ex parte Cubreth, (1875), 49 Cal. 435; Ex parte Thornton, (1853), 9 Tex. 635; In re Heyward, (1848), 1 Sandf. (N. Y. Supp.) 702; State V. Howell, (1821), R. M. Charlt. (Ga.) L. 20; Eea V. Smith, (1856), 2 Handy (Ohio) 193; MorreU v. Quarles, (1860), 35 Ala. 544; State v. Loper, (1842), Ga. Deds. Part II, page 33. § 103. Arrest Before Demand With or Without Wax- rant. — Mr. Chief Justice Booth of the Supreme Court of Delaware in the case of State v. Buzine, (1845), 4 Harr. 572, in discussing the power to arrest and detain an alleged fugitive from the justice of another State found in the State of Delaware, said: "My opinion, therefore, is that any judge or jus- tice of the peace in this State, or the mayor of the city of Wilmington, upon probable cause, supported by oath or affirmation, has the power to issue a war- rant to arrest and bring before him a party sus- THE ABREST OP THE FTJGITIVB. 163 pected of having committed a crime in another State, before a demand has been made by the executive of such State, and that, after examination, upon such proof or probability of the party having committed the offense as would be sufficient to put him upon trial, it is the duty of the magistrate to commit him to prison for such reasonable time as will allow no- tice to be given to the executive authority of the State where the offense was committed, and a de- mand to be made, pursuant to the act of Congress, for the delivery of the fugitive." The learned jurist enunciated the law clearly and forci- bly, more than seventy years ago, and today his inter- pretation is upheld by the great weight of judicial au- thority throughout the United States. In the case of State v. Taylor, (1898), 70 Vt. 1, 39 Atl. 447, 42 L. E. A. 672, 67 Am. St. 271, the supreme court of the State of Vermont, in speaking of the right of an officer to arrest a person without a warrant, said: "An officer may arrest without a warrant a person of whom he has reasonable cause to believe that he has committed a felony in another State. An officer in making an arrest is bound to make known the fact that he is acting as an officer but is not bound to exhibit his warrant, or in case he has one, to explain the grounds of his action, until submission has been made to his authority." The su- preme court of the State of Minnesota, in State ex rel. Arnold v. Justus, (1901), 84 Minn. 237, 87 N. W. 770, in referring to the alleged illegality of the arrest of the accused as a fugitive from justice, declared that "this court will not, in habeas corpus proceedings, extend its inquisition beyond the rendition warrant of the governor to ascertain whether the prisoner had been previously unlawfully arrested or was in unlawful custody at the time such warrant was served upon him." §104. Official Courtesy and Unlawful Arrests.— The doctrine enunciated in the last three cases cited has been strongly and forcefully repudiated by that learned jurist of Michigan, Judge Campbell, who speaking for 164 THE LAW OP INTBESTATE EENDITION. the supreme court of that State, in Malcolmson v. Gib- bons, swpra, said: "The habit, which is by a very singular abuse of language, called oflSdal courtesy, of making illegal arrests in one jurisdiction in the hope that similar violations of law may be reciprocated, is one which cannot be tolerated. The law places private liberty at a much higher value than official favors ; and vio- lations of law by those who are appointed to protect instead of destroy private security, deserve no favor. Fundamental rules of constitutional immunity can- not be relaxed. * * * The extradition of crim- inals who are claimed to be fugitives from other States is governed entirely by the Constitution and laws of the United States. No State can deal with other States, under the express terms of the Consti- tution, without the approval of Congress and what the State cannot do its policemen cannot do. An arrest here without compliance with United States laws cannot be maintained. Michigan cannot treat foreign offenses as domestic, there is nothing in our statutes which contemplate an arrest without a war- rant, for purposes of extradition. ' ' §105. Arrest From a Constitutional Viewpoint. — It was held in In re Fetter, (1852), 3 Zab. (N. J.) 311, 57 Am. Dec. 328, by the supreme court of the State of New Jersey, that under article IV, section 2, of the Constitu- tion of the United States, the power to arrest and detain a fugitive from justice found in New Jersey, until the authorities of the State whose laws have been violated, could make the demand mentioned in said section, was clearly and unmistakably implied. In rendering the opinion of the court, the chief justice said: "The denial of the power to arrest and detain an offender until the demand for his surrender be actu- ally made, would, it is manifest, render the provi- sion of the Constitution well nigh nugatory. If a person committing murder, robbery, or other high crime in one State, may, by crossing a river, or other imaginary line, avoid arrest or detention until an executive requisition and order for his surrender THE AKBEST OF THE FUGITIVE. 165 may be obtained, the execution of the criminal law would be impotent iudeed. Sound public policy, good faith, a fulfillment of the requirements of the Constitution, aU require that the arrest and deten- tion of the offender, be made wherever he may be found, preparatory to a demand and surrender." The ground upon which this opinion was based by the eminent jurist is as f oUows : "To enable the executive to perform this duty it is necessary that magistrates should have the power to arrest and commit the fugitive before as well as after a demand has been made. The exercise of the power is essential to carry into effect the provision of the Constitution; otherwise an immunity may be oflFered to the most atrocious criminal. If a felon, notoriously guilty of murder, can by escaping into another State set the law at defiance until a demand is regularly made on the executive, and a warrant is issued for his arrest, the object of the Constitution may be defeated and the act of Congress rendered nugatory." The unquestioned purpose of the arrest and detention of the alleged fugitive is to comply with the mandate of the fundamental law, which commands that the accused "be delivered up, to be removed to the State having jurisdiction of the crime. ' ' This view of the law is sup- ported by the great current of judicial decision. Com- monwealth ex rel. Sphneider v. Chess, (1911), 21 Pa. Dist. 523; Union Pac. Co. v. Belek, (1913), 211 Fed. 699. §106. Duty of Officer Making Arrest.— It is weU settled that the detention of the accused does not rest wholly with the officer making the arrest, and that he should, without unnecessary delay, take the prisoner be- fore the proper court or judge and take the judgment of commitment from such court or judge, upon complaint in writing, submitting an inquiry as to the presumption of guilt and good faith of the officer. The value of per- sonal liberty is too great to permit the arrest and deten- tion of a suspected fugitive from justice upon the mere judgment of a ministerial or peace officer, and without 166 THE LAW OF INTEBSTATE EENDITIOlir. a hearing judicial in its nature and character. This was so held by the supreme court of the State of Indiana in Simmons v. Vandyke, (1894), 138 Ind. 380, 37 N. E. 973, 26 L. E. A. 33. The right to arrest and hold the alleged fugitive from justice, without a hearing, for an unreason- able time, is not sanctioned by the judicial authority to be found in the reported cases. Federal and State, on interstate rendition. As an example In re Henry, (1865), 29 How. Pr. (N. Y.) 185, is cited, it was there said: "On the return of the writ no affidavits nor any other proof of the alleged larceny have been fur- nished, but all the information afforded rests in letters unauthorized except by the signature of the chief of police of Chicago, and the telegraphic dis- patches purporting to come from him, the last dis- patch indicating that a requisition had been finally obtained. Under these circumstances, I am reluc- tantly compelled to grant his discharge. The officers were undoubtedly authorized to make the arrest. The rule is that a private person may arrest a party, if a felony has in fact been committed, and there was reasonable ground of suspicion; but in the case of an officer he is justified in making an arrest if no felony was in fact committed, if he acted upon in- formation from another on which he had reason to rely. This is the well settled rule in the English courts, sanctioned and followed in this State in the case of HoUey v. Mix, (1829), 3 Wend. 350. In such case the officer acts ministerially, and is entirely justified in making the arrest, and it is a power very important to be exercised to prevent the immediate escape of felons. But he has another duty to per- form. In the case where the arrest is made imder a warrant, the officer must take the prisoner with- out any unnecessary delay before the magistrate issuing it, in order that the party may have a speedy examination if he desires it ; and in case of an arrest without warrant, the duty is equally plain, and for the same reason, to take the arrested party before some officer who can take such proof as may be afforded, or if the circumstances will justify it, hold the suspected party for further examination. (Pratt THE AKBEST OP THE FUGITIVE. 167 V. HiU, (1853), 16 Barb. 307.) If this is not done with reasonable diligence the party arrested can ap- ply for a writ of habeas corpus, calling on the officer to show cause why he is detained, and with the re- turn to the writ the rule is that where the arrest is upon suspicion, and without a warrant, proof must be given to show the suspicion to be weU founded. (2 Inst. 52.) No such proof has been exhibited to me. The original grounds of suspicion indeed re- main, and may be deemed presumptively strength- ened by the last dispatch, but they contain no ele- ment of proof in the legal sense, and would not au- thorize me to detain him." § 107. Smmnaxy. — ^No one can teU when or where he or she may be arrested on the charge of being a fugitive from justice — the guilty and the innocent alike are liable to find themselves in the toils of the law — charged with the commission of crime in another State than the one in which residence is maintained. Now to summarize, this custody may be effected by three different methods as follows : First, the arrest may be made upon the au- thority of the governor's warrant of rendition, based on a requisition of the governor of the State, where the crime is alleged to have been committed. (Campbell v. State, (1910), 166 Ala. 33, 52 So. 399.) Second, the arrest may be made fee/ore demand, by virtue of a war- rant, issued by a magistrate in the State where the ac- cused is found, predicated upon a telegram, telephone message or information by letter. (Commonwealth v. Phelps, (1911), 209 Mass. 396, 95 N. E. 868.) Third, the arrest may be made by an officer or a private citizen, without a warrant, upon probable or reasonable infor- mation that the accused stands charged with a felony in the courts of the State from which he is alleged to have fled. {In re Fetter, supra; Dow's Case, 18 Pa. St. 37.) CHAPTEE XIII. IDENTITY OF THE FUGITIVE. § 108. In Rendition Identity of Fugitive all Important. 5 109. Identification of Fugitive In New York. § 110. Identification of Fugitive in Pennsylvania. I 111. Identification of Fugitive in Indiana. § 112. Identification of Fugitive In Ohio. § 113. Identification of Fugitive in Kentucky. § 114. Identification of Fugitive In Delaware. § 115. In Other States Fugitive Is Protected by Habeas Corpus. One Exception. § 116. Question of Identity, How Raised. § 117. In Absence of Proof Prima Facie Case Conclusive. § 118. Judicial Protection of the Accused. §108. In Rendition Identity of Fugitive all Impor- tant. — Is the person arrested as a fugitive from justice the identical person mentioned in the governor's war- rant of rendition and is he or she the same person charged with the commission of crime in the demanding State? There is absolutely no provision in the Consti- tution or laws of the United States to determine how this question, when raised, shall be settled. It was the evident intention of the early lawmakers to leave the question open to final adjudication by the various States. Nevertheless, this is the paramount question in the sur- rendering State in all rendition procedure, overshadow- ing and outweighing every other question that can be raised, and should be adjudicated promptly, without un- necessary delay, with a strict regard for the rights of the accused, requiring the most positive and convincing proof from the authorities of the demanding State. Johnston V. Eiley, (1853), 13 Ga. 94; In re McPhun, (1887), 30 Fed. 57.) This rule, when rigidly enforced, safeguards the rights of the citizen and makes it practically impos- sible to arrest and return the wrong person. The arrest, (168) IDENTITY OP THE FUGITIVE. 169 w^-i ■ ■ surrender and consequent deportation to another State, frequently far from home and friends, of some other per- son than the one named in the governor's warrant, is a very serious proposition and is worthy of the attention and consideration of the lawmakers of all of the States of the Union. Along this line only the States of New York, Pennsylvania, Indiana, Ohio, Kentucky and Dela- ware have each enacted statutes providing for judicial determination of the identity of the accused, after the arrest under and hy virtue of the governor's warrant and before the delivery of the fugitive to the agent or messenger of the demanding State for deportation. Such statutes have been rigidly enforced in the States named, and the penalties prescribed for their violation have been sufficiently severe to guarantee their faithful observance by officials and others. The only criticism that can be offered as to these statutes, as they now appear upon the statute books of the States of New York, Pennsylvania, Indiana and Kentucky, is that while undertaking to pro- tect the citizen against unlawful and unwarranted re- moval to another State, on the charge of crime and upon the allegation that the accused is a fugitive from justice, is the attempted denial by legislative enactment of other and unquestioned rights of the alleged fugitive. § 109. Identification of Fugitive in New York. — ^In the State of New York, before the enactment of the stat- ute on identity of the fugitive, in the case of People ex rel. McCoy v. Warden of the City Prison, (1885), 3 N. Y. Crim. 370, this was an appeal by the relator, McCoy, from an order of the special term of the supreme court, denying the application of relator to be discharged from custody upon a writ of habeas corpus. The supreme court, general term, first department, in affirming the judgment of the lower court, Mr. Justice Daniels, speak- ing for the court, said : ' ' The only questions which under the authorities seem to be open for inquiry in a case of this description, where the warrant is sufficient upon its face, as the warrant of rendition in this case appears to be, are whether the relator is the person against whom 170 THE LAW OP INTEBSTATB EENDITION. the warrant has been issued, and whether, as a matter of fact, he is a fugitive from the justice of the State de- manding his return." After the passage of the statute relating to the identification of the fugitive, another rendition case came before the general term of the su- preme court on appeal, and in affirming the order of the lower court in People ex rel. Ryan v. Conlin, (1895), 15 Misc. (N. Y.) 303, 36 N. Y. Supp. 888, Mr. Justice Beek- man, on behalf of the court, said : "Section 827 of the Code of Criminal Procedure regulates proceedings in such cases, and requires that the prisoner arrested under the warrant of the governor shall be taken before a judge of the su- preme court or of any superior city court or the presiding judge of a court of sessions, who shall inform the prisoner of the cause of his arrest and the nature of the process, and instruct him that if he claims not to be the particular person mentioned in the indictment, affidavit or warrant annexed there- to, or in the warrant issued by the governor thereon, he shall have a writ of habeas corpus upon filing an affidavit to that effect, and that if, after a summary hearing, as speedily as may be consistent with jus- tice, the prisoner shall be found to be the person indicted or informed against and mentioned in the papers above referred to, then the court or judge shall order and direct the officer intrusted with exe- cution of the warrant of the governor to deliver the prisoner into the custody of the agent designated in the requisition and the warrant issued thereon as the agent of the State from which the requisition has proceeded, otherwise he shall be discharged from custody by the court or judge. According to the letter of the statute, at least, the only question which the court can determine is the question of the iden- tity of the fugitive with the person against whom the charge has been made, or with the person named in the warrant of the governor, and I think that, with one exception, this construction is also in accordance with the spirit of the statute and the legislative in- tent which led to its enactment." IDENTITY OP THE PUGITTVB. 171 The "one exception," referred to by the learned jus- tice of the supreme court of New York, and which is second only to the question of identity, is undoubtedly the one which Mr. Justice Harlan, of the Supreme Court of the United States, in the case of McNichols v. Pease, (1907), 207 U. S. 110, declared was always open on habeas corpus, that the accused could show by competent evidence that he was not a fugitive from the justice of the demanding State, thus overcoming the presumption of a properly issued warrant of rendition. This statute in New York has prevented the removal of alleged fugi- tives, beyond the limits of the State, before the identity of the accused has been established, in a satisfactory and lawful manner, this was the object of the law. The at- tempt of the lawmakers to restrict and confine the courts on habeas corpws, to this question alone, has been de- clared a nullity by the highest court of New York — ^the court of appeals. In the case of the People ex rel. Cork- ran V. Hyatt, (1902), 172 N. Y. 182, 64 N. E. 825, 60 L. E. A. 774, 92 Am. St. 706, it was said in the opinion of the court by Judge CuUen that, "the provision of section 827 of the Code of Criminal Procedure, directing that any person arrested on the governor's warrant shall be brought before a judge of a court of record and informed of his right to a writ of habeas corpus, to inquire into his identity with the person named in the warrant, does not assume to limit the inquiry on a writ of habeas corpus to the question of identity. It was enacted for the benefit of any person arrested under such warrant and solely as an additional safeguard against illegal removal from the State." The decision of the court of appeals of New York in this case was affirmed by the Supreme Court of the United States, in Hyatt v. People ex rel. Corkran, (1902), 188 U. S. 691. §110. Identification of Fugitive in Pennsylvania. — Pennsylvania has a statute almost similar to that of New York, except that the limitation to identity is made most positive. A case fully explaining this statute is that of the Commonwealth ex rel. v. McCandlass, (1889), 7 Pa. 172 THE LAW OP INTBESTATE RENDITION, Co. Ct. 51, and although this was an adjudication by the common pleas court of Alleghany county, Pennsylvania, yet the opinion of the court is regarded as an authority in that State. A certain person had been arrested in that county charged with being a fugitive from the jus- tice of South Carolina, the accused was carried before the court and being informed as to his rights and having denied that he was the person charged with the com- mission of crime in the State of South Carolina. A writ of habeas corpus was issued upon his petition and a hearing had. In determining this case the presiding judge, Ewing, said: "Under the provisions of the act of Assembly relative to fugitives from justice, approved May 24, 1878, P. L. 137, the sheriff arrested the alleged prisoner and brought him into court, when he was informed of his rights and of the nature of the pro- cess under which he was arrested and the charge made against him. He thereupon filed a petition for a writ of habeas corpus, alleging that he was not John Yeldell, but E. F. Flemon, that he was not a fugitive from justice, nor the person called for, and that the warrant of arrest was insufficient and that he was illegally detained. The writ was issued, the prisoner brought into court, a hearing had and testi- mony heard on part of respondent, confined, by his counsel, to the question of identity, except as other matters were incidentally brought out on examina- tion. The act of Assembly referred to provides that 'the investigation and hearing under said writ shall be limited to the question of identification.' The act is a singular one, in this respect, that part of it which requires the officer, before delivering the prisoner arrested, to the authorities of the State de- manding his rendition, to take his prisoner before the court to have him infojmed of the cause of his arrest and of his rights, was an addition to the former rights of the prisoner, and, had the act pro- vided for a hearing under that provision alone, the limitation of the investigation to the question of identification might have been constitutional ; but it makes no provision for such a hearing, but it goes IDENTITY OF THE FUGITIVE. 173 on to provide that he may have a writ of habeas corpus. This was no new right or privilege ; it was an indefeasible right which he had nnder the Consti- tntion, iadependent of an act of Assembly, and hav- ing exercised this right, he is before us with a full right to have us pass upon the legality of the arrest and holding, to the same extent and in the same manner as though the act of 1878 had no existence." This act of May 24, 1878, like the New York statute, has generally been ignored and disregarded by the courts of Pennsylvania, so far as it restricted the rights of the accused in habeas corpus proceedings on interstate rendi- tion matters. And the supreme court of that State in Commonwealth ex rel. v. Superintendent of Philadelphia City Prison, (1908). 220 Pa. St. 401, 69 Atl. 916, abso- lutely refused to pass upon the constitutionality of the act because the fugitive appellant had not been deprived of any of his rights in the hearing in the court below. Mr. Justice Mestrezat, on behalf of the court, said : "We need not consider or determine the consti- tutionality of the act of May 24, 1878, P. L. 137, Purd. (13th ed.) 1761. The relator was not re- stricted to the proof of his identity on the hearing before the quarter sessions, but was afforded every opportunity to show the illegality of the extradition proceedings and that he was not a fugitive from jus- tice. In other words, he was given an opportunity to controvert the jurisdictional facts which author- ized the extradition proceedings, and that was aU he was entitled to on habeas corpus. The proceed- ings before the quarter sessions were conducted as though the act of 1878 had no existence, and, there- fore, there is no ground on which the relator can ask this court to pass upon the constitutionality of the act." § 111. Identification of Fugitive in Indiana. — ^Indiana by statute has, to some extent, guarded the rights of its citizens and resident^, and at the same time afforded every opportunity to the authorities of sister States, for the arrest and return of fleeing criminals, found within the limits of that State. A person arrested by virtue of 174 THE LAW OP INTEBSTATB EENDITION. the governor's warrant, as a fugitive from justice, in the State of Indiana, upon the demand of the executive au- thority of any State or Territory of the United States, shall at once be brought before a circuit or criminal court judge of the State by the officer making the arrest. The statute further provides that the court or judge be- fore whom such alleged fugitive shall be brought shall proceed, by examination of witnesses, to ascertaiil if the person apprehended be the fugitive demanded and men- tioned in the warrant of rendition of the governor, and if satisfied of the identity of the alleged fugitive ; and is further satisfied that the person arrested and in custody is in truth and in fact a fugitive from the justice of the State demanding him, then such court or judge shall order the alleged fugitive to be delivered up to the agent of the State or Territory making the demand, to be trans- ported to such State or Territory, agreeably to the laws of the United States; otherwise such alleged fugitive shall be discharged from custody. (See Burns' Anno- tated Indiana Statutes, (1914), Vol. 1, sections 1893, 1894 and 1899.) In Eobinson v. Flanders, (1867), 29 Ind. 10, the supreme court of Indiana declared this statute consti- tutional, as it in no way ran counter to the Constitution and laws of the United States. § 112. Identification of Fugitive in Ohio. — Ohio is far in advance of the other States of the Union, in affording protection to its citizens, from illegal and unnecessary annoyance, incident to arrest as alleged fugitives from justice from other States. It has provided by statute, that, not only shall the identity of the accused be fully and satisfactorily established, but all other questions, which may be legally raised in interstate rendition pro- ceedings on habeas corpus, shall also be heard and deter- mined by a judge of the supreme court or a judge of the court of common pleas. Under that statute it is prac- tically impossible to secure the arrest and surrender in that State of an innocent party as a fugitive from justice. No State in the Union is more careful in honoring requi- sitions from other States, and none more cautious in IDENTITY OF THE FUGITIVE. 175 making denmnds for the arrest and return of alleged fugitives, than is the State of Ohio; hy statute, its offi- cers in making application to the governor of that State, for the issuance of a requisition on another governor, for a fugitive's arrest and return, "such application must be accompanied by sworn evidence that the party charged is a fugitive from justice, that the demand or application is made in good faith, for the punishment of crime, and not for the purpose of collecting a debt, or pecuniary mulct, or removing the alleged fugitive to a foreign jurisdiction with a view there to serve him with civil process and also, a duly attested copy of an indict- ment or an information, or a duly attested copy of a complaint made before a court or magistrate authorized to take the same, such complaint to be accompanied by an affidavit or affidavits to the facts constituting the of- fense charged, by persons having actual knowledge there- of, the same shall also be accompanied by a statement in writing from the prosecuting attorney of the proper county, who shall briefly set forth all the facts of the case, the reputation of the party or parties asking such requisition, and whether, in his opinion, such requisition is sought from improper motives, or in good faith to enforce the criminal laws of Ohio, and such further evi- dence in support thereof as the governor may require." This statute of Ohio, known as the act of 1875, (72 Ohio L. 79), "to regulate the practice of the delivery of fugi- tives from justice when demanded by another State or Territory," was declared valid by the supreme court of that State in the case of Ex parte Ammons, (1877), 34 Ohio St. 518, the court holding that "the means by which the fugitive is to be arrested and secured, are not pro- vided by the act of Congress of 1793; hence, the legis- lature of a State may and should provide proper and adequate means and facilities for the accomplishment of such extradition." In Wilcox v. Nolze, (1878), 34 Ohio St 522, and in Thomas v. Evans, (1906), 73 Ohio St. 140, 76 N. E. 862, the Ammons case, supra, was cited approv- ingly and the right of the States to legislate in aid of interstate rendition was reiterated by the same court. 176 THE LAW OF INTERSTATE KBNDITION. § 113, Identification of Fugitive in Kentucky. — ^Ken- tucky likewise has a statute providing that when the executive authority of another State or Territory, shall demand the arrest and surrender of an alleged fugitive from justice, pursuant to the Constitution and laws of the United States, the governor of that State shall issue a warrant to the sheriff or constable of any county with- in the State, commanding him to arrest such fugitive and bring him before some circuit court judge for identifica- tion, and if satisfied of this fact the judge shall order him to be delivered up to the agent of the State or Territory demanding him, for deportation to such State or Terri- tory agreeably to the laws of the United States; other- wise the judge shall discharge the fugitive from custody. §114. Identification of Fugitive in Delaware.— Dela- ware also has a statute, similar to that of the State of Ohio, providing that a fugitive from justice arrested upon the governor's warrant of rendition, shall be brought before the chief justice or any judge of the su- perior court of the State, who shall forthwith proceed to hear and examine such charge and upon proof made in such examination as to the identity of the accused, the legality of the charge of crime, and as to his being a fugitive from the justice of the demanding State; and being satisfied of the sufficiency of the charge the chief justice or judge shall commit such alleged fugitive to the jail of the county in which such examination is so had for a reasonable time, to be fixed by the chief justice or judge in the order of p-n TnTni t.Tnp.Tit. Notice shall be given to the executive authority making the demand for the rendition of the fugitive, or to the duly authorized agent of such executive authority appointed to receive the fugi- tive. And upon payment of all costs by such agent the fugitive shall be delivered to him and thence removed to the proper place for prosecution, and if such agent does not appear within the time so fixed and pay such costs mentioned, the sheriff shall discharge the person so imprisoned. IDENTITT OP THE FUGITTVE. 177 § 115. In Other States Fugitive is Protected by Ha- beas Corpus, With One Exception. — And thus New York, Pennsylvania, Indiana, Ohio, Kentucky and Delaware stand alone, of all the States of the Union, m providing by statute that any person arrested therein, as a fugitive from justice, by virtue of the governor's warrant of rendition or otherwise, shaU forthwith be brought be- fore the proper judge or court and the identity of the party arrested, with the person described as a fugitive, shall be satisfactorily determined by such judge or court, before the accused shall be surrendered to the authorities of the demanding State for deportation. Nevertheless, in aU the remaining States, with one exception, writs of habeas corpus are issued, upon proper petition, by both Federal and State courts, for the protection of persons arrested as fugitives, against unlawful removal to other States. The exception referred to is the State of Ar- kansas. In that State there is a practical suspension of the writ of habeas corpus, in so far as an alleged fugitive from justice is concerned. And on this particular subject Arkansas and Illinois each have the same statute — ^word for word — ^in Arkansas it is so construed by the courts that it operates as a prohibition against the issuance of the writ of habeas corpus; while in Illinois the same statute is relied upon as authority for doing the very thing prohibited in Arkansas. This paradoxical situa- tion is due largely to an interpretation, wholly disregard- ful of the decisions of the Supreme Court of the United States — ^the court of last resort in interstate rendition cases. §116. Question of Identity, How Raised. — ^But how may this question of the identity of the alleged fugitive be raised on habeas corpusf The supreme court of the State of Washington, in the case of GUUs v. Leekley, (1905), 38 Wash. 156, 80 Pac. 300, in affirming a judg- ment of the lower court quashing a writ of habeas corpus for the discharge of a prisoner arrested as a fugitive from justice, very fully answered this question as fol- lows: 178 THE LAW OF INTERSTATE EENDITION. "The first point urged on the appeal is that the respondent failed to establish the identity of the appellant as the person accused of crime, and named in, the rendition warrant. This position is untenable for two reasons; first, because the identity of the appellant as the person named in the warrant was not put in issue by the pleadings. The petition for the writ simply averred that the petitioner was not guilty of the offense charged. With this question, the courts of this State have no concern. The peti- tion utterly failed to allege that the appellant was not the person charged with the commission of the offense, and named in the extradition warrant. The warrant in due form is prima facie that a proper demand was made upon the executive of this State, that the appellant is the person charged with the commission of the crime and that he is a fugitive from justice. The burden of proof was upon the appellant to disprove these facts, or overthrow the presumption which arose from the production of the warrant itself." (See In re Charleston, (1888), 34 Fed. 531.) § 117. In Absence of Proof Prima Fade Case Conclu- sive. — The supreme court of the State of Minnesota in the case of the State ex rel. Grande v. Bates, (1907), 101 Minn. 303, 112 N. W. 260, also in discussing how the identity of the fugitive could be raised on habeas corpus, said: "It is further urged that there is no proof before the court of the identity of the relator as the J. H. Grande, who is charged with forgery in California. The relator has not claimed that he was not such person. The respondent, as sheriff, made return to the writ that he detained the relator under and by virtue of the warrant of the governor of this State, issued on demand of the governor of California, and the papers upon which it is based, copies of which were annexed to the return. The relator did not traverse this part of the return, although he did other portions of it ; nor did he allege in his petition for the writ that he was not the person named La the warrant. While the relator might have raised IDENTITY OF THE FUGITIVE. 179 the question of his identity by his petition or tra- verse to the return, or perhaps, "without traversing the return, the fact remains that he has not done so. He simply contents himself by asserting before this court, through his counsel, that there is no proof as to his identity, but does not even assert that he is not the party named in the warrant. See In re Leary, (1879), 10 Ben. (U. S.) 197. Under such cir- cumstances the presumption arising from the iden- tity of the name of the relator with the name in the warrant and requisition papers is suflScient prima facie evidence of his identity." §118. Judicial Protection of the Accused. — ^Many years ago, when the courts were enveloped with innu- merable restrictions as to the questions that could be raised on habeas corpus, in interstate rendition proceed- ings, the supreme court of the State of Vermont, in the case of In re Greenough, (1858), 31 Vt. 279, strongly contended that upon the question of identity being prop- erly raised on habeas corpus, the court would be justi- fied in going behind the warrant of the governor, in its determination of that question. In support of that prop- osition the court cited the following cases: State v. Buzine, (1845), 4 Harr. 572; State v. Schlemn, (1845), 4 Harr. 577; State v. Daniels, (1848), 6 Pa. L. J. 417. The years that have intervened since these cases were decided have given additional emphasis and approval to the doctrine enunciated therein on the identity of the alleged fugitive from justice, and no longer is there the slightest doubt as to the right of the courts, on habeas corpus, to inquire as to whether the accused is, in reality, the same person charged with crime in the demanding State. Unless this fact is positively established by com- petent proof the courts, on habeas corpus, have not hesi- tated in discharging the accused. And the time is not distant when all the States will follow the example of New York, Pennsylvania, Indiana, Ohio, Kentucky and Delaware in safe-guarding their citizens against unlaw- ful arrests and possible deportation. CHAPTEE XIV. THE RIGHT OF ASYLUM. § 119. The Origin of This Doctrine. §120. The First Compact. (1643). 5 121. The Second Compact. (1670). § 122. The Third Compact or Articles of Confederation. (1778). 1 123. The Fourth Compact. The U. S. Constitution. (1789). § 124. No Immunity From Criminal Prosecution. § 125. Judge Cooley on Immunity. § 126. An Author's Error. § 127. Lascelles' Case the Rule in all States. § 128. Method of Return Not Open to Complaint. § 129. A Noted Illinois Case. § 130. The Court's Ruling in the Lascelles' Case. § 131. Extradition and Rendition, the Difference. § 132. Courts in Accord on the Lascelles' Ruling. § 133. Michigan Abandons Her Former Position. § 134. Abuse of Power; Oppression. § 119. The Origin of This Doctrine. — ^A person who is legally charged with having committed a crime against the laws of a certain State or Territory and with being a fugitive from justice, has no right of asylum what- ever, inherent or otherwise, in any State or Territory of the United States, and is, therefore, not exempt by the law from arrest for crime committed in another juris- diction or State, prior to his return to the demanding State on rendition proceedings. {In re Williard, (1913), 93 Neb. 298, 140 N. W. 170.) Whatever may be said con- cerning this doctrine, it owes its origin to the earliest efforts at self-government of the American Colonies, and while comity and a spirit of friendship existing between the Colonies may have been responsible for the arrest and surrender of many of the fleeing criminals at that time, yet an innate desire to punish those guilty of crime, was the prime cause for denying to that class a sanctu- ary within the bounds of any of the Colonies. And when (180) THE EIGHT OP ASYLUM. 181 the fugitive criminal fled from the scene of his crime and sought refnge in another jurisdiction, his security from arrest and final deportation, depended largely upon the activity of the officers seeking his apprehension — ^no barrier of any kind was thrown in the way of his imme- diate arrest and return to the place where the crime was originally committed and prompt punishment followed. § 120. The First Compact. (1643)— Long before the adoption of our present Constitution and system of gov- ernment, in 1643, the Colonies of New England, for mu- tual benefit and protection, came together and formed a written compact for the better government of the various plantations then in combination and the earliest known written provision relating to fugitives from justice in America was the eighth article of the Confederation of the Colonies of New England, promulgated and adopted in that year, and is as f oUows : "Upon the escape of any prisoner or fugitive for any criminal cause, whether by breaMng prison, or getting from the officer, or otherwise escaping, upon the certificate of two magistrates of the jurisdiction out of which the escape was made that he was a prisoner or such an offender at the time of the es- cape, the magistrate or some of them of the jurisdic- tion where, for the present, the said prisoner or fugitive abideth, shall forthwith grant such warrant as the case will bear, for the apprehending of any such person, and the delivery of him into the hands of the officer or other person who pursueth him ; and if there be help required for the safe returning of any such offender, then it shall be granted unto biTn that craves the same, he paying the charges there- of." (Hazard, Hist. Coll. vol. 2, p. 5; Winthrop, Hist. Mass. vol. 2, p. 101.) This compact, for such it was, grew out of the fact that the Colonies of New England were contiguous to each other, and it had been a common thing for criminals to flee from one Colony to another in order to avoid arrest and punishment for crimes committed. The juris- diction of each Colony was confined to its own territory, 182 THE LAW OF INTEESTATE RENDITION. and no criminal, prior to the adoption of this article, conld be arrested in nor surrendered from a Colony, except by a stretch of comity existing between the officials of such Colonies, In order to avoid just such a condition and to insure the arrest and surrender of fugitive crim- inals in the act of fleeing from justice, and that punish- ment for crimes committed might be sure and certain, this article, binding alike upon all the Colonies, was framed and became operative, accomplishing the purpose intended that no such fugitive from justice should find a place of asylum in any of the Colonies. At once this principle became fundamental and its strict enforcement has been a characteristic of succeeding generations, and now looking back after a lapse of two hundred and seventy years, the provisions of this article are of great interest, because it is the forerunner of the organic law on interstate rendition. Its language is plain and un- mistakable, no discretion is given, either expressly or by implication, to any of the officials of the Colony on which the demand is made, but upon the production of the certificate of two magistrates a warrant should be issued for the apprehension of the fugitive and his surrender to the proper officer or person ' ' who pursueth him, ' ' and his subsequent removal or "safe returning" to where the crime was committed. § 121. The Second Compact. (1670)— Li 1670 a new set of articles were formed between the Colonies, and this agreement, relating to fugitives from justice, was continued with slight modification, instead of two magis- trates being required to certify to the escape of the fugi- tive only one magistrate's certificate was necessary. With this simple change the new article was as follows: "Upon the escape of any prisoner whatsoever, or fugitive for any criminal case, whether breaking prison, or getting from the officer, or otherwise es- caping, upon the certificate of one magistrate of the jurisdiction out of which the escape is made, that he was a prisoner, or such an offender at the time of the escape, the magistrates, or some of them of THE RIGHT OP ASYLUM. 183 that jurisdiction where for the present the said prisoner or fugitive abideth, shall forthwith grant such a warrant as the ease will bear for the appre- hending of any such person, and the delivering of him either into the hands of the pursuer ; and if help be required it shall be granted, he paying the charges thereof." (Rec. Mass. Colony, vol. 4, p. 473.) This article, without alteration or amendment, re- mained in fuU force and effect for a period of one hun- dred and seven years, unquestionably giving entire satis- faction to the people. § 122. The Third Compact or Articles of Confedera- tion. (1778) — ^However, when the Colonies in 1778, as- sumed the title of "The United States of America," and Congress proposed the Articles of Confederation, as "a firm league of friendship with each other," and a "per- petual union, ' ' and the same was adopted by the thir^ieen legislatures, it was found that the "fugitive article" of 1670 had given place to the following provision on this subject : "If any person guilty of, or charged with, treason, felony, or other high misdemeanor in any State, shall flee from justice and be found in any of the United States, he shall, upon the demand of the governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offense." (Articles of Confederation and Perpetual Union, 1778, art. IV, sec. 2.) The adoption of this provision in the place of the ar- ticle of 1670, marked the end of the judicial demand for the arrest and surrender of the criminal fugitive, and eliminated petty crimes from the list for which rendi- tion could be asked and confined such demands to "trea- son, felony, or other high misdemeanor." Since 1643, a period of one hundred and thirty-five years, it had been only necessary, in order to set in motion the machinery of intercolonial rendition, to secure the required certifi- cate from the proper judicial officer in the demanding Colony of the facts, which made the accused an abscond- 184 THE LAW OF INTEESTATE EENDITION. ing criminal, and wherever found a warrant was at once issued for his arrest and delivery. This method gave unlimited control to a Colony over persons beyond its own jurisdiction and aided in the swift enforcement of the criminal law. Abuses no doubt had crept into the system and oppression had been the result, so that when the new articles were suggested it was thought best, in order to safeguard the rights of the citizen, the governor of a Colony, a newly elective officer and supposed to be more experienced than the ordinary "magistrate," was invested with the power to make such demand for the rendition of fugitives from justice. § 123. The Fourth Compact. The U. S. Constitution. (1789) — ^In 1789, the Constitution was adopted by the thirteen States, supplanting the Articles of Confedera- tion, and the new clause relating to interstate rendition was as follows: "A person charged in any State with treason, ' felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State hav- ing jurisdiction of the crime." (Constitution of the United States, art. IV, sec. 2, par. 2.) Whatever of power was originally possessed by the Colonies and afterwards by the States, pertaining to the right to arrest and surrender fugitives from justice, charged with the commission of crime in one Colony or State, and fleeing into another, has been by this provi- sion of the Constitution delegated solely to the United States, with absolutely no reservation whatever. The United States as a separate and independent govern- ment was formed when the States adopted the Consti- tution, and such power as was not, specifically or by implication, delegated to the general government is re- served to the individual States. All power was given by the States in the organic law to the general govern- ment over interstate rendition. It is true that nearly every State of the Union has passed auxiliary legisla- THE BIGHT OP ASTLTJM. 185 tion on this subject and many of the State supreme courts have upheld the right of the States to so legislate, pro- vided always that such statutes are not inconsistent ia any respect with the Federal law ; however, the Supreme Court of the United States denied this right ia Prigg v. Commonwealth of Pennsylvania, (1842), 16 Pet. 539, but this denial has had no effect upon the States for the rea- son that the opinion in one sense was extrajudicial, as that question was not properly before the court, and Mr. Justice Story, speaking for the court, had no authority to so rule on that subject and hence, the language of the opinion relating thereto is without any controlling force whatever. § 124. No Immunity from Criminal Prosecution. — ^But to resume the inquiry into the so-called right of asylum of criminals, fleeing from one local jurisdiction to an- other, it should not be forgotten that the first compact or agreement on this subject by the American Colonies, in 1643, no thought or suggestion was ever entertained that, any person charged with the commission of a crime against the laws of a Colony, should find anything like immunity from criminal prosecution, or avoid punishment for crimes committed, by fleeing to another Colony. Free- dom from arrest in the asylum Colony and exemption from return to the place where the crime was committed, was never contemplated, even by the most sparsely set- tled and remotest Colony. (TTilliams v. Webber, (1891), 1 Colo. App. 191.) It was the policy of America's earli- est lawmakers to see to it that the method of enforcing the criminal law and the punishment for crime should be certain and positive in every Colony, and imhampered by the technical rules of the common law. The agree- ment for the extension of criminal jurisdiction over fugi- tives found in another Colony, was primarily entered into in 1643 and 1670 by the individual Colonies, for the very purpose of emphasizing the denial of the "right of asylum," early claimed as an inherent privilege of every colonist, and which had proven, too often, a loophole for the escape of the guilty. Whatever of force and effect 186 THE LAW OP INTBESTATE EENDITION. this doctrine may have had in the old world, as between independent and sovereign nations, it soon was a settled principle in the Colonies of America, that, no such exemp- tion should apply to a person charged with crime com- mitted in this country, in whichever Colony he might afterwards be found. Much confusion, on this particular subject, had grown out of the fact that decisions of a few State courts held .that no distinction existed between international extradition and interstate rendition, so far as they related to the right of the fugitive criminal, to be tried only for such crime in the demanding State, upon which he had been apprehended and surrendered in the asylum State, and upon acquittal or after punish- ment and discharge from custody for the one specific offense, then to be given the privilege of a reasonable time to return to his domicile or the asylum State. §125. Judge Cooley on Immunity. — Holding to this view may be mentioned that eminent jurist and author, Judge Cooley, who, in an able and well-written article in the Princeton Review, January 1879, contended as a matter of law and in strict compliance with the Consti- tution of the United States, every person charged with being a fugitive from the justice of one State and fleeing to another, and being surrendered for one crime is exempt from prosecution upon another. The force of his masterly exposition of this view of the law has been generally regarded with little less than absolute author- ity. Dr. Spear in the "Law of Extradition," 3rd ed., (1885), pages 525 to 571, fully sustained the position taken by Judge Cooley in a lucid and exhaustive argu- ment, covering two chapters of his book. One of the earliest cases having to do with this exemption, claimed for fugitive criminals, cited by Dr. Spear, is the Daniel's Case, (1848), Binn's Justice, 8th ed., page 439, which was heard by Judge Parsons, of the quarter sessions of Phila- delphia, Pennsylvania, wherein the court held that where a person is brought into a State as a fugitive from jus- tice, after acquittal, or conviction and pardon, he cannot be surrendered to the authorities of another State as a THE BIGHT OP ASTLTJM. 187 fugitive, but must be allowed an opportunity to return to the State in which he is domiciled. In the Matter of Cannon, (1882), 47 Mich. 481, 11 N. W. 280, Judge Camp- bell, of the supreme court of the State of Michigan, with great earnestness and ability, in an opinion often quoted, held that the returned fugitive should be protected from prosecution for any other offense, with which he may be charged, in the demanding jurisdiction, until he has reasonable time to leave the State. The supreme court of the State of Kansas followed closely the reasoning and adopted the doctrine as enunciated by Judge Camp- bell in the Cannon Case, supra, in a case which attracted considerable attention at that time, the State v. Hall, (1888), 40 Kan. 338, 19 Pac. 918, with the single reserva- tion that the fugitive is not protected from prosecution, where the offense constitutes one continuous course of crime. The supreme court of the State of Ohio in Ex parte McKnight, (1891), 48 Ohio St. 588, 28 N. E. 1034, 14 L. E. A. 128, practically upheld the Michigan doctrine as interpreted by Judge Campbell. § 126. An Author's Error. — ^It is to be regretted that such a distinguished author and jurist as Judge Bailey, in his latest work, (1913), on Habeas Corpus, vol. 1, page 534, in discussing "interstate extradition," should fall into the error of classing Indiana with Michigan, Kansas and Ohio, as subscribing judicially to the "right of asy- lum" doctrine, as enunciated by Judge Cooley, and citing as his authority for so doing, Waterman v. State, (1888), 116 Ind. 51, 18 N. E. 63; and Musgrave v. State, (1893), 133 Ind. 297, 32 N. E. 885 ; when in truth and in fact, the supreme court of the State of Indiana in the course of its opinion in the latter case, said, "TTe are not prepared to assent to the doctrine of counsel that a party brought into this State upon a requisition based upon an indict- ment charging one offense may not be here tried for a different offense." The earlier case of Hackney v. Welsh, (1886), 107 Ind. 253, 8 N. E. 141, 57 Am. Eep. 191, 36 L. R. A. 488, clearly establishes the fact that the supreme court of that State had long been against the 188 THE LAW OP INTBESTATE RENDITION. C'ooley doctrine, and in the latest case on that subject, Knox V. State, (1905), 164 Ind. 226, 73 N. E. 255, 108 Am. St. 291, 3 Ann. Cas. 539, that court found itself in perfect harmony with the ruling of the Supreme Court of the United States in Lascelles v. Georgia, (1893), 148 U. S. 543, 13 Sup. Ct. 687, 37 L. ed. 549, without being forced to overrule any of its former decisions. §127. Lascelles' Case the Rule in all States. — ^It may be noted that Ohio, Michigan and Kansas, in later cases, fell in line with the ruling in the Lascelles' case, see In re Brophy, (1895), 2 Ohio N. P. 230, 4 Ohio Dec. (N. P.) 391; In re Little, (1902), 129 Mich. 454, 89 N. W. 38; In re Flack, (1913), 88 Kan. 616, 129 Pac. 541, 47 L. E. A. (N. S.) 807, overuling State v. Hall, supra. See also State V. Dunn, (1903), 66 Kan. 483, 71 Pac. 811; State V. McNaspy, (1897), 58 Kan. 691, 50 Pac. 897, 38 L. E. A. 756; State v. Walker, (1894), 119 Mo. 467, 24 S. W. 1011; State V. Patterson, (1893), 116 Mo. 505, 22 S. W. 696. Taylor v. Commonwealth, (1906), 29 Ky. L. E. 96 S. W. 440. It will be observed at a glance that the views as ex- pressed by Judge Cooley and Dr. Spear and upheld by the decisions of the courts of Ohio, Michigan and Kan- sas, coincide with the right of asylum, as generally under- stood in international law, with the practice of separate and independent nations in extradition cases under trea- ties and with the specific rules of the common law exempt- ing suitors and witnesses from abuse of judicial process. And thus reasoning by analogy, it is but natural that the conclusion should have been reached by them, that the principles governing international extradition under treaties by sovereign nations and rendition between separate States, under the Constitution and laws of the United States, were, in this essential, one and the same. For a time it was contended that the opinion of the Su- preme Court of the United States in United States v. Eauscher, (1886), 119 U. S. 407, sanctioned this view, but a calmer and more dispassionate cons' deration of the whole subject has dispelled that doubt. THE RIGHT OP ASYLUM. 189 §128. Method of Return to State not Open to Com- plaint. — One year subsequent to tlie decision, in the case just referred to, the Federal Supreme Court was again called upon to render an opinion on another phase of this so-caUed asylum doctrine. One Mahon was indicted for murder in the State of Kentucky but before his arrest he fled to the State of West Virginia. The governor of the former State by requisition demanded of the execu- tive of the latter State the arrest and surrender of Mahon as a fugitive from justice, this demand, for some reason was refused. Whereupon the agent of Kentucky with other citizens of his State, by force took possession of Mahon and brought biTin back to Kentucky. The chief executive of West Virginia demanded of the governor of Kentucky the return of Mahon, this also was refused; thereupon the governor of West Virginia sued out a writ of habeas corpus in the Federal court of Kentucky, pray- ing for the discharge of Mahon, alleging that his ( Ma- hon 's) then detention in Kentucky was unlawful because he had not been removed from West Virginia in accord- ance with the Constitution and laws of the United States. Upon a hearing the writ was quashed and the petition was dismissed the court holding that Mahon was law- fully held in custody in Kentucky. In re Mahon, (1887), 34 Fed. 525. An appeal was taken to the Supreme Court of the United States and after due consideration the judgment of the lower court was affirmed, Mahon v. Jus- tice, (1887), 127 U. S. 714, 8 Sup. Ct. 1204, 32 L. ed. 283, in the course of an able opinion the court used this lan- guage: "So in this case, it is contended that, because un- der the Constitution and laws of the United States a fugitive from justice from one State to anothet can be surrendered to the State where the crime was committed, upon proper proceedings taken, he has the right of asylum in the State to which he has fled, unless removed in conformity with such proceedings, and that this right can be enforced in the courts of the United States. But the plain answer to this contention is, that the laws of the United States do 190 THE LAW OP INTEESTATE EENDITION. not recognize any such right of asylum, as is here claimed on the part of a fugitive from justice in any State to which he has fled ; nor have they, as already stated, made any provision for the return of parties, who, by violence and without lawful authority, have been abducted from a State. There is therefore, no authority in the courts of the United States ,to act upon any such alleged right." Ten years after the, Mahon case had been decided, the United States Supreme Court in the case of In re John- son, (1897), 167 U. S. 120, though not a rendition case, again proclaimed its adherence to the doctrine enunciated in the former case and Mr. Justice Brown, speaking for the court said: "We know of no reason why the rule, so fre- quently applied in cases of conflicting jurisdiction between Federal and State courts, should not deter- mine this question. Ever since the case of Ableman V. Booth, (1858), 21 How. 506, it has been the set- tled doctrine of this court that a court having posses- sion of a person or property cannot be deprived of the right to deal with such person or property until its jurisdiction is exhausted, and that no other court has the right to interfere with such custody or possession. This rule was reaflSrmed in Tarble's Case, (1871), 13 Wall. 397; in Robb v. Connolly, (1883), 111 U. S. 624; and In re Spangler, (1863), 11 Mich. 298. "Indeed, there are many authorities which go to the extent of holding that, 'in criminal cases, a forci- ble abduction is no sufficient reason why the party should not answer when brought within the juris- diction of the court which has the right to try him for such an offense and preseijts no valid objection to his trial in such court. Ker v. Illinois, (1886), 119 U. S. 436; Ex parte Scott, (1829), 9 B. & C. 446; Lopez & Sattler's Case, (1858), 1 Dearsly & Bell's Crown Cases, 525; State v. Smith, (1829), 1 Bailey So. Car. Law, 283; State v. Brewster, (1835), 7 Vt. 118; Dow's Case, (1851), 18 Pa. St. 37; State v. Boss & Mann, (1866), 21 Iowa, 467. Although it has been frequently held that if a defendant in a civil THE KIGHT OP ASYLUM. 191 case be brought within the process of the court by a trick or device, the service will be set aside and he will be discharged from custody. Union Sugar Eefinery v. Mathiessen, (1864), 2 Cliff, 304; Wells V. Gumey, (1864) , 8 B. & C. 769 ; Snelling v. Watrous, (1830), 2 Paige, 314; WiUiams v. Bacon, (1834), 10 Wend. 636; Metcalf v. Clark, (1864), 41 Barb. 45; Stein V. Valkenhuysen, (1858), 3 B. & E. 65, 96 En- glish Conunon Law, 65; WOliams v. Reed, (1862), 5 Dutcher, 385; Carpenter v. Spooner, (1850), 2 Sand. 717; Pfiffner v. Krapfell, (1869), 28 Iowa, 27; Moynahan v. Wnson, (1877), 2 Mipp. 130; SmaU v. Montgomery, (1883), 17 Fed. 865; Kauffman v. Kennedy, (1885), 25 Fed. 785. §129. A Noted Illinois Case. — ^In a prior case, Ker V. Illinois, (1886), 119 U. S. 436, 7 Sup. Ct. 225, 30 L. ed. 421, one Ker had been kidnapped and brought from Peru, one of the countries of South America, charged with embezzlement, and upon his arrival in Chicago, Illinois, Ker sought to obtain his freedom upon the ground that he had been unlawfully and against his will brought to the United States, Judge Drummond of the United States circuit court of Illinois, refused a writ of habeas corpus on the ground that the method of his return was not subject to inquiry. Ex parte Ker, (1884), 18 Fed. 167. The supreme court of Illinois also held that how- ever illegal may have been the manner of his capture and return to that State, that when once within its juris- diction, no inquiry would be made as to the lawfulness of such arrest and return. The process by which Illinois then held Ker was alone subject to judicial investigation. Ker V. People, (1886), 110 lU. 637, 51 Am. Eep. 706. This case was finally reviewed by the Supreme Court of the United States and the judgment of the Illinois court was aflBrmed. Ker v. Illinois, (1886), supra. This view has been sustained in the following decisions: State v. Eoss, (1866), 21 Iowa, 467; Hall v. Patterson, (1891), 45 Fed. 352; In re MiUer, (1885), 23 Fed. 23; Ex parte Barker, (1888), 87 Ala. 4, 6 So. 7, 8 Am. Crim. 236; El- more v. State, (1885), 45 Ark. 243; State v. Fitzgerald, 192 THE LAW OP INTERSTATE EENDITION. (1892), 51 Minn. 534; People v. Pratt, (1889), 78 Cal. 345, 20 Pac. 731; State v. Day, (1882), 58 Iowa, 678; In re Miles, (1880), 52 Vt. 609. The Mahon case, the Ker case and the cases cited all uphold and sustain the old common law doctrine that the jurisdiction of the court in which the indictment is found is not impaired by the method used to bring the accused before it, as was enunciated in the early case of Ex parte Scott, (1829), 9 B. & C. 446. The same doctrine was announced and sustained by the supreme court of Kan- sas in the case of In re Fowles, (1913), 89 Kan. 430, 131 Pac. 598. §130. The Court's Ruling in the Lascelles' Case.— The Lascelles' case, which finally and conclusively set- tled thi^ question adversely to the Cooley doctrine, had been originally heard in the superior court of Floyd county, Georgia, in 1891. Lascelles was arrested in and brought from the State of New York to Greorgia, on one charge and when he arrived in Georgia was arraigned and tried on another charge. By a motion to quash the indictment and a plea in abatement, he contended that it was unlawful to try him on the second charge without giving him an opportunity to return to the State of New York, which had surrendered him. This motion the lower court overruled, and Lascelles prayed an appeal to the supreme court of the State of Georgia, which unan- imously affirmed the judgment of the court below, Las- celles V. State, (1891), 90 Ga. 347, 16 S. E. 945, 34 Am. St. 216. Thereupon the case was carried to the Supreme Court of the United States for final adjudication, Las- celles V. Georgia, (1893), supra, and that court found no error in the record or proceedings from the Georgia su- preme court, and Mr. Justice Jackson, in delivering an opinion of affirmance, said: "This proposition assumes, as is broadly claimed, that the States of the Union are independent govern- ments, having the full prerogatives and powers of nations, except what have been- conferred upon the general government; and not only have the right to THE BIGHT OF ASYLUM. 193 grant, but do, in fact, afford to all persons within their boundaries an asylum as broad and secure as that which independent nations extend over their citizens and inhabitants. Having reached, upon this assumption or by this process of reasoning, the conclusion that the same rule should be recognized and applied in interstate rendition as in foreign extradition of fugitives from justice, the decision of this court in The United States v. Eauscher, (1886), 119 U. S. 407, et seq., is invoked as a controlling authority on the question under consideration. Jl the premises on which this argument is based were sound, the conclusion might be correct. But the fallacy of the argument lies in the assumption that the States of the Union occupy towards each other, in respect to fugitives from justice, the relation of foreign nations, in the same sense in which the gen- eral government stands towards independent sover- eignties on that subject ; and in the further assump- tion that a fugitive from justice acquires in the State to which he may flee some State or personal right of protection, improperly called a right of asy- lum, which secures to him exemption from trial and punishment for a crime committed in another State, unless such crime is made a special object or ground of his rendition. This latter position is only a re- statement, in. another form of the question presented for our determination. The sole object of the provi- sion of the Constitution and the act of Congress to carry it into effect is to secure the surrender of per- sons accused of crime, who have fled from the justice of a State, whose laws they are charged with violat- ing. Neither the Constitution nor the act of Con- gress providing for the rendition of fugitives upon proper requisition being made, confers, either ex- pressly or by implication, any right or privilege upon such fugitives under and by virtue of which they can assert, in the State to which they are re- turned, exemption from trial for any criminal act done therein. No purpose or intention is manifested to afford them any immunity or protection from trial and puunishment for any offenses committed in the State from which they flee. On the contrary, the 194 THE LAW OF INTBESTATE RENDITION. provision of both the Constitution and the statutes extends to all crimes and offenses punishable by the laws of the State where the act is done. Kentucky V. Dennison, (1860), 24 How. 66, 101, 102; Ex parte Reggel, (1885), 114 U. S. 642. "It would be a useless and idle procedure to re- quire the State having the custody of the alleged criminal to return him to the State by which he was rendered up in order to go through the formality of again demanding his extradition for the new or addi- tional offenses on which it desired to prosecute him. The Constitution and laws of the United States im- pose no such condition or requirement upon the State. . Our conclusion is that, upon a fugitive's surrender to the State demanding his return in pur- suance of national law, he may be tried in the State to which he is returned for any other offense than that specified in the requisition for his rendition, and that in so trying him against his objection, no right, or privilege, or immunity secured to him by the Constitution and laws of the United States is thereby denied. It follows, therefore, that the judg- ment in the present case should be affirmed." §131. Extradition and Rendition, the Difference. — The able Associate Justice in the course of his opinion, from which this excerpt is taken, in referring to the error into which many courts. Federal and State, have fallen when discussing the so-called similarity between foreign extradition and interstate rendition, said: "To apply the rule of international or foreign extradition, as an- nounced in United States v. Rauscher, (1886), supra, to interstate rendition involves the confusion of two essen- tially different things, which rest upon entirely different principles. In the former the extradition depends upon treaty contract or stipulation, which rests upon good faith, and in respect to which the sovereign upon whom the demand is made can exercise discretion, as well as investigate the charge on which the surrender is de- manded, there being no rule of cgnlity under and by virtue of which independent nations are required or ex- pected to withhold from fugitives within their jurisdic- THE RIGHT OF ASTLTJM. 195 tion the right of asylum. In the matter of interstate rendition, however, there is the binding force and obliga- tion, not of contract, but of the supreme law of the land, which imposes no conditions or limitations upon the jurisdiction and authority of the State to which the fugi- tive is returned." The cases cited in this opinion are the foHowing: In re Noyes, (1878), 17 Alb. L. J. 407; Ham V. State, (1878), 4 Tex. App. 645; State ex rel. Brown v. Stewart, (1884), 60 Wis. 587, 19 N. W. 429; People ex rel. Post v. Cross, (1892), 64 Han. 348, 32 N. E. 246, 135 N. Y. Supp. 536; Commonwealth v. Wright, (1893), 158 Mass. 149, 33 N. E. 82; In re MUes, (1875), 52 Vt. 609. §132. Courts in Accord on the Lascelles' Ruling. — The courts with one accord have adopted the doctrine as announced in the opinion in the LasceUes' case by the Supreme Court of the United States and no longer re- gard the "right of asylum" as a principle applicable to interstate rendition, so far as the same applies to the States and Territories of the Union, as will be observed from the following decisions: Eeid v. Ham, (1893), 54 Minn. 305, 56 N. W. 35; Carr v. State, (1893), 104 Ala. 43, 16 So. 155; State v. Glover, (1893), 112 N. O. 896; In re Fitton, (1893), 55 Fed. 273; State v. Kealy, (1893), 89 Iowa 94, 56 N. W. 283; Baker v. State, (1894), 88 Wis. 147, 59 N. W. 572; In re Moore, (1896), 75 Fed. 822; State ex rel. Petry v. Leidigh, (1896), 47 Neb. 126, 66 N. W. 510, 12 Am. Grim. 343; In re Lawrence, (1897), 80 Fed. 103; State v. Wine, (1897), 7 N. D. 18, 72 N. W. 905; In re Walker, (1901), 61 Neb. 814, 86 N. W. 510, 12 Am. St. 342; In re Little, (1902), 129 Mich. 454, 89 N. W. 38; Knox v. State, (1905), 164 Ind. 226, 73 N. E. 255; Taylor v. Commonwealth, (1906), 29 Ky. Law, 714, 96 S. W. 440; Eutledge v. Krauss, (1906), 73 N. J. L. 397, 63 Atl. 988; In re Flack, (1913), 88 Kan. 616, 129 Pac. 541, 32 Ann. Cas. 789; People v. Strosnider, (1915), 264 m. 435. § 133. Michigan Abandons Her Former Position. — By reason of Judge Campbell's strong opinion in the Matter 196 THE LAW OP INTEBSTATB RENDITION. of Cannon, (1882), supra, favoring Judge Cooley's doc- trine, to which reference has been made, Michigan, had generally been known as a State ready to defend the "right of asylum," under certain conditions; but it is now a noticeable fact that the supreme court of that State, in the latest adjudication on that subject, in In re Little, (1902), supra, used this language in setting itself right on the "right of asylum" doctrine, "Due protection to society against criminals forbids that they should be privileged from arrest for crimes and opportunity given them to escape. A criminal acquires no 'right of asylum' in a State to which he has fled." § 134, Abuse of Power; Oppression. — ^While there can be no possible doubt as to the force and effect of the Constitution and act of Congress of 1793, conferring upon the authorities of the several States and Territories the power to arrest and surrender, upon proper demand, interstate criminals or fugitives from justice, found in the asylum State or Territory ; to try the accused in the demanding State for a crime or crimes not mentioned in the requisition; to surrender such accused person to a third State, upon demand, after his trial, punishment and discharge in the demanding State, without offering him an opportunity to return to the place of his original arrest; nevertheless, there is a well-defined and con- stantly increasing sense of honor in many of the States of the Union, which revolts at this procedure, when car- ried to the limit, regarding such extraordinary power, entrusted to public officials, as liable to abuse, dangerous to the personal liberty of the ordinary citizen, and often resulting in the oppression of the weak and friendless. In consequence of this growing sentiment nisi prius judges, in many of the States, have been known, in habeas corpus proceedings, to discharge the fugitive, believing that fair play and justice demanded it, regardless of the strict letter of the law. CHAPTEE XV. EXEMPTION FEOM SEEVICE OF CIVIL PEOCESS. § 135. Origin of Right 1 136. Returned Fugitive and Civil Process. 1 137. Induced by Fraud to Return and Civil Process. § 138. Suitors and Witnesses Entitled to Immunity. § 139. The Exemption as Viewed by the Court of Appeals of New York. § 135. Origin of Right. — There still remains another interesting feature to the iminunity doctrine, relating to exemption from service of civil process, on persons re- quired to leave their homes to attend courts in distant localities, to defend or protect certain property rights or testify in civil actions. The origin of this right dates back to the hazy period of our jurisprudence, and comes to us sanctioned by a judiciary noted for learning and wisdom, and is now thoroughly recognized as an essen- tial privilege to the enjoyment of "Hfe, liberty, and the pursuit of happiness." Any effort towards the abridg- ment of this right or any other substantial right of the people, has uniformly met with stem opposition from the judiciary, both State and Federal, and today the exemption from service of civil process, under such conditions, is as permanently fixed as any other funda- mental principle safe-guarding the liberty and property of the citizen. In this connection two very important subjects frequently arise in interstate rendition proceed- ings, and the decisions of the courts relating thereto, have set at rest all doubt as to the soundness of the judi- cial determination of these questions. First. — Can an alleged fugitive from justice brought into a State upon a requisition be there served with pro- cess in a civil suit, before he has had an opportunity to return to the State from which he was originally sur- (197) 198 THE LAW OF INTERSTATE EENDITIOlSr. rendered? Second. — Can a person, who is fraudulently induced to come within a State, so as to render himself or his property amenable to the jurisdiction of its courts, be there served with process in a civil action? § 136. Returned Fugitive and Civil Process. — The an- swer to the first question is affirmatively sustained by the great weight of authority, the courts of Ohio, Wis- consin and possibly Michigan holding to the reverse; nevertheless, the following rule has been recognized and accepted as the law and by it the courts have been al- most universally guided — ^that a person brought within the limits of the demanding State, on a criminal charge as a fugitive from justice, as a mere pretext for the pur- pose of proceeding against him in a civil action in that State, cannot be arrested and held in such action at the suit of any party, who was concerned in such an abuse of a legal process. The charge of crime and other pro- cedure incident to his rendition all being tainted with fraud, the courts have held, where a hearing discloses this state of facts, that a party or parties to such fraud shall in no way derive any advantage therefrom. ("Wells V. Gurney, (1828), 8 Barn. & Cresw. 769; Commonwealth V. Daniel, (1847), 4 Clark, 49; Carpenter v. Spooner, (1850), 2 Sandf. 717; Benn v. Oswell, (1860), 37 How. Pr. 235 ; Metcalf V. Clarke, (1864), 41 Barb. 45; Adriance V. Lagrave, (1873), 59 N. Y. 110; Browning v. Abrams, (1876), 51 How. Pr. 172; People ex rel. Watson v. Judge of the Superior Court of Detroit, (1879), 40 Mich. 729; Townsend v. Smith, (1879), 47 Wis. 623; Compton v. Wilder, (1883), 40 Ohio St. 130; Moletor v. Sinnen, (1890), 76 Wis. 308, 44 N. W. 1090, 20 Am. St. 71, 7 L. R. A. 817; In re Walker, (1901), 61 Neb. 803, 86 N. W. 510; Murray v. Wilcox, (1904), 122 Iowa, 188, 91 N. W. 1087, 101 Am. St. 263, 64 L. E. A. 534; Rutledge v. Krauss, (1906), 73 N. J. L. 397, 63 Atl. 988; Dauber v. Dalzell, (1888), 10 Ohio Dec. 227, 19 Weekly Law Bui. 269, it was held that one who is surrendered to a neigh- boring State cannot be served with a summons in a civil action while passing through Ohio on his way home by EXEMPTION FEOM SEBVICE OF CVTHj PBOCESS. 199 the party who caused his original rendition. In a very late case, State ex rel. Hattabangh, (1909), 140 Wis. 89, the supreme court of the State of Wisconsia held that, a person brought into that State on rendition, based on a criminal charge, is not subject to arrest on a judgment ia a civil case. § 137. Induced by Fraud to Return and Civil Process. — The second question now merits some consideration. The supreme court of the State of Illinois, many years ago, in Wanzer v. Bright, (1869), 52 111. 35, fully realiz- ing the fact that it would be intolerable if the law afforded no remedy for such a deliberate and successful fraud, enforced and carried out by the abuse of legal process, whereby one would be damaged and another profited unjustly thereby ; in affirming the judgment of the lower court, where damages had been awarded for such abuse of process, as well as answering this question in the negative, that court held that, ' ' no court will take juris- diction of a party where it is obtained by fraud; nor is a defendant amenable to process unless he is in, or comes voluntarily within, the territorial jurisdiction of the court. Even a valid and lawful act can not be accom- plished by such unlawful means as enticing a party by fraud to come within the jurisdiction of the court so as to subject him to its process. And where a party has been fraudulently induced to come within the jurisdiction of a court so as to render him or his property amenable to its process, he may have his action therefor." In assuming that one so inveigled into the State and there served with process in a civil cause and such service being regarded as legal, the court said : * ' The pure foun- tains of justice can never be so polluted. The courts were created for the administration of justice, and they and their process can never be used for the purpose of oppression and to perpetrate fraud and wrong, or their process fraudulently obtained and employed to enforce a right, however just and legal." This is the law in every State of the Union, and is founded upon those principles of right and justice which have been so closely guarded 200 THE LAW OP INTEKSTATE EENDITION. by the judiciary, from the beginning of the government, to the present day, as will be seen from an examination of the following cases: Williamson v. Bacon, (1834), 10 Wend. 636; Underwood v. Fetter, (1848), 6 N. Y. Leg. Obs. 66; Hill v. Goodrich, (1858), 32 Oonn. 588; Allen V. Miller, (1860), 11 Ohio St. 374; Eeed v. Williams, (1862), 29 N. J. L. 385; Dnnlap v. Cody, (1871), 31 Iowa, 260; Oley v. Brown, (1875), 5 How. Pr. 92; Eosenthal V. Circuit Judge, (1893), 98 Mich. 208; Beacon v. Eogers, (1894), 79 Hun. 220, 29 N. Y. Supp. 507. And Wanzer V. Bright, (1869), supra, wherein the supreme court of Illinois enunciated the lam on this subject, is cited ap- provingly in these cases: Cook v. Brown, (1878), 125 Mass. 503; Wood v. Wood, (1880), 78 Ky. 624; Cava- naugh V. Smith, (1882), 84 Ind. 384; VanHorn Bros. v. Great Western Mfg. Co., (1887), 37 Kan. 526; In re Eobinson, (1890), 29 Neb. 137, 8 L. E. A. 399, 26 Am. St. 259 ; Heinekamp v. Beaty, (1891), 74 Md. 395, 21 Atl. 1098; Sweet v. Kimball, (1896), 166 Mass. 332, 44 N. E. 243, 55 Am. St. 406; Saveland v. Conners, (1904), 121 Wis. 30, 98 N. W. 933 ; Paine v. KeUey, (1907), 197 Mass. 23, 83 N. E. 8; Weale v. Clinton, (1909), 158 Mich. 563; Consouland v. Eosomano, (1910), 176 Fed. 481; In re Taylor, (1908), 29 E. I. 131; In re Henderson, (1914), 27 S. D. 155, 145 N. W. 574. § 138. Suitors and Witnesses Entitled to Immunity. — The remaining class entitled to immunity from arrest and restraint, during the actual performance of a duty enjoined by law, is suitors and witnesses, who are re- quired to leave their homes and attend court in another and foreign jurisdiction. This rule comes from the com- mon law and the privilege is guaranteed to the suitor and witness that they may be left free and untrammelled to obey the mandate of the court to appear and testify. Public policy and the orderly administration of justice have had much to do with making this rule effective un- der the American system of government; and hence, all courts have given to the foreign suitor and witness the fuUest protection from arrest and restraint by civil pro- EXEMPTION FBOM SEBVICB OP CIVIL PBOOESS. 201 cess, evmdo, niorando et redeundo. The supreme court of North Carolina in Moore v. Green, (1875), 73 N. C. 394, said "parties to civil actions appear in court volun- tarily, and should be encouraged to appear, by immunity from arrest, whereas defendants in criminal cases appear involuntarily, and need not be encouraged." § 139. The Exemption as Viewed by the Court of Ap- peals of New York. — ^Mr. Justice Allen of the court of appeals of the State of New York, in discussing this sub- ject in an opinion in the case of Person v. Grier, (1876), 66N. T. 124, said: This immunity is one of the necessities of the ad- ministration of justice, and courts would often be embarrassed if suitors or witnesses, while attending court, could be molested with process. TVitnesses might be deterred, and parties prevented from at- tending, and delays might ensue and injustice be done. In Xorris v. Beach, (1807), 2 J. E. 294, the defendant, a resident of the State of Connecticut, attending in this State to prove a will, was held exempt from the service of a capias and discharged him absolutely from arrest. The like relief was granted in Sandford v. Chase, (1824), 3 Cow. 381, and the defendant, a resident of Massachusetts, arrested upon civil process while attending as a wit- ness before arbitrators, was discharged absolutely without filin g common bail, the court saying, "The privilege of a witness should be absolute." The court in Hopkins v. Cobum, (1828), 1 Wend. 292, expressly affirm the absolute immunity of foreign witnesses attending our courts from the service of civil process for the commencement of an action. The same rule was held in Seaver v. Robinson, (1854), 3 Duer, 622, and MerriU v. George, (1862), 23 How. Pr. 331, and the service of a summons upon persons attending from other States as witnesses in this State was in each case set aside. This court, in VanLieuw v. Johnson, (decided in March, 1871, but not reported), substantially adjudged that a sum- mons coidd not be served upon a defendant, a non- resident of the State, while attending a court in this 202 THE LAW OF INTEBSTATE RENDITION. State, as a party. Four of the judges taking part in that decision were of the opinion that neither a party nor a witness attending a court in this State from a foreign State could be served with summons for the commencement of an action. The order denying an application to set aside the summons in that case was affirmed upon the ground that the party had lost his privilege by remaining within the State an unreasonable and unnecessary time after the close of the trial upon which he had attended. Church, Ch. J., and Fulger, J., dissented from this result, being of the opinion that the privilege had not been lost. The authorities, as well as the principle upon which the privilege rests, clearly lead to an affirmance of the order. The defendant, Grier, at- tended in this State, in good faith, as a witness, and the summons was served upon him while he was so attending and during the continuance of the free- dom from arrest. The courts will not take juris- diction of a party whose rights are thus invaded. It would be, in effect, and for all practical purposes, a withdrawal of the shield and protection which the law uniformly gives to witnesses, if a party coming from a foreign State could be served with process and an action commenced against him, the judgment in which would conclude in all jurisdictions and could be enforced by action everywhere. CHAPTEE XVI. PEOOF OF ALIBI TO DEFEAT EENDITION. § 140. Preliminary Observations. § 141. Proof of Alibi — a Distinction. 1 142. The Inadmissibility of Alibi Testimony. § 143. The Supreme Court of New York on This Question. 1. Statement of Case. 2. Determination of Particular Issues. 3. Previous Decisions as Controlling. 4. Weight and Sufficiency of BMdence. §140. Preliminary Observations. — It is conceded by- all of the best anthorities on interstate rendition that, in order to be a fugitive from the justice of a State or Territory, within the meaning of the United States Con- stitution on that subject, and the act of Congress in aid thereof, the alleged fugitive must have been personally present in the State making the demand at the time, or ' ' in the neighborhood of the time, ' ' as the supreme court in Strassheim v. DaUey, (1911), 221 U. S. 280, declared, when the crime, or any one overt act towards its com- mission, is charged to have been committed. As has been said repeatedly this is a jurisdictional fact, and must affirmatively appear in the record accompanying the requisition, and the governor of the State called upon to surrender the fugitive must be satisfied of this fact before he can legally issue his warrant of rendition. To satisfy the governor is to make out a prima facie case that the accused is, in fact, a fugitive from justice, and this justifies the arrest and removal of the fugitive from the asylum State ; unless the prima facie showing is over- come by competent evidence on behalf of the accused, in some legal proceeding, establishing conclusively that he or she was not personally present in the demanc^g State when the crime, or any one overt act towards its commis- (203) 204 THE LAW OP INTERSTATE BENDITION. sion, was committed. To say that a person, charged with being a fugitive from justice, is precluded from denying this accusation, because the evidence tending to establish the denial, is in its nature an "alibi," and is therefore in- admissible for the reason that an alibi is a legal defense to a crime and can only be interposed on behalf of the accused at the trial in the demanding State, is to assert a proposition that cannot be sustained by reason or com- mon sense. (People ex rel. Bowers v. Barrett, (1905), 2 ni. Cir. 149.) §141. Proof of Alibi — ^A Distinction. — It is indeed true that on habeas corpus, in rendition cases, the guilt or innocence of the accused cannot be inquired into in the asylum State, but evidence showing that the accused was not in the demanding State on the date of the com- mission of the crime, is not proof of an alibi as commonly understood in crimiaal cases. An alibi, in the usual and generally accepted meaning of the word, is proof of the absence of the accused from the scene of the crime when the crime is committed. The proof of an alibi necessary to defeat a governor's warrant of rendition, on habeas corpus is to show by parol or other evidence, clearly and conclusively that the accused was not within the limits of the territory of the demanding State when the alleged crime was committed. This is not proof of an alibi — mark the distinction — an alibi is proof of absence from the scene of the crime ; absence from the territorial limits of the State when the crime is committed, clearly is not an alibi known in criminal procedure. §142. The Inadmissibility of Alibi Testimony.— The only authority directly in point that fully sustains this erroneous and unreasonable conclusion that proof of an alibi, or in other words, proof that the alleged fugitive from justice was not present in the demanding State on the day when the crime is charged to have been com- mitted, is inadmissible on habeas corpus to defeat a gov- ernor's warrant; because this class of proof goes to the guilt or innocence of the accused, (clearly beyond the PROOF OP AT.TRT TO DEFEAT BENDITION. 205 pale of investigation on habeas corpus in rendition cases), is to be found in an old South Carolina case en- titled Ex parte Swearingen, (1879), 13 S. C. 80, often cited in the effort to exclude such testimony in rendition hearings in the asylum State. The following excerpt from the opinion of the court is the one usually relied upon: "It may be remarked, however, that to allow the existence of this fact to be put at issue before the courts of the State upon which the demand is made would, in many, if not most, instances, draw after it the right to inquire into the merits, the very thing which the Constitution and the act of Congress was designed to prevent, for if a party, when in custody in this State, after a warrant of extradition, could, on application for his discharge on a writ of habeas corpus, by his own affidavit or otherwise raise the question as to whether he was in the state where he was alleged to have committed the crime at the time when and place where such crime was alleged to have been committed, it is perfectly manifest that the tribunals of this state which have no jurisdic- tion whatever of the offense charged would thereby be called upon to determine the sufficiency of at least one ground of defense that of alibi which the party charged would be at liberty to set up and would to that extent be entering upon the trial of a case of which they confessedly have no jurisdiction. ' ' Another case apparently upholding this same view of the inadmissibility of alibi testimony to defeat a govern- or's warrant, is In re Pahner, (1904), 138 Mich. 36, 100 N. W. 996, certain affidavits had been submitted to the court showing that the alleged fugitive was not in the State of Ohio — ^the demanding State — at the time of the commission of the crime. The supreme court of the State of Michigan in refusing to consider the affidavits, being proof of an alibi, said : "The rule appears to be that the courts may look into the papers before the governor and determine whether upon their face a crime is charged, but be- yond this the court cannot go, in determining the 206 THE LAW OP INTEKSTATE RENDITION, fact of the petitioner's (the fugitive's) guilt or inno- cence. ' ' However strong tliese two cases may appear, strength.- ened somewhat by certain expressions to be found in two dedsions of the United States Supreme Court, never- theless, a careful study of the opinion in each case will convince one that the conclusions arrived at are based upon false premises and fallacious reasoning — having no regard whatever for the liberty of the citizen — there- fore, hardly controlling. §143. The Supreme Court of New York on the Ad- missibility of Such Testimony. — In the second depart- ment of the appellate division of the New York supreme court, this very question came before that court on an appeal from the special term of Kings county, in People ex rel. Veta Genua v. McLaughlin, (1911), 145 App. Div. (N. Y.) 513, 130 N. Y. Supp. 458, Mr. Justice Wm. J. Carr, delivered the opinion of the court. In this opin- ion, which is presented in full herewith, the learned jus- tice meets fairly and squarely every objection raised against the admissibility of so-called alibi testimony to defeat a governor's warrant in rendition cases. The opinion is as follows: 1. Statement of the Case. An indictment was found in the circuit court of Madison county, in the State of Illinois, by the grand jury of said county, by which a person named therein as Vito Toney Zuchero, alias Veta Genua, was charged with the crime of murder for the felonious killing of one Leonard Labianca at a place called CoUinsville, in said county, on the 16th day of October, 1910. Thereupon the governor of the State of Illinois made a requisition on the governor of the State of New York for the arrest and extradition of the person named in the indictment. The governor of this State issued a warrant of extradition accordingly, and the police of the city of New York arrested, as the person named in the warrant of extradition, one Veta Genna, a resident of the borough of Brooklyn. The prisoner was brought before a justice of the PBOOF OP AUBI TO DEFEAT KBNDITION. 207 supreme cottrt in Eongs county, as provided by sec- tion 827 of the Code of Criminal Procedure. There- upon the prisoner denied that he was the person named in the indictment and requisition and warrant of extradition aforesaid. A writ of liabeas corpus was issued to determine the legality of the prison- er's detention. A return was made to the writ, setting up the warrant of extradition, the indictment aforesaid and the requisition of the governor of Illi- nois based thereon. The prisoner traversed the re- turn by denying that he was the particular person named in the indictment and the other specified pa- pers and by further denying that he was in the territory of the State of Illinois at the time of the commission of the crime in question, or at any time before or since the commission of said crime. There- upon the court at special term proceeded to take oral proofs on the issues raised by the traverse to the return. On the completion of the proof offered for and against the prisoner, the court handed down a written opinion in which it declared that it estab- lished completely and satisfactorily, in its judgment, that the prisoner was not in the State of Illinois at the time of the commission of the crime charged in the indictment, but it was also declared that, inas- much as there was a conflict of testimony on this point, it had not the power to determine that the prisoner had not been in the demanding State at the time of the commission of the crime. It thereupon made an order adjudging that the prisoner was the same person named in the warrant of extradition and the requisition and indictment and directing his extradition, but which contained no determination of any other fact put in issue by the pleadings. From that order an appeal was taken to this court. It appears from the opinion of the learned court at special term that it was of opinion, on the whole case before it, had made out by a preponderance of evidence a complete and satisfactory alibi. It said : "As a matter of evidence the weight appears to be with the relator, in fact I am convinced that he was not in Illinois at the time the crime is said to have been committed, and that we are in the 208 THE LAW OF INTEESTATE EESTDITION. presence of a case where the proof of an alibi is com- plete and satisfactory." Nevertheless, as it declares, it felt itself bound to ignore this "complete and satisfactory" proof of an alibi because, as it declared, an alibi is a matter of defense at the trial and cannot be used to defeat extradition. It based this conclusion on the author- ity of People ex rel. Eyan v. Conlin, (1895), 15 Misc. Rep. 303, and upon some expressions of the court of appeals in People ex rel. Corkran v. Hyatt, (1902), 172 N. Y. 176, supplemented by a statement of Mr. Moore in section 633 of his work on "Extradition." 2. Determination of Particular Issues. How far the learned special term was justified in this conclusion we shall now inquire. In this State the only authority which held expressly that the ques- tion of an alibi could not be considered on habeas corpus to review a warrant of extradition is that of People ex rel. Ryan v. Conlin, ut supra. That decision was not made by an appellate court. In that case a warrant had issued to deliver prisoners to the State of Massachusetts. In habeas corpus proceedings the prisoners gave proof that they were not in the demanding State at the time of the com- mission of the crime. The court declared that, inas- much as this proof went to establish an alibi, it was a matter of defense at the trial and could not be considered on habeas corpus to review the warrant of extradition. The reason given by that court for this conclusion was that it was settled that in pro- ceedings to review a warrant of extradition the gnilt or innocence of the prisoner could not be in- quired into. (Matter of Clark, (1832), 9 Wend. 212.) Therefore it argued, as an alibi is concerned with the question of the guilt or innocence, it cannot be considered on habeas corpus. It seems to us that this reasoning is clearly unsound. An alibi in its general features consists of proof that the defendant was not at the scene of the crime at the time of its commission. Proof that the prisoner was not in the demanding State at the time of the commission of the crime is necessarily proof that he was not at the PROOF OF ALIBI TO DEFEAT KENBITION. 209 scene of the crime. But the question involved in extradition proceedings is not whether the defend- ant was at the scene of the crime at the time of its commission, but whether he was anywhere within the demanding State when the crime was committed. This latter question had nothing to do with guilt or innocence, but it has all to do with the question whether the prisoner has fled from the demanding State and is, therefore, a fugitive from justice. In matter of Clark, ut supra, the presence of the prisoner in the demanding State when the crime was committed was not disputed, and hence the question of alibi was not involved. Before a warrant of extradition can be sustained it must appear as a jurisdictional fact that the prisoner is a fugitive from justice, that is, it must be shown that he was actually present in the demanding State when the crime was committed. Mere constructive presence is not enough. (People ex rel. Corkran v. Hyatt, 172 N. Y. 176, sub nom. Hyatt v. Corkran, 188 U. S. 691; Ex parte Eeggel, 114 U. S. 642; Munsey v. Clough, 196 TJ. S. 364 ; Appleyard v. Massachusetts, 203 U. S. 222; McNichols v. Pease, 207 U. S. 100.) In McNichols v. Pease, ut supra, the Supreme Court of the United States, through Harlan, J., re- viewing many of its preceding decisions on this ques- tion, set forth seven distinct propositions of law which it deemed established by its prior decisions. It was there held that a warrant of extradition in itself made out a prima facie case that the prisoner was a fugitive from justice of the demanding State, that the warrant could be reviewed by habeas corpus, and, ia the language of the court itself, that, "One arrested and held as a fugitive from justice is en- titled, of right, upon habeas corpus, to question the lawfulness of his arrest and imprisonment, showing by competent evidence, as a grotmd for his release, that he was not, within the meaning of the Consti- tution and laws of the United States, a fugitive from the justice of the demanding State, and thereby overcoming the presumption to the contrary arising from the face of an extradition warrant." That is the latest expression of that court on this 210 THE LAW OP INTEESTATB EENDITION. question and it was made in a case directly involving the so-called question of alibi. Therefore, if the so-called alibi be of such a na- ture as to establish the absence of the prisoner from the demanding State when the crime was committed, it must be considered on the question of the juris- dictional fact, not whether the prisoner be guilty or innocent, but whether he is in fact a fugitive from justice. Any expression of opinion to the contrary has no longer any basis of authority either in the Federal courts or in the courts of this State. There are to be found, however, many expressions in the various opinions of the courts which may give rise to some doubt as to the extent and nature of proof required to rebut the presumption arising from extradition papers, regular on their face. This doubt can be removed if we but measure these ex- pressions by facts of each particular case and ^eep in mind the precise question therein involved and decided. 3. Previous Decisions as Controlling. In People ex rel. Corkran v. Hyatt, ut supra, the absence of the prisoner from the demanding State when the alleged crime was committed was conceded by a formal stipulation in writing. Any expression of opinion as to whether such fact could or could not be established sufficiently on conflicting evidence was purely obiter and not in any way controlling, for such question was not up for decision. When this last cited case went to the United States Supreme Court it was affirmed, (188 U. S. 691.) In the opin- ion of the United States Supreme Court in that case it said: "The indictment in this case named certain dates as the times when the crimes were committed, and where in a proceeding like this there is no proof or offer of proof to show that the crimes were in truth committed on some other day than those in the in- dictments, and that the dates therein named were erroneously stated, it is sufficient for the party charged to show that he was not in the State at the PEOOF OP ALIBI TO DEFEAT BENDITION. 211 times named in the indictments, and wlien those facts are proved so that there is no dispute in re- gard to them, and there is no claim of any error in the dates named in the indictments, the facts so proved are sufficient to show that the person was not in the State when the crimes were, if ever, com- mitted." If it be urged that the court meant that the "facts so proved" must be proved beyond actual dispute, then it is enough to say that such question was not involved in that case and hence was not actually decided. In Ex parte Reggel, ut supra, it was said by the same court that where a person held under a warrant of extradition denied that he was a fugitive from the demanding State he "should not be discharged (on habeas corpus) merely because, in the judgment of the court, the evidence as to his iDeiiig a fugitive from justice was not as full as might properly have been required, or because it was so meager as, perhaps, to admit of a conclusion different from that reached by him." (The governor issuing the warrant.) In that case however, the question of the suffi- ciency of proof arose only as to the face of the pa- pers themselves, there being no further proofs of- fered. The court was of opinion that the papers were sufficient on their face, and its expression must' be construed with relation to the precise situation then before it. In Munsey v. Clough, ut supra, a prisoner held under a warrant of extradition sought to review it on habeas corpus. She put in issue the question whether she had been within the demanding State at the time of the commission of the alleged crime. She offered no evidence however, to rebut the pre- sumption arising upon the face of the extradition papers, but contented herself with an attempt to show that the papers did not on their face show sufficiently that she was present in. the demanding State when the crime was committed. On an exami- nation of the extradition papers, the court declared them sufficient on their face to show such presence. Its opinion, however, contains a statement as fol- 212 THE LAW OF INTERSTATE EENDITION. lows: "When it is conceded, or when it is so con- clusively proved, that no question can be made that the person was not within the demanding State when the crime is said to have been committed, and his arrest is sought on the ground only of a construc- tive presence at that time, in the demanding State, then the court will discharge the defendant. Hyatt V. C'orkran, 188 U. S. 691, affirming the judgment of the New York court of appeals, 172 N. Y. 176. But the court will not discharge a defendant arrested under the governor's warrant where there is merely Contradictory evidence on the subject of presence in or absence from the State, as haheas corpus is not the proper proceeding to try the question of alibi, or any question as to the guilt or innocence of the accused. As a prima facie case existed for the re- turn of the plaintiff in error, and she refused to give any evidence upon the return of the writ which she herself had sued out, other than the papers be- fore the governor, no case was made out for her discharge." It is clearly apparent that a portion of this lan- guage of the opinion is entirely apart from the question then up for decision. The prisoner had not attempted to rebut any proofs of the presumptions arising upon the face of the papers, hence, there was not involved in the decision of the court any ques- tion as to the length to which such rebutting proofs must go in order to meet the prima facie case. In McNichols v. Pease, ut supra, which is the lat- est case in the United States Supreme Court on this question, and from which we have quoted above, the question here at bar was squarely before that court. There the prisoner sought to prove that he was not present in the demanding State on the day when the crime was committed. His plea was not ignored on the theory that it was an attempt to prove an alibi, and, therefore, not cognizable on habeas cor- pus. On the contrary, the proofs offered were exam- ined carefully and the court found that said proofs did not rebut the presumption arising on the face of the extradition papers, simply because they went no further than to show that the prisoner was ab- PEOOP OP ALIBI TO DEFEAT EBNDITION. 213 sent from the demanding State during only the after- noon of the day of the commission of the crime, and was present in the afternoon at a place in Illinois not more than an hour and a half's journey from the place of the alleged crime in Wisconsin. It did not appear of record at what hour the crime was done. The conrt declared the rule applicable as follows: "When a person is held in custody as a fugitive from justice under an extradition warrant, in proper form and showing upon its face all that is required by law to be shown as a prerequisite to its being issued, he should not be discharged from custody unless it is made clearly and satisfactorily to appear that he is not a fugitive from justice with- in the meaning of the Constitution and laws of the United States." This part of the opinion in that case is but a reiteration in another form of the matter of which we have quoted earlier from the same opinion, as one of the rules deemed by that court to have been fixed finally by its prior decisions. Suppose, however, that on the whole case the court is of opinion that "it is made clearly and satisfactorily to appear that he (the prisoner) is not a fugitive from justice," must the court refuse to discharge the prisoner simply because in the whole case there are conflicting proofs on this question! No matter where it has been so asserted, by way of ohiter dictum, it has never been so decided actually, so far as I can find after some labor. At first blush it may seem that it was so actually decided in Dennison v. Christian, 72 Neb. 703, affirmed, 196 U. S. 637, and in FarreU v. Hawley, 78 Conn. 150. An examination of these cases will show that this ques- tion was not inyolved necessarily in the actual deci- sion in either case. In the Nebraska case, the prison- er, held on a warrant of extradition of the governor of Nebraska, sought to review it on habeas corpus. He put in issue the question whether he was in the demanding State at the time of the commission of the crime and evidence was taken on that question, and the court refused to find that the prisoner was not a fugitive from justice. On appeal to the su- 214 THE LAW OP INTERSTATE EENDITION, preme court of Nebraska the determination of the lower court was upheld, but the supreme court as- signed as its reason of decision the fact that it ap- peared in the proceedings held under the writ of habeas corpus that, before the governor had issued the warrant in question, the questions of jurisdic- tional facts were fairly controverted before him, and that he had taken evidence thereon pro and con. It was there held that in that State its courts would not review the determination of the governor by habeas corpus under such circumstances, unless it appeared that the governor's determination of the controverted 'facts was erroneous beyond substan- tial dispute. In the Connecticut case the question arose not on proofs actually taken but on the plead- ings. The prisoner sought to review the governor's warrant of extradition by habeas corpus. The court held that by the pleadings in the proceeding it ap- peared that the governor had held a hearing before issuing the warrant and had determined that the prisoner was a fugitive from justice. Under these circumstances the learned court declared that the governor's determination should not be reviewed by habeas corpus unless it was held and proved that there was no evidence before the governor worthy of serious consideration showing that the prisoner was a fugitive from justice, and it cited Munsey v. Clough, ut supra, as an authority for its ruling. Both of these cases, however, were decided before the later decision of the United States Supreme Court in McNichols v. Pease, ut supra. In any event, however, they do not cover the case now here at bar, for in this case there is no question of review- ing a determination of the governor made after a hearing pro and con of controverted questions of fact. Nor does there appear any controlling reason why this concededly jurisdictional fact should be subject to any other rule as to its proofs than that which controls the determination of all other ques- tions of fact at common law. PEOOF OP ALIBI TO DEFEAT KENDITION. 215 4. Weight and Sufficiency of Evidence. In order that a fact may be determined conclusively in any judicial proceeding, it is not necessary that the proofs should be without any conflict. Nor does proof fall short of being conclusive simply because there is other proof to the contrary. The true rule should be that this question of jurisdictional fact must be determined by the court as is any other question of which it has the power and duty to deter- mine according to the rule of the common law as to the preponderance of evidence. Any different rule might easily lead to most oppressive consequences, which suggest themselves at once to any observing mind. We are of opimon, therefore, that the learned court at special term was in error when it declined to make a determination on the question of whether the prisoner at bar was within the State of Illinois when the crime was committed, in the face of proofs which it has declared, in its opinion, to be "com- plete and satisfactory" to the effect that he was not there at the time in question. As was before stated this question of jurisdic- tional fact was put in issue by the traverse to the return to the writ of habeas corpus, and must be determined upon the proofs taken by the court be- fore the writ may be dismissed and the prisoner remanded. We have concluded, therefore, to reverse the or- der dismissing the writ of habeas corpus and to remit the matter to the special term for a determi- nation by it of the question whether the prisoner is actually a fugitive from justice of the State of Illinois, either on the proofs already taken or upon such further proofs as either party, on reasonable opportunity of hearing, may see fit to offer. CHAPTEE XVII. GOOD FAITH OF THE PEOSECUTION. § 144. Scope of Inquiry in the Asylum State. § 145. Questions for the Governor's Consideration. i 146. May the Governor or Courts Look Beyond the Record § 147. A Noted Case and a Fearless Judge. ? 148. Ruling of the Michigan Supreme Court. i 149. No Rendition Unless Good Faith Is Shown, Ohio Rule. §144. The Scope of Inquiry in the Asylum State. — Can the courts of the surrendering State on habeas cor- pus, in interstate rendition proceedings, go into the ques- tion of the good faith of the party or parties behind the prosecution in the demanding State? Should it appear, after a thorough judicial investigation, that ulterior and private motives, other than the punishment for crime, are behind the prosecution, would the court be justified in the surrendering State in declaring the governor's warrant of rendition void, and ordering the discharge of the alleged fugitive? Is a criminal prosecution, insti- gated and brought on by a person or persons, who are or may be interested in securing the presence of the ac- cused in a certain State for another purpose, such a prosecution or charge of crime as is contemplated by the Constitution and laws of the United States ? These ques- tions have been met and discussed by the courts, Federal and State, from many different viewpoints and the con- clusions reached have not always been uniform nor con- sistent. Many nisi prius judges, in able and strong opin- ions, have held that whenever it should satisfactorily ap- pear that such. improper motives were at the bottom of the prosecution in the demanding State, then the sur- render of the alleged fugitive should be denied, even though the investigation may be subsequent to the issu- ance of the governor's warrant of arrest and surrender. (216) GOOD FAITH OP THE PEOSECUTION, 217 The objection usually urged against this line of action by the courts of tbe asylum State, is very strongly set forth in Conunonwealtb v. PMladelpbia County Prison, (1908), 220 Pa. St. 401, 69 Atl. 916, the supreme court of Pennsylvania said: Assuming that tbe demanding State bas complied with the requirements of the Federal Constitution and tbe act of Congress ia making the requisition for tbe accused, it would be equally an unconstitu- tional exercise of power for tbe court of the asylum State to inquire into the motives of tbe prosecution, instituted ia conformity witb tbe laws of tbe de- manding State, and release tbe offender and tbereby prevent his extradition for trial in tbe latter State. Tbe only possible effect of permittiag tbe motives of the private prosecutor to be shown on a habeas cor- pus extradition proceeding would be to sbow tbe guilt or innocence of tbe accused. If a person is guilty of an offense agaiost the laws of a State, it is no defense for bim to aUege that tbe prosecution was inspired by improper motives. It very fre- quently happens that criminals are brought to punisbment only by persons who have motives other tban tbe vindication of tbe violated law; but it bas never been held that sucb reason was sufficient to invalidate a conviction for a criminal offense. Good faitb and courtesy require a State to honor tbe de- mand of a sister State for tbe return of a fugitive from justice. §145. Questions for the Governor's Consideration. — As a matter of fact, when a requisition is presented to a governor of a State or Territory, accompanied by an authenticated copy of an indictment found or an affidavit made before a magistrate, four primary questions usu- ally arise for the consideration of tbe governor of the surrendering State: 1. Are the requisition and papers m regular and legal form? 2. Is the accused substantially charged with a crime against tbe laws of the demanding State! 3. Is tbe accused a fugitive from the justice of the State asking his arrest and surrender? 218 THE LAW OF INTERSTATE EENDITION. 4. Is the requisition made for any ulterior or private purpose, other than the punishment for crime, then is it such a demand within the meaning of the law pertaining to interstate rendition, as should be honored? The first and second are questions of law and upon the governor of the surrendering State rests the responsi- bility of their determination in such manner as is satis- factory to him. The third is a question of fact upon which he is required to demand such proof, from the au- thorities of the demanding State, as will leave no room for doubt in his mind, that the accused was physically present in that State on the day and date when the alleged crime is charged to have been committed. The fourth and last question is the one about which there is grave doubt as to the right of the executive to consider when passing upon the requisition of the governor of the demanding State. The Supreme Court of the United States apparently has settled this question, unfavorably to the right of the executive to make such investigation. See Pettibone v. Nichols, (1906), 203 U. S. 192 and Drew V. Thaw, (1914), 235 U. S. 432. However, a distinction may have been intended by the Supreme Court, in the decision of these two cases, between an inquiry into the motives of the executive and officials of the demanding State, and the ulterior and selfish motives iaspiring a private person as accuser in that State. In Pettibone V. Nichols, supra, the attempt was made to defeat the rendition of the alleged fugitive, upon the ground of fraud and connivance of the governors and officers of both the demanding and surrendering States. In Drew V. Thaw, supra, the motive and purpose of the officers of New York State were attributed to the desire to se- cure the presence of the accused in that State for another object than his prosecution for the crime charged. The court in both cases spoke out strongly against such an inquiry, as being contrary to public policy, and the Con- stitution. Doubtless, referring to that clause relating to full faith and credit, and this may have shielded the offi- cials from attack but did the Supreme Court intend to GOOD FAITH OF THE PEOSECTJTIOlSr. 219 leave the motives of the private accuser in the demand- ing State stOl open to inquiry in the surrendering State? The supreme court of the State of Mississippi in an interstate rendition case, Ex parte Edwards, (1907), 91 Miss. 628, 44 So. 827, ru referring to this very subject said: "It must be noted that there is no question that the accused is the identical man wanted by Alabama. Neither is there a pretense that the process was re- sorted to in fraud, or for the accomplishment of private ends. The governor would have heard any objections as to these, and countermanded his war- rant, if satisfied of either, as we make not the slight- est doubt. Certain it is that no such questions are disclosed in this record. K there were, we do not say the courts might not consider them." Contra: State ex rel. Herbert v. Coleman, (1912), 3 Tenn. Civ. A. 316; State ex rel. Fowler v. Langum, (1914), 126 Minn. 38, 147 N. W. 708; Ex parte Massee, (1913), 95 S. C. 315, 79 S. E. 97. In Church on Habeas Corpus, section 474, page 228, it is said that: "The requisition must be made in good faith ac- cording to the letter and intent of the Constitution and law, and not in violation of the spirit and design of both, and the governor upon whom the demand is made has the right even when all the papers are technically correct to inquire whether the reqxdsi- tion is made for a different purpose from the one named iu the Constitution. In such a case the exec- utive will exercise his discretion in refusing to com- ply with the request." Mr. Spear, in his work on the Law of Extradition, referring to the difference "between international extra- dition and interstate rendition, on page 551, says : "There is, in fact, no distinction between these two forms of extradition that implies a difference in the rule relating to the uses to which the custody, thus gained, may be legitimately applied, or that- affects the obligation of good faith in eitber case. A State, whether in demanding or surrendering a 220 THK LAW OF INTEESTATB EENDITION. fugitive criminal, acts as if it were a sovereign na- tion, and for this purpose exercises the prerogatives of a nation. Other States, not involved in the mat- ter, have nothing to do with the question pending between the two States directly concerned in a par- ticular case; and the general government has noth- ing to do with it. The question belongs exclusively to these two States, and their intercourse with each other is that of separate and independent States, as much so as if they were separate and independent nations. ' ' § 146. May the Governor or Courts Look Beyond the Record? — As all material questions relating to interstate rendition proper for the consideration of the governor of the surrendering State, are open to the fullest review in the courts, no reason can he seen why the governor as well as the court may not look beyond the bare record, receiving evidence if necessary, for the purpose of deter- miniag whether the requisition itself is made for an ul- terior or private motive in violation of the letter and intent of the Constitution and laws. It is concededly true that if such a purpose is shown to exist, clearly established by evidence heard, then and in that event, there can be no lawful rendition of the accused fugitive. This view of the law not only conforms to good reason but is upheld by a long line of decisions regarded as controlling authority on this particular subject. In United States v. Pope, (1878), Fed. Cas. No. 16,069, it was said: "In extradition between the United States and other nations copies of the warrant and of the depo- sitions on which it was founded are made evidence, (Revised Statutes, Seclion 5271), and in extradi- tion between the States a copy of the indictment or of an affidavit is sufficient (Eevised Statutes, Sec- tion 5278). In both of these classes of cases, the executive authority, whether of the State or nation, had an ultimate discretion whether to surrender the supposed criminal or not, and they often refuse though the papers are in due form and unimpeached, if there is good reason to believe that some ulterior GOOD FAITH OF THE PEOSECTJTION. 221 object or sinister design is concealed under the reg- ular forms." In Ex parte Slauson, (1896), 73 Fed. 666, requisition was made by the governor of the State of Tennessee upon the governor of the State of Virginia for the rendi- tion of one Slauson, for the crime of fraudulently appro- priating money, rendition was granted. Whereupon Slauson sued out a writ of habeas corpus in the federal eourt to secure his discharge from custody. The judge in the course of his opinion said: "Slauson is here clothed by law with the right to show why he should not be taken away from his wife and children and his home in Petersburg to the dis- tant State of Tennessee and there tried on the vague charge, merely upon individual affidavit, of fraudu- lent appropriation of money. He has a right to show here that he has not committed the crime of a fraud- ulent appropriation of money and he has the right to show moreover the animus of the person who has instituted this proceeding. * * * Comment upon his (complainant's) conduct is unnecessary. His charge of fraud against Slauson is an afterthought. The affidavit by which he charged the fraud is a fla- grant perjury. His prosecution of this extradition proceeding is malicious. The governor of Tencnes- see was deceived and the requisition which he issued for Slauson was improvidently granted. The gov- ernor of Virginia was not advised of and had no means of testing the truth of the allegations of the requisition, but in performing his duty in issuing his warrant directing the arrest of Slauson, he took care to reserve to him in advance the privilege of the writ of habeas corpus under which he is now before me." § 147. A Noted Case and a Fearless Judge. — ^A cele- brated case which attracted wide attention at the time it was heard and which is often quoted approvingly and otherwise, on this very subject, is that of Tennessee v. Jackson, (1888), 36 Fed. 258. One Jackson advertised a horse for sale in the daily press of Chicago, Illinois, and by chance the advertisement came under the notice 222 THE LAW OF INTBBSTATE EENDITION. of a party living at Chattanooga, in the State of Tennes- see, and after some correspondence the horse was pur- chased from Jackson and shipped to Tennessee. Upon the arrival of the animal at Chattanooga, the purchaser was very much dissatisfied and claimed that he had heen swindled, thereupon he went before a justice of the peace in his home-town and made an affidavit against Jackson, charging him with a breach of warranty, and with being a fugitive from the justice of the State of Tennessee. A requisition on the governor of Illihois was issued by the governor of Tennessee demanding the arrest and rendi- tion of Jackson as such fugitive. Jackson was arrested in Chicago on the warrant of the governor of Illinois and delivered to the Tennessee officials and without any delay was carried to that State. As soon as he arrived ,at Chattanooga, a petition for a writ of habeas corpus was filed in the United States district court, and the writ was issued by the order of the Honorable David M. Key, an able and fearless judge, on the ground that Jackson was not a fugitive from Tennessee for the reason that he had never been in the State prior to being brought there by its officers. Judge Key in his opinion said: "The whole proceedings were a fraud upon the law. If this arrest and imprisonment are to be maintained the opportunities for wrong and abuse of this law will be great and widespread, * * * It seems to me that the general government cannot stand by and see its laws so trifled with and abused. It is well settled, as I understand it, that where treaties between a government and a foreign nation provide for the extradition of persons charged with certain, specific offenses and where extradition has been obtained upon the ground that such offense has been committed, the person whose custody and return has been so obtained cannot when brought in the jurisdiction of the court to be tried for a different offense, especially if it be not embraced in the terms of the treaty. "Such a case is not altogether analogous to the one in hand, but it tends to show the good faith GOOD FAITH OP THE PBOSEOTJTION. 223 required between nations. Certainly the same char- acter of faith should obtain between the executive authorities of the different States of this nation which in many respects are foreign to each other. It seems to me that such authorities should not be held to the seizure and removal of a citizen of its State when such seizure and removal were procured by fraud, falsehood and imposition. It is ordered that the petitioner be discharged." In assuming jurisdiction by habeas corpus of the fugi- tive, Jackson, after his arrival in the State of Tennessee — ^the demanding State — and going into the legality of his detention and finally discharging him, the learned federal judge possibly transcended his authority, yet it is freely admitted that Jackson was not a fugitive from the justice of the State of Tennessee and therefore ought not to have been rendited from Illinois. Judge Key's action in this ease stands out in bold relief when com- pared to the ruling of the United States Supreme Court in Pettibone v. Nichols, (1906), 203 U. S. 192, wherein the very reverse was held to be the law. He may have erred on the side of justice and also received Ms full measure of criticism for the same, especially in In re Cook, (1892), 49 Fed. 833, yet his words of wisdom on the question of good faith, in that decision, will always com- mend themselves to aU thoughtful persons. §148. Ruling of the Michigan Supreme Court. — ^An- other very interesting case on this subject is that of the Matter of Frank Cannon, (1882), 47 Mich. 481, 11 N. W. 280, wherein Cannon was arrested and brought back from Kansas on a complaint charging him with the crime of seduction, brought before a justice of the peace in the State of Michigan. After his return to Michigan the charge of seduction against him was abandoned and he was arrested on the charge of bastardy and placed in the county jail. He sued out a writ of habeas corpus from the supreme court of that State, alleging that he was unlawfully restrained of his liberty. The court said: "In the conflict of opinion we feel bound to prefer the rule that compels regard to good faith. It is 224 THE LAW OF INTERSTATE EENDITION'. very well known that the perversion of extradition proceedings has, on more than one occasion, led to difficulties between nations, and to refusals by State executives to deliver up persons charged with crime whose arrest was supposed to be desired for sinister purposes. It is not always possible to get at the facts in such cases. But we think the courts of jus- tice are bound, where a case comes before them which is entirely free from doubt, to refuse to allow any use to be made of such proceedings which would be a manifest violation of good faith, and a perver- sion of the measures which had been resorted to in order to bring the party accused within our juris- diction." (See In re Fitton, (1891), 45 Fed. 474). §149. No Rendition Unless Good Faith is Shown. Ohio Rule. — The supreme court of Ohio has spoken out openly and. fearlessly, contending that no rendition should be sought or honored unless good faith, is at the very foundation of the prosecution in the demanding State, and that all rendition should be rigidly confined to the single purpose specified and that any and all at- tempts to make it serve any other purpose should be defeated by the prompt action of the courts. In Compton V. Wilder, (1883), 40 Ohio St. 130, 7 Am. Law Rec. 212, it appeared that D. H. Wilder, upon a requistion of the governor of Ohio, directed to the governor of Pennsyl- vania, was arrested there and brought to Ohio to answer a criminal charge for an alleged act made indictable and punishable by the laws of Ohio, the alleged offense having consisted in a claim that he had misrepresented his wealth to Compton, Ault & Co., and induced them to become parties to a note for some $5,000, which they were compelled to pay. For that reason he was arrested and carried to Ohio. In that State he waived a prelimi- nary examination and was bound over to answer the charge before the grand jury of Hamilton county and the court of common pleas, if the grand jury should find a true bill. He gave bond and was released. On the very day of his enlargement on bail, Compton, Ault & Co., began suit to recover from Wilder the amount of money GOOD FAITH OF THE PBOSECTJTION. 225 they claimed they had lost by reason of his representa- tions and that they lost the same by reason of his fraud and misrepresentation. An order of arrest was issned and Wilder was taken in custody. He filed a motion to have the service of summons and the service of the order of arrest set aside and his discharge ordered. The arrest was made on the same day he was bound over, and had given bond on the criminal charge, and it appeared prior to the time that a throngh train would start for Cbrry, Pennsylvania, Wilder being a resident of Corry, Pennsylvania, where he had lived many years. The motion was resisted. It was not claimed that a suit could not be brought and an order of arrest might not be sworn out and prosecuted, provided a valid service could be obtained. Wilder claimed that a valid service could not be obtained upon him under the circumstances. Compton, Ault & Co., were the movers in procuring the requisition and the institution of the criminal charge against Wilder. It was at their instance that the power of the State of Ohio was invoked, and the governor of Pennsylvania acted and in consequence of which Wilder was then in Ohio. Judge Yalpe of the superior court of Cincinnati, before whom the motion was heard, sustained the contention of Wilder 's attorneys, set aside the order of arrest, vacated the summons and discharged Wilder. The district court of Hamilton county, in a review of the case upon exceptions taken by the plaintiffs, affirmed the judgment of the lower court and then the case was carried by writ of error to the supreme court of Ohio. (Compton V. Wilder, supra.) The opinion of the court was delivered by Judge Nash, who said: "Wilder had been surrendered by the State of Pennsylvania to be prosecuted by the State of Ohio and in her name for an alleged crime. It was for this purpose alone that the State 6f Ohio asked his extradition. It was for this purpose alone that the State of Pennsylvania handed one of her citizens over to the officers of Ohio. "This proceeding took place by virtue of that por- 226 THE LAW OF INTBESTATE EENDITIOST. tion of section 2, article 4 of tlie Constitution of the United States, wMcli provides that a person cliarged in any State with treason, felony or other crime, who shall flee from justice and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up to be re- moved to the State having jurisdiction, and by virtue of the laws of the United States, enacted to make this provision of the Constitution effective. "In this case, the machinery was set in motion by Compton, Ault & Co., by the application to the gov- ernor of Ohio. Good faith upon the part of these applicants, and good faith upon the part of Ohio to the surrendering State, demanded that Wilder hav- ing been by force brought into Ohio for a specific purpose should not be deprived of any rights except such as he had forfeited by the commission of the alleged crime. He cannot be held to have forfeited any right before any conviction. It is claimed that he was indebted to Compton, Ault & Co., if he was, it was right to be sued in the jurisdiction in which he was domiciled, unless he voluntarily came into the jurisdiction of Ohio. "It was bad faith in Compton, Ault & Co., to com- mence a civil action and attempt to serve a summons and an order of arrest therein upon Wilder before conviction, and before he had an opportunity to re- turn to his home. It would become bad faith in this State if its courts should make such service effective. It was a duty made incumbent upon the governor of Pennsylvania by the Constitution of the United States to surrender Wilder, upon proper application from the governor of Ohio. But as reflecting upon this question of good faith, it is not irrelevant to look at the legislative enactments of this State upon this subject. "March 25, 1870, the general assembly adopted a resolution relative to the surrender of persons charged with treason, felony or other crimes (67 Ohio L. 171.) In this resolution it was suggested that in the opinion of the general assembly, the gov- ernor of Ohio should not make a requisition for an alleged fugitive from justice until clearly satisfied GOOD FAITH OP THE PBOSECOTION, 227 that the requisition is sought in good faith for the punishment of crime and not for the purpose of col- lecting any deht or pecuniary mulct, or for the pur- pose of removing the alleged fugitive to a foreign jurisdiction, with a view there to serve him with civil process. It also suggested that the governor should be in like manner satisfied before issuing his warrant upon a requisition made upon him by any other State for an alleged fugitive. The rule thus suggested has governed the executive department of the State since 1870. What was formerly a rule of the executive department suggested by the general assembly became a law controlling the action of the governor, on the first of January, 1880. (Eev. Stat, sec. 95.) "By the action of the executive and legislative branches of her government, Ohio has indicated to the other States, her purpose to confine the use of power to extradite persons charged with crime to its sole and proper object. To secure a service of summons iu a civil action like the one we are con- sidering is not one of the objects intended to be accomplished by this grant of power. In a country like ours, this power is useful and indispensable. It was intended, however, to subserve great public in- terests. When otherwise used, it becomes an evil. The temptation to make it subservient to private interests is great. This weapon, intended alone to secure the punishment of crime, is frequently re- sorted to to enforce the collection of private debts, or to remove a citizen from his home into a foreign jurisdiction that he may there be sued in a civU action. "This growing evil has been seen and appreciated by the chief executives of many States, and to guard against it, rules and regulations are being adopted which may make the extradition of an alleged fugi- tive in a proper case extremely difficult. It has been recognized by both the executive and legislative branches of our government as is shown by their former action. "The judicial should be as swift in putting the seal of condemnation upon this abuse as have been 228 THE LAW OF INTEESTATE EENDITION". the other branches of the govermnent. The certain remedy to prevent its growth, is to deprive all per- sons who participate in the misuse of the power to extradite persons, alleged to be fugitives from jus- tice, of the fruits resulting from such participation." CHAPTER XVni. GUILT OR INNOCENCE OF FUGITIVES. 1 150. No Such Inquiry on Habeas Corpus. § 151. Hearing Limited in Florida. § 152. When Proof of Crime Is Prohibited. 1 153. Other Decisions on the Subject. 1 154. Affidavit Showing no Crime — no Rendition. § 155. The Offense Must Be Plainly Charged. §156. The Effect of Court Ruling. § 157. The Court Often Misled. -§ 158. Federal Rule Reasonable. § 150. No Such Inquiry on Habeas Corpus. — There is one proposition in connection with interstate rendition npon which the authorities are practically in perfect harmony, and that is, that the guilt or innocence of the alleged fugitive can not be inquired into by the courts of the surrendering State in habeas corpus proceedings, after the governor of that State has issued his warrant of rendition, this question by the law is left solely and entirely to the tribunals of the demanding State, where- in the fugitive is charged with the commission of crime. In the case of In re Roberts, (1885), 24 Fed. 132, heard in the United States district court of the State of Georgia certain affidavits were offered on behalf of the alleged fugitive, the practical effect of which was a complete denial of guilt. The court in this proceeding, for his discharge on habeas corpus, excluded such affidavits from its consideration, for the reason that a proper charge of crime having been presented to the governor of the surrendering State, and the only tendency of the affidavits being to establish the innocence of the fugitive of the crime charged, the court therefore most positively declined to investigate in any way the guilt or innocence of the accused, declaring that to do so would be an un- warranted invasion of the jurisdiction of the courts of (229) 230 THE LAW OF INTEESTATB EENMTION. the demanding State, where only such a question could be lawfully and judicially determined. The court how- ever, held that it would be otherwise were the arrest made upon local and preliminary process and before the issuance of the governor's warrant of rendition. In which event investigation would be had, at least to dis- close if there was a prosecution in good faith and if there was probable cause to suspect the guilt of the party accused. § 151. Hearing Limited in Florida, — The supreme court of the State of Florida, ia the case of Kurtz v. State, (1886), 22 Fla. 45, in passing upon this same ques- tion, held that the courts of that State in habeas corpus proceedings, where the petitioner or prisoner is arrested on a governor's warrant for rendition to another State, cannot go into a trial of the merits of a case and cannot legally hear any evidence tending to establish the fact whether the prisoner is guilty or innocent of the crime charged in the demandiag State. The judicial hearing in the State of Florida is only an initiatory step to a full and complete trial in the State where the alleged crime was committed, and the powers of the Florida courts are limited to a determination on the sufficiency of the pa- pers and the identity of the alleged fugitive from the justice of the demanding State, § 152, When Proof of Crime is Prohibited. — In a late case In re Bruohman, (1914), 28 N. D. 358, 148 N. W. 1052, the supreme court of the State of North Dakota held that "they will not inquire or aUow evidence to be introduced of the guilt or innocence of the defendant, nor whether, as a matter of fact, the crime has been com- mitted at all in the case where a person is charged with having deserted or failed to support his wife and chil- dren, and where the proof of the commission of the crime must necessarily be the same as the proof of the guilt or innocence of the accused." This was practically iu accord with the ruling of the United States circuit court of appeals, second circuit, in the case of In re GTni.T OB INNOCENCE OF FUGITIVES. 231 "WMte, (1893), 55 Fed. 54, wherein it was souglit to intro- duce, on behalf of the accused, in a habeas corpus pro- ceeding, certain affidavits which tended to show that no crime had been conmiitted in the demanding State, but the court would not allow such evidence to be introduced claiming that to do so would be hearing proof of the guilt or innocence of the accused, and thereby invading the right of the "State having jurisdiction of the crime." This is imquestionably the correct view of the law and the one that is upheld by reason and common sense. §153. Other Decisions on the Subject. — ^The author- ities, with great unanimity of reasoning, uphold the posi- tion of both the United States district court of Georgia and the supreme court of Florida, in their interpretation of the law on this subject, leaving no room whatever for doubt as to the soundness of their decisions, to which reference has just been made, as will be seen from the following cases : In re Clark, (1832), 9 "Wend. 212 ; State V. Schlemm, (1846), 4 Harr. 577 ; In re Greenough, (1858), 31 Vt. 279; Matter of Voorhees, (1867), 32 N. J. L. 141; People ex rel. Lawrence v. Brady, (1874), 56 N. Y. 182; Ex parte Swearengen, (1879), 13 S. C. 80; TuUis v. Fleming, (1879), 69 Ind. 15; In re Mohr, (1883), 73 Ala. 503, 49 Am. Eep. 63, 18 Cent. L. J. 252, 2 Ala. L. J. 457; State V. O'Connor, (1888), 38 Minn. 243, 36 N. W. 462; In re White, (1893), 55 Fed. 54; Ex parte Devine, (1897), 74 Miss. 715, 22 South. 3 ; Commonwealth v. Hare, (1908), 36 Pa. Supr. Ct. 125; Harris v. Magee, (1911), 150 Iowa, 144, 129 N. W. 742. In Ex parte Swearengen, supra, where it was objected that the person originating the prosecution in the de- manding State was not a citizen of that State, the su- preme court of South Carolina held that, "it is quite sufficient to say that we are not at liberty to consider such a question. The authorities of the State of Georgia have undoubtedly recognized the fact that a prosecution has been lawfully commenced in that State, and it is not for us to question it. Whether the charge has been made in proper legal form or whether it can be sustained by 232 THE LAW OP INTBBSTATB EENDITION". legal evidence, are questions wMcli belong exclusively to the tribunals of the State where the crime is alleged to have been eonmiitted, as they alone have jurisdiction to determine whether the laws of such State have been violated. Even, however, were the point raised a matter within our jurisdiction we are altogether unable to dis- cover any valid reason why a citizen of South Carolina may not commence a prosecution in the State of Georgia for an offense committed within the territorial limits of that State." §154. Affidavit Showing no Crime — no Rendition. — In the case of In re Greenough, swpra, the supreme court of Vermont held that the courts of that State, on habeas corpus could not pronounce upon the guilt or innocence of the alleged fugitive from justice, declaring that the courts of the demanding State alone were clothed with such power. But the court suggested another question for investigation, closely allied to the one it refused to consider, when it strongly contended that there was a marked distinction between a charge of crime by an affi- davit and a charge of crime by an indictment and on this proposition the syllabus is as follows : When the fugitive is charged with crime by an affidavit, and it appears clearly from the whole affi- davit that no crime has been committed, it seems that a court, upon habeas corpus, may properly dis- charge the prisoner, notwithstanding the executive upon whom the requisition is made has granted a warrant upon which he has been arrested, but aliter, when the prisoner has been indicted in the State from whence the requisition comes. § 155. The Offense Must Be Plainly Charged.— In an- other case just cited. People ex rel. Lawrence v. Brady, supra, the court of appeals of the State of New York, held that "the guilt or innocence of the alleged fugitive from justice, in habeas corpus proceedings, was wholly immaterial but there must be a charge of a violation of the criminal law of the demanding State and that where the demand is supported by an affidavit, as authorized GUILT OE INNOCENCE OF FUGITIVES. 233 by the act of Congress of 1793, no less degree of cer- tainty is admissible tban is required in an indictment for the same offense. If any distinction exists, the affidavit should be more full and explicit; and the offense should be therein distinctly and plainly charged. It is nsnaUy the ex parte statement of the accuser. An indictment is found by a body, standing indifferent between the par- ties, and charged upon oath, to inquire of offenses, and which is supposed to act upon competent proof in finding the biU." §156. The Effect of Court Ruling.— The evident ef- fect of these and other decisions has been to give an indictment a presumptive standing, as a charge of crime against the alleged fugitive from justice, a far superior influence over an affidavit, characterized by the court of last resort of Xew York, as merely an "ex parte state- ment of the accuser. ' ' If the arrest and return of a fugi- tive criminal is sought by the authorities of a State and an affidavit is made the basis of the charge of crime, too much care cannot be taken in the drawing of the formal charge against such fugitive, for when the affidavit ar- rives in the surrendering State a vigorous and skillful attack, upon its validity and legality, may be expected by learned counsel retained by the fugitive. And while the court may not hear evidence relating to the merits of the charge, the affidavit itself will be assaulted from all conceivable angles and very often a sympathetic judge will join in the onslaught, the end of the conflict comes when the court declares that the so-called affidavit does not cJmrge a crime in acordance with laws of the de- manding State, and the alleged fugitive and criminal goes free. §157. The Court Often Misled.— In the course of a busy practice during the past few years, in the second largest city of the Union, as an assistant state's attor- ney, in charge of interstate rendition, it has been noticed, with considerable surprise and interest, the tendency of some nisi prius judges to permit attorneys, representing 234 THE LAW OF INTERSTATE RENDITION. fugitives from justice, in habeas corpus proceedings, to present certain- inadmissible proofs, by way of pleadings, affidavits or argument, tbe manifest purpose of which is to generate a doubt in the mind of the court as to the guilt of the accused. The result of this practice has been known to influence the court in favor of the fugitive in deciding certain questions, legal and otherwise, raised by the respondent's return to the writ of habeas corpus, and relator's traverse to the return. All judges are but human and while all may not be swayed by such methods, it must be conceded that some, at least, are led away from the issues raised by the pleadings by pure sym- pathy, which frequently produce a doubt in the court's mind as to the guilt of the accused of the crime charged in the demanding State. § 158. Federal Rule Reasonable. — In this connection it has been thought proper to say, that, it has been con- tended by many of the ablest jurists of the United States, that to be merely charged with crime, ought not to be sufficient ground upon which to base rendition, arguing that the doctrine of "probable cause" should prevail, and that before an alleged fugitive is ordered deported from one State to another, "probable cause," should be shown that the accused has committed the crime as charged. This humane and reasonable rule prevails when a Federal prisoner is charged with crime, under the laws of the United States, and is arrested in another district or State than the one where the crime is alleged to have been committed. This is a just and safe proce- dure and should be applied to interstate rendition. CHAPTER XIX. POWER TO REVIEW BY HABEAS CORPUS. § 159. Jurisdiction of the Judiciary. § 160. Federal Law on Rendition Silent as to Habeas Corpus. § 161. Power of State C!ourts Derived from State Statutes. i 162. Early Federal View. 1 163. Decisions of State Courts. 1. New York. 2. Florida. 3. Texas. 4. Iowa. 5. Connecticut. 6. Alabama. 1 164. The Supreme Court on Power of Review. § 165. Federal and State Courts Invested with Right. § 166. AH Doubt Removed. § 159. The Jurisdiction of the Judiciary. — ^The power and authority of the courts, Federal and State, in inter- state rendition proceedings, to review by habeas corpus the finding of the governor of the asylum State, is now no longer a controverted question. The authorities are practically tmanimotis in upholding this right, and the courts may, with perfect freedom, overmle the action of the governor in issuing his warrant of rendition, for the alleged fugitive from justice, if the law and the facts do not justify him in so doing. The courts, in exercising this jurisdiction, are not invading the sanctity of a co- ordinate branch of the government, but simply protect- ing the citizen, the most sacred of all duties, against un- lawful arrest and deportation. If the warrant of rendi- tion is not issued in strict compliance with every require- ment of the United States Constitution, and the act of Congress of 1793, relating to fugitives from justice, then the governor's determination of the questions before him and his warrant of arrest are void and of no effect. Only (235) 236 THE LAW OP INTERSTATE RENDITION. a judicial inquiry, sanctioned by law, is authorized to supervise the findings of the governor of the asylum State, such an inquiry can only result from the issuance of a writ of habeas corpus, predicated upon a proper showing in the form of a petition, the bringing of the alleged fugitive into court and the ascertainment of the cause of his caption and detention, and should it be found upon the hearing that the restraint was without legal authority then to immediately discharge him. {In re Manchester, (1855), 5 Cal. 238.) Pending this hearing the accused or fugitive is en- titled to be enlarged upon bail, with such surety or sureties and in such sum as the judge or court may think proper, conditioned upon his appearance before such, judge or court, to do and receive what may be considered in that behalf. In the case of Wright v. Henkle, (1903), 190 U. S. 40, the right to take bail was referred to by Mr. Chief Justice Fuller as follows : "We are unwilling to hold that the circuit courts possess no power in respect of admitting to bail other than specifically vested by statute, or that, while bail should not ordinarily be granted in cases of foreign extradition, those courts may not in any case, and whatever the special circumstances, extend that relief." In practically all of the States of the Union, save pos- sibly Mississippi and Texas, the right to bail in rendi- tion procedure by habeas corpus is fully established by statutory enactments. See Ex parte WaU, (1904), 84 Miss. 783, and Ex parte Erwin, (1879), 7 Tex. App. 288, both cases holding that it was not intended by the provi- sions of the Constitution of the United States that a fugitive from justice should be enlarged on bail at all pending appeal. This ruling is contrary to the general practice and contrary to the very spirit and intent of the law. If no statute had been enacted by the States on this subject, the inherent and common law jurisdiction of the judges and courts would be sufficient authority for th« exercise of the power to release on bail the alleged fugitive, pending hearing on habeas corpus or appeal. POWBE TO BEVIEW BY HABBAS CORPUS. 237 Bail rests on the common law except as the statute controls, and that conrt has the right to enlarge one on bail which has the power to try and determine the case. See Wright v. HenMe, (1903), supra; In re Mitchell, (1909), 171 Fed. 289; State v. Vanghan, (1898), 71 Conn. 457; Ex parte Doyle, (1907), 62 W. Va. 280. It was held in People ex rel. Tweed v. Liscomb, (1875), 60 N. Y. 560, by the conrt of appeals of New York, that, "This writ of hubeas corpus cannot be abrogated, or its efficiency curtailed, by legislative action. * * ♦ The remedy against illegal imprisonment by this writ, as it was known and used at common law, is placed beyond the pale of legislative discretion, except that it may be suspended in emergencies named in the Constitution." § 160. Federal Law on Rendition Silent as to Habeas Corpus. — It will be observed by a casual glance at clause 2, section 2, article IV, of the United States Constitution, and the act of Congress of 1793, that no mention is made therein of the writ of habeas corpus, nor is any method suggested for a review of the governor's action in caus- ing the arrest and detention of the fugitive from justice. However, section 753 of the Revised Statutes of the United States, names the classes of cases in which the Federal Courts, "or any justice or judge thereof," may, upon proper showing, issue writs of habeas corpus. One of the classes named ia this statute embraces any such in which the accused "is in custody under or by color of the authority of the United States." A person arrested and held as a fugitive from justice by virtue of the gov- ernor's warrant of rendition, is clearly within this de- scription, and the right of the Federal court, or any jus- tice or judge thereof, to issue a writ of habeas corpus and to consider and determine the legality of his deten- tion, is unquestioned. §161. Power of State Courts Derived from State Statutes.— The State courts derive their jurisdiction from the common law and from statutory enactments of the different State legislatures, which have provided for a 238 THE LAW OF INTEESTATE EENDITION. judicial hearing wherever personal liberty is involved. Therefore the alleged fugitive from justice, when under arrest in the State where found, can invoke the power of the writ of habeas corpus, that the legality of his arrest and proposed deportation may be judicially deter- mined. Congress of the United States, or any State legislature, might enact a law specifically excluding all fugitives from justice, from the benefits, of the writ of habeas corpus, unless restrained by constitutional provi- sion, this would make the finding of the governor of the asylum State, so far as fugitives from justice are con- cerned, absolutely conclusive. The nearest approach to such legislation is to be found in the State of Arkansas. In Earby's Digest of the Statutes of Arkansas, 1906, chapter 77, on habeas corpus, section 3862, provides that "it shall be the duty of the judge forthwith to remand the prisoner if it shall appear that he is held in custody * * * for any treason, felony or other high misdemeanor committed in any other State or Territory, and who, by the Constitution and laws of the United States ought to be delivered up to the legal authorities of such State or Territory." This statute in Arkansas according to the ruling of the courts, operates as a complete suspension of the writ of habeas corpus in interstate rendition cases ; whUe in the State of Illinois, a similar worded statute, is regarded as upholding the right of the courts to do the very thing that is prohibited in Arkansas. In the State of Pennsylvania, the only and sole question that can be raised on habeas corpus, in accordance with the statutes of that State, is the identity of the alleged fugitive from justice. The supreme court of Pennsylvania, in 1908, in Commonwealth v. Superintendent of Philadelphia Coun- ty Prison, (1908), 220 Pa. St. 410, 69 Atl. 916, declined to pass upon the constitutionality of the act of May 24, 1878, the Statute restricting the hearing on habeas corpus to the question of identity, because fugitives were al- lowed every opi)ortunity to show the illegality of the rendition in the courts of that State. In Indiana it is provided by statute that, every fugitive POWEB TO KEVIEW BY TTAHT8AR COEPUS. 239 from justice arrested in that State by virtue of the gov- ernor's warrant, shall forthwith be taken before a circuit or crimiQal court, that his identity may be inquired iato and if found to be the identical person demanded, he shall at once be delivered to the agent of the demanding State, for deportation; but should it appear to the judge hold- ing the examination, that the alleged fugitive was in the State of Indiana at the time of the commission of the alleged offense and not in the State or Territory from which he is pretended to have fled, then he shall at once be discharged by such judge, who shall forthwith report the facts to the governor. § 162. Early Federal View. — ^It is noticeable that prior to the hearing of the celebrated "Mormon Pro- phet" case, Ex parte Joseph Smith, (1842), 3 McLean, 121, in the United States circuit court, at Chicago, Illi- nois, the power of the courts to review the determination of the governor, as to whether the accused was a fugitive from the justice of the State or Territory demanding his arrest and return, and as to whether he was legally charged with the commission of a crime in such jurisdic- tion, was rarely exercised; some courts even contending that the action of the governor in such cases was conclu- sive and therefore not reviewable by the judiciary. Ex parte Willard and "Wife, (1814), Sergt. Const. Law, 395; State V. Schlemm, (1846), 4 Harr. 572; People ex rel. Draper v. Pinkerton, (1879), 77 N. T. 245, 17 Hun. 199. But the decision of Judge Pope, then United States dis- trict judge for Illinois, and acting United States circuit judge, was an able and exhaustive exposition of the rights of the fugitives from justice, under the Constitution and laws of the United States. It was held by him that the latter had a right to show in a judicial investigation, by habeas corpus, that he was not, in fact, a fugitive from justice, and that he was not legally charged with the commission of crime in the demanding State, and that the Federal, as weU as the State courts, were invested by law with the authority to review the findings of the governor, to declare his warrant of rendition void and 240 THE LAW OF INTBESTATB KEKDITIOlir. to discharge the alleged fugitive. In ihe course of his opinion Judge Pope said: "In supporting the second point, the attorney- general seemed to urge that there was greater sanc- tity in a warrant issued by the governor, than by an inferior ofiScer. The court cannot assent to this dis- tinction. This is a government of laws, which pre- scribes a rule of action as obligatory upon the governor as upon the most obscure officer. The char- acter and purposes of the habeas corpus are greatly misunderstood by those who suppose that it does not review the acts of an executive functionary. All who are familiar with English history, must know that it was extorted from an arbitrary monarch, and that it was hailed as second Magna Charta, and that it was to protect the subject from arbitrary imprison- ment by the king and his minions which brought into existence that great palladium of liberty in the latter part of the reign of Charles II. It was indeed a magnificent achievement over arbitrary power. Magna Charta established the principles of liberty; the habeas corpus protected them. It matters not how great or obscure the prisoner, how great or ob- scure the prison-keeper, this munificent writ, wielded by an independent judge, reaches all. It penetrates alike the royal towers and the local prisons, from the garret to the secret recesses of the dungeon. All doors fly open at its command, and the shackles fall from the limbs of prisoners of state as readily as from those committed by subordinate officers. The warrant of the King and his secretary of state could claim no more exemption from that searching inquiry, "The cause of his caption and detention," than a warrant granted by a justice of the peace. It is contended that the United States is a govern- ment of granted powers, and that no department of it can exercise powers not granted. This is true. But the grant is to be found in the 2nd section of the 3rd article of the Constitution of the United States: "The judicial power shall extend to all cases in law or equity arising under this Constitu- tion, and laws of the United States and treaties POWEB TO BEVTEW BY HABEAS OOEPTJS. 241 made, and wMcli shall be made Tinder their author- ity." § 163. Decisions of State Courts.— (1.) New York.— Judge Westbrook, of the supreme court of the State of New York, in referring to the power of the judiciary to review the action of the governor in interstate rendition by habeas corpus, in the Matter of Briscoe, (1876), 51 How. Pr. 422, said: "The executive is not infallible. He may err and issue his warrant when he ought not to issue it, and if the citizen has no right to prosecute this writ, but must submit to this executive order, then it is clear that we have one officer in a State, organized under a republican form of government, who can hold at pleasure and remove at his will beyond the jurisdic- tion of the State every citizen, and whose action can- not be questioned or reviewed. This is simple ty- ranny, and the statement of the proposition would, we are certain, cause the present executive, as well as the court, to reject it as entirely unsound." In a later case People ex rel. Corkran v. Hyatt, (1902), 172 N. Y. 182, 64 N. E. 825, 60 L. R. A. 774, 92 Am. St. 706, affirmed by the Supreme Court of the United States, Hyatt V. People ex rel. Corkran, (1903), 188 U. S. 691, Judge Cullen, speaking for the court of appeals of New York, after a careful review of other questions presented, said: "We now reach the question whether the action of the governor may be reviewed on habeas corpus. It has been held by the Supreme C'ourt of the United States in Robb v. Connolly, (1884), 111 U. S. 624, that the governor of a State in the exercise of the duty of surrendering fugitives imposed by the Con- stitution and statute of Congress does not act as a United States officer and that a writ of habeas cor- pus may be issued by the State courts to test the validity of an arrest under his warrant. In Roberts V. ReiUy, (1885), 116 U. S. 80, the same court said, 'How far his (the governor's) decision may be re- viewed judicially in proceedings in habeas corpus. or whether it is not conclusive, are questions not 242 THE LAW OP INTBKSTATE BENDITION. settled by harmonious judicial decisions, nor by any authoritative judgment of this court.' In Cook v. Hart, (1892), 146 U. S. 183, it was held by the same court: 'We have no doubt that the governor upon whom the demand is made must determine for him- self, in the first instance at least, whether the party charged is in fact a fugitive from justice, but whether his decision thereon be final is a question proper to be determined by the courts of that State.' The Constitution and laws of the State of New York, therefore, control the decision of the question we are now considering. While doubtless to a certain ex- tent the action of the governor is executive or minis- terial, it is not so in the broad sense in which the general functions of the office are conferred upon him by our Constitution. In Matter of Guden, (1902), 171 N. Y. 529, we held that the power given to the governor to remove a sheriff upon charges and after a hearing was executive and the exercise of that power given to the governor was not subject to review by the courts. But the question here is of an entirely different character. It involves the liber- ty of the citizen. Speaking of division of powers among the three branches of the government, Parker, C. J., in the Guden case said : * There resides in the people of this and every State an absolute power to prescribe rules of action, through legislation, to enforce rules of action and to transact generally the affairs of government, through executive acts, and to determine controversies between, enforce rights belonging to and redress wrongs done to, citizens of the State, through the courts.' The liability of the citizen to arrest and detention, and the grounds there- for, therefore, necessarily present a judicial question, though the arrest and detention are effected by an executive or ministerial officer. The act of Congress provides that a copy oi an indictment or the affidavit made before a magistrate shall be proof of the charge of crime against any person whose extradition is sought, but it does not prescribe what shall be evi- dence that he is a fugitive from justice. The fact therefore that he is a fugitive is a matter of proof. While the warrant of the governor is presumptive POWEE TO EEVIBW BY HABEAS CORPUS, 243 I evidence of the fact, there is no reason on principle why it should be conclusive. It was said by Judge Jenkins in In re Cook, (1892), 49 Fed. 833, referring to case of Eoberts v. Eeilly, (1885), supra, 'That decision by its very terms implies that the action of the governor is only presumptively regular, and can be reviewed by the courts. Surely it cannot be claimed that such action is conclusive upon personal rights, and may not be inquired of by judicial tribu- nals. Surely it cannot be that the right of personal liberty hangs upon so slender a thread as the arbi- trary will of the authorities of the demanding and surrendering States. No person shall be deprived of life, liberty ' or property without due process of lam. That is the fundamental law of the land, com- ing to us from Magna Charta. It is not due process of law which condemns without a hearing, which con- victs without a trial. It is essential to compliance with such executive demand that the person whose surrender is demanded shall be adjudged a fugitive from the justice of the demanding State. The deci- sion of the executive is not conclusive of that fact.' The writ of habeas corpus is in this State available to every person imprisoned or deprived of his liber- ty, unless he is restrained under the authority of the Federal government or unless he is committed by virtue of a final judgment or decree of a competent tribimal of jurisdiction, or the final order of such tribunal punishing him for contempt. The warrant of the governor is not a final judgment nor a decree, and even were it such it would be the duty of the court to see whether the jurisdictional facts exist which are necessary to authorize the action of the governor. ' ' (2.) Florida. — A case that is frequently cited, Ex parte Powell, (1884), 20 Fla. 806, the supreme court of Florida, in a well-considered opinion, on the conclusive- ness of the governor's determination in interstate rendi- tion, said : "The judgment of the executive of the demand- ing State, or of the executive of this State, though entitled to great deference, is not by any means con- 244 THE LAW OF INTERSTATE BENDITIOH". elusive as to the sufficiency of the cause shown for extradition. The books are thronged with cases in which the courts have made the inquiry and decided upon the sufficiency of the cause, and in a great majority of cases have sustained the arrest upon full investigation. This very fact is authority to sustain the power of the judiciary to make the in- quiry. Any other view would make the executive authority omnipotent, and emasculate, to a great extent, the writ of habeas corpus, whereby the citi- zen is assured that he shall not be deprived of his liberty but by the law of the land. To this end he may demand that the law be strictly construed, and that is all that is involved in the present inquiry." (3.) Texas. — Judge Henderson, one of the justices of the criminal court of appeals of the State of Texas, in delivering an opinion in Ex parte Cheatham, (1906), 50 Tex. Crim. 58, 95 S. W. 1077, said: "It is a matter of some delicacy to review the action of the executive of this State in granting his warrant of extradition. However this is a duty of the courts, and involves a responsibility cast upon them, which they are required to meet. We cannot assent to the claim that the act of the executive in granting an extradition warrant cannot be inquired into. A removal of a person from this State for whom the writ of extradition has been granted is summary in its character, and the provisions of the act of Congress must be strictly complied with. If a person has committed a crime in one State, and fled to another, the demanding State is required to pursue those provisions of the laws of Congress which authorize the warrant of extradition to issue. These provisions are plain, and can easily be fol- lowed. No State should permit itself to be made the harbor or refuge for criminals of other States. On the other hand the liberty of the citizen is in- volved, and the provisions of law which Congress has erected for his safeguard, should be respected and complied with. These provisions are intended for the protection of the citizen against undue arrest and extradition, and the writ of habeas corpus is POWEB TO EEVIEW BY HABEAS COBPUS. 245 provided, in order to protect the hnmblest as well as the highest in his or her rights and privileges." (4.) Iowa. — ^La the State of Iowa, the supreme court in Harris v. Magee, (1911), 150 Iowa, 147, 129 N. W. 742, referring to the jurisdiction of the courts of that State to review the action of the governor in issuing his warrant for the arrest and surrender of fugitives from justice, said: "It must be borne ia mind that the purpose of this habeas corpus proceeding is in the nature of a review of the legality of the action of the governor in issuing a warrant of extradition. It was not in- cumbent upon the governor to try the question of the guilt or innocence of the petitioner, or to hear evidence thereon, except so far as it might be neces- sary to determine the question whether he was a fugitive from justice. The identity of the prisoner could be inquired iuto. Whether the venue of the crime charged was properly laid within the demand- ing State would also be a proper inquiry." (5.) Connecticut.— In Farrell v. Hawley, (1905), 78 Conn. 155, 112 Am. St. 125, the supreme court of Oonneo- ticut speakiug through Mr. Justice Baldwin, who ren- dered the opinion of the court, said: "The finding of the governor ia extradition cases is not always and necessarily final. That now in question could have been pronounced insufficient to support an arrest under the warrant, upon conclu- sive proof before the courts in this proceeding, first, that the plaintiff (the fugitive) was not within the State of New York at the date when it was charged that the crime was committed, and, second, that there was no evidence to the contrary, or none worth serious consideration, before the governor." (6.) Alabama. — A case that has attracted very gen- eral attention throughout the country is that of In re Mohr, (1883), 73 Ala. 513, 49 Am. Eep. 63, Mr. Justice Somerville, delivered the opinion of the supreme court and upon the right to review the governor's determina- tion to issue his warrant of rendition, said : 246 THE LAW OF INTEESTATE KENDITION. "We are of opinion that it was never intended by Congress in their enactment of the law of 1793, that the finding of a governor of a State, that one is a fugitive from justice should be conclusive evidence of the fact, incapable of contradiction by facts show- ing to the contrary. It is an important feature of the law, throwing some light upon its proper con- struction, that while it expressly prescribes the mode by which evidence of the charge of crime shall be authenticated, it no where prescribes how the fact that he is a fugitive from justice shaU be established. There seems to us to have been a good and sufficient reason for this distinction. Nothing was more proper than the policy of precluding the fugitive from disputing the certified records from the courts of a sister State, in view of the constitutional re- quirement, that 'full faith and credit' shall be given in each State to 'the records and judicial proceedings of every other State.' Const. U. S. article IV, section 1. But no such reason applies to the implication of the defendant's being a fugitive, because he is found in another State than the one in whose courts the charge is pending. It may be asserted that it was within the power of the govern- or to investigate this fact before he issued the war- rant, so as to satisfy himself of its truth. Perhaps this is the correct view, but this duty must, in its very nature, be discretionary. In practice, the fact of the criminal's flight is usually shown by affidavit, but this cannot be regarded as conclusive upon any principle known to us, in the absence of statutory regulation so declaring the law. The better view seems to us to be, that one of the purposes of pre- termitting express congressional legislation on this point was to refer the matter to executive determina- tion, subject to review by habeas corpus in the courts in all proper cases." § 164. The Supreme Court on Power of Review. — How has the Supreme Court of the United States viewed this question? It has been contended that a shade of doubt permeates certain decisions of that court, as to the ex- tent of the judicial right to inquire into the determination POWEB TO BEVIBW BY HABEAS COBPUS. 247 by the executive authority of the asylum State, that the accused person is a fugitive from the justice of the de- manding State, and just how far this decision might be reviewed judicially, in proceedings in habeas corpus, or whether it was conclusive or not, as stated by that court in Eoberts v. Reilly, (1885), 116 U. S. 80, 6 Sup. Ct. 2&1, 29 L. ed. 544, were questions not settled by harmonious judicial decisions nor by any authoritative judgment of that court. However, a careful examination of the deci- sions of that court, for the past thirty years, will demon- strate beyond question that, there is little foundation for such doubt. For example, take the concluding paragraph of the opinion in the case just cited, it is said by the court : "It is conceded that the determination of the fact by the executive of the State in issuing his warrant of arrest, upon a demand made upon that ground, whether the writ contains a recital of an express finding to that effect or not, must be regarded as sufficient to justify the removal, untU the presump- tion in its favor is overthrown by contrary proof." § 165. Federal and State Courts Invested with Right. — Other utterances of that court have been so pronounced as to remove all uncertainty, as to the ruling of the court, on the power of the judiciary to review, and even nullify, any action of the governor of the asylum State, in interstate rendition procedure. A case in point to which special attention is directed is that of Eobb v. Connolly, (1884), 111 U. S. 624, 4 Sup. Ct. 544, 28 L. ed. 542, wherein the Supreme Court of the United States, upon a writ of error, to the supreme court of the State of California, held that, Congress had not undertaken to invest the judicial tribunals of the United States with exclusive jurisdiction of issuing writs of habeas corpus ia proceedings for the arrest of fugitives from justice and their delivery to the authorities of the State in which they stand charged with crime. Mr. Justice Harlan, speaking for the court, said : "Upon the United States, equally with the courts 248 THE LAW OP INTEESTATE BENDITIOIT. of the Union, rests th.e obligation to guard, enforce and protect every rigM granted or secured by the Constitution of the United States and the laws made in pursuance thereof, whenever those rights, are in- • volved in any suit or proceeding before them; for, the judges of the State courts are required to take an oath to support that Constitution, and they are bound by it, and the laws of the United States, made in pursuance thereof, and all treaties made under their authority, as the supreme law of the land, any thing in the Constitution or laws of any State to the contrary notwithstanding. If they fail therein, and withhold or deny rights, privileges, or immunities secured by the Constitution and laws of the United States, the party aggrieved may bring the case from the highest court of the State in which the question could be decided, to this court for final and conclu- sive determination. The recognition, therefore, of the authority of a State court, or one of its judges, upon writ of habeas corpus, to pass upon the legality of the imprisonment, within the territory of that State, of a person held in custody — otherwise than under the judgment or orders of the judicial tribu- nals of the United States, or by the order of a com- missioner of a circuit coiirt, or by officers of the United States acting under their laws — cannot be denied merely because the proceedings involve the determination of rights, privileges, or immunities derived from the nation, or require a construction of the Constitution and laws of the United States. ' ' § 166. All Doubt Removed. — The same court, one year after its decision in the case just cited, in Ex parte Eeggel, (1885), 114 U. S. 642, 5 Sup. Ct. 1148, 29 L. ed. 250, wherein Reggel was arrested in the Territory of Utah, charged with being a fugitive from the justice of the State of Pennsylvania, where an indictment was pending against him in the courts of that State for ob- taining goods under false pretenses. Reggel sued out a writ of habeas corpus, in the district court of the United States for the district of Utah, and upon a hearing was remanded and ordered to be surrendered to the messen- POWEB TO REVIEW BY HABEAS COEPUS. 249 ger from Pennsylvania. From this judgment an appeal was taken to the Supreme Court of tlie United States and Mr. Justice Harlan again delivered the opinion of the court. It had been strongly contended on behalf of the accused, that there was not sufficient evidence before the governor of Utah to establish the fact that he was a fugitive from the justice of Pennsylvania, and that ob- taining goods under false pretenses, in Pennsylvania, was only a misdemeanor and therefore not such a crime under the Federal law for which his rendition could be asked. The learned jurist brushed aside the last contention by declaring that the crime charged against the fugitive was such an offense for which his arrest and surrender could be demanded and included "every offense against the laws of the demanding State, without exception as to the nature of the crime." As to the other contention, the lack of sufficient evidence before the governor of Utah that the accused was a fugitive from the justice of the demanding State, the court overruled this objection in the following language, (which is sometimes referred to as authority for doubting the right of the courts to review the governor's determination of this question of fact:) "If the determination of that fact by the governor of Utah upon evidence introduced before him, is sub- ject to judicial review, upon habeas corpus, the ac- cused, in custody under his warrant — ^which recites the demand of the governor of Pennsylvania, accom- panied by an authentic indictment charging him sub- stantially in the language of her statutes, with a specific crime committed in her limits — should not be discharged merely because, in the judgment of the court, the evidence as to his being a fugitive from justice was not as full as might properly have been required, or because it was so meagre as, per- haps, to admit of a conclusion different from that reached by him. In the present case, the proof be- fore the governor of Utah may be deemed sufficient to make a prima facie case against the appellant, as 250 THE LAW OF INTERSTATE BENDITION. a fugitive from justice, witMn the meaning of the act of Congress." Special attention is directed to the case of Eoberts v. Reilly, supra, where practically the same questions were raised, it was held by the Supreme Court of the United States, that whenever the governor of the State, upon whom a demand has been made, causes the arrest, for deportation, of a person charged as a fugitive from jus- tice of another State, the prisoner is held in custody only under color of authority derived from the Constitution and laws of the United States, and is entitled to invoke the judgment of the tribunals, whether of the State or the United States, by the writ of habeas corpus, upon the lawfulness of his arrest and imprisonment. The court expressly reiterating the declaration in Eobb v. Connolly, supra, that the jurisdiction of State courts is not excluded in such cases. CHAPTER XX. RENDITION: PLEADING AND PRACTICE. § 167. Relief from Illegal Arrest. § 168. The TJ. S. Supreme Court Sustains this View. § 169. Waiver of Rights. Relator and Respondent. § 170. Petition for the Writ § 171. Respondent's Return to the Writ. § 172. Relator's Traverse. § 173. At Hearing How Papers May Be Produced. § 174. Pleading and Issue. §175. The Hearing. § 176. The Order of Discharge May Be Vacated. § 177. Form of Petition to United States Judge. § 178. Form of Writ in United States Courts. § 179. Form of Petition for Writ to State Court or Judge. § 180. Form of State Writ of Habeas Corpus. § 181. Form of Ofllcer's Return to the Writ. § 182. Form of Prisoner's Traverse. 1 183. Suggestions for Resisting Rendition: 1. Identity. 2. Arrest. 3. Arrest Prior to Demand. 4. Governor's Warrant of Rendition. 5. Requisites of the Papers. 6. Charge of Crime. 7. Information and Belief. 8. The Authentication. 9. Jurisdictional Question. 10. Physical Presence Necessary. 11. "Complaint." 12. Information. 13. Information Instead of Indictment. 14. Governor must Personally Sign Warrant. 15. "Great Seal" of State. 16. When Accused not a Fugitive. 17. Mob Violence. 18. Failure to Annex Charge of Crime. 19. Accused and Charged with Crime, a Distinction. § 184. Final Appeal to U. S. Supreme Court. § 185. Appeal in State Courts. 1. States Holding Writ Reviewable. 2. States Holding Writ not Reviewable. (251) 252 THE LAW OP INTEBSTATB EENDITION. § 167. Relief from Illegal Arrest, — ^When a person is arrested as a fugitive from the justice of another State, and is held in custody by the authorities of the State in which he is found, charged with the commission of a crime in the State from which he is alleged to have fled, what step can the accused take to have determined the legality of his arrest and detention? It is a general and unquestioned principle in the jurisprudence of the United States, both Federal and State, that, where a person is by force deprived of his liberty, a judge or court having the power under the law to issue writs of habeas corpus, may and shall, upon the necessary showing by petition of such person, issue or cause to be issued a writ of habeas corpus; and a hearing had as to the legality of the arrest and restraint. And on such hearing should it appear that the detention is without warrant of law, then and in that event the judge or court is authorized to grant summary relief by ordering the inunediate dis- charge of the accused. From this just and humane prin- ciple, based on the civilization of centuries, it naturally follows that an alleged fugitive from justice arrested in one State, charged with a crime in another State, may, beyond all question, sue out a writ of habeas corpus and have settled by the courts of the State whereia the ar- rest is made the lawfulness of his arrest and imprison- ment, and on such hearing the judge or court cannot take judicial notice of the law of the demanding State, and in the absence of proof, the presumption is that the courts of that State agree with the courts of the surren- dering State in declaring and interpreting the common law. People ex rel. Lawrence v. Brady, (1874), 56 N. Y. 182. § 168. The U. S. Supreme Court Sustains this View.— Mr. Justice Harlan of the Supreme Court of the United States, in the case of Robb v. Connolly, (1884), 111 U. S. 624, in the course of an exhaustive opinion on the power and authority of State and Federal courts to issue writs of habeas corpus in rendition cases, strongly up- rendition: pleabing and pbacticb. 253 held the authority of the State courts or judges, upon habeas corpus, to compel the production of alleged fugi- tives from justice arrested and held in custody in the asylum State, and the right of such courts or judges to determine the legality of the arrest and detention, and "to discharge the fugitive, if it be ascertaiaed that such restraint is illegal; and this, notwithstanding, such ille- gality may arise from a violation of the Constitution or laws of the United States." In a later case before the same court, People ex rel. McNichols v. Pease, (1907), 207 U. S. 110, Mr. Justice Harlan, speaking for a unani- mous court, held that, ' ' one arrested and held as a fugi- tive from justice is entitled, of right, upon habeas corpus to question the lawfulness of his arrest and imprison- ment, showing by competent evidence, as a ground for his release, that he was not, within the meaning of the Constitution and laws of the United States, a fugitive from the justice of the demanding State, and thereby overcoming the presumption to the contrary arising from the face of the extradition warrant." § 169. Waiver of Rights. Relator and Respondent. — The lack of familiarity with the forms of pleading and practice on habeas corpus, in interstate rendition pro- ceedings, has frequently resulted in the waiving of cer- tain substantial rights of the accused or in their com- plete loss. The pleading and practice in such proceedings are very simple but very exacting. The parties to the action are, first, the prisoner or fugitive, who petitions for the writ and prays for relief, he is known as the relator; and, second, the officer or agent of the demand- ing State, or other person, who holds the alleged fugitive in custody, is the respondent. The relator or accused is entitled to be represented by coimsel at all such hearings, as well as the respondent. § 170. The Petition for the Writ.— The first step to- wards the adjudication of the question, as to whether the alleged fugitive is legally held in custody, is the prepara- tion and presentation to the judge or court, having au- 254 THE LAW OF INTERSTATE RENDITION. thority to issue writs of habeas corpus, of a petition, signed and sworn to by the accused, or some one in his behalf, setting forth the illegality of such arrest and detention; and should the facts and circumstances enu- merated therein, satisfy the judge or court that a suffi- cient prima facie showing had been made to entitle the petitioner or relator to the relief sought, then it becomes the duty of the judge or court to issue, or cause to be issued, a writ of habeas corpus, and fix a time and place for the hearing. In Federal courts this petition must be sworn to by the party in person who seeks relief. In State courts the petition can be sworn to by the fugitive or any person in his behalf as the particular State stat- ute prescribes. §171. Respondent's Return to the Writ. — ^At the designated time and place the officer or agent of the demanding State, or other person having the alleged fugitive in custody must bring him in person before the judge or court, make answer on oath to the writ of habeas corpus, in the form of a return, in writing, show- ing by what authority he arrested the accused and why he holds him in custody. If the fugitive was arrested by virtue of the governor's warrant of rendition, then the process itself must be produced, as well as all other papers coming into the hands of the officer making the arrest. However, neither the officer nor the agent of the demanding State, or other person can be compelled to produce with the return copies of the requisition and accompanying papers from the demanding State. (Mat- ter of Sylvester, (1899), 21 Wash. 263, 57 Pac. 829, citing In re Leary, (1879), 10 Ben. (U. S.) 197, and Leary's Case, (1879), 6 Abb. N. C. (N. Y.) 44.) But should copies of such requisition and accompanying papers from the demanding State, upon which the governor's warrant of rendition is pedicated, be accessible to the respondent, he should in the interest of justice and fair play, attach such documents to his return, that their validity and the legality of the governor's action thereon, ebndition: pleading and peactice. 255 may be fully reviewed upon the hearing by the judge or court. § 172. Relator's Traverse.— The return of the respond- ent is followed by the exceptions or traverse of the peti- tioner or relator. Exceptions raise questions of law and a traverse raise both questions of law and issues of fact. In a majority of the States only the traverse is known to the pleading in habeas corpus proceedings. When the return of the respondent sets forth the process upon which the relator is held in custody and on its face shows good ground for holding the prisoner, such process being produced on the hearing and the traverse of the relator alleges matter tending to invalidate the apparent effect of such process, the burden of proof is on the relator to establish by proper evidence the allegations of the tra- verse. It frequently happens that by agreement of the parties, respondent and relator, with the consent of the judge or court, the original petition for the writ is ac- cepted and treated as a traverse. This however, does not require the respondent to file, in addition to his return a pleading specifically denying the affirmative allega- tions of such petition, (accepted as relator's traverse), nor does it, by any means, shift the burden of proof as to such allegations from the relator to the respondent. It has been held by the supreme court of the State of California, and this is the law beyond all doubt, that where the relator's traverse does not dispute the recitals, in a warrant of rendition that the requisition was accom- panied by a complaint and information, affidavits and warrant of arrest, then such recitals are to be taken as conclusive on a writ of habeas corpus in interstate rendi- tion proceedings. Ex parte Lewis, (1889), 79 Cal. 95, 21 Pac. 553; Thorp v. Metzger, (1913) 77 Wash. 62, 137 Pac. 330. §173. At Hearing How Papers May Be Produced. — But should the requisition and the accompanying papers from the demanding State, be not produced by the re- spondent, then the only other method of getting these 256 THE LAW OF INTERSTATE EENDITION. documents before the court, known to the law, is for the relator to secure certified copies from the proper official and attach them to his traverse, thereby making them a part of the record of the case. When these papers are arbitrarily withheld by the officials, as is done in the State of New York, the only questions that can be raised by the pleadings, in their absence, are, first, the regular- ity of the governor's warrant; second, the identity of the accused; and third, is the party arrested and held in custody a fugitive from the justice of the State demand- ing his arrest and return? §174. Pleading and Issue. — ^It is not unusual, by agreement of the parties, with the consent of the court, that the return of the respondent and the traverse of the relator are made ore tenus, this being done for the pur- pose of saving time. A supplementary or amended re- turn may be filed by the respondent, at any time before the hearing, or during the progress of the hearing, by consent of the court, and the same privilege is accorded the relator to file an additional traverse to the amended return of the respondent. The return and the traverse constitute all the pleading in interstate rendition pro- ceedings on habeas corpus, and issue is joined when these are properly filed before the judge or court, before whom the writ is returnable. The scope of the inquiry on habeas corpus is thus circumscribed and limited to such questions of law and fact, as are raised by the pleading ; yet, any apparent irregularity or illegality in the gov- ernor's warrant of rendition, or other papers, properly before the judge or court, may be passed upon judicially, without being questioned in the pleading, for the reason that the judge or court finding that the governor's war- rant and other papers from the demanding State, do not comply with the Constitution and laws of the United States, may declare the "caption and detention" of the fugitive wholly illegal and without warrant of law. § 175. The Hearing. — The hearing before the judge or court before whom the writ of habeas corpus is return- KENDITIOlir : PLEADING AND PBAOTICE. 257 able is the means of detenniiiiiig wlietlier the alleged fugitive from justice is or is not unlawfully restrained of his liberty. The competency of the relator as a wit- ness in his own behalf is governed by the laws of the State wherein such trial may be had. In Federal courts he is a competent witness in his own behalf. Such re- straint is unlawful unless the requisition and papers ac- companying the same, meet all the requirements of the law on interstate rendition ; unless the indictment or affi- davit substantially charges a crime committed by the accused against the laws of the demanding State; and, unless the accused is shown to have been physically and personally present in the demanding State when the alleged crime was committed. These are the elements required by the Constitution and laws of the United States as a prerequisite to interstate rendition, and un- less each element is present, clearly and positively, there can be no lawful surrender of the accused to the author- ities of another State. The burden of proof rests on the accused or the re- lator, every affirmative allegation made by him in his traverse must be sustained by satisfactory evidence — oral or documentary — otherwise the writ must be quashed and the relator remanded. There is but one exception to this rule, and that is, when the accused or relator denies his identity, then and in that event, the burden is upon the authorities of the demanding State or the respondent, to establish the fact, by competent evidence, that the accused is the identical person charged with crime in the demanding State, named in the requisition and governor's warrant of rendition. Should the re- spondent fail to establish the identity of the accused then he is detained without authority of law, and the perempt- ory discharge of the alleged fugitive from justice must follow. § 176. The Order of Dischaxge May be Vacated.— But after such discharge and after the prisoner has gone "hence without day," the judge or court making the 258 THE LAW OF INTERSTATE EENDITION. original order of discharge may, upon motion and notice to tlie relator and for good cause vacate and set aside such order, the effect of which is the revival of the pro- ceeding in habeas corpus as it originally stood before the discharge of the prisoner. This motion must be made in term time. In Tiberg v. Warren, (1911), 192 Fed. 458, the United States district judge of the district of the State of Washington, had brought before him on a writ of habeas corpus an alleged fugitive from justice and after a hearing ordered his discharge. The follow- ing day a motion was made to vacate and set aside the order of discharge entered by the court on the previous day, the alleged fugitive being duly notified of such mo- tion, and the court on hearing being fully satisfied that the order of the previous day discharging the prisoner was erroneous and without warrant of law — the same was vacated and set aside. This supplementary pro- ceeding revived the habeas corpus and the entire issue and the cause was properly treated as though it were pending originally and the court held that it was unnec- essary to rearrest the prisoner, the first arrest being in force. § 177. Form of Petition to United States Judge. To the Honorable A. B., Judge of the Court of the United States for the District of The petition of C. D. respectfully shows : That he is now imprisoned and restrained of his lib- erty by E. F. {sheriff, etc., or as the case may be) at [place of detention, if known), in the of , in the county of , in the State of That your petitioner is thus imprisoned and held in custody under color of the authority of the Constitution eendition: pleading and practice. 259 and laws of the United States, relating to the return of fugitives from justice to the State or Territory from which they fled. That said E. F. claims to hold in custody, and imprison- ment your petitioner for the purpose of transporting him. to the State of , under and hy virtue of a certain warrant or process of the tenor following: (here set out the ivarrant, if no warrant, set forth the facts, if a copy of the warrant has been requested and refused, allege the fact and that the legal fees for copy were ten- dered, if there was any reason to fear that the prisoner would be removed from the jurisdiction before a copy of the Writ of Habeas Corpus could be obtained, so allege that fact or fear.) That said imprisonment is illegal and in violation of the Constitution and laws of the United States for the following reasons : (here state the grounds on which it is claimed that the attempted rendition is illegal, as for example, that the prisoner is not the person named in said warrant or process, or that the prisoner is not legally charged with any crime in the State of ; or that he is not a fugitive from justice within the meaning of the Constitution and laws of the United States; or any other grou/nd of illegality that may be claimed.) Wherefore your petitioner prays that a Writ of Ha- beas Corpus may issue out of the Court of the United States for the District of to the said E. F., requiring him to produce the body of your petitioner before said court at some convenient time to be therein designated, there to abide what shall be awarded by the court in the premises, and that your petitioner may be discharged from said imprisonment. District of ,^ss. County of ] On this day of in the year 19 , before me personally came C. D. the above named petitioner, and, being by me 260 THE LAW OP INTERSTATE EBNDITION. duly sworn, made oath that the foregoing petition by him subscribed is true in substance and in fact. § 178. Form of the Writ in United States Courts. UNITED STATES OF AMEEICA. The Court of the United States, for the District of The President of the United States of America. To E. P., (sheriff, etc., or as the case may be) : We command you that you have the body of C. D., by you imprisoned and detained, as it is said, together with the cause of such imprisonment and detention, by what- ever name the said C. D., may be called or charged, be- fore the Court of the United States for the District of , on the day of , in the year 19 , at. . . .o'clock M., of said day, to do and receive what shall then and there be considered and adjudged concerning the said C. D., and have you then and there this writ. Witness the Honorable Chief Justice of the Supreme Court of the United States, this day of , in the year one thou- sand nine hundred and , and of the Independ- ence of the United States the one hundred and S Seal of I , |the courtj Clerk. District of , I certify that the foregoing Writ was allowed by me. > Judge. bendition: pleading and practice. 261 § 179. Form of Petition for Writ to State Court Judge. State of ,^ss. County, j The People of tlie State of ex rel C. D vs. E.F Petition for Habeas Corpus. To the Honorable A. B., Judge of the Court, Judicial District, State of , Presiding in the County of : Your petitioner, C. D., of .'. .County of , State of , complaining, shows that he is de- tained and imprisoned in the jail of said county of ..... . , by E. F., of said county, on a charge of embezzlement said to have been committed by your petitioner in the State of Texas and from which said State your petitioner is charged with being a fugi- tive from justice, and for said alleged crime your peti- tioner is now being held by virtue of a certain warrant of rendition, for the arrest and deportation of your peti- tioner, issued by the G-overnor of , which de- tention and imprisonment of your petitioner is unjust and contrary to law. (If copy of warrant of rendition is in possession of petitioner it should be set out here in full.) And your petitioner further shows, that said imprison- ment is Ulegal and in violation of the Statutes of this State for the following reasons : (Here state the grounds on which it is claimed that the attempted rendition is illegal, for exa/mple, that the prisoner is not the party mentioned in the warrant; that the prisoner is not legally charged with crime in the State of ; or that he is not a fugitive from justice within the meaning of the Constitution and laws of the United States; or any other ground of illegality that may he claimed.) 262 THE LAW OF INTEBSTATB EENDITION. And your petitioner further shows, that he is not com- mitted or detained by virtue of any process, judgment, decree or execution issued by any court or judge of the United States in a case where such court or judge has exclusive jurisdiction, nor by virtue of a final judgment or decree of any competent court of civil or criminal jurisdiction, or of any execution issued ^pon such judg- ment or decree, nor for any treason, felony, or other crime committed in any other State or Territory of the United States for which he ought, by the Constitution and laws of the United States, to be delivered up to the executive power of such State or Territory. To be relieved from which said detention and imprison- ment your petitioner now applies, praying that a Writ of Habeas Corpus, to be directed to the said E. F., may issue in this behalf pursuant to the Statute in such case made and provided, so that your petitioner may be forthwith brought before this Honorable Court to do, submit to and receive what the law may require. C. D 1. Affidavit to Petition. State of ,|ss. County.^ CD the petitioner above mentioned and named, being first duly sworn, on oath says, that he has heard read the foregoing petition by him sub- scribed, and knows the contents thereof, and that the same is true of his own knowledge, except as to the mat- ters and things therein stated to be upon information and belief, and as to those matters he believes it to be true. CD Subscribed and sworn to by the said C D. this day of A. D. 19 , before me. rendition: pi^eaiung and pbaohce. 263 To the Clerk of the Court of county : Let Writ issue as prayed for in the foregoing petition, returnable forthwith. Judge. § 180. Form of State Writ of Habeas Corpus.— (Illinois Form.) State of Illinois, [ss. The People of the State of Illinois. County, j To Greeting : We Command You, That you do forthwith, without excuse or delay, bring or cause to be brought before Hon one of the judges of our court of county, now in session at the Court House in in said county of ; the body of by whatever name or addition he is known or called, and who is unlawfully detained in your custody (as it is represented unto one of the judges of said court, by the petition of ), to- gether with the day and cause of caption and detention ; then and there to perform and abide such order and directions as our said court of coun- ty shall make in that behalf. Hereof make due return forthwith under the penalty of what the law directs. Witness, , Clerk of our said Court of county, and the seal there- (seal) of , at , in said county and State, this day of A. D., 1915. , Clerk. To the Sheriff of said county to deliver. Under the statutes of Illinois this writ of habeas corpus must have printed on the back thereof the following 264 THE LAW OP INTBESTATE BENDITIOKT. words in large letters: "WEIT OF HABEAS COE- PUS, by the habeas corpus act." §181. Form of Officer's Return to the Writ. State of ,|ss. In the Court of County, j said county. I, E. F., Sheriff of said county, to whom the attached Writ of Habeas Corpus is directed, and in obedience to said Writ I herewith produce the body of the said C. D., arrested and held in custody by me. And for return to said Writ of Habeas Corpus I beg leave to say, that the said C. D., was arrested by me on the day of 19 , by virtue of the Governor's War- rant of Eendition, issued on the day of . . . . 19 . . . . , by the Honorable Governor of the State of , and the said C. D., now in court in his own proper person, is the identical person named in said Governor's Warrant of Eendition and is now held in my custody by the authority of said process, which is attached herewith and made a part of this my Eetum. Sheriff of County. Subscribed and sworn to this the day of 19 § 182. Form of Prisoner's Traverse. State of ,|ss. In the Court of County.j County. The People ex rel. C. D., vs. No E. F., Sheriff of county. Now comes C. D., alleged to be a fugitive from justice and the Eelator in the above entitled cause, in his own proper person and by his attorney, and for Traverse to rendition: pleading and peacticb. 265 Eespondent's Eeturn to the Writ of Habeas Corpus here- in, doth say, that his arrest and detention as such fugi- tive, are illegal and void for the following reasons: (Here set forth specifically and minutely every allega- tion tending to show the illegality of the arrest and deten- tion.) CD Sworn and subscribed to etc. § 183. Suggestions for Resisting Rendition. — After the accused has been taken in custody and is held as a fugitive from the justice of another State, and the cause of his "caption and detention" is made the subject of inquiry in the State where the arrest is made, on a writ of habeas corpus, the following suggestions for attack of the proposed rendition of the accused may be of serv- ice in preventing his illegal deportation : 1. Identity. The accused in custody must be the identical person charged with crime in the demanding State, and named in the requisition and governor's warrant of rendition. Eobinson v. Flanders, (1867), 29 Ind. 10; Matter of Leary, (1879), 10 Ben. (U. S.) 197; People ex rel. NubeU V. Byrnes, (1884), 33 Hun. 108, 2 N. Y. Grim. 398; GiUis V. Leekley, (1905), 38 Wash. 156, 80 Pac. 300; State v. Bates, (1907), 101 Minn. 303, 112 N. W. 260; Barnes v. Nelson, (1909), 23 S. D. 181, 121 N. W. 89; Ex parte Spencer, (1911), 34 Nev. 240, 117 Pac. 1; Hyland v. EocheUe, (1913), 179 Ind. 671, 100 N. E. 842. 2. Arrest. The arrest of the fugitive must be in strict compliance with the Constitution and laws of the United States, as well as the statutes of the State wherein the arrest is made. State v. Buzine, (1846), 4 Harr. (Del.) 572; State V. 'Conner, (1888), 38 Minn. 243, 36 N. W. 462; State v. Taylor, (1898), 70 Vt. 1, 39 Atl. 447, 67 Am. St. 648; 266 THE LAW OF INTEBSTATE EBNDITION, State ex rel. Arnold v. Justus, (1901), 84 Minn. 237, 87 N. W. 770; State ex rel. Grass v. White, (1905), 40 Wash. 560, 82 Pac. 907; Vollmer v. County, (1913), 53 Ind. App. 149, 101 N. W. 321. 3. Arrest Prior to Demand. If a provisional arrest, prior to the requisition from the demanding State, the affidavit on which the local warrant is based must make out a prima facie case of probable cause to justify the detention of the accused. Brockaway v. Crawford, (1856), 48 N. C. 433, 67 Am. Dec. 250; Cunningham v. Baker, (1893), 104 Ala. 160, 16 So. 60, 53 Am. St. 27; Simmons v. Vandyke, (1894), 138 Ind. 380, 37 N. E. 973, 26 L. E. A. 33; State v. Taylor, (1898), supra. 4. Governor's Warrant of Rendition. If the arrest is made upon a governor's warrant of rendition it must show upon its face legality and regu- larity. Ex parte Thornton, (1853), 9 Tex. 635; In re Doo Woon, (1883), 18 Fed. 898; Ex pwrte Thomas, (1908), 53 Tex. Crim. 37, 108 S. W. 663, 126 Am. St. 786. 5. Requisites of the Papers. The requisition and accompanying papers from the governor of the demanding State must meet all the re- quirements of the Constitution and laws of the United States on interstate rendition. Ex parte Smith, (1842), 3 McLean, (U. S.) 121; Ex pwrte McKean, (1878), 3 Hughes, (U. S.) 23; Malcohnson v. Gibbons, (1885), 56 Mich. 459; Ross v. Crofutt, (1911), 84 Conn. 370, 80 Atl. 90. 6. Charge of Crime. Specifically, the indictment or affidavit charging the crime, must substantially charge the alleged fugitive with having committed such crime in the demanding bendition: pleading and peaotiob. 267 State. In re Greenongli, (1858), 31 Vt. 279; People ex rel. Lawrence v. Brady, (1874), 56 N. Y. 182; Ex parte Powell, (1884), 20 Fla. 806; Ex parte Eowland, (1895), 35 Tex. Crim. 108; Armstrong v. Van de Venter, (1899), 21 Wash. 682, 59 Pac. 510; In re Waterman, (1907), 29 Nev. 288, 89 Pac. 291, 13 Ann. Cas. 926; Ex parte Lewis, (1911), 34 Nev. 29, 115 Pac. 729; Ex parte Owen, (1913), 10 Okl. Grim. 284, 136 Pac. 137; Barriere v. State, (1904), 142 Ala. 72, 39 So. 55 ; People ex rel. Cornett v. Warden, (1908), 60 Misc. 525, 112 N. Y. S. 492; In re Mntchler, (1909), 8 Ohio N. P. (N. S.) 345; In re Kuhns, (1914), 36 Nev. 487, 137 Pac. 83. 7. Information and Belief. The affidavit as a charge of crime must be made by a person having knowledge of the commission of the crime and not npon information and belief ; Ex parte Dimmig, (1887), 74 Cal. 164, 15 Pac. 619; State v. Gleason, (1884), 32 Kan. 345, 5 Am. Crim. 172; Ex parte Hart, (1894), 63 Fed. 249, 11 C. C. A. 165, 28 L. E. A. 801 ; Lippman v. People, (1898), 175 HI. 110, 51 N. E. 872, 11 Am. Crim. 356; Ex parte Cheatham, (1906), 50 Tex. Crim. 51, 95 S. W. 1077; People ex rel. Cornett v. City Prison etc., (1908), 60 Misc. 525, 112 N. Y. S. 492; Mark v. Brown- ing, (1911), Utah , 115 Pac. 275; Ex parte Lewis, (1914)., Tex. Crim. , 170 S. W. 1098; Ex parte Brown, (1915), Tex. Crim. , 178 S. W. 366; Ex parte Goodman, (1916), Tex. Crim. , 182 S. W. 1120. 8. The Authentication. The authentication by the governor of the demanding State of the copy of the indictment or affidavit and ac- companying papers must be regular and legal. Kings- bury's Case, (1871), 106 Mass. 223; Ex parte Sheldon, (1878), 34 Ohio St. 319; Hackney v. Welsh, (1886), 107 Ind. 253, 57 Am. Eep. 101, 36 L. E. A. 488; Ex parte Hampton, (1895), 1 Ohio N. P. 181; In re Baker, (1899), 268 THE LAW OF INTBESTATE EENDITION. 21 Wash. 259; Kemper v. Metzger, (1907), 169 Ind. 112, 81 N. E. 663; State v. Curtis, (1910), 111 Mann. 240. 9. Jurisdictional Question. The accused must be a fugitive from the justice of the demanding State, and this fact must appear from the requisition and accompanying papers, before the gov- ernor of the surrendering State can legally issue, or cause to be issued, his warrant of rendition. Ex parte Smith, (1842), supra; In r,e Jackson, (1878), 2 Flippin, (U. S.) 183; Ex parte Reggel, (1885), 114 U. S. 642, 5 Sup. Ct. 1149, 29 L. ed. 250; In re Strauss, (1903), 126 Fed. 327; Appleyard v. Com., (1906), 203 U. S. 222, 27 Sup. Ct. 122, 51 L. ed. 161, 7 Ann. Cas. 1073; Singleton V. State, (1906), 144 Ala. 104, 42 So. 23; Ex parte Over- field, (1915), Nev. , 152 Pac. 568. 10. Physical Presence Necessary. The papers accompanying the requisition from the demanding State must show that the alleged fugitive was personally present in the demanding State at the time when the crime is charged to have been committed. In re Mitchell, (1885), 4 N. Y. Crim. 596; In re White, (1893), 55 Fed. 54; Hayes v. Palmer, (1903), 21 App. Cas. (D. C.) 450; FarreU v. Hawley, (1905), 78 Conn. 150, 61 Atl. 502, 112 Am. St. 98; O'MaJley v. Quigg, (1909), 172 Ind. 350, 88 N. E. 611; Ex parte Hoffstot, (1910), 180 Fed. 240, affirmed 218 U. S. 665; People ex rel. Meeker v. Baker, (1911), 127 N. Y. S. 382, 142 App. Div. 598; Ex parte Graham, (1914), 216 Fed. 813; Zulch V. Roach, (1915), 23 Wyo. 335, 151 Pac. 1101; Reed v. United States, (1915), 224 Fed. 378. 11. "Complaint." When the requisition is based on a so-called "com- plaint," as the charge of crime, such complaint must be verified and bear aU of the requisites of an afl&davit. State V. Richardson, (1885), 34 Minn. 115, 24 N. W. 354. rendition: pleading and pbaotioe. 269 12. Information. Where the requisition is based on an "information" as the charge of crime, such information must possess all the requisites of an afl&davit. Morrison v. Dwyer, (1909), 143 Iowa, 502, 121 N. W. 1064; State v. Gleason, (1884), supra; Commonwealth v. Cooke, (1913), 55 Pa. Supr. Ct. 435. 13. Information Instead of Indictment. The acceptance of an information, (not sworn to) as the equivalent of an indictment, as a charge of crime in interstate rendition cases, in some States is not regarded with favor. Ex parte Cheatham, (1906) , supra; Ex parte Hart, (1894), supra; Bergman v. State, (1910), 60 Tex. Crim. 8, 130 S. W. 174; In re Hooper, (1881), 52 Wis. 699, 58 N. W. 741 (Contra.); People ex rel. v. Stockwell, (1904), 135 Mich. 341, 97 N. W. 768 (Contra.). 14. The Governor Must Personally Sign Warrant. The warrant of rendition must he actually signed by the governor of the surrendering State, or by the acting governor thereof. In re Tod, (1900), 12 S. D. 386, 81 N. W. 637, 12 Am. Crim. 303. 15, "Great Seal" of State. The warrant of rendition issued by the executive au- thority of the surrendering State must bear the impress of the "great seal" of the State if the State law so re- quires. VaUad v. State, (1828), 2 Mo. 26. 16. When Accused not a Fugitive. When the accused fugitive leaves the demanding State at the special instance and request of the prosecuting witness, in a subsequent criminal proceeding, he is not regarded as a fugitive. In re Tod, (1900), supra; Leon- ard V. Zweifel, (1915), 171 Iowa 522, 151 N. W. 1054 (Contra.). 270 THE LAW OP INTEESTATB EENDITION, 17. Mob Violence. Upon positive proof to the fact that the alleged fugi- tive, if surrendered and returned to the demanding State, will not receive a fair and impartial trial, free from mob violence, rendition in such case has been denied. Ex parte Hampton, (1895), 1 Ohio N. P. 181; Marbles v. Creecy, (1909), 215 U. S. 63, 30 Sup. Ct. 32, 54 L. ed 92. 18, Failure to Annex Charge of Crime. Where the requisition contains a mere recital that, a duly authenticated copy of an indictment or affidavit is annexed, but there is no copy of indictment or affidavit annexed, such recital by the governor of the demanding State in his requisition is of no effect and the surrender of the fugitive must be denied. Ex parte Hart, (1894), supra; Ex parte Pfitzer, (1867), 28 Ind. 450; Ex parte Devine, (1897), 74 Miss. 714, 22 So. 3. 19. Accused and Charged with Crime a Distinction. The person in custody may be accused of having com- mitted a crime or crimes in the demanding State — ^this is wholly insufficient — ^he must be charged in the courts of that State with the commission of crime. In re Hey- ward, (1848), 1 Sandf. (N. Y. S.) 701; In re Butter, (1869), 7 Abb. Pr. (N. S.) 68; State v. Hufford, (1869), 23 Iowa, 391; Ex parte White, (1875), 49 Cal. 434; Ex parte Lorraine, (1881), 16 Nev. 63. §184. Final Appeal to U. S. Supreme Court. — ^In a Federal court a person who may be adjudged, on a habeas corpus proceeding, to be a fugitive from justice and is ordered remanded to the authorities of the de- manding State for deportation, to the State where the alleged crime was committed, may, by appeal to the Su- preme Court of the United States, have his case re- viewed by the court 'of last resort, provided, the court or judge rendering the final decision or a justice of the Supreme Court of the United States shall be of opinion rendition: pleading and peacticb. 271 that there exists probable cause for such appeal. This is in accordance with the act of Congress of March 10, 1908, chap. 76, 35 Stat. L. 40. And after the supreme court of a State shall have adjudicated the fact that a person is a fugitive from the justice of another State, on a habeas corpus hearing, and has remanded and surrendered such person for removal to the demanding State, the accused may sue out a writ of error in the Supreme Court of the United States di- rected to such State and have his caption and detention finally reviewed by the court of last resort. In both instances mentioned should the relator be discharged the respondent may also sue out writ of error in the Su- preme Court of the United States. § 185. Appeal in State Courts. — ^In the various States of the Union the right of appeal or writ of error, so far as habeas corpus is concerned, is not, by any means, uniform or harmonious. In some States the alleged fugi- tive may appeal to the State supreme court, in the case of an adverse judgment, in a habeas corpus proceeding, while in other States the judgment of the lower court is final and conclusive. 1. States Holding Writ Reviewable: Alabama, by supreme court, Barriere v. State, (1904), 142 Ala. 72, 39 So. 55. Arizona, by statute, see Eev. Stat., Penal Code, 1913. Arkansas, by supreme court. Ex parte Good, (1858), 19 Ark. 410. Colorado, only jurisdictional questions. See In re Ma- hany, (1902), 29 Colo. 442, 68 Pac. 235. Connecticut, by supreme court, McEeady v. Nick, (1866), 33 Conn. 321. Florida, by supreme court. Ex parte Edwards, (1866), 11 Fla. 174; Ex parte Powell, (1884), 20 Fla. 806. Georgia, by supreme court, Livingston v. Livingston, (1858), 24 Ga. 379. 272 THE LAW OF INTEESTATB EENDITION". Indiana, by supreme court, Speer v. Davis, (1871), 38 Ind. 271; Ex parte Richards, (1885), 102 Ind. 260. Iowa, by statute, Dunkin v. Seifert, (1904), 123 Iowa, 64, 98 N. W. 558. Kansas, by supreme court. In re Klyne, (1893), 52 Kan. 441, 35 Pac. 23. Kentucky; by statute. In re Gill, (1891), 92 Ky. 118, 17 S. W. 166. Minnesota, by statute. State v. Buckhan, (1882), 29 Minn. 462. Mississippi, by statute, Steele v. Shirley, (1847), 13 Smed. & M. 106; Covington v. Arrington, (1847), 32 Miss. 144; Ex parte Phillips, (1879), 57 Miss. 357. Nebraska, by supreme court, In re VanSciever, (1894), 42 Neb. 772; In re G-reaser, (1904), 72 Neb. 612, 101 N. W. 235. New Jersey, by statute. See Eev. Stat. 1877, p. 475. New York, by statute, Yates v. People, (1810), 6 Johns 337; People ex rel. Tweed v. Lipscomb, (1875), 60 N. Y. 559; People ex rel. Breslin v. Lawrence, (1887), 107 N. Y. 607. North Carolina, by supreme court, Walton v. Gatlin, (1864), 1 Winst. 318. Ohio, by statute, Wilcox v. Nolze, (1878), 34 Ohio St. 520; Henderson v. Jones, (1895), 52 Ohio St. 530. Oklahoma, by statute, In re McMaster, (1900), 9 Okl. 436, 60 Pac. 280. Oregon, by supreme court, Ex parte Howe, (1894), 26 Oregon, 181, 37 Pac. 536. South Carolina, by statute. Ex parte Massee, (1913), 95 S. C. 316, 79 S. E. 97. South Dakota, by supreme court. In re Hammil, (1896), 9 S. D. 390, 69 N. W. 577. Tennessee, by stat. civil cases, See Vanvabry v. Stan- ton, (1890), 88 Tenn. 334, 12 S. W. 786. Texas, by stat. for relator. Ex parte Ainsworth, (1865), 27 Texas, 731. Vermont, by supreme court. In re Cooper, (1859), 32 Vt. 253. rendition: pleading and peactice. 273 Virginia, by statute, see Code of Va. 1904, sees. 3087, 3454, 3469. Washington, by supreme court. In re Grarfinkle, (1905), 37 Wash. 650, 80 Pac. 88. West Virginia, by supreme court, Fleming v. Comtnrs., (1888), 31 W. Va. 608, 8 S. E. 267. Wisconsin, by statute, Laws 1889, chap. 239, S. & B. Ann. Stat. sec. 3437a. See Ex parte Brunell, (1891), 80 Wis. 563. 2. States Holding Writ not Reviewable: California, by supreme court, In re Perkins, (1852), 2 Cal. 424; Ex parte Ring, (1865), 28 Cal. 247; Ex parte White, (1906), 2 Cal. App. 726. Delaware, simply not reviewable. Idaho, by supreme court. In re Snyder, (1905), 10 Idaho, 682, 79 Pac. 819. Illinois, by supreme court, Hammond v. People, (1863), 32 lU. 446; Ex parte Thompson, (1879), 93 HI. 89. Louisiana, by supreme court, Ex parte Lacrouts, (1914), 134 La. 900, 64 So. 824. Maine, by supreme court, Knowlton v. Baker, (1881), 72 Maine, 202. Maryland, by supreme court. City of Annapolis v. How- ard, (1894), 80 Md. 244, 30 Atl. 910. Massachusetts, by supreme court, Wyeth v. Richard- son, (1857), 76 Mass. 240; In re King, (1894), 169 Mass. 46, 36 N. E. 685; Ex parte Chambers, (1915), 221 Mass. 178, 108 N. E. 1070. Michigan, by supreme court, Faust v. Judge, (1874), 30 Mich. 266. Missouri, by supreme court, Howe v. State, (1846), 9 Mo. 682. Montana, by supreme court. State ex rel. Jackson v. Kennie, (1900), 24 Mont. 45, 60 Pac. 589. New Hampshire, writ of habeas corpus issued only by a justice or the supreme court. No appeal or writ of error. 274 THE LAW OF INTERSTATE EENDITION. New Mexico, by supreme court, Ex parte Cauavan, (1912), 17 N. M. 100, 130 Pac. 248. Nevada, by supreme court, Ex parte Bergman, (1884), 18 Nev. 331. North Dakota, by supreme court, Carruth. v. Taylor, (1898), 8 N. D. 166, 77 N. W. 617. Pennsylvania, by supreme court, Eussell v. Common- wealth, (1829), 1 Penn. & W. 82. Rhode Island, by supreme court. No appeal but may apply to supreme court for another writ. See Higgins V. Tax Assessors, (1905), 27 R. I. 401. Utah, by supreme court. In re Clasby, (1882), 3 Utah, 183. Wyoming, by supreme court, Tytler v. Tytler, (1907), 15 Wyo. 319, 89 Pac. 1. CHAPTER XXI. SUPREME COURT OF THE UNITED STATES AND RENDITION. §186. §187. §188. §189. §190 §191. §192. §193. §194. §195. §196. §197. §198. §199. §200. §201. §202. §203. §204. §205. §206. §207. §208. §209. §210. §211. §212. §213. §214. §215. §215a. Judicial Ruling Favorable to Demanding State. A Remarkable State of Facts. The Rule as to Jurisdiction of the Supreme Court. What has the Supreme Court Decided in Rendition Cases? (1.) Kentucky v. Dennison. (2. (3. (4. (5. (6. (7. (8. (9. (10. (11. (12. (13. (14. (15. (16. (17. (18. (19. (20. (21. (22. (23. (24. (25. (26. (27. Robb V. Connolly. Ex parte Reggel. Roberts v. Reilly. Cook V. Hart. Lascelles v. Georgia. Pearce v. Texas. Wbitten v. Tomlinson. Hyatt V. People ex rel. Corkran. Munsey v. Clough. , Dennison v. Christian. In re Strauss. Pettibone v. Nichols. Haywood v. Nichols. Moyer v. Nichols. Morey v. Whitney. Appleyard v. Massachusetts. McNichoIs V. Pease. Bassing v. Cady. Pierce v. Creecy. Kopel V. Bingham. Compton V. Alabama. Marbles v. Creecy. Ex parte HofCstot. Strassheim v. Dailey. Drew V. Thaw. Innes v. Tobin. §186. Judicial Ruling Favorable to Demanding States.^One of the most important decisions, relating to interstate rendition by the Supreme Court of the United States, was that of Kentucky v. Dennison, (1860), 24 How. 66. WhUe the ease itself was not one of rendi- (275) 276 THE LAW OF INTEESTATB EENDITION. tion directly, yet it involved the ultimate return to the State of Kentucky, of an alleged fugitive from the jus- tice of that State, and was based upon a petition for mandamus, to compel the governor of the State of Ohio, to honor the requisition of the governor of Kentucky. In denying and dismissing the petition of the governor of Kentucky, strictly upon the ground of a lack of jurisdic- tion, the Supreme Court of the United States, in an elab- orate opinion, made clear many points which had pre- viously obstructed the rendition of fleeing criminals from one State to another. This decision was the beginning of a series of judicial rulings by the court of last resort, more favorable to the validity of the rendition papers, and which has since made it almost, if not quite impossi- ble, for the alleged fugitive from justice to defeat arrest and deportation, so far as that tribunal is concerned. The policy of that court, in determining this class of cases, has been plainly enunciated and ably sustained on two different occasions, as follows: In Appleyard v. Massachusetts, (1906), 203 U. S. 222, 27 Sup. Ct. 122, 51 L. ed. 161, Mr. Justice Harlan said: "And while a State should take care, within the limits of the law, that the rights of its people are protected against illegal action, the judicial author- ities of the Union should equally take care that the provisions of the Constitution be not so narrowly interpreted as to enable offenders against laws of a State to find permanent asylum in the territory of another State." And in Marbles v. Creecy, (1909), 215 U. S. 63, 30 Sup. Ct. 32, 54 L. ed. 92, Mr. Justice Harlan again said : "Another established and obvious principle is that when the extradition papers are regular on their face every intendment is to be indulged in favor of their validity and the burden is on the prisoner to show that some one of the conditions of extradition prescribed by the statutes, as above indicated, have not been met. ' ' § 187. A Remarkable State of Facts. — During the past fifty-five years the Supreme Court has passed upon U. S. SUPREME COURT AND RENDITION. 277 twenty-six cases relating to interstate rendition, each case, with one exception, (Kentucky v. Dennison, supra), was brought to that court on writ of error or appeal from State and Federal courts. It will he interesting to note the fact, in this connection, that of the twenty-six cases so finally adjudicated, only one alleged fugitive from justice secured his discharge as a result of the find- ing of that court. See Hyatt v. People ex rel. Corkran, (1903), 188 U. S. 691, 23 Sup. Ct. 456, 47 L. ed. 657, 12 Am. Crim. 311. ^ It will be seen that many eminent lawyers, represent- ing these fugitives before the Supreme Court, either have been woefully mistaken in their construction of the law of interstate rendition, or else have been wholly unpre- pared to meet and combat the court's interpretation of the Constitution and laws on this subject, which inter- pretation has constantly leaned towards the surrender of the fugitive to the authorities of the demanding States. §188. The Rule as to Jurisdiction of the Supreme Court. — It must be borne in mind that a decision of the Supreme Court of the United States to be effective and binding as the law of the land — absolutely final and con- clusive — that court must have had jurisdiction to hear and determine the points in controversy, such jurisdic- tion is conferred only when the record in the case clearly and unmistakably raise the questions for adjudication by the court. The fact that this is the tribunal of last resort of the Union gives it no extra-jurisdictional power — if the right to hear and determine is apparent from the record, its adjudication would be authoritative, other- wise its decision would be merely dictum, with no bind- ing effect whatever. It is to be regretted that many im- portant questions, relating to fugitives from justice, have been passed upon by the Supreme Court, in various opinions when the court itself was without authority to hear and determine, this has given rise to some uncer- tainty as to just what that court has determined is the law on interstate rendition. 278 THE LAW OP INTERSTATE EENDITTON. § 189. What Has the Supreme Court Decided in Rendi- tion Cases? — In order to give a correct idea, at a glance, as to what the supreme court has determined in each of these twenty-six cases, pertaining to the arrest and sur- render of fugitives from the justice of one State or Territory to another, it has been thought advisable to give each case chronologically, together with a brief statement of facts, showing the points raised for adjudi- cation, then the syllabus disclosing the questions heard and determined and finally the cases and authorities cited in each opinion, § 190. (1.) Kentucky v. Deoison, (1860), 24 How. 66, 16 L. ed. 717. — This was an original petition by the gov- ernor of Kentucky to the Supreme Court of the United States for a writ of mandamus, directed to the governor of Ohio, commanding him to honor the requisition of the governor of Kentucky, for the surrender of a fugitive from justice, charged with crime in the latter State. The writ was denied the Supreme Court holding: 1. That the words "treason, felony, or other crime," in the second clause of the second section of the fourth article of the Constitution of the United States, include every offense forbidden and made punishable by the laws of the State where the of- fense is committed. 2. That it was the duty of the executive author- ity in each State or Territory, upon the demand made by another executive, accompanied by an in- dictment or affidavit, duly authenticated to cause to be arrested and delivered to the agent of such exec- utive the alleged fugitive. 3. That the duty of the governor of the asylum State was merely ministerial and that he had no right under the law to exercise any discretionary power as to the nature or character of the crime charged. 4. That the word "duty," in the act of 1793, means the moral obligation of the State to perform the compact in the Constitution, when Congress had, by that act, regulated the mode in which the duty was to be performed. . tJ. S. SUPBEME COTJET AND RENDITION. 279 5. That neither Congress nor the Judiciary or any other department of the General Government, can coerce or compel the governor of a State or Territory to surrender an alleged fugitive. It is a moral obligation which he may perform or not as he may see fit. §191. (2.) Robb V. ConnoUy, (1884), 111 U. S. 624, 4 Sup. Ct. 544, 28 L. ed. 542. — ^This case strictly speaking was not a rendition case but the supreme court of Cali- fornia, whose judgment is affirmed, had held, that "the superior court of San Francisco has power to compel the production of the body of a prisoner before it, and has jurisdiction to inquire into the cause of detention," and that *'if the party having the prisoner in charge refuse to produce him in obedience to the writ of habeas corpus, he is guilty of contempt of court." One Bayley had been arrested in San Francisco as a fugitive from the justice of the State of Oregon, and Eobb, as the agent of the latter State, had received Bayley as such fugitive from the authorities of California, Bayley sued out a writ of habeas corpus in the superior court and the same was served upon Eobb, who in maJdng return to the writ claimed that he was holding Bayley by virtue of the authority of the laws of the United States, and for that reason he refused to produce the body of his prisoner before the superior court of San Francisco. That court committed Eobb, the agent of Oregon and the custodian of Bayley, for contempt. Eobb by writ of error carried the case to the supreme court of California, which affirmed the judgment of the lower court, and then by writ of error the case went to the Supreme Court of the United States, where the judgment of the supreme court of California was affirmed, the Supreme Court holding that, 1. An agent, appoiuted by the State ia which a fugitive from justice stands charged with crime, to receive such fugitive from the State by which he is surrendered, is not an officer of the United States within the meaning of former adjudications of this court. 280 THE LAW OP INTERSTATE RENDITION. 2. Congress has not undertaken to invest the judicial tribunals of the United States with exclusive jurisdiction of issuing writs of habeas corpus in proceedings for the arrests of fugitives from justice, and their delivery to the authorities of the State in which they stand charged with crime. 3. Subject to the exclusive and paramount au- thority of the National government by its own judi- cial tribunals to determine whether persons held in custody by authority of the courts of the United States, or by commissioners of such courts, or by officers of the general government acting under its laws, or so held in conformity with law, the States have the right, by their own courts, or by the judges thereof, to inquire into the grounds upon which any person, within their respective territorial limits, is restrained of his liberty, and to discharge him, if it be ascertained that such restraint is illegal, and this notwithstanding such illegality may arise from a violation of the Constitution and laws of the United States. §192. (3.) Ex parte Reggel, (1885), 114 U. S. 642, 5 Sup. Ct. 1148, 29 L. ed. 250. — This case was an appeal to the Supreme Court of the United States from the judgment upon habeas corpus, of the Third Judicial Dis- trict Court of Utah, then a Territory, remanding Reggel, the appellant, to the custody of the marshal of the Unit- ed States, by whom he had been arrested under a war- rant by the governor of Utah, issued upon the requisition of the governor of the State of Pennsylvania, which requisition demanded Reggel 's arrest and delivery as a fugitive from justice. In affirming the judgment of the Territorial court and remanding Reggel for rendition the court held: 1. The statute requiring the surrender of a fugi- tive from justice, found in one of the Territories, to the State in which he stands charged with treason, felony, or other crime, embraces every offense known to the laws of the demanding State, including mis- demeanors. 2. Each State has the right to prescribe the U. S. SUPEEME COITBT AND EEHDITION. 281 forms of pleadings and practice, in. botli civU and criminal cases subject only to tliose provisions of the Federal Constitution designed for the protec- tion of life, liberty and property in aU of the States of the Union; consequently, in a case involving the surrender, under the act of Congress, of a fugitive from justice, it may not be objected that the indict- ment is not framed according to the technical rules of criminal pleading, if it conforms substantially to the laws of the United States. 3. Upon the executive of the State or Territory in which the accused is found rests the responsibility of determining whether he is a fugitive from the justice of the demanding State. But the act of Con- gress does not direct his surrender, unless it is made to appear that he is, in fact, a fugitive from justice. 4. If the determination of that fact, upon proof before the executive of the State, where the alleged fugitive is found, is subject to judicial review upon habeas corpus, the accused being in custody under his warrant, which recites the requisition of the de- manding State, accompanied by an authentic indict- ment, charging him substantially as required by its laws with a specific crime committed within its juris- diction — should not be discharged because, in the judgment of the court, the proof showing that he was a fugitive from justice may not be as full as might properly have been required. Mr. Justice Harlan delivered the opinion of the court and cited sections 5278 and 5279 of the Revised Statutes of the United States and Kentucky v. Dennison, (1860), 24 How. 66. § 193. (4.) Roberts v. Reilly, (1885), 116 U. S. 80, 6 Sup. Ct. 291, 29 L. ed. 544.— This was an appeal by Wm. S. Eoberts, fugitive, from the judgment of the Circuit Court of the United States, for the Southern District of Georgia. Eoberts was arrested in Augusta, in the State of Georgia, upon a warrant issued by the governor of that State, upon the requisition of the governor of the State of New York, charging Roberts with being a fugi- 282 THE LAW OP INTBESTATE EENDITIOST. tive from justice and he had sued out a writ of habeas corpus in the court mentioned, alleging that he was wrongfully deprived of his liberty and on a hearing he was remanded and ordered to be surrendered to the agent of the State of New York. In re Roberts, (1885), 24 Fed. 132. From which order he prosecuted an appeal to the Supreme Court of the United States and in affirming the judgment of the lower court it was held by the court of last resort: 1. On an application of an alleged fugitive from justice (detained under authority of the executive of the State where he is found in order to be sur- rendered to the executive of the State in which the crime is alleged to have been committed), to be dis- charged on a writ of habeas corpus, it is a question of law, whether he is substantially charged with the commission of a crime against the laws of the latter State ; but the question whether he is a fugitive from justice is one of fact, the decision of which by the governor of the State in which he is found is suffi- cient to justify the removal — at least until overcome by contrary proof. 2. The question whether a corporation is capable in law of ownership of property, the subject of a larceny charged, is not a question which can be raised in proceedings in habeas corpus for the dis- charge of an alleged fugitive from justice held for surrender to the executive of the State in which the crime is alleged to have been committed. 3. If the governor of the State from which the delivery of a fugitive from justice is demanded does not require a certified copy of the law of the State against which the crime is charged to have been committed, the prisoner cannot take advantage of the omission in proceedings in habeas corpus for his discharge. 4. It is discretionary with the State upon which the demand is made for surrender of a fugitive from justice to surrender him, even if the allegations charge acts done by him in the State surrendering, which amount to a crime by its laws. 5. A person who, having committed, within a U. S. SUPREME COTTBT AOT) BENDITIOBr. 283 State, an act whicii by its laws constitutes a crime, is, when sought for to be subjected to criminal pro- cess to answer therefor, found without that State and within the territory of another State or Terri- tory, is a fugitive from justice within the meaning, of tiiat term as used ia the Constitution of the United States. Mr. Justice Mathews presented the opinion of the court, citing Kentucky v. Dennison, (1860), 24 How. 66; Eobb V. ConnollT, (1884), 111 U. S. 624, 4 Sup. Ct. 544, 28 L. ed. 542; Ex parte Reggel, (1885), 114 U. S. 642, 5 Sup. Ct. 1148, 29 L. ed. 250. §194. (5.) Cook V. Hart, (1892), 146 U. S. 183, 13 Sup. Ct. 40, 36 L. ed. 934. — This was an appeal from an order of the Circuit Court of the United States, for the Eastern District of Wisconsin, dismissing a writ of habeas corpus and remanding the relator, Charles E. Cook, to the custody of the Wisconsin authorities for trial in its courts. Cook had previously been arrested in the State of Illinois by virtue of a governor's warrant which was issued upon a requisition of the governor of Wisconsin, charging Cook with the commission of crime against the laws of that State and with being a fugitive from its justice. When arrested in Illinois he sued out a writ of habeas corpus, claiming that he was not a fugi- tive from Wisconsin and upon a hearing in the former State, his petition was dismissed and he was delivered to the agent of Wisconsin and at once carried to the de- manding State. Cook acquiesced in the disposition of his case in the courts of Illinois, making no effort what- ever to have the supreme court of that State review the judgment of the lower court. Upon his arrival in Wis- consin and just as his trial had begun in that State, he sued out another writ of habeas corpus in the circtiit court of the United States, alleging that he was imlaw- fidly deprived of his liberty, in that he was not a fugi- tive from Wisconsin when arrested in Illinois and that therefore he was illegally deported from that State. The Federal court in Wisconsin decided against him and he 284 THE LAW OF INTBESTATB RENDITION, prayed an appeal to the Supreme Court of the United States which affirmed the judgment of the lower court, and re-affirmed the doctrine enunciated in Ker v. Illinois, (1886), 119 U. S. 436, and Mahon v. Justice, (1888), 127 U. S. 700, as to the following points : 1. (a) That the supreme court will not interfere to relieve persons who have been arrested and taken by violence from the territory of one State to that of another, where they are held under process legally issued from the courts of the latter State. (b) That the question of the applicability of this doctrine to a particular case is as much within the province of a State court, as a question of common law or of the law of nations, as it is of the courts of the United States. 2. The doctrine enunciated in Ex parte Eoyall, (1885), 117 U. S. 241, and Ex parte Fonda, (1885), 117 U. S. 516, adhered to as to the point that where a person is in custody under process from a State court of original jurisdiction for an alleged offense against the laws of that State, and it is claimed that he is restrained of his liberty in violation of the Con- stitution of the United States, a circuit court of the United States has a discretion whether it will dis- charge him in advance of his trial in the court in which he is indicted, which discretion will be subor- dinated to any special circumstances requiring imme- diate action. 3. The exercise of the power to issue writs of habeas corpus to a State court proceeding in disre- gard of rights secured by the Constitution and laws of the United States, before the question has been raised or determined in the State court, is one that ought not to be encouraged. 4. In this case the court affirms the judgment of the circuit court refusing to discharge on writ of habeas corpus a prisoner, who had been surrendered by the governor of Illinois on the requisition of the governor of Wisconsin, as a fugitive from justice, but who claimed not to have been such a fugitive, it appearing that the case was still pending in the courts of Wisconsin, and had not been tried upon its merits and this court further held, IT. S. SUPREME COTJBT AND BENDITION. 285 (a) That no defect of jurisdiction was waived by submitting to a trial on the merits. (b) That comity demanded that the State courts should be appealed to in the first instance. (c) That a denial of his rights there would not impair his remedy in the Federal courts. (d) That no special circumstances existed here such as were referred to in Ex parte Eoyall, supra. The opinion of the court was delivered by Mr. Justice Brown and the following cases were cited: Ker v. Illi- nois, supra; Ex parte Fonda, supra; Mahon v. Justice, supra; Ex parte Eeggel, (1885), 114 U. S. 642, 5 Sup. Ct. 1148, 29 L. ed. 250; Robb v. ConnoUy, (1884), 111 U. S. 624, 4 Sup. Ct. 544, 28 L. ed. 542; Roberts v. Eeilly, (1885), 116 U. S. 80, 6 Sup. Ct. 291, 29 L. ed. 544. §195. (6.) Lascelles v. Georgia, (1893), 148 U. S. 543, 13 Sup. Ct. 687, 37 L. ed. 549.— In July 1891, two indictments were found by the grand jury of the county of Floyd, State of Georgia, against the plaintiff in error under the name of Walter S. Beresford, which respect- ively charged him with the offense "of being a common cheat and swindler," and with the crime of "larceny after trust delegated," both being criminal acts by the laws of Georgia, and alleged to have been committed in the county of Floyd. When these indictments were found Beresford was residing in the State of New York. In September 1891, the governor of the State of Georgia made a requisition on the governor of the State of New York for the arrest and surrender of Beresford, the gov- ernor of New York issued his warrant in compliance with the demand and Beresford was arrested and surrendered to the agent of the State of Georgia and was carried to that State. Upon his arrival he was delivered to the sheriff of Floyd county, by whom he was detained in the county jail. While so held in jail and before trial upon either of the indictments on which his rendition was based, the grand jury of the county, on the 6th day of October, 1891, found a new indictment against him charg- ing him with forgery, naming him as Sidney LasceUes, 286 THE LAW OP INTEESTATB EENDITION. wMcli was Ms true and proper name. Before arraign- ment he moved the court to quash said indictment, "on the ground that he was being tried for a separate and different offense from that for which he was extradited from the State of New York." This motion was over- ruled in the superior court of Floyd county, the court having jurisdiction to try him for the crime charged, he was put on trial on the indictment for forgery and was convicted. His motion for new trial was overruled and he was sentenced by the court — the case was ap- pealed by Lascelles to the State supreme court, before which he again asserted his exemption from trial upon the indictment, upon the grounds stated in his motion to quash in the lower court but the supreme court of Georgia sustained the action of the superior court of Floyd county in all respects and affirmed its judgment. Upon writ of error to the supreme court of Georgia this case was brought to the Supreme Court of the United States where Mr. Justice Jackson in an able and learned opinion, fully sustained the finding of the Georgia su- preme court, holding that, A fugitive from justice who has been surrendered by one State of the Union to another State, upon requisition charging him with the commission of a specific crime, has, under the Constitution and laws of the United States, no right, privilege or immunity to be exempt from indictment and trial, in the State to which he is returned, for any other or different offense from that designated in the requisition, with- out first having an opportunity to return to the State from which he was extradited. Cases cited with approval: Matter of Noyes, (1878), 17 Alb. L. J. 407; Ham v. State, (1878), 4 Tex. App. 645; State V. Stewart, (1884), 60 Wis. 587; People v. Cross, (1892), 135 N. Y. Supp. 536; Commonwealth v. Wright, (1893), 158 Mass. 149; In re Miles, (1875), 52 Vt. 609. §196. (7.) Pearce v. Texas, (1894), 155 U. S. 311, 15 Sup, Ct. 116, 39 L. ed. 164.— George A. Pearce, plain- tiff in error and alleged fugitive was arrested in the V. S. SUPEEME COXTBT AND RENDITION. 287 State of Texas on a rendition warrant issued by tlie gov- ernor of that State, upon the requisition of the governor of the State of Alabama, to answer two indictments against him, each charging embezzlement and grand lar- ceny, and while in custody in Texas, he sued out a writ of habeas corpus before one of the judges of the district court, and after a heariag the petition was dismissed and he was remanded. Pearce thereupon prayed an ap- peal to the court of criminal appeals of the State of Texas, the court of last resort in criminal matters, where the judgment below was afl&rmed and by writ of error to the court of criminal appeals of Texas this case is brought to the United States Supreme Court for final adjudication. Mr. Chief Justice Fuller delivered the opinion of the court, which in all respects sustained the ruling of the Texas court of criminal appeals, holding that, 1. Pearce being arrested in Texas on a requisi- tion from the governor of Alabama for his rendition for trial in Alabama on an indictment for embezzle- ment and larceny, sought his discharge through a writ of habeas corpus on the ground of the invalidity of the indictment imder the laws of Alabama. The court of criminal appeals of Texas decided that, as it appeared that Pearce was charged by indictment in Alabama with the commission of an offense there, and that all the other prerequisites for his rendition had been complied with, he should be deported to Alabama, leaving to the courts of that State to de- cide whether the indictment was sufficient, and whether the statute of that State was in violation of the Constitution of the United States. Held, that this decision did not deny to Pearce any right secured to him by the Constitution and laws of the United States, and did not erroneously dispose of a Federal question. 2. That indictments dispensing with the allega- tions of time and venue in conformity with the Code of Alabama has been sustained by judicial decision of the court of last resort in that State, Noles v. State, (1858), 24 Ala. 672; Thompson v. State, (1859), 25 Ala. 41. 288 THE LAW OF lUTEESTATE EENDITIOIT. §197. (8.) Whitten v. Tomlinson, (1895), 160 U. S. 231, 16 Sup. Ct. 297, 40 L. ed. 406.— Whitten was arrested in the State of Connecticut as a fugitive from the justice of the State of Massachusetts, on the rendition warrant of the executive of the former State, which warrant was based upon the requisition of the executive of the State of Massachusetts, charging Whitten by indictment with the commission of an offense against the laws of that State. While in custody of the Connecticut authorities, Whitten sued out a writ of habeas corpus in the circuit court of the United States, for the District of Connecti- cut, contending in his petition that he was unlawfully restrained of his liberty, in that he was not lawfully charged with crime in the State of Massachusetts, and that his deportation to the demanding State would be a violation of his rights under the Constitution and laws of the United States. Upon a hearing in the circuit court of the United States, the petition of the relator, Whitten, was dismissed and a formal order surrendering him to the agent of Massachusetts was entered. (Ex parte Whitten, (1895), 67 Fed. 320.) An appeal to the Su- preme Court was prayed from the judgment and order of the Circuit Court of the United States and Mr. Jus- tice Gray speaking for the court affirmed the finding of the lower court, and held that, 1. A warrant of rendition of the governor of a State, issued upon the requisition of the governor of another State, accompanied by a copy of an indict- ment, is prima facie evidence, at least, that the ac- cused had been indicted, and was a fugitive from justice ; and, when the court in which the indictment was found had jurisdiction of the offense, is suffi- cient to make it the duty of the courts of the United States to decline interposition by writ of habeas corpus and to leave the question of the lawfulness of the detention of the prisoner, in the State in which he was indicted, to be inquired into and determined, in the first instance, by the courts of the State. 2. A prisoner in custody under authority of a State will not be discharged by a court of the United U. S. SUPREME COURT AND RENDITION. 289 States by a writ of habeas corpus, because an indict- ment against Mm lacked the words "true bill," or was found by the grand jury by mistake or miscon- ception, or because a justice of the peace, under a statute of a State, upon application of a surety on a recognizance, and affidavit that the principal in- tended to abscond does not conform to that statute. The authorities cited: Ex parte Dorr, (1845), 3 How. 103; In re Burrus, (1890), 136 U. S. 586; New York v. Eno, (1894), 155 U. S. 89; In re Neagle, (1890), 135 U. S. 1 ; Iw re Loney, (1890), 134 U. S. 372 ; Ex parte Eoyall, (1886), 117 U. S. 241; Ex parte Fonda, (1886), 117 U. S. 516; In re Duncan, (1891), 139 U. S. 449; Zw re Wood, (1891), 140 U. S. 279; In re Jugiro, (1891), 140 U. S. 291; In re WUson, (1891), 140 U. S. 575; Carper v. Fitz- gerald, (1887), 121 U. S. 87; Lambert v. Barrett, (1895), 157 U. S. 697; Martin v. Hunter, (1816), 1 Wheat. 304; Cohens v. Virginia, (1821), 6 Wheat. 264; Gordon v. Caldcleugh, (1806), 3 Cranch 268; Pepke v. Cronan, (1894), 155 U. S. 100; Commonwealth Bank v. Griffith, (1840), 14 Pet. 56; Missouri v. Andriano, (1891), 138 U. S. 496; In re Frederich, (1893), 149 U. S. 70; Ex parte Bigelow, (1885), 113 U. S. 328; Bergemann v. Backer, (1895), 157 U. S. 655; Belt, petitioner, (1895), 159 U. S. 95; Wildenhus's case, (1887), 120 U. S. 1; Cook v. Hart, (1892), 146 U. S. 183; Eobb v. Connolly, (1884), 111 U. S. 624; Ex parte Reggel, (1885), 114 U. S. 642; Eoberts v. ReiHy, (1885), 116 U. S. 80; Pearce v. Texas, (1894), 155 U. S. 311. § 198. (9.) Hyatt v. People ex rel. Corkran, (1903), 188 U. S. 691, 23 Sup. Ct. 456, 47 L. ed. 657, 12 Am. Grim. 311. — Charles E. Corkran was arrested in New York on a warrant issued by the governor of that State, upon a requisition of the governor of the State of Tennessee, charg^g him with being a fugitive from the justice of that State. A writ of habeas corpus was sued out before a justice of the supreme court of New York by Corkran and upon a hearing he was remanded to the custody of the New York authorities, with instructions that he be 290 THE LAW OF INTEESTATE EENDITION. delivered, to the agent of the State of Tennessee for ren- dition, from this judgment an appeal was taken to the appellate division of the supreme court of New York, which court refused to grant Corkran's discharge, there- upon another appeal was taken to the court of appeals of New York, the highest judicial tribunalin that State, and after a thorough examination of the record in the case the orders and judgments of the lower courts were reversed and Corkran was ordered discharged, the court of appeals finding that he was not a fugitive from the justice of the State of Tennessee. (People ex rel. Cork- ran V. Hyatt, (1902), 172 N. Y. 176, 64 N. E. 825.) A writ of error, on motion of the respondent, Hyatt, was issued by the Supreme Court of the United States to the court of appeals of New York, for a review of the judg- ment of that court and Mr. Justice Peckham, speaking for the Supreme Court, affirmed the judgment of the court of appeals and ordered the discharge of Corkran. This is the only discharge of an alleged fugitive from justice by the Supreme Court in the past fifty-five years. Among the questions decided by the court were the fol- lowing : 1. The provision of the United States Constitu- tion, in relation to interstate rendition, is not self- acting; but was made operative by the act of Con- gress of February 12, 1793, which is substantially retained by the Eevised Statutes, section 5278. 2. A fugitive from justice is one who being pres- ent in a jurisdiction where the crime is committed, flees from such jurisdiction. To be constructively present is not sufficient; for one who was not actu- ally present, cannot fly from justice. 3. One who was not present in a State at the time when a crime was committed, but subsequently en- tered the State on business and then left it, is not a fugitive from justice. 4. A rendition warrant should not issue, unless the documents presented by the governor making the requisition, show that the accused was present in the demanding State at the time of the commis- TJ. S. SUPBEME COtTET AND EEITOITION. 291 sion of the alleged crime, and that lie thereafter fled from such State, and sought refuge in the State upon which demand is made ; and that he is lawfully charged by indictment found, or by affidavit made before a magistrate. 5. The question as to whether the person so de- manded is substantially charged with a crime is a question of law which on the face of the papers is open to inquiry, on a writ of habeas corpus. 6. Whether or not the accused is a fugitive from justice is a question of fact, to be passed upon by the governor upon whom the demand is made. 7. The rendition warrant is but prima facie au- thority to arrest and hold the accused. It is com- petent for the accused, upon the hearing of a writ of habeas corpus, to show by conclusive evidence, or admissions made, that the warrant was issued with- out sufficient proof on the assumption of simply con- structive presence, instead of actual presence, within the demanding State at the time of the crime charged. 8. The uncontradicted evidence of the relator, being that he was not present in the demanding State at the time of the alleged crime, which fact was also admitted by a stipulation of coimsel, held, that he was not a fugitive from justice and that the rendi- tion warrant was improperly issued. 9. In the absence of proof to the contrary, the date of the alleged crime as charged in the indict- ment, wiU be accepted as correct. Cases cited in the opinion of the court: Roberts v. EeiUy, (1885), 116 U. S. 80; Kentucky v. Dennison, (1860), 24 How. 66, 104; People v. Brady, (1874), 56 N. Y. 182; Robb v. Connolly, (1884), 111 U. S. 624; Ex parte Eeggel, (1885), 114 U. S. 642 ; Cook v. Hart, (1892), 146 U. S. 183; In re White, (1893), 55 Fed. 54, 58; WU- cox V. Nolze, (1878), 34 Ohio St. 524; Jones v. Leonard, (1878), 50 Iowa 106, 32 Am. Eep. 116; In re Mohr, (1883), 73 Ala. 503, 514; In re Fetter, (1852), 23 N. J. L. 311, 57 Am. Dec. 382; Hartman v. Aveline, (1878), 63 Ind. 345, 30 Am. Rep. 217; Ex parte Knowles, (1894), 16 Ky. L. Rep. 263; Kingsburry's case, (1870), 106 Mass. 292 THE LAW OF INTEESTATB BENDITION. 227; state v. Hall, (1894), 115 N. C. 811, 28 L. R. A. 289, 20 S. E. 729. § 199. (10.) Munsey v. Clough, (1904), 196 U. S. 364, 25 Sup. Ct. 282, 49 L. ed. 515.— Martha S. Munsey was arrested in the State of New Hampshire on a governor's warrant of that State, issued upon a requisition of the governor of the State of Massachusetts, charging her by indictment with the commission of a crime in that State and with being a fugitive from its justice. While in custody of the New Hampshire authorities she sued out a writ of habeas corpus in the State court to obtain her discharge, upon the ground that she was unlawfully de- prived of her liberty and upon a hearing the court re- fused to discharge her and this judgment of refusal was affirmed by the supreme court of New Hampshire. ( State ex rel. Munsey v. Clough, (1902), 71 N. H. 594.) By writ of error the case was carried to the Supreme Court of the United States for review, which court affirmed the finding of the supreme court of New Hampshire and or- dered the surrender of Martha S. Munsey, plaintiff in error, to the agent of the State of Massachusetts as a fugitive from the justice of that State, holding that, 1. Proceedings in interstate rendition are sum- mary ; strict common law evidence is not necessary, and the person demanded has no constitutional right to a hearing. The governor's warrant for removal is sufficient until the presumption of its legality is overthrown by contrary proof in a legal proceeding to review his action. 2. The indictment found in the demanding State will not be presumed to be void on habeas corpus proceedings in the State in which the demand is made if it substantially charges an offense for which the person demanded may be returned for trial. 3. Where there is no doubt that the person de- manded was not in the demanding State when the crime was committed and the demand is made on the ground of constructive presence only he will be discharged on habeas corpus, but he will not be dis- charged when there is merely contradictory evidence TT. S. StrPEEME COITET AND KENDITION. 293 as to Ms presence or absence, for habeas corpus is not the proper proceeding to try tlie question of alibi or any question as to the guilt or innocence of the accused. Mr. Justice Peckham in delivering the opinion of the court cited the following cases : Roberts v. Eeilly, (1885) , 116 U. S. 80, 6 Sup. Ct. 291, 29 L. ed. 544; Ex parte Eoyall, (1886), 117 U. S. 241; Ex parte Reggel, (1885), 114 U. S. 642; Pearce v. Texas, (1894), 155 U. S. 311; Ex parte Hart, (1894), 59 Fed. 894. §200. (11.) Demuson v. Christian, (1905), 196 U. S. 637, 25 Sup. Ct. 791, 49 L. ed. 350.— In 1904 the relator, Dennison, was, by an indictment of the grand jury of Harrison county, in the State of Iowa, charged with the crime of "receiving and aiding in the concealment of stolen property knowing the same to have been stolen," committed m 1892 — twelve years prior to the demand for his arrest and surrender, and for many years Denni- son had been a resident of Omaha, Nebraska. In the face of the apparent abandonment of the prosecution or pressing of the charge the governor of the State of Iowa, at the request of the prosecuting attorney of Harrison county, a requisition was issued on the governor of Nebraska, demanding the arrest and surrender of Denni- son, as a fugitive from justice. The governor of Nebras- ka honored the requisition and issued his warrant for the arrest and deportation of Dennison, and by virtue of this warrant he was arrested by the authorities of Nebraska as a fugitive from the justice of the State of Iowa. Dennison sued out a writ of habeas corpus in the district court of Omaha, strenuously contending that he was not a fugitive from the justice of Iowa and that he was not legally charged with crime in that State. Upon a full and complete hearing in the district court of Oma- ha, Dennison 's petition was dismissed and he was or- dered remanded. From this judgment an appeal was taken to the supreme court of Nebraska on his behalf, this tribunal sustained the finding of the lower court in every respect, ordering the surrender of the accused to 294 THE LAW OF INTBESTATB EENDITION. the agent of the demandiiig State. (Dennison v. Chris- tian, (1904), 72 Neb. 703.) Thereupon Dennison secured a writ of error from the Supreme Court of the United States to the supreme court of Nebraska and the case was transferred to the court of last resort for final adju- dication. In 1905, on motion of the defendant in error, Christian, the writ of error was dismissed and the judg- ment of the supreme court of Nebraska was affirmed in a memorandum opinion. The points in the decision of the supreme court of Nebraska — affirmed by the Supreme Court of the United States — are to be found in the sylla- bus of that case as reported, and is as follows : 1. Section 364 of the criminal code of Nebraska does not authorize the extradition of a person charged with crime against the laws of another State without proof that the person so charged is a fugi- tive from the justice of the demanding State. 2. It is not necessary that the warrant issued by the governor of this State upon the requisition of the governor of another State should contain the ex- press statement that the governor has found that the accused is a fugitive from justice. The fact of the issuing of the warrant, upon demand made upon that ground, is sufficient to justify the presumption that the governor so found, until that presumption is overthrown by proof to the contrary. 3. Upon proceedings in habeas corpus to obtain the discharge of one who is held under the govern- or's warrant in extradition, it is not indispensable that the officer's return to the writ contain affirm- ative allegations of all the facts upon which the extradition proceedings are based. If the return sets forth the governor's warrant under which the accused is held and the recitals of the warrant, to- gether with the allegations of the application for habeas corpus show facts sufficient to justify the detention of the accused, the return is sufficient. 4. When such requisition is made upon the gov- ernor of this State he must determine ; first, whether the person demanded is substantially charged with a crime against the laws of the State from whose jus- tice it is alleged he has fled by an indictment or affi- V. S. SUPEEMB COXJBT AND EBNDITION. 295 davit properly certified, and, second, is he a fugitive from the justice of the State demanding him? When it is made substantially to appear to the court in habeas corpus proceedings, upon what showing the governor acted, it becomes a question of law for the court to determine whether or not the accused has been substantially charged with a crime against the laws of the demanding State. 5. In determining whether the evidence before the court below was sufficient to support the judg- ment, this court will not regard errors of the trial court in admitting incompetent evidence, if it ap- pear from the whole recotd that, upon the evidence conceded to be competent, no other conclusion could be reached than the one reached by the trial court. 6. This court is bound by the construction of the extradition laws adopted by the Supreme Court of the United States. In view of the language of that court in Hyatt v. Corkran, (1903), 188 U. S. 691, the courts of this State will not review the decision of the governor in extradition proceedings upon a ques- tion of fact made before him, which the law makes it his duty to decide and upon which there was evi- dence pro and con before the governor. 7. When the relator in habeas corpus proceedings gives evidence in his own behalf, the court should not allow him to be cross-examined upon matters not related to his examination in chief, but an error in so doing is without prejudice to the defendant the trial being to the court itself, when no other judg- ment than the one entered could have been rendered upon the evidence which is conceded to be proper and competent. Cases cited in the opinion of the court: Wilcox v. Nolze, (1878), 34 Ohio St. 518; Ex parte White, (1875), 49 Cal. 433; Ex parte Eomanes, (1876), 1 Utah 23; Ken- tucky V. Dennison, (1860), 24 How. 66 ; Ex parte Sheldon, (1878), 34 Ohio St. 319; Eoberts v. Eeilly, (1885), 116 U. S. 80; Hyatt v. Corkran, (1903), 188 U, S. 691; Bruce V. Eaynor, (1903), 124 Fed. 481. §201. (12.) In re Strauss, (1905), 197 U. S. 324, 25 Sup. Ct. 535, 49 L. ed. 774.— Strauss was charged by affi- 296 THE LAW OF INTEESTATE EENDITIOKT. davit before a justice of the peace of Youngstown town- ship, Ohio, with the crime of obtaining four hundred dollars worth of jewelry at Youngstown, Ohio, by false pretenses, contrary to the law of that State. He was arrestee^ as a fugitive from justice in New York city, and brought before a magistrate and held as such fugitive to await the requisition of the governor of Ohio. The requisition in due time was presented to the governor of New York and Strauss was accorded a hearing before that official and was represented by counsel, and after a full and complete hearing the governor of New York decided that Strauss was a fugitive from the justice of Ohio and should be returned to that State to answer for the crime charged. The governor's warrant was accord- ingly issued and Strauss was placed in custody there- under. Thereupon a writ of habeas corpus was issued, on Strauss' petition, and the legality of his detention was determined by the United States district court, which found that he was a fugitive and was properly charged with crime in the State of Ohio, from this judgment an appeal was taken to the circuit court of appeals of the United States for the district of New York, which court certified the following questions to the Supreme Court of the United States: First. Whether the delivery up of an alleged fugi- tive from justice against whom a complaint for the crime of securing property by false pretenses has been sworn to and is pending before a justice of the peace of Ohio having jurisdiction conferred upon him by the laws of that State is authorized in view of the provisions of article IV; section 2, subdivision 2, of the Constitution? Second. Is section 5278 of the Eevised Statutes of the United States, in as far as it authorizes the delivery up of an alleged fugitive from justice upon an affidavit of complaint pending before a justice of the peace in Qhio for the crime of securing property by false pretenses, which said justice of the peace has the jurisdiction conferred by the laws of said State, violative of article TV, section 2, subdivision U. S. SUPBEME COtTET AND EENDITION. 297 2, of the Constitution of the United States? {In re Strauss, (1905), 126 Fed. 327.) The Supreme Court of the United States heard this case upon certificate and aflfirmed the finding of the lower court, answering the first question in the affirmative and the second in the negative, deciding that, 1. Words in the Constitution of the United States do not ordinarily receive a narrow and contracted meaning, but are presumed to have been used in a broad sense with a view of covering aU contingen- cies. 2. The word "charged" in article IV, section 2, subdivision 2, of the Constitution, was used in its broad significance to cover any proceeding which a State might see fit to adopt for a formal accusation against an alleged criminal. 3. Extradition or rendition, is but one step in securing the presence of the accused in court in which he may be tried and in no manner determines the question of guilt, and while courts will always endeavor to prevent any wrong in the extradition of a person to answer a charge of crime ignprantly or wantonly made, the possibility cannot always be guarded against and the process of extradition must not be so burdened as to make it valueless. 4. The extradition of an alleged fugitive from justice against whom a charge of crime of securing property by false pretenses has been made and is pending before a justice of the peace of Ohio, hav- ing jurisdiction conferred upon by the laws of that State to examine and bind over for trial in a su- perior court, is authorized by article IV, section 2, subdivision 2 of the Constitution of the United States and section 5278 of the Kevised Statutes. Authorities and cases cited in the opinion of the court : Bates ' Annotated Ohio Statutes, 4th ed. sec. 7076 ; Ohio Constitution, art. 1, sec. 10, Bill of Rights; Virginia v. Paul, (1893), 148 U. S. 107; McCulloch v. Maryland, (1819), 4 Wheat. 316; Moore on Extradition, page 335 and sections 5270 to 5278, U. S. Eevised Statutes. 298 THE LAW OP INTERSTATE EENDITIOM". §202. (13.) Pettibone v. Nichols, (1906), 203 U. S, 192, 27 Sup. Ct. Ill, 57 L. ed. 148.— This was an appeal from a judgment of the Circuit Court of the United States for the District of Idaho refusing, upon habeas corpus, to discharge Pettibone, who alleged that he was held in custody by the sheriff of Canyon county, Idaho, in violation of the Constitution and laws of the United States. On February 12, 1906, a criminal complaint veri- fied by oath of the prosecuting attorney of that county, charging Pettibone with having murdered Frank Steun- enberg at Caldwell, Idaho, on December 30, 1905, was filed in the office of the probate judge. A warrant was duly issued for Pettibone 's arrest, based on this com- plaint, but not being in the State of Idaho he was not apprehended. Thereupon the governor of Idaho, acting upon the request of the prosecuting attorney, issued a requisition directed to the governor of the State of Colo- rado asking him for the arrest and surrender of Petti- bone as a fugitive from the justice of Idaho. The gov- ernor of Colorado honored the requisition and issued his warrant for the alleged fugitive and being found in Colo- rado Pettibone was arrested and in accordance with the governor's warrant was at once delivered to the agent of Idaho and transported to that State. Shortly after his arrival in Idaho an application was made by him to the supreme court of that State for a writ of habeas corpus, claiming that his presence in Idaho was procured by fraud, connivance and conspiracy of the executive officers and other officials of the two States and that his detention was contrary to the Constitution and laws of the United States. At the hearing before the supreme court of Idaho, the officers having Pettibone and the other prisoners in custody moved to strike from the petition and answer of Pettibone all allegations relat- ing to the manner and method of obtaining his presence in Idaho. The supreme court sustained this motion upon the ground that Pettibone 's detention at that time was legal in every respect and that the court had nothing whatever to do with the manner of his being brought into U. S. SUPBEME COUBT AND BENDITTON. 299 the state, since lie was tlien being lawfully held. In re Pettibone, (1906), 12 Idaho 264; In re Moyer, (1906), 12 Idaho 250; In re Haywood, (1906), 12 Idaho 265. A subsequent petition for habeas corpus on behalf of Pettibone, alleging the same grounds practically as were set forth in his first application, was presented to the circuit court of the United States of Idaho, and upon a hearing the court dismissed the petition and remanded Pettibone to the custody of the State officers for trial on the charge of murder. From the judgment of this court an appeal was taken to the Supreme Court of the United States, and after due consideration Mr. Justice Harlan delivered a very able and exhaustive opinion, holding that, 1. The duty of a Federal court, to interfere, on habeas corpus, for the protection of one alleged to be restrained of his liberty in violation of the Con- stitution and laws of the United States, must often be controlled by the special circumstances of the case, and except in emergency demanding prompt action, the party held in custody by a State, charged with crime, which, it will be assumed, will enforce, as it has been the power to do equally with a Federal court, any right asserted under and secured by the supreme law of the land. 2. Even if the arrest and deportation of one alleged to be a fugitive from justice may have been effected by fraud and connivance arranged between the executive authorities of the demanding State and the surrendering State so as to deprive him bf any opportunity to apply before deportation to a court in the surrendering State for his discharge, and even if on such application to any court, State or Federal he would have been discharged, he cannot, so far as the Constitution and laws of the United States are concerned — ^when actually in the demanding State, in the custody of its authorities for trial, and sub- ject to the jurisdiction thereof — ^be discharged on habeas corpus by the Federal court. It would be improper and inappropriate in the Circuit Court to inquire as to the motives guiding or controlling the 300 THE LAW OF INTEESTATE EBNDITION. action of the governors of the demanding and sur- rendering States. 3. No obligation is imposed by the Constitution and laws of the United States on the agent of a de- manding State to so time the arrest of one alleged to be a fugitive from justice and so conduct his de- portation from the surrendering State as to afford him a convenient opportunity, before some judicial tribunal, sitting in the latter State, upon habeas corpus or otherwise, to test the question whether he was a fugitive from justice and as- such liable, under the act of Congress, to be conveyed to the demanding State for trial there. §203. (14.) Haywood v. Nichols, (1906), 203 U. S. 222, 27 Sup. Ct. Ill, 57 L. ed. 148.— Haywood was in- dicted with Pettibone for the murder of Steunenberg and was brought with him to Idaho from Colorado, and by stipulation it was agreed that the final judgment of the Supremie Court in the Pettibone case, supra, was to be the same in this case. § 204. (15.) Moyer v. Nichols, (1906), 203 U. S. 222, 27 Sup. Ct. Ill, 57 L. ed. 148. — The same stipulation as in Haywood case, supra, was made as to this case. §205. (16.) Moray v. Whitney, (1906), 203 U. S. 222, 27 Sup. Ct. Ill, 57 L. ed. 148.— The same stipulation as in Haywood case, supra, was made as to this case. §206. (17.) Appleyardv. Massachusetts, (1906), 203 U. S. 222, 27 Sup. Ct. 122, 51 L. ed. 161.— Appleyard was indicted in the supreme court of New York, county of Erie, for grand larceny, first degree, said to have been committed in that county on May 18, 1904, a warrant was issued for his arrest but he had left New York and could not be found in the State. He was located in the State of Massachusetts. The district attorney of Erie county applied to the governor of New York for a requi- sition on the governor of Massachusetts for the arrest and delivery of Appleyard as a fugitive from justice. The requisition was accordingly issued and dxdy honored XJ. S. SXJPEEME COTJBT AND RENDITION. 301 by the governor of Massachusetts and Appleyard was arrested in that State by virtue of the governor's war- rant. Appleyard by petition applied to the supreme judicial court of Massachusetts for a writ of habeas cor- pus, alleging that he was not a fugitive from justice within the meaning of the law and, therefore, was un- lawfully deprived of his liberty by the warrant of arrest issued by the governor. After a hearing before that court, Appleyard 's petition was dismissed and he was re- manded to the Massachusetts authorities for delivery to the messenger and agent of the demanding State. Be- fore his deportation he sued out another writ of habeas corpus, this time the Federal court issued the writ, and a hearing was had as to the legality of his arrest and detention. It was claimed for bim in the Circuit Court of the United States for Massachusetts, that he was not a fugitive from justice within the meaning of the Consti- tution and statutes of the United States relating to the rendition of fugitive criminals from one State to another. The Federal court, after a full and complete hearing, quashed the writ of habeas corpus, dismissed the petition and remanded Appleyard, from this judgment an appeal was taken directly to the Supreme Court of the United States. Mr. Justice Harlan speaking for the court held that: 1. The constitutional provision relating to fugi- tives from justice is in nature of a treaty stipulation entered into for the purpose of securing a prompt and efficient administration of the criminal laws of the several States and its faithful and vigorous en- forcement is vital to their harmony and welfare ; and while a State should protect its people against illegal action, Federal courts should be equally careful that the provision be not so narrowly interpreted as to enable those who have offended the laws of one State to find a permanent asylum in another. 2. A person charged by indictment, or affidavit before a magistrate, within a State with the commis- sion of a crime covered by its laws and who leaves the State, no matter for what purpose nor under what belief, becomes from the time of such leaving 302 THE LAW OF INTERSTATE EElirDITIO]Sr. and within the meaning of the Constitution and laws of the United States, a fugitive from justice; and in the absence of preponderating or conceded evi- dence of absence from the demanding State when the crime was committed it is the duty of the other State to surrender the fugitive on the production of the indictment or affidavit properly authenticated. 3. Although, regularly, one seeking relief by habeas corpus in the State courts should prosecute his appeal to, or writ of error from, the highest State court, before invoking the jurisdiction of the Circuit Court on habeas corpus, where the case is one of which the public inferests demand a speedy deter- mination, and the ends of justice will be promoted thereby, this court may proceed to final judgment on appeal from the order of the Circuit Court deny- ing the relief. Cases cited in the opinion of the court: Kentucky v. Dennison, (1860), 24 How. 66; Eoberts v. EeiUy, (1885), 116 U. S. 80; Ex parte Reggel, (1885), 114 U. S. 642; Ex parte Brown, (1886), 28 Fed. 653; In re White, (1893), 55 Fed, 54; In re Blooh, (1898), 87 Fed. 981; Kingsburry's case, (1870), 106 Mass. 223; State v. Eich- ter, (1887), 37 Minn. 436; Voorhees' Case, (1867), 32 N. J. L. 141; Ex parte Swearingen, (1879), 13 S. Car. 74; Mohr's Case, (1883), 73 Ala. 503; Hibler v. State, (1875), 43 Tex. 197; Hyatt v. Corkran, (1903), 188 U. S. 691; Pettibone v. Nichols, (1906), 203 U. S. 192. §207. (18.) McNichols v. Pease, (1907), 207 U. S. 110, 28 Sup. Ct. 58, 52 L. ed. 121.— McNichols, the alleged fugitive, was arrested in Chicago, Illinois, by virtue of a governor's warrant of rendition, issued by the exec- utive of the State of Illinois, upon a requisition of the governor of Wisconsin, accompanying this requisition was an authenticated copy of a charge of crime in the form of a "complaint" made before a magistrate at Kenosha, Wisconsin, alleging that McNichols, on Sep- tember 30, 1905, at Kenosha, did unlawfully take, steal and carry away from the person of one Hanson against his will a certain sum of money. The so-caUed affidavit U. S. SUPKEME COTJBT AND EENDITIOlT. 303 was not made by tlie party from whom the money had been stolen, but was made by the chief of police of Kenosha, unquestionably upon information and belief, without disclosing the source of his knowledge of the alleged crime. The only proof that accompanied the requisition that McNichols was a fugitive from the jus- tice of Wisconsin was the statement of the prosecuting attorney to that effect. A writ of habeas corpus was sued out by McNichols in the circuit court at Chicago, claiming that he had not been legally charged with a crime in the State of Wisconsin and that he was not a fugitive from the justice of that State. This writ was dismissed without prejudice, in order to give the accused an opportunity to sue out an original writ of habeas corpus in the supreme court of Illinois. A petition was accordingly presented by McNichols to that court and upon a hearing a writ was refused upon the ground that it satisfactorily appeared that he was legally charged with crime and that he was a fugitive from justice within the meaning of the Constitution and laws of the United States. This case was carried to the court of last resort by writ of error for review — no bUl of exceptions being taken in the courts below — ^the Supreme Court of the United States was somewhat at a loss to determine just what proofs had been heard. Mr. Justice Harlan de- livered the opinion of the court holding that, 1. Habeas corpus is an appropriate proceeding for determining whether one held under an extradi- tion warrant is a fugitive from justice ; and he should be discharged if he shows by competent evidence, overcoming the presumption of a properly issued warrant, that he is not a fugitive from the demand- ing State. 2. A faithful and vigorous enforcement of the constitutional and statutory provisions relating to fugitives from justice is vital to the harmony and welfare of the States ; and provisions of the Consti- tution should not be so narrowly interpreted as to enable offenders against the laws of a State to find a permanent asylum in the territory of another State. 304 THE LAW OF INTEESTATE EBNDITION. 3. A person held in custody as a fugitive from justice under an extradition warrant in proper form which shows upon its face all that is required by law to be shown as a prerequisite to its being issued, should not be discharged unless it clearly and satis- factorily appears that he is not a fugitive from jus- tice within the meaning of the Constitution and laws of the United States. 4. Where the requisition is based on an indict- ment for a crime committed on a certain day, with- out specifying any hour, the accused does not over- come the prima facie case by proof that he was not at the place of the crime, for a part of that day, the record not disclosing the hour of the crime, and it appearing that the accused might have been at the place named during a part of the day. 5. On a writ of error to review a final judg- ment in habeas corpus proceedings the court must determine by the record whether the State court erred and its decision cannot be controlled or effected by an apparent admission of defendant in error that certain affidavits annexed to the petition were used without objection as evidence. 6. The court takes judicial knowledge of facts known to everyone as to the distance between two neighboring cities and the time necessary to travel from one to the other. Cases and authorities cited in the opinion: Robb v. Connolly, (1884), 111 U. S. 624; Ex parte Reggel, (1885), 114 U. S. 642; Roberts v. Eeilly, (1885), 116 U. S. 80; Hyatt V. Corkran, (1903), 188 U. S. 691; Munsey v. Clough, (1904), 196 U. S. 364; Pettibone v. Nichols, (1906), 203 U. S. 192; Appleyard v. Massachusetts, (1906), 203 U. S. 222; 1 Pomeroy's Archibold's Cr. Pr. & PI. 363. §208. (19.) Bassing v. Cady, (1907), 208 U. S. 386, 28 Sup. Ct. 392, 52 L. ed. 540, 13 Ann. Oas. 905.— The gov- ernor of the State of Ehode Island issued a warrant of arrest addressed to the sheriff of Bristol county, in that State, commanding him to arrest Jacob Bassing, who was charged by indictment in the State of New York with IT. S. SUPREME COTJET AND BENDITION. 305 the crime of larceny, first degree, and that he was a fugi- tive from the justice of that State. The requisition of the governor of the State of New York was accompanied hy a duly authenticated copy of an indictment and other papers. Bassing was arrested in Bristol county, Ehode Island, by virtue of said warrant, and at once sued out a writ of habeas corpus from the supreme court of Ehode Island, alleging in his petition that he had been "extra- dited at a prior time, to-wit : March 12, 1907, on a requi- sition of the governor of the State of New York for the same offense, from the State of Ehode Island." And that he was discharged from custody by the New York officials when brought before the court of that State and that his present detention was in Adolation of the Consti- tution and laws of the United States pertaining to inter- state rendition. On hearing in the supreme court of Ehode Island it appeared that Bassing was discharged in New York by the courts of that State on motion of the district attor- ney on the ground that at that time he had not sufficient proof to convict him. Subsequently however, another indictment was found by the grand jury against Bassing for the same offense and upon this second indictment his arrest and surrender was demanded by the executive of New York. The Ehode Island court held that the second rendition was legal in every respect. A writ of error was secured from the Supreme Court of the United States to the Ehode Island court and this case comes to the highest court for review. Mr. Justice Harlan, in speaking for the court, upheld every contention of the court of Ehode Island, which had held that Bassing was properly charged with crime and that he was a fugitive from the justice of the State of New York and should be delivered to the agent of that State for deportation. In affirming the judgment of the State tribunal the Supreme Court held that, 1. On appeal or writ of error to this court, pa- pers or documents used in the court below cannot in strictness be examined here unless by bill of excep- 306 THE LAW OP INTERSTATE EENDITION. tions or other proper mode they are made a part of the record. 2. The mere arraigmnent and pleading to an in- dictment does not put the accused in judicial jeop- ardy, nor does the second surrender of the same per- son by one State to another amount to putting that person in second jeopardy because the requisition of the demanding State is based on an indictment for the same offense for which the accused had been formerly indicted and surrendered but for which he had never been tried. 3. One charged with crime and who was in the place where, and at the time when, the crime was committed, and who thereafter leaves the State, no matter for what reason, is a fugitive from justice within the meaning of the interstate rendition pro- ceedings of the Constitution, and of section 5278 Re- vised Statutes, and this none the less if he leaves the State with the knowledge and without the ob- jection of its authorities. Cases cited in the opinion: Appleyard v. Massachu- setts, (1906), 203 U. S. 222; McNichols v. Pease, (1907), 207 U. S. 110. §209. (20.) Pierce v. Creecy, (1908), 210 U. S. 387, 28 Sup. Ct. 387, 52 L. ed. 1113.— Henry Clay Pierce was arrested in the city of St. Louis, State of Missouri, on a governor's warrant, issued by the executive authority of that State, upon the requisition of the governor of the State of Texas, charging him by indictment, with the crime of perjury, committed in Texas six years prior to his indictment. Pierce sued out a writ of habeas corpus from the Circuit Court of the United States for the east- em district of Missouri, claiming that he was "im- prisoned, detained, confined and restrained of his liberty, at the city of St. Louis, by officials of said city, in viola- tion of the laws and Constitution of the United States, in that the indictment by the Texas court does not specific- ally and legally charge a crime." Upon a hearing the Federal court held that Pierce was properly and legally charged with the crime of perjury and that he was a fugi- U. S. SUPREME COUBT AND EBNDITIOJT. 307 tive from the justice of the State of Texas. {Ex parte Pierce, (1907), 155 Fed. 663.) From this judgment an appeal was taken to the Supreme Court of the United States by Pierce. His counsel made strenuous efforts to show to the court that the accused was not in fact a fugitive from Texas within the law and that the iadict- ment failed to charge a crime in compliance with inter- state rendition procedure. The opinion of the court was delivered by Mr. Justice Moody, affirming the judgment of the court below, and holding that, 1. Whether or not the indictment on which the demand for petitioner's surrender for interstate extradition is based charges him with crime within the requirements of art. TV, sec. 2, par. 2, of the Federal Constitution, involves the construction of that instrument, and a direct appeal lies to this court from the circuit court under sec. 5 of the Judiciary Act of 1891. 2. While no person may be lawfully extradited from one State to another under art. TV, sec. 2, par. 2, of the Federal Constitution unless he has been charged with crime in the latter State, there is no constitutional requirement that there should be any- thing more than a charge of crime, and an indictment which clearly describes the crime charged is suffi- cient even though it may be bad as a pleading. 3. The Federal courts cannot, on habeas corpus, inquire into the truth of an allegation presenting mixed questions of law and fact, in the indictment on which the demand for petitioner's interstate extradition is based ; and quaere whether it may in- quire whether such indictment was or was not found in good faith. 4. A Federal court should not, unless plainly re- quired to do so by the Constitution, assume a duty the exercise of which might lead to a miscarriage of justice prejudicial to the interests of a State. Cases cited: In re Strauss, (1905), 197 U. S. 324; Roberts v. Eeilly, (1885), 116 U. S. 80; Hyatt v. Cork- ran, (1903), 188 U. S. 691; Munsev v. Clough, (1904), 196 TJ. S. 364; Davis' Case, (1877), 122 Mass. 324; State 308 THE LAW OF INTBBSTATB BENDITION, V, O'Connor, (1888), 66 Minn. 243; In re Voorhees, (1867), 32 N. J. L. Ul; Ex parte Pierce, (1893), 32 Tex. Crim. 301; Z« re VanSceiver, (1894), 42 Nebr. 772; State V. Clongh, (1902), 71 N. H. 594; State v. Goss, (1896), 66 Minn. 291. § 210. (21.) Kopel V. Bingham, (1908), 211 U. S. 468, 29 Sup. Ct. 53 L. ed. 286. — Kopel was arrested in the city of New York, by virtue of a governor's warrant, issued by the executive of that State upon a requisition of the governor of Porto Kico charging him with the crime of embezzlement committed in that Territory. Kopel there- upon sued out a writ of habeas corpus from the supreme court of the State of New York. Bingham, the police commissioner of New York, who had Kopel in custody, made return to the writ and set up the rendition warrant as his authority for detaining the prisoner. Kopel de- murred to the return as insufficient in law, and that the governor's warrant had been issued without authority. The matter coming on to be heard at a special term of the supreme court, the demurrer was overruled and tiie writ dismissed, and the police commissioner directed to deliver Kopel to the agent of Porto Rico for deportation. From this order Kopel appealed to the appellate division of the supreme court of New York, in which court the judgment of the court below was affirmed. Kopel then appealed to the court of appeals — ^the court of last resort in New York — and this court too affirmed the order and judgment of the lower court. A writ of error was then secured from the Supreme Court of the United States to the court of appeals of New York, and this case by that process was transferred to the former court for final adjudication. The questions involved were whether the governor of Porto Rico had power and authority to make a requisition upon the governor of the State of New York for the arrest and surrender of Kopel, the alleged fugi- tive from Porto Rico, who had taken refuge in the State of New York, and whether the governor of the State of New York had power and authority to honor such requi- V. S. SUPBEMB OOUET AOTJ RENDITION. 309 sitlon and to issue his rendition warrant for Ms arrest and surrender. Mr. Chief Justice Fuller, speaking for the court, decided the points raised as foUows : 1. Under sec. 17 of the Act of April 12, 1900, chap. 191, 31 Stat. 77, 81, the governor of Porto Rico has the same power that the governor of any organ- ized Territory has to issue requisitions for the re- turn of fugitive criminals under sec. 5278, Eev. Stat. 2. While subdivision 2, section 2, article IV, Con- stitution of the United States, refers in terms only to the States, Congress, by the Act of February 12, 1793, known as sec. 5278, Eev. Stat., has provided for the demand and surrender of fugitive criminals of governors of Territories as well as of States, and the power to do so is complete with Territories as well as States. 3. Sec. 5278, wiU not be construed so as to make territory of the United States an asylum for crim- inals, and that section is not locally inapplicable to Porto Eico within the meaning of sec. 14 of the Act of April 12, 1900, chap. 191, 31 Eev. Stat. 4. Porto Eico, although not a Territory incor- porated into the United States, is a completely or- ganized Territory. Cases cited in the opinion of the court : People ex rel. Eopel V. Bingham, (1907), 189 N. Y. 124; In re Kopel, (1906), 148 Fed. 505; People ex rel. Kopel v. Bingham, (1907), 117 App. Div. 411; Ex parte Beggel, (1885), 114 U. S. 642; Ex parte Morgan, (1883), 20 Fed. 278; In re Lane, (1890), 135 U. S. 443 ; Gonzales v. Williams, (1904), 192 U. S. 15. §211. (22.) Compton v. Alabama, (1909), 214 U. S. 1, 29 Sup. Ct. 605, 53 L. ed. 885.— Compton was arrested in Montgomery, Alabama, on a governor's warrant is- sued by the governor of that State, upon a requisition of the executive of the State of Georgia, charging Comp- ton by affidavit made before a notary public in Fulton county, Georgia, with being a common cheat against the laws of the latter State. Compton sued out a writ of habeas corpus before the judge of the city court of Mont- 310 THE LAW OF INTERSTATE RENDITION, gomery, and souglit discharge from custody upon the ground that he was illegally restrained of his liberty, 1. That the affidavit of the charge of crime upon which the governor of Georgia based his requisition was not such an affidavit as is required by sec. 5278, Rev. Stat. 2. That said affidavit was not made before a "magistrate" as contemplated by the Federal law on interstate rendition. When the case was heard before the city court of Mont- gomery, the respondent in his return to the writ claimed that he was holding Compton by virtue of the governor's warrant. To this return Compton demurred, the demur- rer was overruled and the writ of habeas corpus was dis- missed. From this judgment an appeal was taken by Compton to the supreme court of Alabama, which court affirmed the judgment of the lower court. (Compton v. Alabama, (1908), 152 Ala. 68.) Thereupon Compton sued out a writ of error from the Supreme Court of the United States to the supreme court of Alabama and this case is consequently brought before the court of last resort for review. Mr. Justice Harlan, in speaking for the court, enunciated the following principles : 1. Unless the State demanding the return of an alleged fugitive from justice furnishes a copy of an indictment against the accused or an affidavit made before a magistrate as provided by section 5278, Eev. Stat., the executive of the State upon whom the demand is made, may decline to honor the requisi- tion; and, in the absence of such indictment or affi- davit, no authority is conferred upon him by sec. 5278, Eev. Stat., to issue his warrant of arrest for a crime committed in another Statie. 2. An affidavit before a notary public is sufficient under sec. 5278, Eev. Stat., upon which to base a demand for arrest and return of a fugitive from jus- tice if such officer is, as he is regarded in Georgia, a magistrate under the law of that State. 3. Where the papers upon which the requisition for the return of an alleged fugitive from justice is based are regarded as sufficient by the executive U. S. SUPBEMB COTJBT AND RENDITION. 311 authorities of both States making and honoring the demand, the judiciary should not interfere on habeas corpus and discharge the prisoner upon technical grounds unless it is clear that the action plainly con- travenes the law. Authorities and cases cited in the opinion: 2 Code of Ga. sec. 4052, p. 982 ; 2 Bouvier Law Die. 643 ; Ander- son's Die. of Law, 643 ; Gordon v. Hobart, (1836), 2 Sum- mer 401. § 212. (23.) Marbles v. Creecy, (1909), 215 U. S. 63, 30 Sup. Ct. 32, 54 L. ed. 92.— The chief of police of St. Louis, Missouri, arrested the accused. Marbles, in that city by virtue of a warrant of rendition issued by the governor of that State, upon a requisition from the exec- utive of the State of Mississippi, based upon an indict- ment charging him with an assault with intent to kill and he was also charged with being a fugitive from the justice of that State. Marbles presented a petition to the circuit court of the United States for the eastern district of Missouri, sitting at St. Louis, asking, the issu- ance of a writ of habeas corpus, alleging that he was not a fugitive from the justice of the State of Mississippi and that being a Negro, charged with assaulting a white man in that State, the only purpose of his arrest and deportation was to subject Mm to mob rule upon his arrival in Mississippi. No attempt was made by the accused, upon the hearing of the writ, to make good by proof the allegations of his petition and the result was that the habeas corpus was dismissed and he was ordered to be delivered to the agent of Mississippi for removal to that State. From this judgmient an appeal was taken directly to the Supreme Court of the United States, and in affirming the judgment of the court below Mr. Justice Harlan, speaking for the court, held that, 1. The executive of a State upon whom a demand is made for the surrender of a fugitive from justice may act on the papers in the absence of, and without notice to, the accused, and it is for that executive to determine whether he will regard the requisition pa- 312 THE LAW OP INTEESTATB RENDITION. pers as sufficient proof that the accused has been charged with crime in, and is a fugitive from justice from, the demanding State, or whether he will de- mand, as he may if he sees fit so to do, further proof in regard to such facts. 2. A notice in the requisition papers that the de- manding State will not be responsible for any ex- penses attending the arrest and delivery of the fugi- tive, does not affect the legality of the surrender so far as the rights of the accused under the Consti- tution and laws of the United States are concerned. 3. The executive of the surrendering State need not be controlled in the discharge of his duty by con- siderations of race or color, or, in the absence of proof, by suggestions that the alleged fugitive will not be fairly dealt with by the demanding State. 4. On habeas corpus, the court can assume that a requisition made by an executive of a State is sole- ly for the purpose of enforcing its laws and that the person surrendered will be legally tried and adequately protected from illegal violence. Authorities and cases cited in the opinion: Miss. Code, sec. 1043; McNichols v. Pease, (1907), 207 U. S. 110; Ex parte Eeggel, (1885), 114 U. S. 642; Boberts v. Reilly, (1885), 116 U. S. 80; Hyatt v. Corkran, (1903), 188 U. S. 691; Munsey v. Clough, (1904), 196 U. S. 637; Pettibone v. Nichols, (1906), 203 U. S. 192; Appleyard V. Massachusetts, (1906), 203 U. S. 222. § 213. (24.) Ex parte Hoffstot, (1910), 218 U. S. 665, 31 Sup. Ct. 222, 54 L. ed. 1201.— Hoffstot was a banker and citizen of the city of New York and president of the German National Bank of Pittsburg, Pennsylvania, and frequently visited that city in connection with his busi- ness. It was charged that while in that city in the sum- mer of 1908, he and two of his business associates con- spired together and did bribe certain members of the city council to vote in favor of the passage of an ordi- nance designating certain banks as depositories of public funds of that city. A public scandal resulted from an exposure and Hoffstot and others were indicted in Pitts- U. S. SUPEEME COTJET AND RENDITION. 313 bnrg for bribery. The governor of Pennsylvania by requisition demanded the arrest and surrender of Hoff- stot as a fugitive from justice from the governor of the State of New York. Thereupon Hoffstot was arrested in the city of New York by virtue of the governor's war- rant, he at once applied to the circuit court of the United States, sitting in the city of New York, for a writ of habeas corpus, stoutly contending that he was not per- sonally present in the State of Pennsylvania, when the alleged crime was committed and that he was not, there- fore, a fugitive from that State, and that his arrest and proposed deportation to Pennsylvania was in violation of his rights as an American citizen. At the hearing before the Federal court in New York a mass of testi- mony was taken showing that Hoffstot was and was not present in Pennsylvania when the alleged crime was committed. The court ia an able and lucid opinion de- cided that Hoffstot was a fugitive from the justice of the demanding State, and thereupon dismissed his writ of habeas corpus, and ordered his surrender to the agent of the State of Pennsylvania. {Ex parte Hoffstot, (1910), 180 Fed. 240.) From this judgment an appeal was taken directly to the Supreme Court of the United States and affirmed without an opinion. The points raised and decided in the circuit court of the United States were as follows: 1. One may be guilty of conspiracy to bribe municipal officers of a city, without ever having been personally present within the State where such city is located. 2. A man may be indicted in a case in which he cannot be extradited. 3. Petitioner, a resident of New York, indicted in Pennsylvania for conspiracy to bribe members of the Pittsburg city council, could not be extradited in the absence of some proof that he had been phy- sically present in Pennsylvania when the offense was committed, as otherwise he could not be a fugitive from the justice of that State. 4. Where accused has committed a crime in one 314 THE LAW OF INTERSTATE EBNDITION. State, and afterwards leaves it, the rigM of extra- dition exists, without reference to his purpose in going. 5. Where there was specific evidence that peti- tioner, a resident of New York, participated there in a conspiracy to bribe members of the city council of Pittsburg to select certain banks in Pittsburg, one of which petitioner was president, as city de- positories, and there was substantial evidence from which a jury would be justified in drawing an infer- ence that petitioner was in Pittsburg on a day when some act or acts in furtherance of the conspiracy were performed, there was sufficient proof that he was a fugitive from justice to justify his extradi- tion to Pennsylvania. Cases cited in the opinion: Hyatt v. Corkran, (1903), 188 U. S. 691; Compton v. Alabama, (1908), 214 U. S. 1; In re Strauss, (1903), 126 Fed. 327, 63 C. C. A. 99. § 214. (25.) Strassheim v. Daily, (1911), 221 U. S. 280, 31 Sup. Ct. 558, 55 L. ed. 735.— Daily was arrested in Chicago by authority of a warrant issued by the gov- ernor of Illinois, upon a requisition of the governor of the State of Michigan, based on an indictment against him for obtaining money under false pretenses. The State of Michigan had authorized the installation of new machinery in the Michigan State prison, at Jackson, and had decided to let the same to the lowest bidder. Daily through his firm became the lowest bidder and obtained the contract, and through the connivance and collusion with one Armstrong, superintendent of the State prison, at Jackson, old and worn machinery was installed instead of new as contracted for and by means of the substitution deceived and defrauded the State out of the sum of ten thousand dollars. .While in the custody of the sheriff of Cook county, Illinois, under the governor's warrant. Daily sued out a writ of habeas corpus before Judge Landis, of the United States district court at Chicago, alleging that he was being unlawfully deprived of his liberty in that he was not legally charged with the com- mission of a crime in the State of Michigan, and that he tr. S. SUPREME COUET AND EENDITIOK. 315 was not a fugitive from the justice of that State because he was not personally present in the State of Michigan on the day or date when said alleged crime was commit- ted. Upon a hearing at Chicago the Federal court up- held both of these contentions of Daily and ordered his discharge. From this judgment an appeal was taken directly to the Supreme Court of the United States, by the sheriff of Cook county, Illinois, and that court re- versed the order of discharge by Judge Landis and di- rected the surrender of Daily to the Michigan authorities to answer the charge of crime against him in the courts of that State. Mr. Justice Holmes, delivered the opinion of the court, deciding the following questions : 1. In a habeas corpus proceeding in extradition it is sufficient if the court in the indictment plainly shows that the defendant is charged with a crime. 2. Where a guaranty goes not to newness but to fitness of articles furnished, it is a material fraud to furnish old articles even if they can meet the test of the guaranty; and the fact that the purchaser may rely on the guaranty does not exclude the possi- bility that the purchase price was obtained by false representations as to the newness of the articles. 3. A State may punish one committing crime done outside its jurisdiction for the purpose of producing detrimental effects within it when it gets the crim- inal within its power. 4. Commission of the crimes alleged in this in- dictment — bribery of a public officer and obtaining public money under false pretenses — ^warrants pun- ishment by the State aggrieved even if the offender did not come into the State until after the fraud was complete. 5. An overt act becomes retrospectively guilty when the contemplated result ensues. 6. One who is never within the State before the commission of a crime producing its results within its jurisdiction is not a fugitive from justice within the rendition provisions of the Constitution, but if he commits some overt and material act within the State and then absents himself, he becomes a 316 THE LAW OP INTEESTATB EENDITION. fugitive from justice when the crime is complete, if not before. 7. Although absent from the State when the crime was completed in this case, the party charged became a fugitive from justice by reason of his hav- ing committed certain material steps towards the crime within the State, and the demanding State is entitled to his surrender under article IV, section 2, of the Constitution of the United States and the statutes providing for the surrender of fugitives from justice. Cases cited in the opinion: Pierce v. Creecy, (1908), 210 U. S. 387; Commonwealth v. Smith, (1865), 11 Allen (Mass.) 243; Simpson v. State, (1893), 92 Ga. 41; In re Cook, (1892), 49 Fed. 833; American Banana Co. v. Unit- ed Fruit Co., (1909), 213 U. S. 347; Commonwealth v. Macloon, (1869), 101 Mass. 1; In re Sultan, (1894), 115 N. C. 57; Hyatt v. Corkran, (1903), 188 U. S. 691; Ex parte Hoffstot, (1910), 180 Fed. 240; Roberts v. Reilly, (1885), 116 U. S. 80; Swift v. United States, (1905), 196 U. S. 375. § 215. (26.) Drew v. Thaw, (1914), 235 U. S. 432, 35 Sup. Ct. 137, 59 L. ed. 302.— Harry Kendall Thaw on February 1, 1908, was acquitted by a jury in the County and State of New York of the crime of homicide. The verdict of acquittal was stated by the jury to be on the ground of rasanity at the time of the commission of the act. Section 454 of Parker's New York Criminal and Penal Code, Annotated, 1908, on page 139, provided as follows : "When the defense is insanity of the defendant the jury must be instructed, if they acquit him on that ground, to state the fact with their verdict. The court must, thereupon, if the defendant be in cus- tody, and they deem his discharge dangerous to the public peace or safety, order him to be committed to the State lunatic asylum, until he becomes sane." Acting upon the authority of this section of the Crim- inal Code, Mr. Justice Bowling, of the State supreme U. S. SUPREME COUBT AND RENDITION. 317 court, who presided at Thaw's trial, without further pro- ceedings or inquiry, made the following order : "The defendant on his trial in said indictment having been acquitted by the jury on the ground of insanity, and the court being certified of the fact, and the defendant being in custody, and the court deeming his discharge at this time dangerous to public safety, it is "Ordered that- said Harry K. Thaw be detained in safe custody and be sent to the Matteawan State hospital until thence discharged by due course of law, and it is further ordered that the sheriff of the County of New York do forthwith convey said Harry K. Thaw to said hospital." In compliance with this order Thaw was committed to the Matteawan hospital for detention as an insane per- son, for an indefinite period of time, and there remained in confinement, except for brief periods when he was else- where confined during the pendency of certain proceed- ings instituted in the courts of New York, to secure his release, until August 17, 1913, when he escaped from that institution. After his escape he was first apprehended in Barford, Province of Quebec, Dominion of Canada, and by the authority of its officials was deported back to the United States. Thaw was again arrested at Cole- brook, in the State of New Hampshire, on September 10, 1913, and at once the governor of the State of New York made requisition for his arrest and surrender as a fugi- tive from the justice of that State. The governor of New Hampshire honored the demand of New York's executive, based on an indictment found against Thaw and others in that State, charging conspiracy. In honor- ing the requisition the governor of New Hampshire used the following strong language : "With profound respect therefor, I am unable to view my duty in the premises, as including an in- vestigation of Mr. Thaw's mental condition, or of the conduct of the counsel for the State of New York, or of the probable guilt or innocence of the accused. To do so would hardly be consistent with the man- datory provision of the Constitution that a person 318 THE LAW OF INTEKSXATE EENDITION. charged in any State witli treason, felony or other crime, who shall be found in another State, shall on demand of the executive authority of the State from which he fled, he delivered wp. It would further- more, involve an attempted supervision, by myself, over procedure of courts of criminal jurisdiction of another State, in a manner entirely beyond the power of sudh State to control. Such a course, likewise, involve an inquiry into the motives of the author- ities of the demanding State in making the request. : Any one of these would manifestly lead to the virtual suspension and eventual nullification of the provi- sions of the Federal Constitution, by States other- wise supposed to be subject thereto. I have, and I shall continue to assume that the course of the State of New York, in its present demand, does, and in its subsequent conduct with reference to the arraign- ment and trial of Thaw upon the indictment for which alone the extradition sought is hereby granted, will demonstrate her full appreciation of the dictates of fair play and a righteous and equal administra- tion of justice." A writ of habeas corpus was issued on the petition of Thaw by the judge of the United States district court of New Hampshire, and an inquiry was had as to whether Thaw was legally charged with crime in New York, as to whether he was a fugitive from the justice of New York and as to his sanity. After an exhaustive and pro- longed hearing in New Hampshire the Federal judge or- dered Thaw's discharge because he was not properly charged with crime in the State of New York and that he was not a fugitive within the meaning of the Consti- tution and laws of the United States relating to inter- state rendition. Ex parte Thaw, (1914), 214 Fed. 423. From this judgment an appeal was taken directly to the Supreme Court of the United States and the court of last resort, speaking through Mr. Justice Holmes, re- versed the order of the court below and directed the sur- render of Thaw to the agent of New York, holding that : 1. A State may enact that a conspiracy to accom- XT. S. SUPREME COtJUT AND BENDIIION. 319 plish what an individual is free to do shall be a crime. 2. The New York Penal Law, sections 580, 583, making an agreement to commit any act for the per- version of justice or the due administration of the laws a misdemeanor if an overt act is committed, may include the withdrawal by connivance of a per- son from an insane asylum to which he had duly been committed by order of court as a lunatic. 3. A party to a crime who afterwards leaves the State is a fugitive from justice; and, for purposes of interstate rendition, it does not matter what mo- tive induced the departure. 4. The purpose of the writ of habeas corpus is not to substitute the judgment of another tribunal upon the facts or the law of the matter to be tried. 5. The Federal Constitution peremptorily re- quires that upon proper demand the person charged with crime shall be delivered to be removed to the State having jurisdiction of the crime. There is no discretion allowed nor any inquiry into motives; nothing is said in regard to habeas corpus and the technical sufficiency of the indictment is not open. 6. Questions as to the sufficiency of an indictment charging an admittedly insane person with having committed a crime, are for the courts of the State having jurisdiction of the crime to determine accord- ing to the law of that State. They cannot be deter- mined by the courts of another State on habeas cor- pus proceedings in interstate rendition. 7. The constitutionally required surrender of an identified fugitive on a demand made in due form is not to be interfered with by the summary process of habeas corpus upon speculation as to what ought to be the result of a trial in the place where the Con- stitution provides for its taking place. Cases cited in the opinion: Eoberts v. EeUly, (1885), 116 U. S. 80; Pettibone v. Nichols, (1906), 203 U. S. 192; Munsey v. Clough, (1904), 196 TJ. S. 364; Pierce v. Creecy, (1908), 210 TJ. S. 387; Kentucky v. Dennison, (1860), 24 How. 66. D? 320 THE LAW OF INTEESTATB RENDITION. §215a. (27.) Innes v. Tobin, (1916), 240 U. S. 127, 36 Sup. Ct. 290, 60 L. ed. 563.— One Ida May limes was arrested in the State of Oregon charged with being a fugitive from the justice of the State of Texas, the gov- ernor of the State of Oregon honored a requisition made by the governor of Texas for the delivery of the accused to the messenger or agent of Texas and authorizing her removal as a fugitive from justice to the State of Texas where an alleged crime had been committed by her. The accused was taken and there tried for murder and a con- spiracy to commit murder and acquitted. She was, how- ever, not released from custody because she was ordered by the governor of Texas, under a requisition from the governor of the State of Georgia, to be held for delivery to a messenger or agent of that State for removal to that State as a fugitive from justice. At once, early in Jan- uary, 1915, the accused sued out a writ of habeas corpus in the district court of Bexar county, Texas, alleging that she was not a fugitive from the justice of the State of Georgia and should be discharged from custody, but up- on a hearing in the district court she was remanded to the custody of the messenger or agent of the State of Georgia. An appeal was taken by her to the Texas crim- inal court of appeals where the judgment of the lower court was affirmed. Ex parte Ida May Innes, (1915) , Tex. Grim. , 173 S. W. 291. A writ of error was sued out of the Supreme Court of the United States on her behalf and the finding of the Texas crimnial court of appeals was reviewed by the court of last resort. Mr. Chief Justice White delivered the opinion of the court holding that, _ 1. Prior to the adoption of the Constitution fugi- tives from justice Were surrendered between the States conformably to what were deemed to be the controlling principles of comity. 2. It was intended by art. IV of the Constitution to fully embrace the subject of rendition of fugitives from justice between the States and to confer au- thority upon Congress to deal with that subject. U. S. STTPEEMB COUKT AND BENBITION. 321 3. The act of Febrauiy 12, 1793, c. 7, 1 Stat. 302, now Eev. Stat. sec. 5278, was enacted for tlie purpose of controlling the subject of interstate rendition and its provisions were intended to be dominant and, so far as they operated, controlling and exclusive of State power. 4. Construed in the light of the principles which the statute embraces, the provisions of Eev. Stat, sec. 5278, expressly or by necessary implication, pro- hibit the surrender in one State for removal as a fugitive from justice to another State of a person who clearly was not and could not have been such a fugitive from the demanding State. 5. The doctrine of asylum applicable under in- ternational law by which a person extradited from a foreign country cannot be tried for an offense other than the one for which the extradition was asked does not apply to interstate rendition. 6. Where there is nothing in the record of a habeas corpits proceeding to show that the person held for surrender under interstate rendition had not been in the demanding State there is no basis for this court assuming that the rendition order con- flicted with Eev. Stat. sec. 5278, in that respect be- cause the record did show that such person had come into the surrendering State from a State other than the one demanding. 7. An act of Congress which leaves a subject with which Congress has power to deal under the Con- stitution unprovided for does not necessarily take the matters within the unprovided area out of any possible State action ; and so held that the exclusive character of sec. 5278, Eev. Stat., does not relate to the rendition between States of criminals found in, but who had not fled to, the surrendering State but had been involuntarily brought therein. 8. In construing an act of Congress, this court will not presume that because its provisions were not coterminous with the power granted to Congress, it was so framed for the purpose of leaving the sub- ject, so far as unprovided for, beyond the operation of any legal authority whatever. State and National. 322 THE LAW OP INTEBSTATB RENDITION. Cases cited in the opinion are as follows : Kentucky v. Dennison, (1860), 24 How. 66; Prigg v. Pennsylvania, (1842), 16 Pet. 539; Taylor v. Taintor, (1872), 16 Wall. 366; Appleyard v. Massachusetts, (1906), 203 U. S. 222; Mahon v. Justice, (1888), 127 U. S. 700; Lascelles v. Georgia, (1893), 148 U. S. 537; Ex parte Eeggel, (1885), 114 U. S. 642; Roberts v. ReiUy, (1885), 116 U. S. 80; Hyatt V. Corkran, (1903), 188 U. S. 691 ; Bassing v. Cady, (1907), 208 IT. S. 386. CHAPTER XXLI. ARREST AND RETURN OF FEDERAL PRISONERS. § 216. Interstate Rendition and Federal Removal. § 217. The Removal Statute. § 218. Proceedings for Removal. § 219. Power of the District Court. § 220. Rights of the Accused. § 221. Removal to and from the Philippine Islands. §216. Interstate Rendition and Federal Removal. — While the arrest and the removal of a Federal prisoner, charged with an offense against the lams of the United States, from one district or State to another, has no con- nection whatever with interstate rendition, yet the ulti- mate object being the same, the arrest and deportation of the accused to the scene of the alleged crime, it has been thought advisable to incorporate herein a brief out- line of the procedure necessary to secure the arrest and removal of a person so accused under the Federal stat- utes. In both proceedings the person accused is charged with being a fugitive from justice, and his return to the jurisdiction where the alleged crime was committed, is dependent in both instances wholly and entirely upon the authority of the laws of the United States. If charged with the commission of a crime against the laws of the State or Territory from which he has fled, then his arrest and return to such State or Territory, is based on the Federal law of interstate rendition ; but, if charged with violating a law of the United States, in any Federal dis- trict of the Union, his arrest and removal to the scene of his crime, is based on the Federal law of removal. § 217. The Removal Statute.— The Federal law of re- moval was previously known as section 33 of the judi- ('323) 324 THE LAW OF INTERSTATE EBNDITIOW. ciary act of 1789, but since the revision of the statutes is known as section 1014, Revised Statutes of the United States, and is as follows : For any crime or offense against the United States, the offender may, by any justice or judge of the United States or by any commissioner of a cir- cuit court to take bail, or by any chancellor, judge of a supreme or superior court, chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate, of ^ny State where he may be found, and agreeably to the usual mode of process against offenders in such State, and at the expense of the United States, be arrested and im- prisoned, or bailed, as the case may be, for trial be- fore such court of the United States as by law has cognizance of the offense. Copies of the process shall be returned as speedily as may be into the clerk's office of such court, together with the recog- nizance of the witnesses for their appearance to testify in the case. And where any offender or wit- ness is committed in any district other than that where the offense is to be tried, it shall be the duty of the judge of the district where such offender or witness is imprisoned, seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had. The Federal district court of the State of Washington in Ex parte Krause, (1915), 228 Fed. 547, held that re- moval under this section not applicable for violation of the laws of a Territory, the proper remedy being rendi- tion under section 5278, U. S. Revised Statutes. §218, Proceedings for Removal. — From this statute it will be observed that where a person is arrested in a district different from that in which he is indicted, as a matter of right he is entitled to be taken to the nearest and most convenient United States commissioner, who inquires into his identity, and being satisfied that such person arrested is the identical person indicted in an- other district and that probable cause has been proven, such commissioner shall fix bail for his appearance be- fore the proper court of the proper district. But should ABEEST AND EETOEN OF FEDETtAT. PMSONEES. 325 the prisoner be unable to make the bail, application is then made to the United States district judge for a war- rant of removal, under section 1029 of the Revised Stat- utes of the United States, and such warrant, when issued, is the authority for the deportation of the accused to the district or State where the crime was committed. In United States v. Rundlett, (1854), 2 Curt. 41, it was held that it was the intention of Congress, by the use of these words in section 1014 ; agreeably to the usual mode of process against offenders in such State, to assimilate all proceedings for holding accused person to answer before a court of the United States to proceedings had for similar purposes by the laws of the State where such proceedings should take place. (Benson v. Henkel, (1904), 198 U. S. 12.) § 219. The Power of the District Court.— Before the district judge of the United States of the district wherein the accused is arrested, shall issue an order for his re- moval to the district or State, wherein the crime was committed, he shall grant to the accused a hearing as to whether there is probable cause to warrant the belief that he is guilty of the commission of the crime alleged to have been committed in the district or State seeking his return. In Tinsley v. Treat, (1907), 205 U. S. 20, the Supreme Court of the United States, held that the ac- cused, in such hearing before the district court, might offer evidence in opposition to the indictment, tending to show that he did not commit the offense charged with- in the district where the indictment alleges that it oc- curred. A district judge or a commissioner, acting as a committing magistrate, has the same power as a State magistrate and no greater authority, and such evidence as is heard during the preliminary examination must be in accordance with the rules of practice of the State wherein such investigation is had. §220. Rights of the Accused. — The accused person has a right to testify in his own behalf, may be repre- sented by counsel upon the preliminary examination and 326 THE LAW or INTEBSTATB RENDITION. can call such witnesses to contradict or to explain the testimony of the witnesses for the prosecution as he may think proper. In Tinsley v. Treat, (1907), supra, it was held that a district judge to whom application is made for the warrant of removal after the commitment of the accused, does not perform a mere ministerial function but it is his duty to look into the indictment, warrant or complaint to ascertain whether an offense against the United States is charged and whether there is probable cause to believe that the accused is guilty of the crime charged. Where the accused is apparently unable to give bond and is committed to prison, he is entitled to a reasonable opportunity in which to obtain bail and to send him arbi- trarily to jail and remove him forthwith to another juris- diction, is to deny him of one of his substantial rights. This was the doctrine enunciated in the case of Bagnall V. Albeman, (1853), 4 Wis. 163, by the supreme court of; the State of Wisconsin. § 221. Removal to and from the Philippine Islands. — On February 9, 1903, an act of Congress was passed and approved by the president, providing for the arrest and removal to and from the Philippine Islands of persons charged with violating the laws of the United States, either in the Philippine Islands or in the United States. The act of Congress is as follows: The provisions of section ten hundred and four- teen of the Eevised Statutes, so far as applicable, shall apply throughout the United States for the ar- rest and removal therefrom to the Philippine Islands of any fugitive from justice charged with the commis- sion of any crime or offense against the United States within the Philippine Islands, and shall apply within the Philippine Islands for the arrest and re- moval therefrom to the United States of any fugi- tive from justice charged with the commission of any crime or offense against the United States. Such fugitive may, by any judge or magistrate of the Philippine Islands, and agreeably to the usual mode of process against offenders therein, be arrest- ABEEST AND EETUEN OP PEa)EEAL PBISONEBS. 327 ed and imprisoned, or bailed, as the case may be, pending the issuance of a warrant for his removal to the United States, which warrant it shall be the duty of a judge of the court of first instance season- ably to issue, and of the officer or agent of the United States designated for the purpose to execute. Such officer or agent, when engaged in executing such warrant without the Philippine Islands, shall have all the powers of a marshal of the United States so far as such powers are requisite for the prisoner's safe-keeping and the execution of the warrant. (32 Stat, at L. 103.) For a more complete discussion of aU phases of re- moval of a person from one district to another see the following cases : In re Terrell, (1892), 51 Fed. 213 ; In re Dana, (1895), supra; In re Price, (1897), 83 Fed. 831; Price V. McCarty, (1898), 89 Fed. 84; U. S. v. Lee, (1898), 84 Fed. 627; Sternaman v. Peck, (1897), 80 Fed. 883; U. S. V. Greene, (1900), 100 Fed. 942; Stewart v. U. S., (1902), 119 Fed. 93; U. S. v. Yarbrough, (1903), 122 Fed. 293; In re Runkle, (1903), 125 Fed. 998; Benson v. Hen- kel, (1904), supra; In re Benson, (1904), 130 Fed. 486; Ex parte Black, (1906), 147 Fed. 836; U. S. v. Wimsatt, (1908), 161 Fed. 586; U. S. v. Campbell, (1910), 179 Fed. 762. ADDENDA: LATEST CASES. Since the foregoing pages were written and placed in type the author has found a number of new cases on interstate rendition, the questions raised and decided therein being of sufficient importance to merit this spe- cial reference, and it being his desire to give the pro- fession the benefit of the latest ruling of the courts on this branch of the law, he has concluded to add these lines to the text, briefly referring to such newly reported cases, that the reliability of this work may not be ques- tioned because of its silence as to these cases. In Innes v. Tobin, (1916), 240 U. S. 127, (see cmte section 215 a.) will be found the twenty-seventh case on interstate rendition since 1860 decided by the United States Supreme Court, and in this the last case Mr. Chief Justice White on behalf of the court passed upon seven fundamental principles governing the arrest and return of fugitives from the justice of one State to an- other. In Ex parte Duddy, (1914), 219 Mass. 548, 107 N. E. 364, the supreme judicial court, the court of last resort in the State of Massachusetts, held that a fugitive from justice is one who actually commits a crime in one State and when wanted to answer for such crime by its courts is found in another State. (See a/nte section 50.) In Commonwealth v. Matthews, (1914), 42 Pa. Co. Ct. 618, it was held by a common pleas court of Pennsyl- vania, that where the indictment in the demanding State charges that the crime was committed on a particular date, and the incontrovertible evidence of the relator and his witnesses show that he left the State before that date, he is entitled to his discharge. (See ante section 50.) In Wheeler v. Pahner, (1914), 42 App. Cases, (D. C.) 395, the court of appeals of the District of Columbia (328) LATEST CASES. 329 held that, an indictment on which a rendition proceeding is founded is not to be judged by any technical standard and is sufficient if it shows that the fugitive has been, however inartificially, charged with a crime against the laws of the State from which he fled. However, should the indictment fail to charge a crime, the accused is en- titled, to his discharge.- (See ante section 86.) In State ex rel. Burnett v. Floumoy, (1915), 136 La. 852, 67 So. 929, the supreme court of the State of Lou- isiana held that infancy could not be pleaded in interstate rendition. In In re Thompson, (1915), 85 N. J. Eq. 221, the court of chancery of the State of New Jersey, through its chancellor, Edwin Robert Walker, held, in an elaborate and carefully prepared opinion, that one arrested in that State as a fugitive from justice of another State, was not entitled to bail pendente lite, in the absence of a statute allowing bail, as the right to baU did not exist at com- mon law. (See ante section 159.) In People ex rel. Currier v. Chief of Police, (1916), 97 Misc. 254, 162 N. T. S. 845, the county court of Monroe county. New York, held that an information dvly verified, charging a crime in another State, is sufficient to require surrender of accused on rendition proceed- ings. And where the accused refused to offer proof that he is not a fugitive from justice, the statements of the governor's warrant must be taken as conclusive and ac- cused must be surrendered to the demanding State for deportation. (See ante sections 80 and 183.) In Kelley v. Mangum, (1916), 145 Ga. 57, 88 S. E. 556, the supreme court of the State of Georgia in an inter- state rendition case, held that where a fugitive from the justice of the State of Missouri, was convicted of a crime in a United States district court of the State of Alabama, and was committed to the United States penitentiary in Georgia, to serve his sentence, upon his release there- from at the expiration of such term, upon requisition of the governor of the State of Missouri the governor of Georgia could issue his warrant of rendition and could 330 THE LAW OF INTERSTATE EENDITION'. have siicla person arrested for deportation to the demand- ing State. The fact that the alleged fugitive from justice did not come into the State voluntarily does not entitle him to discharge on habeas corpus. (See ante section 195.) In a similar case to the foregoing, Hart v. Man- gum, (1917), Ga. , 91 S. E. 543, the doctrine enunciated by the supreme court of Georgia in the KeUey case was reaffirmed. In Cozart v. Wolf, (1916), Ind. , 112 S. E. 241, the supreme court of the State of Indiana held that, one in actual custody of the officers of either a State or Federal court is not subject to arrest and rendition as a fugitive from justice of another State, except in very urgent cases, in the absence of a waiver by the first court of its jurisdiction. And one released on bail is not in actual custody of the court during the time he is at lib- erty under bond and may be arrested for a crime, com- mitted in another State, and rendited to and tried in such other State. Citing Ex parte Marrin, (1908), 64 Fed. 631, and Mackin v. People, (1886), 111. , (un- reported), 8 N. E. 178. (See ante section 128). Appendix STATE STATUTES ON FUGITIVES FROM JUS- TICE. I. ALABAMA. (From the Code of Alabama, 1907, Vol. HL Sections 6940 to 6953, pages 560 to 562.) Section 6940. Fugitive from Other State Deliveeed Upon Demand of Exectjtive.J Any person charged in any State or Territory of the United States, with trea- son, felony, or other crime, who shall flee from justice and be found in this State, must, on the demand of the executive authority of the State or Territory from which he fled, be delivered up by the governor of this State, to be removed to the State or Territory having jurisdiction of such crime. This is practically the language and the command of the Constitution and act of Congress of 1793, re- lating to interstate rendition, and without being specially enacted by the legislature of Alabama, was already the supreme law of the land, and therefore, binding specifically upon Alabama and every other State and Territory of the Union. Ex parte Mc- Kean, (1878), 3 Hughes, (U. S.) 23. See Morrill v. Quarles, (1855), 35 Ala. 544; In re Mohr, (1883), 73 Ala. 503; Cunningham v. Baker, (1893), 104 Ala. 160, 16 So. 68; Barriere v. State, (1904), 142 Ala. 72, 39 So. 55. The latter case up- holding the right of the fugitive or respondent to appeal from the order of the court or judge in habeas corpus on interstate rendition procedure, di- rectly to the supreme court of the State. (331) 332 THE LAW OP INTERSTATE KENDITION. Section 6941. Warrant op Arrest Issued by Magis- trate.] A -warrant for the apprehension of such per- son may be issued by any magistrate who is authorized to issue a warrant of arrest. Section 6942. Arrest and Commitment : Copy op In- dictment OK Other Judicial Proceedings Conclusive Evidence.] The proceedings and commitments of the person charged are in all respects similar to those pro- vided in this Code for the arrest and commitment of a person charged with a public offense, except that an ex- emplified copy of an indictment found, or other judicial proceedings had against him in the State or Territory in which he is charged to have committed the offense, must be received as conclusive evidence before the magistrate. Section 6943. Commitment to Await Requisition: Bail.] If, from the examination, it appears that the per- son charged has committed the crime alleged, the magis- trate must, by warrant reciting the accusation, commit him to jail for a time specified in the warrant, which the magistrate deems reasonable, to, enable the arrest of the fugitive to be made imder the warrant of the executive of this State, on the requisition of the executive author- ity of the State or Territory in which he committed the offense, unless he give bail as provided in the next sec- tion, until he is legally discharged. Section 6944. Bah, Except in Capital Cases: Con- dition AND Requisites op Bond.] The magistrate must, unless the offense with which the fugitive is charged is shown to be an offense punished capitally by the laws of the State in which it was committed, admit the person ar- rested to bail by bond or undertaking, with sufficient sureties, and in such sum as he deems proper, for his ap- pearance before him at a time specified in such bond or undertaking, and for his surrender, to be arrested upon the warrant of the governor of this State. Section 6945. When Discharged on Bail.] If such person is not arrested under the warrant of the gov- ernor, before the expiration of the time, specified in the STATE STATUTES OF AIABAMA. 333 warrant, bond or undertaking, lie must be discharged from custody on bail. Section 6946. Jail Fees Paid iit Advance.] No jailor is bound to receive any person committed under a war- rant issued under the provisions of this chapter, unless his jail fees for the time specified in such warrant are paid in advance. Section 6947. Fobfeittjke of Bail.] If the fugitive is discharged on bail, and fails to appear and surrender himself, according to his bond or undertaking, the magis- trate must indorse thereon "forfeited," sign his name thereto, and return it to the clerk of the circuit court by the first day of the next term; and a conditional judg- ment must be rendered thereon, and proceedings had, as in case of bonds or undertakings forfeited in the courts, the indorsement of the magistrate being presumptive evidence of the forfeiture. Section 6948. At Expiration of Time.] At the ex- piration of the time specified in the warrant, the magis- trate may discharge or recommit him to a further day, or may take bail for his appearance and surrender, as provided in section 6944 ; and on his appearance, or if he has been bailed and appear according to the terms of his bond or xmdertaking, the magistrate may either dis- charge him therefor, or may require him to enter into a new bond or undertaking, to appear and surrender him- self at another day. Section 6949. If Peosecution etc.] If a criminal prosecution has been iustituted against such person un- der the laws of this State the governor may or not, at his discretion, surrender such person on the demand of the executive of another State, before he has been tried and punished, if convicted, or discharged. Section 6950. Goveenob's Wabeant.] A warrant from the executive may be directed to the sheriff, cor- oner, or other person whom he may think fit to entrust with the execution of the same. Section 6951. Executed Whebe and How.] Such warrant authorizes the officer or person to whom it is di- 334 THE LAW OF INTEKSTATB EENDITION. reoted to arrest the fugitive at any place -within the State, and to require the aid of all sheriffs and constables to whom the same is shown, to aid and assist in the exe- cution thereof. Section 6952. Authoeity of Akbesting Officee.J Every such officer or person has the same authority in ar- resting the fugitive to command assistance therein, as sheriffs and other officers by law have in the execution of criminal process directed to them, with the like penalties on those who refuse their assistance. Section 6953. Confinement in Jail: When Neces- sary.] The officer or person executing such warrant may, when necessary, confine the prisoner arrested by him in the jail of any county through which he may pass, and the keeper of such jail must receive and safely keep the prisoner until the person having charge of him is ready to proceed on his route, such person being charge- able with the expense of keeping. II. AEKANSAS. (From Kirby's Digest of the Statutes of Arkansas, 1906, chapter 72, pages 838-839-840.) Aekest of Fugitives from Justice upon Eequisition. Section 3669. Whenever the executive of any other State or Territory of the United States shall demand of the executive of this State any person as a fugitive from justice, having complied with the requisitions of the act of Congress in that case made and provided, it shall be the duty of the executive of this State to issue his war- rant, under the seal of the State, directed to any sheriff, coroner, or other person whom he may think fit to en- trust with the execution of such warrant. Section 3670. Such warrant shall authorize the per- son to whom it may be directed to arrest the fugitive anywhere within the limits of this State, and to convey STATE STATUTES OF AEKANSAS. 335 him to any place within the State which the executive may in his warrant direct ; and commanding all sheriffs, cor- oners, and other officers, to whom the same may be shown to aid and assist in the execution thereof. Section 3671. Every such warrant may be executed in any part of the State, and the officer or person to whom it is directed shall have the same power to command as- sistance therein, and in receiving and conveying to the proper place any person duly arrested, as sheriffs and other officers by law have in the execution of civil and criminal process directed to them, with like penalties on those who refuse their assistance. Section 3672. The officer or person executing such warrant may, when necessary, confine the prisoner ar- rested by him in the jail of any county through which he may pass in conveying such prisoner to the place com- manded in the warrant, and the keeper of such jail shaU receive and safely keep such prisoner until the person having him in charge shall be ready to proceed on his route. Apparently a person so held in custody by virtue of the governor's warrant of rendition in the State of Arkansas, cannot be discharged on writ of habeas corpus, however unlawfvl the arrest and detention. The courts of that State deny the privilege of the writ to aU persons charged with being fugitives from justice and arrested therein, basing the right for such denial on Section 3862, Kirby's Digest of the Statutes of Arkansas, 1906. Section 3673. The expenses which may accrue under the foregoing provisions of this chapter, being first as- certained by the executive, shall, on his certificate, be al- lowed and paid out of the State treasury. Abbest PmoE TO Beqiosition. Section 3674. Whenever any person within this State shall be charged, on the oath or affirmation of any cred- itable person, before any judge or justice of the peace of this State, with the commission of any crime in any 336 THE LAW OF INTEBSTATB EENDITION. other state or Territory of the United States, and that such person hath fled from justice, such judge or justice shall issue his warrant for the apprehension of such person. Section 3675. If on examination it shall appear to the judge or justice that the person charged is guilty of the crime as alleged, he shall commit him to the jail of the county, or if the offense is bailable, to take bail for his appearance at the next term of the circuit court in the county. Section 3676. The judge or justice shall proceed in the examination of such person in the same manner as is required when a person is brought before such officer charged with an offfense against the laws of this State, and shall reduce the examination to writing, and make return thereof, as in other cases; and shall also send a copy of the examination and proceedings to the executive of this State without delay. Section 3677. If, in the opinion of the executive, the examination contains sufficient evidence to warrant the finding of an indictment, he shall forthwith notify the executive of the State or Territory in which such crime is alleged to have been committed of the proceedings against the person arrested, and that he will be delivered on demand, without requiring a copy of the indictment to accompany the demand. This section of the Arkansas statute is in direct contravention of the Federal Constitution and law on interstate rendition, in proposing to surrender the fugitive from justice without a legal charge of crime from the demanding State, as will be seen by a reference to the authorities cited in Chapter X of this work, on "The Charge of Crime." Section 3678. When a demand shall be made for the offender the executive shall forthwith issue his warrant, under the seal of the State, to the sheriff of the county wherein the party charged is committed or bailed, com- manding him to surrender the accused to such messenger STATE STATUTES OF ARKANSAS. 337 as shall be therein named, to be conveyed out of the State. Section 3679. If the accused shall be at large, on bail or otherwise, the sheriff shall forthwith arrest him, any- where within the State, and surrender him agreeably to the command of the warrant. Section 3680. In all cases where the party shall have been admitted to bail, and shall appear according to the condition of his recognizance, and he shall not have been demanded, the circuit court may discharge the recogni- zance, or continue it, according to the circumstances of the case, such as the distance of the place where the of- fense is alleged to have been committed, the time since the arrest, the nature of the evidence, and the like. Section 3681. In no case shall the accused be kept in prison, or held to bail, beyond the end of the second term of the circuit court after the arrest, if no demand shall be made for him within that time, but shall be dis- charged. Section 3682. If any recognizance entered into under the provisions of this chapter shall be forfeited, it shall inure to the benefit of the State. Section 3683. Whenever the governor of this State shall demand any fugitive from justice from the execu- tive of another State or Territory, and shall have re- ceived notice that such fugitive will be surrendered, he shall issue his warrant, under the seal of the State, to some messenger, commanding him to receive and convey such fugitive to the sheriff of the county in which the of- fense was committed, or is by law cognizable. Section 3684. The expenses which may accrue under the provisions of the preceding section, being ascertained to the satisfaction of the governor, shall, on his certifi- cate, be allowed and paid out of the treasury as other demands against the State. 338 THE LAW OP INTEKSTATE RENDITION. III. ARIZONA. (From tlie Eevised Statutes of Arizona, 1913, Penal Code, Title XXVI, pages 267, 268 and 269.) PROCEEDINGS AGAINST FUGITIVES FEOM JUSTICE. Section 1414. A person charged in any State of the United States with treason, felony or other crime, who shall flee from justice and be found in this State must on demand of the executive authority of the State or Terri- tory from which he fled, be delivered up by the governor of this State, to be removed to the State or Territory having jurisdiction of the crime. Section 1415. A magistrate may issue a warrant for the apprehension of a person so charged who shall flee from justice and be found in this State. Section 1416. The proceedings for arrest and com- mitment of the person charged shall in all respects be similar to those provided in this code for the arrest and commitment of a person charged with a public offense committed within this State, except that an exemplified copy of an indictment found, or other judicial proceed- ing had against him in the State or Territory in which he is charged to have committed the offense, may be re- ceived as evidence before the magistrate. Section 1417. If, from the examination, it appears that the accused has committed the crime alleged, the magistrate, by warrant reciting the accusation, must co mm it him to the proper custody in his county, for such time, to be specified in the warrant, as the magistrate may deem reasonable, to enable the arrest of the fugitive under the warrant of the executive of this State, on the requisition of the executive authorityvaf the State or Ter- ritory in which he committed the offense, unless he gives bail as provided in the next section, or until he is legally discharged. Section 1418. The magistrate may admit the person to bail by recognizance with sufficient sureties, and in such sum as he may deem proper, for his appearance be- STATE STATUTES OP ARIZONA. 339 fore him at a time specified in the recognizance, and for his surrender to be arrested upon the warrant of the governor of this State. Section 1419. Immediately upon the arrest of the per- son charged the magistrate shall give notice thereof to the county attorney. Section 1420. The county attorney shall immediately thereafter give notice to the executive authority of the State or Territory, or to the prosecuting attorney or presiding judge of the court of the city or county within the State or Territory having jurisdiction of the offense to the end that a demand may be made for the arrest and surrender of the person charged. Section 1421. The person arrested shall be discharged from custody or bail, unless, before the expiration of the time designated in the warrant or recognizance, he is ar- rested under the warrant of the governor of this State. Section 1422. The magistrate shall make return of his proceedings to the superior court of the county, which shall thereafter inquire into the cause of the ar- rest and detention of the person charged, and if he be in custody, or the time of his arrest has not elapsed, the court may discharge him from detention, or may order his recognizance of bail to be canceled, or may continue his detention for a longer time, or may readmit biTn to bail, to appear and surrender himself within a time to be specified in the recognizance. Section 1423. The governor of this State may, in cases authorized by the Constitution and laws of the United States, appoint agents to demand of the executive authority of any other State or Territory, or the execu- tive authority of any foreign government, any fugitive from justice, or person charged with treason. Section 1424. When the governor of this State, in the exercise of the authority conferred by section two, ar- ticle four, of the Constitution of the United States, or by the laws of this State shall demand from the executive authority of any State or Territory of the United States, or any foreign government, the surrender to the an- 340 THE LAW OF INTERSTATE RENDITION. tliorities of this State of a fugitive from justice, the accounts of the persons employed by him for that pur- pose shall be paid by the cbunty in which the offense was committed, upon presentation of the account to the board of supervisors ; and should the board of supervisors neg- lect to pay such claim within thirty days after the pres- entation thereof the superior court may, upon petition filed in such court, order the payment of such claim or such portion thereof as the court may deem proper. Section 1425. No compensation, fee, or award of any kind can be paid to or received by a public officer of this State, or other person, for a service rendered in procur- ing from the governor the demand mentioned in the last section, or the surrender of the fugitive, or for convey- ing him to this State, or detaining him therein, except as provided for in the preceding section. Every person who violates any of the provisions of this section is guilty of a misdemeanor. IV. CALIFOENIA. (From Kerr's Codes of California, 1909. Vol. 4, Title 12, Chapter IV, pages 871 to 877, bottom paging.) Section 1548. Fugitives from Other States, When TO BE Delivered up. J A person charged in any State of the United States with treason, felony, or other crime, who flees from justice and is found in this State must on the demand of the executive authority of the State from which he fled, be delivered up by the governor of this State to be removed to the State having jurisdiction of the crime. This section has been fully construed by the su- preme court of California in Ex parte Cubreth, (1875), 49 Cal. 436, 1 Am. Crim. 169; In re Eosen- blat, (1876), 51 Cal. 285, 2 Am. Crim. 215. Section 1549. Magistrate to Issue Warrant.] A magistrate may issue a warrant for the apprehension of STATE STATUTES OP CALIFOENIA. 341 a person so charged, who flees from justice and is foxmd in this State. Section 1550. Proceedings fob the Arrest and Com- mitment OF the Person Accused.] The proceedings for the arrest and commitinent of a person charged are, in all respects, similar to those provided in this Code for the arrest and commitment of a person charged with a public offense committed in this State, except that an ex- emplified copy of an indictment found or other judicial proceedings had against him in the State in which he is charged to have committed the offense, may be received as evidence before the magistrate. See Iifh re Rosenblat, supra. Section 1551. When and for What Time to be Com- mitted.] If, from the examination, it appears that the accused has committed the crime alleged, the magistrate by warrant reciting the accusation, must commit him to the proper custody in his county, for such time, to be specified in the warrant, as the magistrate may deem rea- sonable, to enable the arrest of the fugitive under the warrant of the executive of this State, on the requisition of the executive authority of the State in which he com- mitted the offense, unless he gives bail as provided in the next section, or until he is legally discharged. Section 1552. His Admission to Bail.] The magis- trate may admit the person arrested to bail by an under- taking with sufficient sureties, and in such sums as he deems proper, for his appearance before him at a time specified in the undertaking, and for his surrender to ar- rest upon the warrant of the governor of this State. Section 1553. Magistrate Must Notify the District Attorney.] Immediately upon the arrest of the per- son charged, the magistrate must give notice thereof to the district attorney of the county. Section 1554. Duty of District Attorney.] The district attorney immediately thereafter must give notice to the executive authority of the State, or to the prose- cuting attorney or presiding judge of the court of the city or county within the State having jurisdiction of the 342 THE LAW OF INTERSTATE EBNDITIOS". offense, to the end that a demand may be made for the arrest and surrender of the person charged. Section 1555. Pebson Abkested, When to be Dis- CHAEGED.] The person arrested must be discharged from custody or bail, unless before the expiration of the time designated in the warrant or undertaking, he is ar- rested under the warrant of the governor of this State. Section 1556. Magistrate to Eetubn His Proceed- ings to the Superior Court.] The magistrates must re- turn his proceedings to the superior court of the county, which must thereupon inquire into the cause of the arrest and detention of the person charged, and if he is in cus- tody, or the time of his arrest has not elapsed, it may discharge bim from detention or may order his under- taking of bail to be canceled, or may continue his deten- tion for a longer time, or readmit him to bail to appear and surrender himself within a time specified in the un- dertaking. Section 1557. Fugitiois from This State.] When the governor of this State, in the exercise of the author- ity conferred by section 2, article IV of the Constitution of the United States, or by the laws of this State, de- mands from the executive authority of any State of the United States, or of any foreign government, the sur- render to the authorities of this State of a fugitive from justice, who has been found and arrested in such State or foreign government, the accounts of the person em- ployed by him to bring back such fugitive must be au- dited by the board of examiners, and paid out of the State treasury. Section 1558. No Fee or Reward to be Paid or Eb- CEivED BY Public Officer Procuring Surrender of Fugi- tive.] No compensation fee, or reward of any kind can be paid to or received by a public officer of this State, or other person, for a service rendered in procuring from the governor the demand mentioned in the last section, or the surrender of the fugitive, or for conveying bim to this State, or detaining him therein, except as pro- vided for in said section. STATE STATUTES OP COLORADO. 343 The supreme court of tlie State of California in Ex parte Dimmig, (1887), 74 Cal. 166, in referring to section 1549, held that "a magistrate has no juris- diction to issue a warrant of arrest without some evidence tending to show the guUt of the party named in the warrant. The original information may be sufficient, though made only upon informa- tion and belief, if followed by the deposition of the complainant, or some other witness, stating facts tending to show the guilt of the party charged. Of course, where there was some evidence upon which the magistrate acted, we would not interfere. It al- so may be true that the original information might be treated as a deposition; and in such view, if it contained positive evidence of facts tending to show guilt, it might be sufficient basis for the issuance of a warrant. But a mere affidavit in the form of an in- formation, containing no evidence, and followed by no deposition stating any fact tending to show guilt, is insufficient to support a warrant. The liberty of a citizen cannot be violated upon the mere expres- sion of an opinion under oath that he is guilty of a V. COLORADO. (From the Colorado Statutes Annotated, 1911, Vol. 3, Chapter LV. 1780 to 1784, bottom paging.) Fugitives. 2681. Requisition — Governor Issue "Warrant — Sher- iff Arrest.] Section 1. Whenever the executive of any other State or of any Territory of the United States shall demand of the executive of this state any person as a fugitive from justice, and shall have complied with the requisitions of the act of Congress in that case made and 344 THE LAW OP INTERSTATE EENDITION. provided, it shall be tlie duty of the executive of this State to issue his warrant under the seal of the State to apprehend the said fugitive, directed to any sheriff, cor- oner or said executive may think fit to entrust with the execution of said process. Any of the said persons may execute such warrant anywhere within the limits of this State, and convey such fugitive to any place within this State, which the executive in his warrant shall direct. 2682. Demand of Fugitive fbom This State— Wab- EANT TO Messenger.] Whenever the executive of this State shall demand a fugitive from justice from the ex- ecutive of any other State or Territory, he shall issue his warrant under the seal of the State, to some messen- ger, commanding him to receive the said fugitive and convey hin^ to the sheriff of the proper county where the offense was committed. 2683. Expenses, How Paid.] The expenses which may accrue under the last preceding sections, shall be presented to the board of county commissioners of the county wherein the offense was committed, who shaU immediately audit and ascertain the amount thereof and issue a warrant therefor on the treasurer of said county. The treasurer shall pay all warrants so issued, upon presentation, out of the general funds of the county as now provided by law for the payment of orders and war- rants. 2684. Arrest op Criminaxs From Other States — Ex- amination — Notice to Governor — ^Warrants — Proceed- ings.] Section 4. Whenever any person within this State shall be charged, upon the oath or affirmation of any credible witness before any judge or justice of the peace, with the commission of any murder, rape, robbery, burglary, arson, larceny, forgery or counterfeiting, in any other State or Territory of the United States, and that the said person hath fled from justice, it shall be law- ful for the said judge or justice to issue his warrant for the apprehension of said person. If, upon examination, it shall appear to the satisfaction of such judge or justice that the said person is guilty of the offense alleged STATE STATTTTES OP COLORADO, 345 against him, it shall be the duty of the judge or justice to commit him to the jail of the said county, or if the of- fense is bailable according to the laws of this State, to take bail for his appearance at the next district court to be holden in that county. It shall be the duty of the said judge or justice to reduce the examination of the prisoner, and those who bring him, to writing, and to return the same to the next district court of the county shall also send a copy of the examination and proceed- where such examination is had, as in other cases, and ings to the executive of this State, so soon thereafter as may be. If, in the opinion of the executive of this State, the examination so furnished contains sufficient evidence to warrant the finding of an indictment against such per- son, he shall forthwith notify the executive of the State or Territory where the crime is alleged to have been committed, of the proceedings which have been had against such person, and that he will deliver such per- son on demand, without requiring a copy of an indict- ment to accompany such demand. When such demand shall be made, the executive of this State shall forthwith issue his warrant under the seal of the State, to the sher- iff of the county where the said person is committed or bailed, commanding him to surrender him. to such mes- senger as shaU be therein named, to be conveyed out of this State. If the said person shall be out on baU, it shall be lawful for the sheriff to arrest him forthwith, any- where within the State and to surrender bim agreeably to said warrant. 2685. Appeabances op Party Bailed — Discharge.] Section 5. In cases where a party shall have been ad- mitted to bail, and shall appear at the district court ac- cording to the condition of his recognizance, and no de- mand shall have been made of him, it shall be in the power of said court to discharge the said recognizance, or continue it according to the circumstances of the case, such as the distance of the place where the offense is al- leged to have been committed, the time that hath inter- vened since the arrest of the party and the strength of 346 THE LAW OF INTEESTATE RENDITION. the evidence against him. If no demand be made upon the sheriff for him within that time, he shall be dis- charged from the prison, or exonerated from his recog- nizance, as the case may be. 2686. FoBPEiTUEE OF Recognizance. Section 6. If the recognizance shall be forfeited, it shall inure to the benefit of the State. 2687. Security for Costs — Default — Fee-Bill — Execution Pees.J Section 7. In all cases where com- plaint shall be made, as aforesaid, against any fugitive from justice, it shall be the duty of the judge or justice to take good and sufficient security for the payment of all costs which may accrue from the arrest and deten- tion of such fugitive, which security shall be by bond to the clerk of the district court, conditioned for the pay- ment of costs, as above, which bond, together with a statement of the costs which may have accrued on the examination, shall be returned to the office of the clerk of the district court, and upon the determination of the proceedings against such fugitive within that county, the clerk shall issue a fee-bill as in other cases, to be served on the persons named in the bond, or any of them, which fee-bill shall be served and returned by the sheriff, for which he shall be allowed the same fees as are given him for serving notices. If the fees be not paid on or before the first day of the next district court to be holden in and for that county, nor any cause then shown why they should not be paid, the clerk may issue an execution for the same against those parties on whom the fee-bill has been served, and when the said fees are collected shall pay over the same to the persons respectively entitled thereto. The clerk shall be entitled to one dollar for his trouble in each case, besides the usual taxed fees which are allowed in other cases for like services. Nothing herein contained shall prevent the clerk from instituting suits on said bonds in the ordinary mode of judicial pro- ceedings, if he shall deem it proper. STATE STATUTES OF CONNECTICUT. 347 VI. CONNECTICUT. (From the General Statutes of ConnecticTit, 1902. Chap. 99, Sections 1564 to 1577, pages 423 to 426.) Fugitives from Justice and Requisitions. Section 1564. Goveenob Mat Appoint Agents to Re- ceive Fugitives.] The governor may appoint agents to demand and receive, from the executive authority of an- other State, any fugitive from justice, or person charged with any high crime in this State ; and any application to the governor for that purpose shall be sustained by a properly attested copy of the record of the proceedings agaiust the accused person, with affidavits of one or more of the priacipal witnesses. Section 1565. Investigation of Application.] Any prosecuting officer when required by the governor, shall forthwith investigate the grounds of such application and report to him all the material circumstances which may come to his knowledge, and his opinion as to the ex- pediency of the demand. Section 1566. Peoceedings on Requisitions Upon Goveenob.] When a demand shall be made upon the governor, by the executive authority of another State for the surrender of any person, charged in such State with any high crime, any prosecutiug officer, when required by the governor, shall forthvdth investigate the groxmd of such demand, and report to him the situation and cir- cumstances of the person so demanded and whether he ought to be surrendered; and if the governor shall find that such demand is conformable to law and ought to be complied with, he shall issue his warrant, directed to any proper officer, requiring the arrest of such person and his delivery to the agent appointed to receive him. Section 1567. Fugitive Mat Applt fob Wbit of Ha- beas CoBPUs.] No person arrested upon such warrant shall be delivered over to the agent appointed to receive him, imtil he has been informed of the demand made for his surrender, and of the crime with which he is charged, 348 THE LAW or INTERSTATE EENDITION. and has had an opportunity to apply for a writ oi habeas corpus if he claim such right of the officer making the arrest. And when such writ is applied for, notice there- of, and of the time and place of hearing thereon, shall be given to the State's Attorney of the county in which the arrest is made. Section 1568. Penalty for Noncompliance With Preceding Sections.] Any officer who delivers to such agent for extradition a person in his custody upon such' warrant, without having complied with the provisions of section 1567, shall be fined not more than one thousand dollars, or be imprisoned not more than one year, or both. Section 1569. Conveyance Through This State op Fugitives Apprehended in Other States.] When an offender shall be apprehended in any neighboring State, and it may be necessary to convey him through this State to the place where the offense was committed, any justice of the peace, upon application made and proof that lawful process has issued against such offender, shall issue a warrant, directed to any proper officer, or any person by name, who shall be sworn to the faithful per- formance of his duty, commanding him to cause such of- fender to be conveyed to the line of this State, nearest to the State where the offense was committed, there to be delivered to some proper officer ready to receive him ; and the person to whom such warrant is directed shall obey it upon tender of the lawful fees therefor. Section 1570. Fugitive May be Held Upon Informa- tion OF State's Attorney.] When any person is found in this State charged with an offense committed in an- other State or Territory, and liable by the Constitution and laws of the United States to be delivered over upon the demand of the executive of such other State or Ter- ritory, any judge of the superior court, upon the infor- mation of the State's attorney of the county where such information is made, and any city or police court having criminal jurisdiction, upon the complaint of the proper prosecuting officer of such court, may issue a warrant to STATE STATUTES OF CONNECTICUT. 349 arrest the person charged and bring him before the au- thority issuing such warrant, or some other authority em- powered by this act to issue the same to answer such in- formation or complaint as in other criminal cases ; but be- fore such warrant shall be issued some person shall make affidavit before the authority issuing the same to the facts necessary to bring the case within the provi- sions of this law. Section 1571. Coukt May Release Fugitive on Bail.] If, upon the hearing on such information or complaint, the judge or court shall be satisfied upon due inquiry that the person arrested is a fugitive from justice, and that the proper authorities of such other State or Terri- tory intend and are about to make a demand upon the executive of this State for the return of such person, he shall be requirf d, if charged with an offense bailable in the State or Territory where committed, to recognize in a reasonable sum with sufficient sureties to appear be- fore such judge or court at a future day, and to abide the order of such court or judge and in appointing the day for the appearance of such person a reasonable time shall be allowed in which to procure the warrant of the executive of this State for the arrest of such person. Section 1572. Fugitive May be Committed to Jail., When.] If such person does not so recognize, or if the offense with which he is charged is not bailable in the State or Territory where committed, he shall be commit- ted to the county jail in the county where such proceed- ings are had and there detained until the day appointed for his appearance, in like manner as if the offense charged had been committed within this State. Section 1573. Disposition of Fugitive.] If the per- son so recognized or committed appear before such judge or court upon the day ordered he shall be discharged un- less he is demanded by some person authorized by the warrant of the executive of this State to receive him, or unless such judge or court shall find cause to order his appearance at some future day, when he may be required to recognize or be committed and detained as before. 350 THE LAW OP INTEKSTATB EENDITION. Section 1574. Bonds Under Peeceding Sections to be Taken to the State.] All recognizances taken under sections 1571, 1572, and 1573 shall be taken to the State. Section 1575. Notice op Aeeest to be Given.] The judge or cburt before whom such person shall have been examined and recognized or conamitted shall immediate- ly cause written notice to be given to the State's attor- ney of the county where the examination takes place, if the proceedings are not had upon the information of such attorney, of the name of such person and of the cause of his arrest, and the State's attorney, in all cases, shall immediately cause like notice to be given to the governor of the State or Territory, or to the State's at- torney, or to the judge of the criminal court of the city or county of the State or Territory in which the offense is charged to have been committed. Section 1576. Areest and Detention of Fugitives FEOM Justice.] It shall be lawful for any police justice, recorder, judge of any city, borough, town, or police court, or a justice of the peace, on satisfactory evidence under oath being presented to him that application has been made, or is about to be made by the authorities of any other State to the governor of this State for the ex- tradition of any person or persons within the jurisdic- tion of such magistrate, to issue a warrant or warrants for the arrest of such person or persons and to commit such person or persons to the county jail, or to take bail for his or their appearance from day to day for a period not to exceed thirty days from the date of the arrest of said person or persons; provided, that any person or persons who may be so arrested and committed to the county jail shall not be detained or imprisoned for a longer period than thirty days. Section 1577. Penalty op Removing Fugitives With- out Waeeant.] Any person who shall take, or cause or procure to be taken, or aid or abet in taking, any person or persons out of this State, without the consent of such person or persons, for the purpose of answering any cri min al charge that may have been preferred against STATE STATUTES OF DELAWABE. 351 such, person or persons in any other State, except upon the warrant or mandate of the governor of this State shall be fined not more than one thousand dollars, or be imprisoned not more than two years, or both. Vn. DELAWAEE. (From the Revised Statutes of Delaware, 1893, Chapter 133, pages 985 to 986.) An Act in Relation to Reqxtisitions fok FtrGirrvKs from Justice. Section 1. The governor, in any case authorized by the Constitution of the United States may, on demand, (made in conformity with said Constitution and the acts of Congress pursuant thereto,) deliver over to the ex- ecutive authority of any other State or Territory any person thereiu charged with treason, felony, or other crime committed therein; and he may, on application, appoint an agent to demand of the executive authority of any other State or Territory any person charged with felony, who has fled from the justice of this State; but such application must be accompanied by sworn evidence that the party charged is a fugitive from justice, and that the application is made in good faith for the pxmishment of crime and not for the purpose of collecting a debt or pecuniary mulct, or of removing the alleged fugitive to a foreign jurisdiction with a view there to serve him with civil process, and also by a duly attested copy of an indictment or an information, or a duly attested copy of a complaint made before a court or magistrate author- ized to take the same ; such complaint to be accompanied by an affidavit or affidavits to the facts constituting the offense charged by persons having actual knowledge thereof, and such further in support thereof as the gov- ernor may require. Fugitive convicts shall also be sur- rendered and demanded upon the record of their con- 352 THE LAW OF INTERSTATE BENDITION. viction, or sworn evidence, duly authenticated, satisfac- tory to the governor. Section 2. Where such demand or application is made, the attorney-general shall, if the governor re- quires it, forthwith investigate the grounds thereof and report to the governor all the material facts which may come to his knowledge; and especially in the case of a person demanded, whether he is held in custody or is un- der recognizance to answer for any offense against the laws of this State, or by force of any civil process, with an opinion as to the legality and necessity of complying with the demand or application. Section 3. Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, charged with having committed a crime in such State or Territory, the governor may issue a war- rant to the Sheriff of the county in which such person so charged may be found, either directing him to arrest and deliver such person to the duly authorized agent of the executive authority making such demand, appointed to receive the fugitive, or in case he shall deem it necessary, commanding said sheriff to arrest and bring such person forthwith before the chief justice or any associate judge of this State, to be examined on the charge ; and upon re- turn of the warrant by the sheriff with the person so charged in custody, the judge before whom the person so arrested is brought, and to whom the wq.rrant is re- turned, shall proceed to hear and examine such charge, and upon proof made in such examination by him ad- judged sufficient, shall commit such person to the jail of the county in which such examination is so had for a rea- sonable time, to be fixed by the judge in the order of com- mitment and thereupon shall cause notice to be given to the executive authority making such demand, or to the duly authorized agent of such executive authority ap- pointed to receive the fugitive, and on payment of all costs by such agent such fugitive shall be delivered to him, to be thence removed to the proper place of prosecu- tion; and if such agent does not appear within the time STATE STATUTES OF DELAWARE. 353 SO fixed and pay all costs as aforesaid, the sheriff shall discharge the person so imprisoned. The sheriff or other officer, having a person in custody, arrested pursu- ant to the governor's warrant, directing him to deliver such person to the agent of the executive authority, de- manding him. as a fugitive from justice, shall, before de- livering him, allow such person, on application by him- self, his friends or counsel, a reasonable opportunity for resort to appropriate proceedings for reviewing and de- termining the legality of the demand and of his arrest and detention. Whenever the attorney-general shall have been called on in such for any service under this act, a reasonable charge for his ser\dces may be taxed by the judge as a part of the costs to be paid as aforesaid, and in default thereof to be paid by the State treasurer upon a draft drawn on him for the same. Bail shall be taken for the appearance of the accused by the judge be- fore whom he is brought in pursuance of the provisions of this section, as in other cases. Section 4. When an affidavit is filed before the chief justice or any judge of the superior court, or a justice of the peace, setting forth that a person charged with the commission of an offense against the laws of any other State or of any of the Territories of the United States, and which if the act had been committed in this State would, by the laws thereof, have been a crime, is, at the time of filing such affidavit, within the county where the same is filed, such judge or justice of the peace shall is- sue his warrant, directed to the sheriff or any constable of the county, commanding him forthwith to arrest and bring before him the person so charged. Section 5. When a person is arrested in pursuance of the preceding section and brought before the officer who issued the warrant, the officer shall hear and examine such charge, and upon proof by him adjudged to be suffi- cient, commit such person to the jail of the county in which such examination is had. Section 6. When a person is committed to jail by a judge or justice of the peace under the preceding section. 354 THE LAW OP INTERSTATE EENDITIOlSr. such judge or justice of the peace shall forthwith give, or cause to be given notice, by letter or otherwise, to the sheriff of the county in which such offense was commit- ted, or to the person injured by such offense, or to the person upon whose affidavit the arrest was made ; and no person so committed shall be detained longer in jail than is necessary to allow a reasonable time to the persons so notified, after they receive such notice, to apply for and obtain the proper requisition for the person so commit- ted. In all cases arising under this and the two preced- ing sections, bail shall be taken as in other cases. VIII. FLORIDA. (From the General Statutes of Florida, 1906. Title 3, chapter 1, pages 1457 and 1458.) Section 4078. (3002) Governor to Catjsb Arrest op Fugitives on Demand op Executive op Another State.] The governor when demand shall be made of him. by the executive of any other State or Territory of any fugitive from justice in the manner prescribed by the act of Con- gress, approved February 12, 1793, shall cause said fugi- tive to be arrested and secured, either by making public proclamation or by issuing a warrant to that effect, as he may deem most expedient, under his hand and the seal of the State, directed to all and singular the sheriffs of this State, therein commanding them to arrest the fugitive therein named; and it shall be the duty of any sheriff upon receiving such order forthwith to execute the same. See Ex parte Powell, (1884), 20 Fla. 806; Kurtz V. State, (1886), 22 Fla. 36. 4079. (3003) Such Fugitives to be Committed.] When any fugitive shall be arrested, he or she shall be immediately committed to some jail or prison; and it shall be the duty of the sheriff or deputy sheriff, upon such arrest being made to notify the governor thereof, STATE STATUTES OF FLORIDA. 355 and also of the jail or prison to which said fugitive shall he committed; and said fugitive shall be dwelt (dealt) with as by said act of Congress is provided. 4080. (3004) Persons Charged With Being Fugi- tives Held to Await Extradition or Warrant.] Upon an affidavit made before any judge or justice of the peace of this State, that any person within the territorial juris- diction of such judge or justice of the peace is a fugitive from justice from another State, specifying the State from which such person is a fugitive, and the crime with which he is charged, when and where committed, and that there is a warrant for his arrest issued by a compe- tent court of the State from which he has fled, such judge or justice of the peace may issue a warrant for the ar- rest of the alleged fugitive, who, when arrested, shall be brought at once before the judge or justice issuing the warrant, or before some other judge or justice having jurisdiction in the premises, and examined ; and if, upon such examination, there is found to be probable cause to justify the detention of the alleged fugitive, he may be committed by the judge or justice for a period of time not to exceed ten days, to await the warrant for the ex- tradition of the alleged fugitive; but if, upon such ex- amination, there is not found probable cause to justify the commitment of the alleged fugitive as aforesaid, he shall at once be discharged from custody. 4081. (3005) Costs to be Prepaid.] No judge, jus- tice of the peace, sheriff, constable or other officer shall be obliged to take any action in or about the arrest and detention of such alleged fugitive from justice, nor shall any sheriff or jailor be obliged to receive or keep in cus- tody any such alleged fugitive without pre-payment of the costs to which the officer of whom the service is de- manded shall be entitled, and in case of the sheriff or jailor, upon the commitment of such alleged fugitive from justice, the pre-payment of the jail fees, including the cost of feeding the prisoner, and all such fees and costs shall be the same as are or may be provided for by law in like cases, and neither the State of Florida nor 356 THE LAW OF INTERSTATE BENDITIOIT. any county thereof shall be responsible or liable for any costs or expenses in the premises. IX. GEORGIA. (From Park's Annotated Code of the State of Georgia, 1914 Vol. 6, Penal Code, Article 1, Sections 1352 to 1359, pages 862 to 865.) Fugitives from Justice, Arrest Within This State AND Proceedings. Section 1352. Fugitives From Foreign Countries.] Whenever there is found within this State a fugitive from justice from a foreign State, and by the treaty stip- ulation of the United States such person is to be surren- dered up to the authorities of a foreign State upon requi- sition from proper officers, the governor, by his warrant, shall cause him to be arrested and delivered over to such officer. Section 1353. Fugitives from Other States.] It is the duty of the governor, under his warrant, to cause to be arrested and delivered up to the proper officer of any other State of the United States, any fugitive from jus- tice from said State, upon demand made of him by the executive of such other State in the manner prescribed by the laws and Constitution of the United States. And if said fugitives shall have assumed another name in the State and the governor is satisfied, by evidence on oath filed in his office, of the identity of such person with the fugitive demanded, he shall state the fact in his warrant for the arrest. See Johnson v. Riley, (1853), 13 Ga. 97; Pettus v. State, (1871), 42 Ga. 358; Blaokwell v. Jennings, (1907), 128 Ga. 264, 57 S. E. 484. Section 1354. When He Shall Suspend the Deuv- BBY OF Fugitives.] If any person demanded as a fugi- STATE STATUTES OP GEOBGIA. 357 tive from justice is, at the time of sueli demand, imder prosecution for an offense against the laws of this State, the governor shall suspend his delivery imtil the issue is determined as to his guilt, and if condemned, until he shall have suffered the penalty of the law imposed. Section 1355. How Fugitives not Demanded Shall BE Disposed of. J "When a person charged with the com- mission of an offense in some other State shaU flee into this, and is pursued and caught, or some person in the State, finding shall arrest him, it is the duty of the gov- ernor, on oath filed in his office of the commission of the offense, and the identity and locality of the party, to is- sue his warrant for his arrest, as in other cases, and command his lodgment in any jail in the State, for as long as twenty days, and if, at their expiration, there is no formal demand made by the governor of the State where the offense is alleged to be committed, he shall be discharged from custody, but upon affidavit, made before any proper officer, of the commission of the offense, and of such intended application, the accused shall be held under it five days. See Lavina v. State, (1879), 63 Ga. 513. Section 1356. Officers Must Execute Wabeants fob THE AiUEtEST OF FUGITIVES.] When the governor or other officer issues such or any other warrant of arrest, it is the duty of the sheriffs, deputy sheriffs, coroners and constables to execute them when placed in their hands. See BlackweU v. Jennings, supra. Section 1357. Goveenok Mat Offer Rewards.] The governor shall, in his discretion, offer, and cause to be paid, rewards for the detection or apprehension of the perpetrator of any felony committed within this State ; such reward shaU not exceed the sum of two hundred and fifty dollars in cases of felonies not capital, and not to exceed five himdred doUars in capital felonies; but no such rewards shall be paid to any officer who shall arrest such person in the regular discharge of his duty, by vir- tue of process in his hands to be executed, nor to any person who has arrested the offender previous to the 358 THE LAW OF INTERSTATE RBNDITIOlir. publication of the reward ; and whenever he receives re- liable information that any gin-house has been unlaw- fully burned, or set on fire, shall offer a reward of not less than two hundred and fifty dollars, nor more than five hundred dollars, for the apprehension of the incen- diary or incendiaries with proof sufficient to convict and in no event shall said reward be paid until after the con- viction of such offender or offenders. X IDAHO. (From the Eevised Codes of Idaho, 1908, Vol. 2, Chapter 4, Sections 8415 to 8426, pages 872 to 874.) Pboceedings Against Fugitives feom Justice. Section 8415. Goveenob may Offer Rewaed.J The governor may offer a reward not exceeding one thou- sand dollars, payable out of the general fund, for the apprehension : 1. Of any convict who has escaped from the State Prison, or, 2. Of any person who has committed, or is charged with the commission of an offense punishable with death. Section 8416. Subrendee of Fugitives fbom Other States.] A person charged in any State or Territory of the United States with treason, felony, or other crime, who shall flee from justice and be found in this State, shall, on demand of the executive authority of the State or Territory from which he shall have fled, be delivered over by the governor of this State, to be removed to the State or Territory having jurisdiction of the crime. Section 8417. Issuing Waebant.J A magistrate may issue a warrant for the apprehension of a person so charged, who shall flee from justice and be found within this State. Section 8418. Arbest and Commitment of Fugitive.] STATE STATUTES OF IDAHO. 359 The proceedings for the arrest and commitment of a person so charged are, in all respects, similar to thofee provided in this Code for the arrest and commitment of a person charged with a public offense committed in this State, except that an exemplified copy of an indictment found, or other judicial proceedings had against him, in the State in which he is charged to have committed the offense, may be received as evidence before the magis- trate. Section 8419. Examination and Commitment of Fu- GinvB.J If, from the examination, it appears that the accused has committed the crime alleged, the magistrate, by warrant reciting the accusation, must commit him to the proper custody in his county, for such time, to be specified in the warrant, as the magistrate may deem reasonable, to enable the arrest of the accused fugitive under the warrant of the executive authority of this State, on the requisition of the executive authority of the State in which he committed the offense, unless he gives bail a^ approved in next section, or until he is legally discharged. Section 8420. Admission to Bail.] The magistrate may admit the person arrested to bail by an undertaking with sureties, and in such sum as he deems proper, for his appearance before him at a time specified in the undertaldng, or for his surrender to arrest upon the war- rant of the governor of this State. Section 8421. Notice to Pkosecuting Attorney.] Immediately upon the arrest of the person so charged, the magistrate must give notice thereof to the prosecut- ing attorney of the county. Section 8422. Duty pf Prosecuting Attorney.] The prosecuting attorney of the county must immediately thereafter give notice to the executive authority of the State or to the prosecutiag attorney or the presiding judge of the court of the city or county within the State having jurisdiction of the offense, to the end that a de- mand may be made for the arrest and surrender of the person so charged. 360 THE LAW OF INTERSTATE RENDITION. Section" 8423. Dischaiige of Fugitive.] The person arrested must be discharged from custody or bail, un- less before the expiration of the time designated in the warrant or undertaking, he is arrested under the war- rant of the governor of this State. Section 8424. Eeturn of Proceedings to District Court.] The magistrate must return his proceedings to the next district court of thie county, which thereupon must inquire iuto the cause of the arrest and detention of the person charged, and if in custody, or the time of his arrest has elapsed, it may discharge him from deten- tion, or may order his undertaking or bail canceled, or may continue his detention for a longer time, or readmit him to bail, to appear and surrender himself within a time specified in the undertaking. Section 8425. Claims for Services of Executive Agents.] When the governor of this State, in the ex- ercise of the authority conferred by section 2, article 4, of the Constitution of the United States or by the laws of this State, demands from the executive of any State or Territory of the United States, or of any foreign gov- errmaent, the surrender to the authorities of this State, of a fugitive from justice, who has been found and ar- rested in such State, Territory or foreign government, the accounts of such person employed by him to bring back such fugitive must be audited by the Board of Ex- aminers and paid out of the State Treasury. Section 8426. Rewards for Services Prohibited.] No compensation, fee or reward of any kind, can be paid to or received by any public officer of this State, for a service rendered or incurred in procuring from the gov- ernor the demand mentioned in the last section, or the surrender of the fugitive, or for conveying him to this State, or detaining him herein, except as provided in section 8425. STATE STATUTES OP ILLINOIS. 361 XI. ILLINOIS. (From Hurd's Eevised Statutes of lUinois, 1913, Cliap- ter 60, Sections 1 to 17, pages 1323 to 1326.) Fugitives from Justice. Section 1. Wahrant for Aiieest on Eequisition.] Whenever the executive of any other State, or of any Territory of the United States, shall demand of the ex- ecutive of this State any person as a fugitive from jus- tice and shall have complied with the requisitions of the act of Congress in that case made and provided, it shall be the duty of the executive of this State to issue Ms war- rant under the seal of the State, to apprehend the said fugitive, directed to any sheriff, coroner, or constable of any county of this State, or other person whom the said executive may think fit to intrust with the execution of said process. Section 2. Aerest and Delivery.] Any such officer or person may, at the expense of the agent making the demand, execute such warrant anywhere within the lim- its of this State, and require aid as in criminal cases, and may convey such fugitive to any place within the State which the executive in his said warrant shall direct, and deliver such fugitive to such agent. Section 3. Arrest op Accused before RECQxnsiTioN.] When a person is found in this State, charged with an offense committed in another State or Territory, and liable by the Constitution and laws of the United States, to be delivered over upon the demand of the executive of such other State or Territory, any judge, justice of the peace or police magistrate may, upon complaint under oath, setting forth the offense, and such other matters as are necessary to bring the case within the provisions of the law, issue a warrant to bring the person charged before the same or some other judge, justice of the peace or police magistrate within this State, to answer to such complaiat as in other cases. 362 THE LAW OP INTERSTATE RENDITION. Section 4. Commit or Bail,.] If, upon examination, it shall appear to the satisfaction of such judge, justice or police magistrate, that the person is guilty of the of- fense alleged against him, it shall be the duty of the said judge, justice or police magistrate to commit him to the jail of the county, or if the offense is bailable according to the laws of this State, to take bail for his appearance at the next circuit court to be holden in that county, ex- cept that in the county of Cook the recognizance shall be for the appearance of the accused to the next term of the criminal court of Cook county. ■ Examination Eedxjced to "Writing; Copy to Court and GrovERNOR.] It shall be the duty of said judge, justice or police magistrate to reduce the examination of the prisoner, and those who bring him, to writing' and to return the same to the next term of the court at which the prisoner is bound to appear, as in other cases, and he shall also send a copy of the examination and proceed- ings to the executive of this State as s'oon thereafter as may be. Notice to the Executive or Other State.] If, in the opinion of the executive of this State, the examination so furnished contains sufficient evidence to warrant the finding of an indictment against such person, he shall forthwith notify the executive of the State or Territory where the crime is alleged to have been committed, of the proceedings which have been had against such per- son, and that he will deliver such person on demand, without requiring a copy of an indictment to accompany such demand. Warrant; Surrender; Costs.] When such demand shall be made the executive of this State shall forthwith issue his warrant, under the seal of the State, to the sheriff of the county where the said person is committed or bailed, commanding him, upon the payment of the ex- pense of such proceeding to surrender him to such agent as shall be therein named, to be conveyed out of this State. If the said person shall be out on bail, it shall be lawful for the sheriff to arrest him forthwith, any- STATE STATUTES OF TUJINOIS. 363 where within the State, and to snrrender him agreeably to said warrant. Section 5. When Peisonek mat be Dischaegbd.J If the accused shall appear at the court according to the condition of his recognizance, unless he shall have been demanded by some persons authorized by the warrant of the executive to receive him, the court may discharge the said recognizance, or continue it, or require a further recognizance, or commit the accused on his failing to recognize as required by the court, according to the cir- cumstances of the case, such as the distance of the place where the offense is alleged to have been committed, the time that has intervened since the arrest and the strength of the evidence against the accused. In no case shall the accused be held in prison or to baU longer than till the end of the second term of the circuit court after his caj)- tion, except that in the county of Cook he may be held till the end of the third term of the criminal court of Cook county after his caption. If he is not demanded within that time he shall be discharged from prison, or exon- erated from his recognizance, as the case may be. Section 6. Fobfeituee op Eecognizance.] If the recognizance shall be forfeited it shall inure to the bene- fit of the State. Section 7. Bohd foe Costs; Pboceedings ost same.] In all cases where complaint shall be made as aforesaid against any fugitive from justice, it shall be the duty of the judge, justice, or police magistrate, to take good and •sufficient security for the payment of all costs which may accrue from the arrest and detention of such fugi- tive ; which security shaU. be by bond, to the clerk of the circuit court, except that in the county of Cook the bond shaU be to the clerk of the criminal court of said county, conditioned for the payment of costs as above; which bond, together with a statement of the costs which may have accrued on the examination, shall be returned to the office of the clerk of the circuit court, or criminal court of Cook county, as the case may be ; and upon the deter- mination of the proceedings against such fugitive within 364 THE LAW OF INTEKSTATE EENDITION. that county the clerk shall issue a fee bill as in other cases, to be served on the persons named in the bond, or any of them ; which fee bill shall be served and returned by the sheriff, for which he shall be allowed the same fees as are given him for serving notices. If the fees be not paid on or before the first day of the next court, nor any cause then shown why they should not be paid, the clerk may issue an execution for the same, against those parties on whom the fee bill has been served ; and when the said fees are collected shall pay over the same to the persons respectively entitled thereto. Nothing herein contained shall prevent the clerk from instituting suits on said bonds, in the ordinary mode of judicial proceed- ings, if he shall deem it proper. Section 8. Fugitives from Illinois.] Whenever the executive of this State shall demand a fugitive from jus- tice from the executive of any other State, he shall is- sue his warrant, under the seal of the State, to some messenger, commanding him to receive said fugitive and convey him to the sheriff of the proper county where the offense was committed. Section 9. Manner of Applying for Eequisition.J The manner of making application to the governor of this State for a requisition for the return of a fugitive from justice shall be by petition, in which shall be stated the name of the fugitive, the crime charged in the words of the statute defining the crime, the county in which the crime is alleged to have been committed, the time as nearly as may be when the fugitive fled, the State or Territory to which he has fled, giving facts and circum- stances tending to show the whereabouts of the fugitive at the time of the application. Such petition shall be verified by affidavit, and have indorsed thereon the cer- tificate of the judge of the county court of the county in which the crime is alleged to have been committed, that the ends of justice require the return of such fugitive. Such petition shall be filed by the governor in the office of the secretary of State, to remain of record in that office. STATE STATUTES OF rLUNOIS. 365 Section 10. Copy of Indictment.] When the appli- cation is based upon an indictment fonnd, a copy of the indictment, certified by the clerk nnder the seal of the court in which the indictment was found, shall be at- tached to the petition. Section 11. Expenses.] When the punishment of the crime shall be the confinement of the criminal in the penitentiary, the expenses shall be paid out of the State treasury, on the certificate of the governor and warrant of the auditor; in all other cases they shall be paid out of the county treasury of the county wherein the crime is alleged to have been committed. The expenses shall be the fees paid to the officers of the state on whose gov- ernor the requisition is made, and not exceeding twelve cents per mile for all necessary travel in returning such fugitives. Before such accounts shall be certified by the governor, or paid by the county, they shall be verified by affidavit, and certified to by the judge of the county court of the county wherein the crime is alleged to have been committed. Section 12. Reward by Governor.] If any person charged with, or convicted of treason, murder, rape, rob- bery, burglary, arson, larceny, forgery or counterfeiting, shall break prison, escape or flee from justice, or abscond and secrete himself, in such cases it shall be lawful for the governor, if he shall judge it necessary, to offer any reward not exceeding $200, for a.pprehending and deliv- ering such person into the custody of such sheriff or other officer as he may direct. The person so appre- hending and delivering any such person as aforesaid, and producing to the governor the receipt of the sheriff or other proper officer, for the body, it shall be lawful for the governor to certify the amount of such claim to the auditor, who shall issue his warrant on the treasurer for the same. Section 13. Eeward by County Board.] It shall be lawful for the county board of any county, by an order to be entered upon its records, to fix upon a sum not ex- ceeding $1,000 as a reward to be paid to any person who 366 THE LAW OP INTERSTATE EENDITION. sEall hereafter pursue and apprehend, beyond the limits of the county where the offense shall have been commit- ted, any person guilty of any felony or other high crime, which reward shall be paid by the county where the of- fense was committed, on the conviction of the criminal: Provided, nevertheless, that said reward shall not dis- qualify the person entitled thereto from being a witness. Section 14. Expenses Ax,lowbd by County Boaed.J It shall be lawful for the county board of any county to enter an order upon their records, allowing to any per- son who shall have aided or assisted in the pursuit or arrest of any person suspected or accused of any felony, or other high crime, committed in their county, such rea- sonable sum as said county board shall deem just, to defray the expenses of the person in aiding or assist- ing in the pursuit or arrest of such offender in making such pursuit or arrest; which sum so allowed shall be paid out of the county treasury in the same manner that other county expenses are paid. Section 15. Eewakd fob Hoese Thief.] The county boards of the respective counties may offer rewards not exceeding $1,000 each, for the pursuit, arrest, detection or conviction of any person guilty of stealing any horse, mare, colt, mule, ass, or neat cattle, or any other prop- erty exceeding $50 in value. Section 16. Fund Raised by Tax.] For the purpose of providing a fund for the payment of said rewards and disbursements, the said county boards are hereby au- thorized to levy a tax, annually, of such amounts as to them may seem necessary, for the purpose herein con- templated; said taxes to be levied and collected in the same manner as other taxes for county purposes are by law authorized to be levied and collected. Section 17. Expenses — Payment from Fund.] When any person shall pursue any person charged with felony, for whom no reward shall have been offered, or in any case where a reward has been offered and the pursuit shall be unsuccessful, the party pursuing may make out his bill for all necessary expenses, which shall not exceed STATE STATUTES OF INDIANA. 367 $1 for each man per day, and present the same to the connty board, and it shall be the duty of the said board to allow said account, (if satisfied of its correctness and propriety) and pay the same out of said fund: Pro- vided, when a reward is paid, no expenses shall be al- lowed, and the expenses of more than five persons shall never be paid in the same case, and only such shall be paid, in any case, as the county board shall see fit to allow. Xn. INDIANA. (From Burn's Annotated Indiana Statutes, 1914, Vol. 1, Chap. 4, Article 3, Sections 1893 to 1909, pages 969 to 973.) Fugitives feom Justice. 1893. From Another State Warrant.] Upon the demand of the executive authority of any State or Terri- tory of the United States upon the governor of this State, to surrender any fugitive from justice from such State or Territory, pursuant to the constitution and laws of the United States, he shall issue his warrant, reciting the fact of such demand and the charge upon which it is based, with the time and place of the alleged commis- sion of the offense, directed generally to any sheriff or constable of any county of this State, commanding him to apprehend such fugitive and bring him before the circuit, superior or criminal court or judge of this State nearest or most convenient of access to the place at which the arrest may be made ; and such warrant may be executed by any sheriff or constable in this State, in his own county or La any other county in this State. See Simmons v. Vandyke, (1894), 138 Ind. 380, 37 N. E. 973; Morton v. Skinner, (1874), 48 Ind. 123; Ex parte Pfitzer, (1867), 28 Ind. 450; Hackney v. Welsh, (1886), 107 Ind. 253, 8 N. E. 141; Knox v. 368 THE LAW OP INTERSTATE BENDITION. State, (1904), 164 Ind. 226, 73 N. E. 255; Kemper v. Metzger, (1907), 169 Ind. 112, 81 N. E. 663; Hyland V. Eochelle, (1913), 179 Ind. 695, 100 N. E. 842. 1894. Identity of Person.] The court or judge before wliom such, alleged fugitive shall be brought shall proceed, by the examination of witnesses, to ascertain if the person apprehended be the fugitive demanded, and mentioned in the warrant of the governor of this State ; and if satisfied of the identity of the person, such court or judge shall order him to be delivered up to the agent of the State or Territory demanding him, to be trans- ported to such State or Territory, agreeably to the laws of the United States ; otherwise he shall discharge such person from custody. See Eobinson v. Flanders, (1867), 29 Ind. 10; Hackney v. Welsh, (1886), 107 Ind. 253, 8 N. E. 141. 1895. Commitment to Jail — Delivery to Agent.] If no agent of the State or Territory making the demand be present, the fugitive shall be committed to the jail of the county in which the hearing before such court or judge is had; and such court or judge shall forthwith in- form the governor of this State of the fact of such com- mitment. Andj on request by the agent of the State or Territory making the demand upon the jailor having such fugitive in custody, and upon the order of the gov- ernor of this State, such fugitive shall be delivered up to such agent, to be transported to the State or Territory from which he fled ; and if such fugitive be not demanded within ten days after his commitment, the jailor shall discharge him. 1896. Costs Paid before Ebmoval.] All costs in- curred in apprehending, securing and keeping such fugi- tive shall be paid by the agent of the State or Territory making the demand, before he shall be permitted to re- ceive such fugitive into custody. 1897. Warrant Refused, When.] If it shall be made to appear to the governor before issuing such war- rant, that the alleged fugitive is held in custody or on bail to answer for any crime or misdemeanor against the STATE STATUTES OF INDIANA. 369 laws of this State, the governor of this State shall there- upon refuse to issue such warrant, informing the execu- tive authority of the State or Territory makiag the de- mand of the grounds of such refusal. 1898. SuRRENDEB REFUSED, When.] If it shaU ap- pear to the court or judge before whom such examination is had, that the alleged fugitive is held ia custody or on bail for any crime or misdemeanor against the laws of this State, such court or judge shall, for that reason, re- fuse to make an order for the delivery of removal of such fugitive, and shall immediately report the facts to the governor of this State, who shall inform the governor of the State or Territory making the demand thereof. 1899. Citizens not Subrendeked, When.] No citi- zen or resident of this State shall be surrendered under pretense of being a fugitive from justice from any other State or Territory, where it shall be clearly made to ap- pear to the court or judge holding such examination that such citizen or inhabitant was in this State at the time of the alleged commission of the offense, and not in the State or Territory from which he is pretended to have fled; and in such case, the court or judge holding such examination shall discharge the person arrested, and forthwith report the facts to the governor. 1900. Warrants by Judge or Justice of the Peace.] Whenever any person shall be found within this State charged with any offense committed in any other State or Territory, and liable by the constitution and laws of the United States to be delivered over upon the de- mand of the governor of such other State or Territory, any court, judge or justice of the peace authorized to issue warrants in criminal cases, may, upon complaint in writing on oath setting forth that a crime has been com- mitted in such other State or Territory, that the accused has been charged in such State or Territory with the commission of such crime, and that the accused has fled from such State or Territory and is found within the (this) State, issue a warrant, directed to the sheriff or any constable of the county in which such complaint may 370 THE LAW OF INTERSTATE RENDITION. be filed, commanding him to apprehend such fugitive, wherever he may be found in the State, and bring him before the same, or any other court, judge or justice of the peace, who may be nearest or most convenient of ac- cess to the place at which the arrest may be made, to answer such complaint; to which warrant shall be de- tached a certified copy of the complaint upon which the same is issued, and upon which the examination and trial shall be had. 1901. Hbabing — Eecognizance — Forfeiture.] If, upon the examination of the person charged, it shall ap- pear to the court, judge or justice of the peace, that there is reasonable cause to believe that the complaint is true, and that such person may be lawfully demanded of the governor by the governor of the State or Territory where such offense is alleged to have been committed, he shall, unless such person is charged with murder or trea- son, and the proof is evident or the presumption is strong, recognize the accused in a bond in a reasonable sum with sufficient sureties, conditioned that the accused shall appear before such court, judge or justice at a fu- ture day, to be named therein, allowing a reasonable time to obtain the warrant of the governor, as hereinafter provided, and to abide the order of such court, judge or justice of the peace in the premises. If the person so recognized shall fail to appear according to the condi- tions of his recognizance, he shall be defaulted and the same proceedings shall be had as in the case of other recognizances entered into before such court, judge or justice of the peace in criminal cases. 1902. Detention in Jail.] If such person shall not enter into such recognizance, or if he shall be charged with murder or treason, and the proof is evident or the presumption strong, he shall be committed to the jail of the county in which the hearing before the court, judge or justice of the peace is had, and there detained until a future day, named in the order of commitment, allowing a reasonable length of time to obtain the warrant of the governor as herein provided. STATE STATUTES OF INDIANA. 371 1903. Notice to Goveenob.J The court, judge or jus- tice of the peace before whom the hearing is had, shall forthwith inform the governor of the fact that such per- son is in custody or out on hail, and it shall be the duty of the governor forthwith to notify the governor of the State or Territory where such offense is alleged to have been committed, that the fugitive is in custody or out on bail within this State. 1904. Warrant by Governor.] Upon the demand of the governor of the State or Territory where such of- fense is alleged to have been committed, for the surren- der of such fugitive from justice, pursuant to the Con- stitution and laws of the United States, it shall be the duty of the governor to issue his warrant, as provided in section 1893, of this act, and like proceedings shall be had as if such fugitive had been originally demanded by the governor of the State or Territory where such of- fense is alleged to have been committed, as provided for in this act. 1905. Discharge in Absence of Agent.] If the per- son so recognized shall appear before the court, judge or justice of the peace upon the day fixed in such bond, he shall be discharged unless he shall be demanded by some person authorized by the warrant of the governor to re- ceive him: Provided, That whether the person so charged shall be recognized, or committed or discharged, any person authorized by the warrant of the governor may at all times take him into custody, and take him be- fore the proper court or officer for examination, as pro- vided in section 1893, and such arrest shall be a discharge of the recognizance if there was one given. 1906. Costs — Affiant's Liability — Eelease.] In case no agent of the State api)ear and demand such per- son within the period prescribed by this act, the person filin g the affidavit upon which such person was appre- hended shall be answerable for all the actual costs and charges, including the support in jaU while confined, which support shall not exceed forty cents per day. In case such agent appears, and such fugitive is turned over 372 THE LAW OP INTBBSTATE RENDITION. to him, he shall be responsihle for all the costs incurred in apprehending, receiving and keeping the fugitive, and upon failure or refusal to pay the same, such fugitive shall be discharged. In case the governor of the State from which such person is a fugitive shall inform the governor of the State that he does not desire the arrest or further apprehension of such person, the governor of this State, shall at once so notify the court, judge or jus- tice before whom such person is held for examination, who shall thereupon discharge such person from custody. 1907. Practicb on Examination.] Such examina- tion of such fugitive or fugitives as herein provided, be- fore the court, judge or justice of the peace, shall in all respects not herein otherwise provided, be governed by the law regulating criminal cases. 1908. Damages — Affiant's Liability,] In case such person is wrongfully held or detained under the provi- sions of this act, the person filing the affidavit shall be responsible in damages for any injury sustained, to be recovered as in other civil cases. 1909. Expenses op Agent — How Paid.] When any person has committed a crime in any county in the State o:^ Indiana, which is punishable by imprisonment in the State's prison, and has fled to any other county. State, Territory, or country, and the governor has issued a req- uisition for such person or a grand jury indictment or affidavit charging said person with said crime has been filed, the judge before whom the said indictment or affi- davit is filed, shall issue a warrant for the arrest of said criminal, and designate an agent in said warrant to make the arrest and return the criminal to the court, upon the request of the prosecuting attorney or his deputy for the county in which the crime was committed. The agent shall return the criminal by the shortest possible route and shall receive the following mileage: Six (6) cents for each mile of the first two hundred traveled; five (5) cents for each mile of the next three hundred (300) miles traveled, and four (4) cents for each mile of the next five hundred (500) miles and over traveled, and three STATE STATUTES OF IOWA. 373 cents per mile for each mile traveled by the prisoner while in the custody of the agent. The said agent shall be reimbursed for all money legally expended to obtain possession of said criminal upon presentation of receipts covering the same together with a sworn statement by him that snch items of expenditure are tme and correct. Such sum shall be paid out of the county treasury of the county in which the said crime was committed upon cer- tificate of the judge before whom said indictment or affi- davit is on file, stating that the said criminal has been brought before him and arraigned and on the verified statement of said agent certified to by the said judge, filed with the auditor of the said county who shall draw his warrant therefor. And the county council shall make such appropriation as shall be necessary to carry out the provisions of this act. (As amended, Acts 1909, p. 165.) Xin. IOWA. (From Code of Iowa, 1897, Title 25, Chap. 9, Sections 5169 to 5181, pages 1986 to 1989.) FuGrrrvEs from Justice. Section 5169. Agents Appointed to Apprehend — ^Ex- penses.] The governor, in any case authorized by the Constitution and laws of the United States, may appoint agents to demand of the executive authority of another State or Territory, or from the executive authority of a foreign government, any fugitive from justice charged with treason or felony, and the accounts of the agent ap- pointed for that purpose must be audited by the auditor of State and paid out of the State treasury. The ex- penses to be allowed such agent shall be : fees paid the officers of the State upon whose governor the requisition is made ; not exceeding ten cents per mUe, each way, for 374 THE LAW OF INTEBSTATE EENDITION. all necessary travel of liiinself, and, for each fugitive, five cents per mile additional for the number of miles wHch. he shall have been conveyed. Bills for such ex- penses shall be made out so as to show the actual route traveled, the number of miles, be verified and accom- panied by proof that the fugitive for whom requisition was made has been returned and delivered into the cus- tody of the proper authority; but the State shall in no case pay the cost of returning the fugitive if he has not been tried, unless it is shown to the satisfaction of the governor that a failure of trial has not occurred by any fault or neglect on the part of those interested in the prosecution. (17 G. A., ch. 65; C. '73, Sec. 4171; R., Sec. 4518; C. '51. Sec. 3282.) See Jones v. Leonard, (1878), 50 Iowa, 106; State V. Kealey, (1893), 89 Iowa 94. Section 5170. No Other Compensation.] No com- pensation, fee or reward of any kind can be paid to or received by a public officer of the State for a service ren- dered or expense incurred in procuring from the gov- ernor the demand mentioned in the last section, or the surrender of the fugitive, or for conveying him into the State, or detaining him therein, except as provided by law; a violation of this section is a misdemeanor. (C. '73, Sec. 4172-3; E., Sec. 4519-20.) See Day v. Townsend, (1886), 70 Iowa 538. Section 5171. Swoen Evedencei — Copy op Indict- ment.] No executive warrant for the arrest and sur- render of a person demanded by the executive authority of another State or Territory, as a fugitive from the justice of such State or Territory, and no requisition up- on the executive authority of another State or Territory for the surrender of any person as a fugitive from the justice of this State, shall be issued, unless the requisi- tion from the executive authority of such other State or Territory, or the application for such requisition upon the executive authority of such other State or Territory, is accompanied by sworn evidence that the party charged is a fugitive from justice, and by a duly attested copy of STATE STATUTES OF IOWA. 375 an indictment, preliminaxy information or complaint, made before the court or ma^strate authorized to receive the same. (C. '73, Sec. 4174; E., 4521.) See Jones v. Leonard, (1878), 50 Iowa 106. Section 5172. Requisition from Anothee State.] Whenever a demand is made upon the governor by the executive of another State or Territory, in any case au- thorized by the Constitution and laws of the United States, for the delivery of a person charged in such State or Territory with a crime, if such person is not held in custody or under bail to answer for an offense against the laws of the United States or of this State, he shall issue his warrant, under the seal of the State, authoriz- ing the agent who makes such demand, forthwith or at such time as may be designated in the warrant, to take and transport such person to the line of this State at the expense of such agent, and may also, by such warrant, require aU peace ofiBcers to afford all needful assistance in the execution thereof. (C. '73, Sec. 4175 E., Sec. 4522 ; C. '51, Sec. 3283.) Section 5173. Complaint and Waejbant.J If any person is found in the State charged with a crime com- mitted in another State or Territory, and liable by the constitutions and laws of the United States to be deliv- ered over upon the demand of the government thereof, any magistrate may, upon complaint on oath setting forth the offense, and such other matters as are neces- sary to bring the case within the provisions of law, issue a warrant for the arrest of such person. (C. '73, Sec 4176; E., Sec. 4523; C. '51, Sec. 3284.) See State v. Hufford, (1869), 28 Iowa 391. Section 5174. Bail.] If, upon examination, it ap- pears that there is reasonable cause to believe the com- plaint true, and that such person may be lawfully de- manded of the governor, he shall, if not charged with murder, be required to enter into an undertaking, with sufficient surety in a reasonable sum, to appear before such magistrate, at a future day, aJlowing reasonable time to obtain the warrant from the governor, and abide 376 THE LAW OP INTERSTATE EEKDITION. the order of such magistrate in the premises. (C. '73, Sec. 4177; R, 4524; C. '51, Sec. 3285.) Section 5175. Commitment.] If such person does not give bail, he must be committed to prison and there detained until such day in like manner as if the offense charged had been committed within the State. (C. '73, Sec. 4178; R., Sec. 4525; O. '51, Sec. 3286.) See State v. Hufford, (1869), 28 Iowa 391. Section 5176. Foefeitxjee of Bail,.] A failure of such person to attend before the magistrate at the time and place mentioned in the undertaking is a forfeiture thereof. (C. '73, Sec. 4179; R., Sec. 4526; C. '51, Sec. 3287.) Section 5177. Discharge.]' If such person appear before the magistrate upon the day ordered, he must be discharged, unless he is demanded by some person au- thorized by the warrant of the governor to receive him, or unless the magistrate finds good cause to commit him, or to require him to enter into a new undertaking for his appearance at some other day to await a warrant from the governor. (C. '73. Sec. 4180; R., 4527; C. '51, Sec. 3288.) Section 5178. Arrest on Gtovernor's Warrant.] Whether the person so charged be bound to appear, be committed or discharged, any person authorized by the warrant of the governor may at any timte take him into custody, and the same is a discharge of the undertaking, if there be one, unless a forfeiture thereof has been pre- viously entered of record. (C. '73, Sec. 4181; R., Sec. 4528; C. '51, Sec. 3829.) Section 5179. Costs.] The complainant in any such case is answerable for all the costs and charges, and for the support in prison of any person so committed, and the magistrate, before issuing his warrant or hearing the cause, must require the complainant to give security for the payment of all such costs, or may require them in advance. (C. '73, Sec. 4182; R., Sec. 4529; C. '51, Sec. 3290.) Section 5180. Expenses — Conditions.] Upon the STATE STATTTTES OP KANSAS. 377 application for the appointment of an agent for the ar- rest of a fugitive from justice under the provisions of this chapter, the governor may make the appointment and the issuance of the writ conditional that the same be executed without expense to the State. (C. '73, Sec. 4183.) Section 5181. PAm by State.] When, in the opinion of the governor, expenses incurred in the arrest of fugi- tives from justice should be paid by the State, the claim therefor shall be itemized and sworn to, and approved by him and at least two other members of the executive council, and when so approved, be audited and paid out of the general revenue of the State. (C. '73, Sec. 4184.) XIV. KANSAS. (From The General Statutes of the State of Kansas, 1909, Chapter 46, Article 4, Sections 3843 to 3866, pages 863 to 866 and Chapter 97, Article 6, Sections 6644, 6645, 6888 and 6889, pages 1432, 1433, 1468 and 1469.) Fugitives from Justice. Section 3843. Issue Wabbant.] Whenever the ex- ecutive of any other .State or Territory shall demand from the executive of this State any person as a fugitive from justice, and shall have complied with the requisites of the act of Congress in that case made and provided, it shall be the duty of the governor of this State to issue his warrant, under the seal of the State, directed to any sheriff, coroner or other person whom he may think fit to intrust with the execution of such warrant. Section 3844. Warrant.] The warrant shall author- ize the officer or person to whom it is directed to arrest the fugitive anywhere within the limits of this State, and convey him to any place therein named, and shall com- mand all sheriffs, coroners, constables and other officers 378 THE LAW OP INTBESTAXE EBNDITION. to whom the warrant may be shown to aid and assist in the execution thereof. Section 3845. Execution of. J Every warrant so is- sued may be executed in any part of the State ; and the officer or person to whom it is directed shall have the same power to command assistance therein, and in re- ceiving and conveying to the proper place any person duly arrested by virtue thereof, as sheriffs and other officers by law have in the execution of civil or criminal process directed to them, with like penalties on those who refuse their assistance. Section 3846. Confined in Jail.] The officer or per- son executing such warrant may, when necessary, confine the prisoner arrested by him in the jail of any county through which he may pass in conveying such prisoner to the place commanded in the warrant; and the keeper of such jail shall receive and safely keep such prisoner until the person having him in charge shall be ready to proceed on his route. Section 3847. Governor may Appoint Agent to De- mand Offender.] The governor of this State may, on application, appoint an agent to demand of the executive authority of any other State or Territory any offender fleeing from the justice of this State: Provided, That such appKcation is accompanied by sworn evidence that the party charged is a fugitive from justice, and that the application is made in good faith for the punishment of crime, and not for the purpose of collecting a debt or pecuniary mulct, or of recovering the alleged fugitive to a foreign jurisdiction, with a view there to serve him with civil process ; and also by a duly attested copy of an indictment, or a duly attested copy of a complaint or in- formation made before a court or magistrate authorized to take the same, such complaint or information to be accompanied by an affidavit to the facts constituting the offense charged, by a person or persons having actual knowledge thereof, and such further evidence in support thereof as the governor may require. Section 3848. Before Governor shall Demand.] Be- STATE STATUTES OF KANSAS. • 379 fore the governor of this State shall demand any fugitive from justice from the executive authority of any other State or Territory the county attorney of the county wherein the alleged crime is said to have been committed shall examine into the case, and be satisfied that a crime has been committed and that the person charged is the guilty person, he shall so certify to the governor, with a certified copy of the affidavit, information or indictment presented, and ask a requisition to be made in accordance therewith. Section 3849. Applications for Eeqtjisition.] Ap- plications for requisitions on the executive authority of any other State or Territory for the surrender of fugi- tives from the justice of this State shall be made to con- form to such rules and regulations as may be adopted and promulgated by the executive authority of this State. Section 3850. Goveknor Deuver Offender.] The governor in this State, in any case authorized by the Con- stitution of the United States and the acts of Congress made in pursuance thereof, may on demand deliver over to the executive authority of any other State or Terri- tory any person charged therein with treason, felony, or other crime committed therein : Provided, That such de- mand or application is accompanied by a duly attested copy of an indictment, or a duly attested copy of a com- plaint or information, certified as authentic, and also by sworn evidence that the demand is made in good faith for the punishment of crime, and not for the purpose of collecting a debt or pecuniary mulct, or of removing the alleged fugitive to a foreign jurisdiction, with a view there to serve him or her with civU process. Section 3851. Officer.] The sheriff or other officer to whom shall be intrusted the execution of warrant is- sued by the governor of this State shall proceed forth- with to arrest the fugitive therein named, and on pay- ment of all costs by the duly authorized agent of the ex- ecutive authority making the demand, such fugitive shall be delivered to him, to be thence removed to the proper 380 THE LAW OF INTEESTATE EENDITION. place for prosecution: Provided, That if the agent of the executive authority as aforesaid does not appear within thirty days from the date of the arrest so made, the sheriff shall discharge the person imprisoned; and all costs and expenses, being first ascertained to the sat- isfaction of the executive shall on his certificate be al- lowed and paid out of the State treasury. Section 3852. Fugitive from Other State.] When any person within this State shall be charged on the oath or affirmation of any credible witness, before any judge or justice of a court of record or a justice of the peace, with the commission of any crime in any other State or Territory of the United States, and that he fled from justice, it shall be lawful for the judge or justice to issue his warrant for the apprehension of the party charged. Section 3853. On Examination; Bail.] If upon ex- amination it shall appear to the judge or justice that the person charged is guilty of the crime alleged, he shall commit him to jail of the county ; or, if the offense is bail- able, take bail for his appearance at the next term of the district court in the county. Section 3854. Examination, how Conducted.] The judge or justice shall proceed in the examination in the same manner as is required when a person is brought be- fore such officer charged with an offense against the laws of this State, and shall reduce the examination to writing and make return thereof as in other cases, and shall also send a copy of the examination and proceedings to the governor of this State without delay. Section 3855. Duty of Governor.] If in the opinion of the governor the examination contains sufficient evi- dence to warrant the finding an indictment, he shall forthwith notify the executive of the State or Territory in which the crime is alleged to have been committed, of the proceedings against the person arrested, and that he will be delivered on demand, without requiring a copy of an indictment to accompany the demand. Section 3856. Offender Delivered up.] "When a de- mand shall be made for the offender, the governor shall STATE STATUTES OP KANSAS. 381 forthwith issue his warrant, xmder the seal of the State, to the sheriff of the county wherein the party charged is committed or bailed, commanding Iii'tti to surrender the accused to such m^essenger as shall be therein named, to be conveyed out of the State. Section 3857. Areested.J If the accused shall be at large; on bail or otherwise, it shall be lawful for the sheriff to arrest him forthwith anywhere within the State, and to surrender him agreeably to the command of the warrant. Section 3858. Discharge and Recognizance.] In all cases where the party shall have been admitted to bail and shall appear according to the condition of his recog- nizance, and he shall not have been demanded, the dis- trict court may discharge the recognizance or continue it, according to the circumstances of the case, such as distance of the place where the offense is alleged to have been committed, the time since the arrest, the nature of the evidence, and the like. Section 3859. Not Kept Beyond.] In no case shall the party be kept in prison or held to bail beyond the end of the second term of the district court after the arrest ; and if no demand is made for him within that time, he shall be discharged. Section 3860. Forfeited Recognizance.] When any such recognizance shall be forfeited, it shall inure to the benefit of the State. Section 3861. Bond and Secitbity.] When a com- plaint shall be made against any person, as provided by this act, the judge or justice shall take from the prose- cutor a bond to the clerk of the district court, with suffi- cient security to secure the payment of the costs and ex- penses which may accrue by occasion of the arrest and detention of the party charged, which bond shaU be cer- tified and returned, with the examination, to the office of the clerk of the district court. Section 3862. How Collected.] Upon the determi- nation of the proceedings in that court, the clerk may is- sue fee bills, which shall be served on the principal se- 382 THE LAW OF INTBBBTATB RENDITION. curities in the bond by the sheriff, in the same manner as other fee bills ; for which service the sheriff shall be al- lowed the same fees as for serving notices. Section 3863. Execution.] If the costs and charges are not paid on or before the first day of the next term of the district court, nor any cause shown why they should not be paid, the clerk may issue execution for the same against the parties on whom the fee bills were served. Section 3864. Sue on Bond.] Nothing in the two pre- ceding sections shall be construed to prevent the clerk from instituting suit on such bond for the recovery of the costs and charges. Section 3865. Not take from State.] No person shall take or remove any fugitive from this State, or do any act toward such removal, unless authorized to do so pursuant to the provisions of this act; and any person violating the provisions of this section shall forfeit and pay to the aggrieved party a sum not less than five hun- dred dollars. Section 3866. Bail,.] Whenever any person shall have been committed to the jail of any county upon ex- amination for a bailable offense, under the provisions of this act, he may be let to bail with sufficient surety for his appearance at the next term of the court of the county having criminal jurisdiction, such bail to be taken and approved by the court, or judge of the court, having criminal jurisdiction or the probate judge. Section 6644. No Information shall be Filed.] No information shall be filed against any person for any fel- ony until such person shall have had a preliminary ex- amination therefor as provided by law before a justice of the peace or other examining magistrate or officer, un- less such person shall waive his right to such examina- tion: Provided, however, That informations may be filed without such examination against fugitives from justice, and in misdemeanor cases not cognizable before justices of the peace. Where proceedings are com- menced originally by information in the district court, the clerk of the court during vacation shall issue a war- STATE STATUTES OP KANSASi 383 rant, naming the offense charged to have been committed and the connty in which it was committed, and requir- ing the officer to whom it shall be directed forthwith to take the person accused and bring him before the judge or the clerk of said court to be admitted to baU for his appearance at the next term of the court to be held in said county. In case the defendant should faU to give bond for such appearance in such sum as in the opinion of the judge or the clerk will secure the appear- ance of the person charged with the offense at the court where such person is to be tried, the prisoner shall be committed for trial, and there shall be indorsed upon the order of commitment the siun in which bail is required. Section 6645. Fugitive.] Any fugitive from justice against whom an information may be filed may be de- manded by the governor of this State of the executive au- thority of any other State or Territory, or of any foreign government, in the same manner, and the same proceed- ings may be had thereon, as provided by law in like cases of demand upon indictment found. Section 6888. Fugitive fkom Justice.] Before the governor of this State shall demand any fugitive from justice from the executive of any other State or Terri- tory, the county attorney of the county where the crime is alleged to have been committed shall examine into the case, and if satisfied that a crime has been committed, and that the person charged is the guilty person, he shall so certify to the governor upon the affidavit, information or indictment presented, and ask a requisition to be made in accordance therewith ; and the governor may issue his warrant, under the seal of the State, directed to the agent or messenger recommended by the said county attorney, commanding him to receive such fugitive and convey him to the sheriff of the county in which the offense was com- mitted or is by law cognizable. Section 6889. Expenses.] The expenses which may accrue under the preceding section shall be paid by the county where the offense was committed, except in cap- ital cases which in the opinion of the governor demand 384 THE LAW OP INTEESTATE EBNDITION. prompt and immediate action ; and when a delay in pro- curing the necessary papers from the county attorney, as heretofore provided, would operate to prevent the appre- hension of the criminal, then in such cases the expenses shall be paid by the State. XV. KENTUCKY. (From Carroll's Kentucky Statutes, (1915), Vol. 1, Chap. 56, Sections 1926 to 1931, Bottom paging 1012 to 1013.) Fugitives feom Justice. Section 1926. Goveknob to Issue Warrant on De- mand OP Foreign Executive.] Upon the demand of the executive of any State or Territory of the United States, made upon the governor of this Commonwealth, to sur- render a fugitive from justice from said State or Terri- tory, pursuant to the Constitution and laws of the United States, he shall issue his warrant to the sheriff or constable of any county within this Commonwealth, commanding him to apprehend said fugitive and bring him before some circuit judge. Section 1927. Circuit Judge upon Identipication, to Order Delivery to Agent.] The circuit judge shall pro- ceed, by the examination of witnesses, to ascertain if the person apprehended be the fugitive demanded and men- tioned in the warrant of the governor of this State, and if satisfied of the identity of the person, the judge shall order him to be delivered up to the agent of the State or Territory demanding him, to be transported to such State or Territory agreeably to the laws of the United States; otherwise he shall discharge the person from custody. Section 1928. Proceedings when no Agent Present — Notice to Gtoveenob — Dischahge.] If no such agent be present, the fugitive shall be committed to the jaU of STATE STATTTTES OP KENTUCKY. 385 the county in which the hearing before the judge is had. Of the fact of commitment the judge shall forthwith in- form the governor of this State, and, on demand of the agent of the State or Territory upon the jaUer, by the authority of the governor of this Commonwealth, the fugitive from justice shall be delivered up to such agent. If said fugitive be not demanded within three months af- ter his commitment, the jailer shall discharge him. Section 1929. Costs to be Pato by Agent.] All costs incurred in apprehending and securing said fugitive shall be paid by the agent of the State or Territory, before he shall be permitted to remove him or receive him into custody. Section 1930. Persons Gutlty op Felony Areested — Wabrant — Duty op Person Arresting and Person Caus- ing Arrest.] A person guilty of felony anywhere in the United States, if found in this State, may be arrested and confined in jail, and delivered over to the proper au- thority, in the following manner : 1. A warrant issued by any judicial authority, upon aflBdavit made of the facts, shall authorize his arrest by any ministerial officer, or other person, to whom it may be directed by name. 2. The person arresting the accused shall immedi- ately take him before the circuit judge, the judge of the county court or the police judge of a city, in the county in which he was arrested, who shall, upon hearing the evidence, if satisfied of the guilt of the prisoner, commit hiTTi to the jail of the coimty, where he was arrested, there to remain sixty days, unless he be legally discharged, or removed upon demand of the executive of the State or Territory in which it is charged that the offense was committed. 3. It shall be the duty of the person who caused the arrest of such fugitive to be made, to notify the execu- tive of the State or Territory in which the crime was committed. See Botts v. WiUiams, (1856), 56 Ky. (17 B. Mon.) 386 THE LAW OF INTEESTATB RENDITION. 687, and Ex parte Knowles, (1894) , 16 Ky. Law Rep. 263. Section 1931. The governor of this Commonwealth, upon a proper demand, shall issue his warrant directing the officer having the custody of the prisoner to deliver him to the agent of the State or Territory demanding him, whose duty it shall be to deliver over such prisoner, upon the payment of all legal costs and charges by said agent or other person. XVI. LOUISIANA. (From Marr's Revision of the Statutes of Louisiana, 1915, Sections 2259 to 2264, pages 738 to 740.) 2259. Arrest of Fugitive from Another State.] When any person shall be charged on oath of any cred- itable person, before any judge or justice of the peace of this State, with having committed any crime within any State or Territory of the United States, and has fled from justice, it shall be the duty of such judge or justice to issue his warrant for the arrest of such accused, and to proceed to the examination of such case, and commit or discharge the accused, as such judge or justice may determine, provided no person so accused shall be de- tained in custody exceeding' ninety days. 2260. DELrvERY op Fugitive.] The Governor may in his discretion deliver over to justice any person found within the State who shall be charged with having com- mitted any crime under the Constitution and laws of the United States or of any State or Territory. 2261. Id.] Such delivery shall only be made on the requisition of the duly authorized ministers or officers of the government within the jurisdiction of which the crime shall be charged to have been committed, and upon their paying all expenses attending the apprehension, confine- ment and delivery of the party accused. STATE STATUTES OF LOUISLCNA. 387 2262. Evidence Wahranting DEiavERY.J It shall be tile duty of the governor to require such evidence of the guilt of the persons so charged as would be necessary to justify his apprehension and commitment for trial had the crime charged been committed within the State. 2263. Eeqtjisition pob Louisiana Fugitive.] When- ever a demand has been made by the executive of this State on the executive of any other State or Territory for the arrest of any person as a fugitive from justice for crime committed in this State, according to the au- thority vested in the executive of the States by the Con- stitution and laws of the United States, it shall be the duty of the sheriff of the parish in which the crime is charged to have been committed to present such demand to the executive of the State or Territory on which it may be made, or the executive of this State may appoint some suitable person to present such demand, and when the executive of such State or Territory, on which such demand has been made, shall have caused such fugitive from justice to be arrested and secured, said sheriff or such person appointed by the executive of this State to receive such fugitive from justice shall convey him to and deliver him within the four walls of the jail of the parish in which he is charged to have committed the of- fense, to the sheriff of such parish unless it be the sheriff himself who receives the prisoner, who shall keep him confined in jail until delivered according to law. That all the actual expenses incurred by the sheriff or other person appointed by the executive to receive and convey a fugitive from justice as provided by law and this act, together with five dollars per day for all necessary time employed in such service shall be paid by the parish lq which the offense is charged to have been committed; that no part of said expenses and per diem shall be paid unless such fugitive is actually received and conveyed to and confined in the jail of the parish in which the crime is charged to have been committed, or unless such fugi- tive has been discharged or admitted to baU by some competent authority in this State ; and provided further 388 THE LAW OP INTERSTATE BBNDITION". an explicit bill of each, item of sucli expenses, with, the receipt therefor, if a receipt can be obtained, including the fees and charges of making the arrest in the State to which such fugitives had fled, must be made out, together with the number of days such sheriff or party has been actually employed in such service, which shall be sworn to as being correct in every item ; which bill shall be pre- sented to the police jury of such parish, and after having the same carefully examined and they shall find the same correct, they shall allow the same and provide for its payment ; but if they should fail or refuse to allow such amount, then the claimant shall have the right to sue the parish therefor, and the case may, if demanded by either party, be tried by a jury. 2264. Duty of District Attorney.] In all cases in which the district attorney shaU have reason to believe that a person charged with a crime committed in their district or parish, and has fled into any other State or Territory, it shall be his duty to obtain a requisition from the governor of this State for his apprehension and delivery on the governor of any other State or Territory to which such criminal may have fled, and to deliver such requisition to the sheriff, who shall proceed to cause the same to be executed according to law; any failure or re- fusal of the sheriff to comply with the requirements of this section shall be considered a contempt of the court, and shall upon being brought to the attention of the court by any person, subject such sheriff to be punished as for a contempt of court. XVn. MAINE. (From the Revised Statutes of the State of Maine, 1904, Chapter 139, Sections 7 to 13, pages 981 and 982.) Fugitives from Justice in this State. Section 7. In any case, authorized by the constitution and laws of the United States, the governor may appoint STATE STATUTES OP MAIKE. 389 an agent to demand and receive of the execntive author- ity of any other State, any fugitive from justice charged with any crime in this State; and the accounts of such agent shall be audited and paid from the treasury by order of the governor and council. Section 8. "Whenever a prisoner convicted of, or charged with, a capital crime or other high offense, es- capes from prison in this State; or there is reasonable cause to believe that a person who is charged with such offense and has not been apprehended therefor, cannot be arrested and secured in the ordinary course of pro- ceedings, the governor may, upon application in writing, of the attorney general or county attorney for the county in which such offense was committed, and upon such terms and conditions as he deems expedient and proper, offer a suitable reward, not exceeding one thousand dol- lars, for the arrest, return and delivery into custody of such escaped prisoner or fugitive from justice ; and upon satisfactory proof that the terms and conditions of such offer have been complied with, he may, with the advice and consent of the council, draw his warrant upon the treasurer for the payment thereof. Fugitives feom Justice in otheb States. Section 9. When such demand as is mentioned in sec- tion seven is made on the governor of this State, and he is satisfied, on examination of the groimds thereof, that it is according to law and ought to be granted, he shall issue his warrant, under the seal of the State, authoriz- ing the agent making the demand, at his own expense, to take and transport such fugitive to the line of the State at the time designated in the warrant, and shall thereiu require the civil officers of the State to afford all needful aid in its execution. Section 10. When such fugitive from justice in an- other State is found in this State, any court or magis- trate authorized to issue warrants in criminal cases, may, on complaint under oath, setting forth the offense and 390 THE LAW OF INTEESTATE EENDITION. other facts necessary to bring the case within the provi- sions of law, grant a warrant and have the accused ar- rested for examination as in other cases. Section 11. On such examination, if the court or mag- istrate believes that the complaint is true, and that the accused can lawfully be demanded of the governor, the case shall be adjourned long enough to obtain an execu- tive warrant; and if the offense is bailable, the accused may recognize with sufficient sureties to appear at the adjournment ; and if he does not so recognize, or the of- fense is not bailable, he shall be committed; and if any such recognizance is forfeited, the same proceedings shall be had as in case of other recognizances. Section 12. If the accused appears at the adjourn- ment, he shall be discharged, unless some person is au- thorized to receive him by an executive warrant, or an- other adjournment is ordered for sufficient cause, and in that case the same proceedings shall be had as at the first adjournment; but nothing in this, or the two preceding sections, shall prevent the arrest of any accused by an executive warrant, and such arrest discharges any such existing recognizance. Section 13. The complainant is answerable in all such cases for the actual costs and charges and the support in prison of the accused when committed, to be paid as a creditor pays for his debtor committed on execution; and if his support in prison is not so paid, the jailer may discharge the accused as if he were committed on execu- tion for debt. XVIII. MAEYLAND. (From the Public General Laws of Maryland, 1914, Vol. 3, Article 27, Section 212, page 378.) Fugitive Convicts. 212. Any person who has been convicted and con- demned to serve and labor as a criminal, and who may STATE STATUTES OP MASSACHUSETTS. 391 escape and be found in this State, shall be deemed a fugi- tive felon, and being thereof convicted by a duly authen- ticated record from the couai of the State in which such conviction and condemnation took place, shall be sen- tenced to undergo a confinement in the penitentiary of this State, for and during the residue of the term for which such person shall have been condemned; but if such person shall be demanded by the State whence he escaped, he shall be immediately delivered up agreeably to such demand. XIX. MASSACHUSETTS. (From the Eevised Laws of the Commonwealth of Mas- sachusetts, 1902, Vol. 2, Chap. 217, Sections 11 to 20, pages 1821 to 1823.) Fugitives from Justice. 11. The governor, in any case which is authorized by the Constitution and laws of the United States, may, up- on demand, deliver to the executive of any other State or Territory any person charged therein with treason, felony or other crime ; or may, upon application, appoint an agent to demand of the executive authority of any other State or Territory any such offender fleeing from the justice of this commonwealth. Such demand or ap- plication shaU be accompanied by sworn evidence that the person charged is a fugitive from justice and by a duly attested copy of an indictment or complaint made before a court or magistrate authorized to receive it. Such complaint shall be accompanied by affidavits to the facts constituting the crime charged by persons who have actual knowledge thereof, and by such further evidence as the governor may require. See Commonwealth v. Wright, (1893), 158 Mass. 149, 33 N. E. 82. 392 THE LAW or INTEESTATB RENDITION. 12. Upon such demand or application, tlie attorney general or a district attorney, shall, if the governor so requires, forthwith investigate the grounds thereof and report to the governor all the material facts which may come to his knowledge, with an abstract of the evidence in the case, and, in case of a person demanded, whether he is held in custody or is under recognizance to answer for a crime against the laws of this commonwealth or of the United States or by force of any civil process, with an opinion as to the legality or expediency of complying therewith. 13. If the governor is satisfied that the demand con- forms to law and ought to be complied with, he shall issue his warrant, under the seal of the commonwealth, to an officer authorized to serve warrants in criminal cases, di- recting him at the expense of the agent who makes the demand, at a time designated in the warrant, to take and transport such person to the boundary line of this com- monwealth and there deliver him to such agent. Such officer may require aid as in criminal cases. 14. A person who is arrested upon such warrant shall not be delivered to such agent of a State or Terri- tory until he has been notified of the demand for his sur- render and has had an opportunity to apply for a writ of habeas corpus, if he claims such right of the officer who makes the arrest. If such writ is applied for, notice thereof and of the time and place of hearing shall be given to the attorney general or district attorney for the district in which the arrest is made. An officer who de- livers a person in his custody upon such warrant to such agent for extradition without having complied with the provisions of this section shall forfeit not more than one thousand dollars. 15. If the application for the arrest of a fugitive from the justice of the commonwealth is complied with and an agent is appointed, his account shaU be paid like other expenses in criminal cases by the county in which the pro- ceedings are pending; but the governor may direct the STATE STATUTES OP MASSACHUSETTS. 393 whole or a part of such account to be paid by the com- monwealth. 16. If a person who is found in this commonwealth is charged with a crime committed in another State or Ter- ritory and is liable by the Constitution and laws of the United States to be delivered upon the demand of the executive of such other State or Territory, a court or magistrate authorized to issue warrants in criminal cases may, upon complaint under oath setting forth the crime and such other matters as are necessary to bring the case within the provisions of law, issue a warrant to bring the person charged before the same or another court or magistrate within the commonwealth to answer to such complaint as in other cases. 17. If, upon examination of the person charged, the court or magistrate has reasonable cause to believe that the complaint is true, and that such person may be law- fully demanded of the executive, he shall, if not charged with a capital crime, be required to recognize with suffi- cient sureties in a reasonable sum to appear before such court or magistrate at a day appointed, allowing a rea- sonable time to obtain the warrant of the executive, and to abide the order of the court or magistrate. 18. If he does not so recognize, he shall be committed to jail untU such day, as if the crime charged had been committed within the commonwealth; and if he fails to appear according to the condition of his recognizance, he shall be defaulted and like proceedings shall be had as in case of other recognizances entered into before such court or magistrate. If he is charged with a capital crime, he shall be committed to jail until the day so ap- pointed for his appearance. 19.. K the person so recognized or committed appears before the court or magistrate upon the day appointed, he shall be discharged unless he is demanded by a person authorized by the warrant of the executive to receive him, or unless the court or magistrate has cause to com- mit biTTi or to require him to recognize anew for his ap- pearance on another day, and if, when ordered, he does 394 THE LAW OF INTEESTATE RENDITION. not SO recognize, he shall be committed and detained as before. If the person charged has recognized or is com- mitted or discharged, a person authorized by the war- rant of the executive may at any time take him into cus- tody and the same shall be a discharge of the recogni- zance and not be an escape. 20. The complainant in such case shall be answerable for all actual costs and charges and for the support in jail of a person so committed, which shall be paid as by a creditor for his debtor committed on execution. If the charge for support in jail is not so paid, the jailer may discharge him as if he had been committed on execution. XX. MICHIGAN. (From Howell's Statutes of the State of Michigan, 1913, Vol. 5, Title XL., Chap. 423, Sections 15215 to 15222, pages 5834 to 5837.) 15215. Governor May Appoint Agents to Demand Fugitives op Foreign Governments.] The governor of this State may, in any case authorized by the Constitu- tion and laws of the United States, appoint agents to de- mand of the executive authority of any other State or Territory, or from the executive authority of any foreign government, any fugitive from justice, or any person charged with treason ; and the accounts of the agents ap- pointed for that purpose, shall, unless otherwise directed by the governor, be audited by the auditor general, and paid out of the state treasury. 15216. Duty of Governor When Demand Made fob Fugitive — Sheriff to Aurest and Deliver to Agent — Opportunity fob Judicial Examination before Delivery to Agent — Duty of Attorney General.] Whenever a demand shall be made upon the governor of this State by the governor of any other State or Territory in any case authorized by the Constitution and laws of the United STATE STATUTES OP MICHIGAN. 395 States for the delivery over of any person charged in such State or Territory with treason, felony or any other crime and there shall be produced with such de- mand a copy of the indictment found or information filed, or affidavit, or complaint made before a magistrate of the State or Territory demanding, charging the person so de- manded with having committed treason, felony, or other crime within such State or Territory, duly certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged fled, with due proof of the fleeing, it shall be the duty of the governor of this State to issue an order or warrant to the sheriff of the county in which such person so charged may be found, commanding him to forthwith arrest such alleged fugitive and to deliver him to the duly authorized agent appointed by the executive authority making such demand to receive him and remove bim to the proper place for prosecution. But the said sheriff while the al- leged fugitive is in his custody, and before delivering him up to the agent of the demanding State, shall afford biTTi every proper facility to enable him to have a judicial examination if he desires it, by habeas corpus, or other- wise, to ascertain whether the demand and arrest have been made conformably to the requirements of law, so that such person if he ought not to be delivered up may be duly discharged, and the attorney general when re- quired by the governor shall forthwith investigate the grounds of demand, and report to the governor aU ma- terial facts which may come to his knowledge, as to the situation and circumstances of the person so demanded, and especially whether he is held in custody, or is under recognizance, to answer for any offense against the laws of this State, or of the United States, or by virtue of any civil process, and also whether such demand was made conformably to law, so that such person ought to be de- livered up. 15217. Same.] If the governor shall be satisfied that the demand is conformable to law, and ought to be com- plied with, he shall issue his warrant, under the seal of 396 THE LAW OP INTERSTATE EENDITION". the State, authorizing the agents who make sneh de- mands, either forthwith, or at such time as shall be desig- nated in the warrant, to take and transport such person to the line of this State, at the expense of such agents, and shall also by such warrant require the civil officers within this State, to afford all needful assistance in the execution thereof. 15218. Persons Who May Be Demanded by Other States, May Be Arrested.] Whenever any person shall be found within this State, charged with any offense com- mitted in any other State or Territory, and liable by the Constitution and laws of the United States to be delivered over upon the demand of the governor of such other State or Territory, any court or magistrate authorized to issue warrants in criminal cases, may, upon complaint on oath, setting forth the offense, and such other matters as are necessary to bring the case within the provisions of law, issue a warrant to bring the person so charged be- fore the same or some other court or magistrate, within this State, to answer to such complaint as in other cases. 15219. Eeqtjieed to Eecognize, etc.] If, upon the ex- amination of the person charged, it shall appear to the court or magistrate that there is reasonable cause to be- lieve that the complaint is true, and that such person may be lawfully demanded of the governor, he shall, if not charged with a capital crime, or with murder in the first degree, be required to recognize, with sufficient sureties, in a reasonable sum, to appear before such court or magistrate at a future day, allowing a reason- able time to obtain the warrant of the governor, and to abide the order of such court or magistrate in the prem- ises. 15220. Eefusing to Recognize, Failure to Appear, etc.] If such person shall not recognize, or if he shall be charged with a capital crime, or with the crime of murder in the first degree, he shall be committed to pris- on, and there detained until such day, in like manner as if the offense charged had been committed within this State ; and, if the person so recognizing shall fail to ap- STATE STATUTES OP MINNESOTA. 397 pear according to the condition of Ms recognizance, lie shall be defaulted, and the same proceedings shall be had as in the case of other recognizances entered before such court or magistrate. 15221. How TO BE Proceeded with.] If the person so recognized or committed, shall appear before the court or magistrate upon the day ordered, he shall be discharged, unless he shall be demanded by some person authorized by the warrant of the governor to receive him, or unless the court or magistrate shall see cause to commit him, or to require him to recognize anew for his appearance at some other day; and if, when ordered, he shall not so recognize, he shall be committed and de- tained as before : Provided, that whether the person so charged shall be recognized, committed, or discharged, any person authorized by the warrant of the governor, may, at all times, take him into custody, and the same shall be a discharge of the recognizance, if any, and shall not be deemed an escape. 15222. Expenses, How Paid.] The complainant in any such case shall be answerable for all the actual costs and charges, and for the support in prison of any person so committed to be paid weekly, or otherwise, as may be ordered by the court or magistrate; and, if the charge for his support in prison shall not be so paid, the jaUer may, on the failure of the complainant, discharge such person from his imprisonment. XXI. MINNESOTA. (From the General Statutes of Mumesota, (1913), Chap- ter 104, Sections 9037 to 9043, pages 1986 to 1989.) EXTBADITION. 9037. ExTEADiTiON — Agents — Appointment — Ee- POBTS, ETC.] In every case authorized by the Constitu- tion and laws of the United States, the governor may ap- point an agent, who shall be the sheriff of the county 398 THE LAW OF INTEESTATE RENDITION. from which the application for extradition shall come, when he can act, to demand of the executive authority of any State or Territory any fugitive from justice or any person charged with a felony or other crime in this State ; and whenever an application shall be made to the governor for that purpose, the attorney general, when so required by him, shall forthwith investigate or cause to be investigated by any county attorney the grounds of such application, and report to the governor all material circumstances which shall come to his knowledge, with an abstract of the evidence, and his opinion as to the expediency of the demand. The accounts of agent so ap- pointed shall in each case be audited by the county board of the county wherein the crime upon which extradition proceedings are based shall be alleged to have been com- mitted, and every such agent shall receive from the treasury of such county four dollars for each calendar day, and the necessary expenses incurred by him in the performance of such duties. 9038. Waebant of Extbadition, Service, etc.] "When- ever a demand shall be made upon the governor by the executive of any State in any case authorized by the Con- stitution and laws of the United States, for the delivery over of any person charged in such State with treason, felony, or other crime, the attorney general, when re- quired by the governor, shall forthwith investigate or cause to be investigated by any county attorney the ground of such demand, and report to the governor all material facts which may come to his knowledge as to the situation and circumstances of the person so demanded, especially whether he is held in custody or under recogni- zance to answer for any offense against the laws of this State or of the United States, and also whether such demand is made according to law, so that such person ought to be delivered up; and if notified that such de- mand is conformable to law, and ought to be complied with, the governor shall issue his warrant under the seal of the State, authorizing the sheriff or some other designated person of any county in the State, either STATE STATUTES OF MINNESOTA. 399 forthwith, or at a time designated in such warrant, to take and transport the person so demanded to the line of this State, at the expense of the State in whose name such person has been demanded, and there deliver him to the agent of the State making such demand, and shall al- so by such warrant require the civil officers in this State to afford all needful assistance in the execution thereof. Upon receipt of such warrant, such officer may arrest and retain in his custody the person whose surrender is de- manded; but no person arrested on such warrant shall be delivered to the agent designated therein, or to any other person, until he shaU have been notified of the de- mand made for his surrender, and of the nature of the criminal charge made against him, nor until he has had an opportunity to apply for a writ of habeas corpus, if he shall claim such right of the officer making the arrest. Whenever such writ shall be applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the attorney general or the county attorney of the county in which the arrest is made. Every sheriff or other officer making such arrest, who shaU deliver over to the agent named in such warrant, or to any other person for extradition, the person so in his custody under such warrant, without having complied with the provi- sions of this subdivision, shall be punished by imprison- ment in the county jaU for not more than six months, or by a fine of not more than one thousand dollars, or by both. 9039. FuGiTTTB FEOM Anotheb State Abrested, When.] Whenever any person shaU be found in this State charged with any offense committed in any State, and liable under the Constitution and laws of the United States to be delivered over upon the demand of the ex- ecutive of such State any court or magistrate authorized to issue warrants in criminal cases may, upon complaint under oath, setting forth the offense and such other mat- ters as shall be necessary to bring the case within the provisions of law, issue a warrant to bring such person 400 THE LAW OF INTEESTATB BBNDITION. before Mm or some other court or magistrate in the county where he is found. 9040. May Give Eecognizance, When.] If, upon ex- amination of the person charged, it shall appear to the court or magistrate that there is reasonable cause to believe that the complaint is true, and that such person may be lawfully demanded of the governor, if the offense is bailable he shall be required to recognize, with suffi- cient sureties in a reasonable sum, to appear before such court or magistrate at a future day, allowing a reason- able time to obtain the warrant of the executive, and to abide the order of the court or magistrate; and if such person shall not so recognize he shall be conunitted to prison, and there detained until such day, in like manner as if the offense charged had been oonmiitted within this State. If he shall fail to appear according to the condi- tion of his recognizance, he shall be defaulted, and like proceedings had as in case of default in other recogni- zances, but if the offense be not bailable, he shall be com- mitted to prison, and there detained until the day so ap- pointed for his appearance. 9041. DiscHAEGED, When.J If the person so recog- nized or committed shall appear before the court or mag- istrate upon the day ordered, he shall be discharged un- less he shall be demanded by some person authorized by the warrant of the executive to receive him, or unless the court or magistrate shall see cause to commit him, or to require him to recognize anew for his appearance on some other day, and if when so ordered he shall not so recognize he shall be committed and detained as provided in (Section 9040). Whenever the person so discharged shall be recognized, conamitted, or discharged, any per- son authorized by the warrant of the executive may at any time take him into custody, and the same shall be a discharge of the recognizance, if any, and not an escape. 9042. Complainant Liable foe Expenses.] The com- plainant in every such case shall be answerable for the actual costs and charges, and for the support in prison of any person so committed, and at the time of commitment STATE STATUTES OP MISSISSIPPI. 401 shall advance to the jaOer one week's board, and so from week to week, so long as he shall remain in jail, and on the failure so to do the jailer may forthwith discharge any snch person from custody. 9043. CoNVBYiiirG Pmsonebs thbotjgh State.] Any person who has been or shaU be convicted of or charged with a crime in any other State, and who shall be law- fully in the custody of any oflScer of the State where such offense is claimed to have been committed, may be by said officer conveyed through or from this State, for which purpose such officer shall have all the powers in regard to his control or custody that an officer of this State has over a prisoner in his charge. XXII. MISSISSIPPI. (From the Mississippi Code of 1906, Chap. 49, section 2212, and chapter 60, sections 2378 to 2381, pages 724 and 725.) 2212. To Pebson Bbinging Back Pmsoneb on Extba- DiTioN.J (Laws 1884, p. 75.) Any party, acting under a requisition of the governor, who brings back to this State and delivers to the sheriff of the county where the offense is alleged to have been committed, a person charged with felony, shall receive, to be paid out of the county treasury on the order of the circuit court and of the board of supervisors, twenty cents a mile for the dis- tance necessarily traveled in coming from the place of arrest to the place of delivery ; but the same shall not be paid to any party who has received, or who claims a re- ward from the State, county, or person. 2378. Abbest and Deliveby of Fugitives feom Jus- tice.] It shall be the duty of the governor, on demand made by the executive authority of any other State, Ter- ritory, or district, for any person charged, on affidavit or indictment, in such other State, Territory, or district, with a criminal offense, and ^ho shall have fled from 402 THE LAW OF INTERSTATE RENDITION. justice, and be foimd in this State, the demand being accompanied with, a copy of the affidavit or indictment, certified as authentic by such executive authority, to cause the offender to be arrested and delivered up to the authority of such State, Territory, or district, for re- moval to the jurisdiction having cognizance of the of- fense, upon payment of the costs and expenses conse- quent on arrest ; and it shall be the duty of the governor to demand and receive fugitives from justice for offenses committed in this State. 2379. Duty to Notify Executive op Other State in Certain Case.] Upon being informed by any conserva- tor of the peace of the commitment, or adnjission to bail, of any person in this State charged with treason, felony, or other crime in some other State or Territory, the gov- ernor shall forthwith communicate the information to the executive of the State or Territory in which the of- fense is charged to have been committed, 2380. Eewards for Absconding Criminals.] "When- ever the governor shall be of opinion that the public good requires it, he is authorized to offer, by proclamation or in such other manner as he may deem advisable, such reward as he may think the nature of the case requires, not exceeding two thousand dollars, for the apprehension and arrest of any person who has committed any atro- cious offense against the criminal laws, to be paid in no instance until the offender is delivered to the civil au- thority of the county where the offense was committed, and confined in jail or admitted to baU; or the reward may be conditioned to be paid only upon conviction. 2381. Agent to Bring Absconding Offender from Other States, etc.] The governor may appoint an agent to demand of the executive authority of any other State or Territory any fugitive from justice or other person charged with treason, felony, or other crime in this State. Such agent, if necessary, may employ a suffi- cient guard or escort to bring such criminal to this State ; and the governor may contract other expenses absolutely required in performing the duties of the agency. STATE STATUTES OF MISSOTJBI. 403 TTXTH. MISSOURI. (From the Eevised Statutes of Missouri, 1909, Vol. 2, Article 9, Sections 5137 to 5159, pages 1644 to 1647.) Extradition akd Fugitives feom Jitstice. Section 5137. Messenger, when to be Appointed.] Whenever the governor of this State shall demand a fu- gitive from justice from the executive authority of an- other State or Territory, and shall have received notice that such fugitive wiU be surrendered, he shall issue his warrant, under the seal of the State, to some messenger, commanding Tiitti to receive such fugitive and convey him to the sheriff of the county in which the offense was committed, or is by law cognizable. Section 5138. Expenses tjndeb Peeceding Section, HOW Paid.] The expenses which may accrue under the last section, being first ascertained to the satisfaction of the governor, shall, on his certificate, be allowed and paid out of the State treasury, as other demands against the State. Section 5139. Eewaecd.] If any person charged with or convicted of a felony shall break prison, escape or flee from justice, and abscond or secrete himself, the gov- ernor of the State may, if he deems it expedient, offer any reward, not exceeding three hundred doUars, for the apprehension and delivery of such person to the custody of such sheriff or other officer, as he may direct. Section 5140. Captob of FuGiiryE, how Paid.] "When any person shall apprehend and deliver such fugitive to the proper officer or sheriff, he shall take his certificate of such delivery, and the governor, on the production of such certificate, shall certify the amount of the claim to the State auditor, who shall draw on the treasury for the same. Section 5141. Goveenoe to Issue Warrant, When.] Whenever the executive of any other State shall demand of the executive of this State any person as a fugitive 404 THE LAW Or INTERSTATE RENDITION. from justice, and shall have complied with the requisites of the act of Congress in that case made and provided, it shall be the duty of the executive of this State to issue his warrant, under the seal of the State, directed to any sheriff, coroner or other person whom he may think fit to intrust with the execution thereof. Section 5142. Warrant to Give what Authority.] The warrant shall authorize the officer or person to whom it is directed, to arrest the fugitive anywhere within the State and convey him any place therein named, and shall command all sheriffs, coroners, constables and other offi- cers to whom the warrant may be shown, to aid and assist in the execution thereof. Section 5143. Where and how Executed.] Every warrant so issued may be executed in any part of the State, and the officer or person to whom it is directed shall have the same power to command assistance there- in, and in receiving and conveying to the proper place any person duly arrested by virtue thereof, as sheriffs and other officers, by law, have in the execution of civil and criminal processes directed to them, with like pen- alties on those who refuse their assistance. Section 5144. Power and Duty of Officer Arrest- ing.] The officer or person executing such warrant may, when necessary, confine the prisoner arrested by him in the jail of any county through which he may pass, in con- veying such prisoner to the place commanded in the warrant; and the keeper of such jail shall receive and safely keep such prisoner until the person having him in charge shall be ready to proceed on his route. Section 5145. Expenses, how Paid.] The expenses which may accrue under the foregoing sections of this chapter shall be paid by the State or Territory making the demand of such fugitive from justice. Section 5146. Judge oe Justice may Issue Warrant, When.] Whenever any person within this State shall be charged, on the oath or affirmation of any credible witness, before any judge or justice of a court of record, or a justice of the peace, with the commission of any STATE STATUTES OF MISSOXTBI. 405 crime in any other State or Territory of tlie United States, and that he fled from, justice, it shall be lawftd for the judge or justice to issue his warrant for the appre- hension of the party charged. In construing this section the supreme court of the State of Missouri in the case of State v. Harvell, (1886), 89 Mo. 588, it was declared that one who commits an offense and conceals himself so as to avoid arrest, is a fugitive from justice. If he sue- cessfully hides or conceals himself so as to evade punishment for his crime,' although such conceal- ment may be upon his own premises, he is as much a fugitive as if he had escaped into Canada. The same court in a construction of the same section, in State V. Swope, (1880), 72 Mo. 402, said: "It wiU be read- ily seen that in order for the magistrate to acquire jurisdiction under the statute just quoted, (section 5146,) three things are absolutely essential: First, that there is a person within this State. Second, that a credible witness before such magistrate, on oath or affirmation, charged such person with the commission of a crime in another State. And third, that such person fled from justice. It is only when- ever all these essentials occur, it shall be lawful for the judge or justice to issue his warrant for the ap- prehension of the party charged." Section 5147. On Examination, Party mat be Com- mitted.] If, upon examination, it shall -appear to the judge or justice that the person charged is guilty of the crime alleged, he shall commit him to the jail of the coun- ty; or if the offense is bailable, take bail for his appear- ance at the next term of the court of the county having criminal jurisdiction. Section 5148. Proceedings on Examination.] The judge or justice shall proceed in the examination in the same manner as is required when a person is brought be- fore such officer, charged with an offense against the laws of this State, and shall reduce the examination to 406 THE LAW OF INTERSTATE RENDITION. writing and make return thereof as in other cases, and shall, also, send a copy of the examination and proceed- ings to the governor of this State without delay. Section 5149. Duty of the GtOveenob.] If, in the opin- ion of the governor, the examination contains sufficient evidence to warrant the finding of an indictment, he shall forthwith notify the executive of the State or Territory in which the crime is alleged to have been committed, of the proceedings against the person arrested, and that he will be delivered on demand, without requiring a copy of an indictment to accompany the demand. Section 5150. Offender to be Delivered on Demand.] Where a demand shall be made for the offender, the gov- ernor shall forthwith issue his warrant, under the seal of the State, to the sheriff of the county wherein the party charged is committed or bailed, commanding him to surrender the accused to such messenger as shall be therein named, to be conveyed out of the State. Section 5151. If at Large on Bahj, Sheriff Author- ized TO TAKE HiM.J If the accused shall be at large, on baU or otherwise, it shall be lawful for the sheriff to ar- rest him forthwith, anywhere within the State, and to surrender him agreeably to the command of the warrant. Section 5152. Circuit Court may Discharge.] In all cases where the party shall have been admitted to bail and shall appear, according to the condition of his recog- nizance, and he shall not have been demanded, the court may discharge the recognizance or continue it, according to the circumstances of the case, such as distance of the place where the offense is alleged to have been commit- ted, the time since the arrest, the nature of the evidence, and the like. Section 5153. Limitation of Imprisonment.] In no case shall the party be kept in prison or held to bail be- yond the end of the second term of the court after the arrest, and if no demand is made for him within that time, he shall be discharged. STATE STATUTES OP MISSOUEI. 407 Section 5154. Eecognizance to Inure to State.] When any recognizance shall be forfeited, it shall inure to the benefit of the State. Section 5155. Security foe Costs.] When a com- plaint shall be made against any person, as provided by this chapter, the judge or justice shall take from the prosecutor a bond to the clerk of the court, with sufficient security to secure the payment of the costs and expenses which may accrue by occasion of the arrest and deten- tion of the party charged, which bond shall be certified and returned, with the examination, to the office of the clerk of the court having criminal jurisdiction. Section 5156. Costs, how Coli^cted.] Upon the de- termination of the proceedings in that court the clerk may issue fee bills, which shall be served on the principal and securities in the bond by the sheriff, in the same manner as other fee bills, for which service the sheriff shall be allowed the same fees as for serving notices. Section 5157. If not Paid, Execution to Issue, When.] If the costs and charges are not paid on or be- fore the first day of the next term of the court, nor any cause shown why they should not be paid, the clerk may issue execution for the same against the parties on whom the fee bills were served. Section 5158. Preceding Sections Construed.] Noth- ing in the two preceding sections shaU be construed to prevent the clerk from instituting suit on such bond for the recovery of the costs and charges. Section 5159. Bail may be Taken.] Whenever any person shall have been com mi tted to the jail of the coimty upon examination for a bailable offense, under the pro- visions of this chapter, he may be let to bail with suffi- cient security for his appearance at the next term of the court of the county having criminal jurisdiction, by the court or judge of the court having criminal jurisdiction, or by any judge or justice of the county court. 408 THU LAW OF INTERSTATE BENDITIOK. XXIV. MONTANA. (From the Eevised Code of Montana, (1907), Vol. 2, Chap. IV, Sections 9700 to 9710, bottom paging 886 to 888.) Peocebdings Against Fugitives feom Justice. Section 9700. (Sec. 2853.) Fugitives ebom Another • State, When to be Deliveeed up.] A person charged in any State of the United States with treason, felony or other crime, who flees from justice and is found in this State, must, on demand of the executive authority of the State, from which he fled, be delivered up by the gov- ernor of this State, to be removed to the State having jurisdiction of the crime. Section 9701. (Sec. 2854.) Magistrate to Issue Wab- BANT.] A magistrate may issue a warrant for the ap- prehension of the person so charged, who flees from jus- tice and is found in this State. Section 9702. (Sec. 2855.) Peoceedings fob the Ar- rest AND Commitment of the Person Chabged.J The proceedings for the arrest and commitment of a person so charged are, in all respects similar to those provided in this Code for the arrest and commitment of a person charged with a public offense committed in this State, except that an exemplified copy of indictment found, or other judicial proceedings had against him, in the State in which he is charged to have committed the offense, may be received as evidence before the magistrate. Section 9703. (Sec. 2856.) When and fob what Time to be Committed.] If, from the examination, it appears that the accused has committed the crime al- leged, the magistrate, by warrant reciting the axKJUsation, must commit him to the proper custody in his county, for such time, to be specified in the warrant, as the magis- trate may deem reasonable, to enable the arrest of the fugitive under the warrant of the executive authority of this State, on the requisition of the executive authority of the State in which he committed the offense, unless he STATE STATUTES OF MONTANA. 409 gives bail as provided in tlie next section, or nntil he is legally discharged. Section 9704. (Sec. 2857.) His Admission to Bail.] The magistrate may admit the person arrested to bail by an xmdertaMng with sufficient sureties, and in such sum as he deems proper, for his appearance before Tiitti at a jtime specified in the undertaking, and for his surrender to arrest upon the warrant of the governor of this State. Section 9705. (Sec. 2858.) Magisteate mtist Notify THE County Attoeney op Arrest.] Immediately upon arrest of the person so charged, the magistrate must give notice thereof to the county attorney of the county. Section 9706. (Sec. 2859.) Duty of the County At- torney.] The county attorney must immediately there- after give notice to the executive authority of the State, or to the prosecuting attorney or the presiding judge of the court of the city or county within the State having jurisdiction of the offense, to the end that a demand may be made for the arrest and surrender of the person so charged. Section 9707. (Sec. 2860.) Person Arrested When to be Discharged.] The person arrested must be dis- charged from custody or baU, unless, before the expira- tion of the time designated in the warrant or under- taking, he is arrested under the warrant of the governor of this State. Section 9708. (Sec. 2861.) Magistrate to Eeturn Proceedings to District Court.] The magistrate must return his proceedings to the district court of the county, which thereupon must inquire into the cause of the arrest and detention of the person charged, and if in custody, or the time of his arrest has elapsed, it may discharge him from detention, or may order his imdertaking or baU can- celed, or may continue his detention for a longer time, or readmit him to bail, to appear and surrender himself within a time specified in the undertaking. Section 9709. (Sec. 2862.) Fugitives from this State, Accounts.] When the governor of this State, in the exercise of the authority conferred by section 2, ar- 410 THE LAW OP INTERSTATE BENDITION. tide IV, of the Constitution of the United States, or by the laws of this State, demands from the executive au- thority of any State of the United States, or of any for- eign government, the surrender to the authorities of this State, a fugitive from justice, who has been found and arrested in such State or foreign government, the ac- counts of the person employed by him to bring back such fugitive must be audited by the board of examiners, and paid out of the State treasury. Section 9710. (Sec. 2863.) No Feb to be Paid to Public Opmcbr Peocubing Suekbndee.] No compensa- tion, fee or reward of any kind can be paid to or received by a public officer of this State, or other person, for a service rendered in procuring from the governor the de- mand mentioned in the last section or the surrender of the fugitive, or for conveying him to this State, or de- taining him therein, except as provided for in such sec- tion. XXV. NEBEASKA. (From the Eevised Statutes of the State of Nebraska, 1913, Chapter 18, Sections 8987 to 8991, pages 2405 and 2406.) Extradition and Fugitives prom Justice. 8987. Section 412. Aerest of Fugitives prom Other States.] When an affidavit shall be filed before any judge of a district court, or any county judge, police judge or any justice of the peace, within this State, setting forth that any person charged with the commission of any criminal offense against the laws of any other State or any of the Territories of the United States, and which, if the act had been committed in this State, would, by the law thereof, have been a crime, is at the time of filing such affidavit within the county where the same may be filed, it shall be lawful, and it is hereby made the duty STATE STATUTES OF NEBBASKA. 411 of such judge or justice of the peace to issue his warrant, direct to the sheriff or any constable of the county, com- manding him forthwith to arrest and hring before the officer issuing such writ the person so charged. G. S. p. 799; Ann. 2490; Comp. 8074; See Forbes V. Hicks, (1889), 27 Neb. Ill, 42 N. W. 898. 8988. Section 413. Duty op Officbe Issuing War- EANT.] When the person arrested, as provided in the last preceding section shall be brought before the officer issuing such warrant, it shall be lawful, and it is hereby made the duty of such officer, to hear and examine such charge, and upon proof by him adjudged to be sufficient, to commit such person to the jail of the county m which such examinations shall take place, or cause such person to be delivered to some suitable person, to be removed to the proper place of prosecution. a. S. p. 799; Ann. 2491; Comp. 8075. 8989. Section 414. Duty to Notify Shebiff of Peop- EB County.] Whenever any person is committed to jaU by any judge or justice of the peace, under either of the provisions of the preceding section, it shall be the duty of such judge or justice of the peace forthwith to give notice, by letter or otherwise, to the sheriff of the county in which such offense shall have been committed, or to the person injured by such offense, or to the proper author- ized agent or officer; and no person so committed shall be delayed longer in jail than necessary to allow a reason- able time to the person so notified, after he shall have received such notice, to apply for and obtain the proper requisition for the person so committed. a. S. p. 799; Ann. 2492; Comp. 8076. 8990. Section 415. When Demand is made by Exec- utive OF Anotheb State.] Whenever a demand is made upon the governor of this State by the executive of any other State or Territory, in any case authorized by the Constitution and laws of the United States, for the deliv- ery of any such person charged in such State or Terri- tory with any crime, if such person is not held ia custody or under bail to answer for any offense against the laws 412 THE LAW OP INTEESTATE RENDITION. of the United States or of this State, he shall issue his warrant, under the seal of the State, authorizing the agent who makes the demand, either forthwith or at such time as may be designated in the warrant, to take and transport such person to the line of this State, at the expense of such agent, and may also by such warrant require all peace ofl&cers to afford needful assistance in the execution thereof. G. S. p. 799; Ann. 2493; Comp. 8077; See Dennison V. Christian, (1904), 72 Neb. 703. 8991. Section 416. Eetuen of Fugitives to this State.] The governor of this State may, in any case authorized by the Constitution and laws of the United States, appoint agents to demand of the executive author- ity of any foreign government, any fugitive from justice charged with treason or felony, and the accounts of the agents appointed must be audited by the auditor, and paid out of the State funds. G. S. p. 800; Ann. 2494; Comp. 8078; See In re Walker, (1901), 61 Neb. 803, 86 N. W. 510. XXVI. NEVADA. (From the Eevised Laws of Nevada, 1912, Vol. 2, Chapter 48, Sections 7435 to 7444, pages 2068 to 2070.) Fugitives moM Justice. 7435. GovERNOK TO Dblivee Fugitive — Secretary op State to annex Seal without Charge.] A person charged, in any State or Territory of the United States, with treason, felony or other crime, who shall flee from justice and be found in this State, shall, on demand of the executive authority of thd State or Territory from which he fled, be delivered up by the governor of this State to be removed to the State or Territory having jurisdiction of the crime. The secretary of state shall. STATE STATUTES OF NEVADA, 413 without charge, annex the seal of this State to all papers, on which it is required, necessary for the extradition of such fugitive. See Ex parte Lorraine, (1881), 16 Neb. 63. 7436. Magistrate mat Issue Wae«iant.J A magis- trate may issue a warrant for the apprehension of a per- son so charged, who shall flee from justice and be found in this State. 7437. Proceedings for Abrest and Commitment of Fugitive.] The proceedings for the arrest and commit- ment of the person charged shall be in all respects simi- lar to those provided in this act for the offense committed withia this State, except that an exemplified copy of an indictment found or other judicial proceeding had against him in the State or Territory in which he is charged to have committed the offense, may be received as evidence before the magistrate. 7438. Commitment of Accused to Await Requisition — ^Bail.] If, from the examination, it appears that the person charged has committed treason, felony, or other crime charged, the magistrate, by warrant reciting the accusation, shall commit him to the proper custody with- in his county, for a time to be specified in the warrant, which the magistrate may deem reasonable, to enable the arrest of the fugitive under the warrant of the executive of this State, on the requisition of the executive author- ity of the State or Territory in which he committed the offense, unless he give bail as provided in the next sec- tion or until he be legally discharged. 7439. Admitted to Bail,, When.] The magistrate may admit the person arrested to bail by undertaking with sufficient sureties, and in such sums as he may deem proper, for .his appearance before him at a time specified in the undertaking, and for his surrender to be arrested upon the warrant of the governor of this State. 7440. Notice to District Attorney.] Immediately upon the arrest of the person charged, the magistrate shaU give notice to the district attorney of the district of the name of the person and the cause of the arrest. 414 THE LAW OP INTEBSTATE EENDITION. 7441. Duty op District Attorney.] The district attorney shall immediately thereafter give notice to the executive authority of the State or Territory, or to the prosecuting attorney, or presiding judge of the criminal court of the city or county, within the State or Territory having jurisdiction of the offense, to the end that a de- mand may be made for the arrest and surrender of the person charged. 7442. Discharge op Accused por Lack op Pirosbctj- TiON.J The person ' arrested shall be discharged from custody or bail, unless before the expiration of the time designated in the warrant or undertaking, he is arrested tmder the warrant of the governor of this State. 7443. Return op Magistrate — Procedure in District Court.] The magistrate must make return of his pro- ceedings to the district court of the county, which must thereupon inquire into the cause of the arrest and deten- tion of the person charged, and if he is in custody, or the time of his arrest has not elapsed, the court may dis- charge him from detention, or may order his undertaking of bail to be cancelled, or may continue his detention for a longer time, or may readmit him to bail, to appear and surrender himself within a time to be specified in the recognizance. 7444. Board op Commissioners to Provide Expense op Returning Prisoner — ^Proviso.] "Whenever any fugi- tive from justice shall be returned to this State under interstate or international extradition, and shall be deliv- ered to the sheriff of the county in which the fugitive is charged with having committed a crime against the laws of this State, of the grade of felony, the board of county commissioners of every such county is authorized to pro- vide for the payment by the county of such, reasonable sum of money to defray the necessary expenses of the extradition and delivery aforesaid as the board may deem just and reasonable; provided that a majority of the members of the board of county commissioners shall have consented, by order of the board entered on its minutes. STATE STATUTES OP NEW HAMPSHIKB. 415 to the extradition of the fugitive liefore extradition pro- ceedings are instituted, and not otherwise. XXVn. NEW HAMPSHIRE. (From the Public Statutes of the State of New Hamj)- shire, 1900, Title 33, Chapter 263, Sections 1 to 12, pages 798, to 799 and 800.) Fugitives feom Justice. Section 1. Fugitives to be Abbested, When. J When- ever a person in this State is charged with an offense committed in another State, and is liable by the laws of the United States to be delivered over upon demand of the executive of such other State, any court or justice may, upon complaint on oath setting forth the offense and other matters necessary to bring the case within the law, issue a warrant to bring the person so charged be- fore him or some other justice, to answer the complaint. Section 2. Proceedings, if Offense is Capital.] If upon examination there is reasonable cause to believe that the complaint is true, and that such person may be lawfully demanded of the executive of this State, he shall, if charged with a capital offense, be committed to jaU, there to be detained until a day so appointed as to allow a reasonable time to obtain the warrant of such executive. Section 3. If not Capital.] If a person is charged with an offense not capital, the court or magistrate may order him to recognize, with suflBcient sureties, to appear at a day so appointed, and, if he fails to recognize, may commit bim to jail, there to be detained not exceeding thirty days, unless sooner discharged by due course of law. Section 4. Pbisoneb Discharged Unless Demanded.] If the person so recognized or committed appears before the court or magistrate upon the day ordered, he shall 416 THE LAW OF INTEBSTATB EENDITION. be discharged, unless he is demanded by some person authorized by the warrant of the executive to receive him. Section 5. Peisonee may be Aeeested, When.] Any person authorized by warrant of the executive may take such offender into custody at any time, whether recog- nized, committed or dischai:ged, and such taking shall be a discharge of the recognizance, if any, and shall not be deemed an escape. Section 6. Complainant to Pay Costs, etc.] The complainant in every case shall pay all the actual costs and charges and for the support in jail of a person com- m*itted as aforesaid at the rate of two dollars and fifty cents a week, and shall advance the money therefor from time to time, or give to the jailer satisfactory security therefor. If the complainant neglects for twenty-four hours after he is required by the jailer to give such secur- ity or to advance such money, the jailer may discharge the person so committed. Section 7. Goveenor to Examine into Cause.] When- ever a demand is made upon the governor by the exec- utive of any other State for the delivery over of a person charged in such other State with a crime, the attorney- general, shall ascertain and report to the governor all material facts known relating to the case, and especially whether he is held in custody or is under recognizance to answer for any offense against the laws of the United States, or of this State, or by force of any civil process, and also whether such demand is made conformably to law, so that such person ought to be delivered up. Section 8. When to Deliver up and How.] If the governor is satisfied that the demand is conformable to law and ought to be complied with, he shall issue his war- rant under the seal of the State, authorizing the agent who shall make the demand, either forthwith or at such time as shall be designated in the warrant, to take and transport such person to the line of the State, at the ex- pense of such agent, and shall also, by the warrant, re- quire the civil ofi&cers within this State to afford all need- ful assistance in the execution thereof. STATE STATUTES OP NEW HAMPSHIRE. 417 Section 9. Prisoner may be Careied Through the State.] Whenever any offender is apprehended in any neighboring State, and it may be necessary to carry him through this State to the place where the offense was committed, any justice, upon application and proof that lawful process has issued agaiust such offender, shall issue a warrant under his hand and seal, directed to any sheriff or his deputy, or to any person by name who shall be sworn to the faithful performance of his duty, author- izing such conveyance. Section 10. Mode of Proceeding in such Case.] Such person or officer shall cause the offender to be conveyed to the line of this State nearest to the State where the offense was committed, there to be delivered to some proper officer ready to receive him; and all persons to whom the warrant may be directed are required to obey such order, upon payment or tender of the lawful fees therefor. Section 11. Powers of Officers in such Cases.] Any sheriff, deputy sheriff, constable, or other officer or jus- tice of any neighboring State, with his assistance, in the execution of any lawful process issuing from and return- able to any court in such State, may pass himself, and convey such persons or things as he may have in his cus- tody by virtue of such lawful process, through this State, in as full and ample a manner as any officer of this State might do. Section 12. Penalty for Obstructing Officer.] If a person shall assault or obstruct any such officer or his assistant, passing through this State in the execution of any such process, he shall be liable to the same punish- ment as for assaulting or obstructing an officer of this State. 418 THE LAW OF INTERSTATE RENDITION. XXVIII. NEW JEESEY. (From the Compiled Statutes of New Jersey, 1911, Vol. 2, Section 24, page 1750 and Sections 100 to 105, pages 1851 and 1852.) Fugitives from Justice. Section 24. Violation of Statutes Eelating to Pro- cedure ON Extradition.] Any agent or officer, or other person, appointed by or representing the authorities of any other State, who shall violate any provisions of any statute of this State, regulating the procedure for the extradition of any person charged with any criminal of- fense in any other State, or claimed to be a fugitive from justice, shall be guilty of a misdemeanor. R L. 1898, p. 800. Section 100. Taking Persons out of State to Answer Criminal Charge without Warrant of Governor.] It shall be unlawful to take, or cause to procure to be taken, or to aid or abet, in taking any person or persons from out of this State, whether with or vnthout the consent of such person or persons, for the purpose of answering any criminal charge that may have been preferred against such person or persons in any other State, except upon the warrant of mandate of the governor of this State. P. L. 1898, p. 902. Section 101. Warrant op Governor.] If the govern- or shall be satisfied that the facts in the premises justify the granting of an application for extradition, he shall thereupon issue his warrant or mandate to the sheriffs, under-sheriffs, detectives or constables of the several counties of the State, directing said officers to cause the said person or persons to be apprehended and delivered into the custody of the officer or agent appointed by the governor of the State making such requisition to receive such person or persons. P. L. 1898, p. 903. STATE STATUTES OF NEW JEESEY. 419 Section 102. Abeest on Warrant, and Deliveey to Proper Officer or Agent.] On receiving said warrant or mandate from the governor as aforesaid, it shall be the duty of any sheriff or other said officer to whom it may be delivered to use all due diligence to cause said person or persons mentioned therein, if found in his coimty, to be arrested, if not already arrested, and to be delivered into the custody of the officer or agent afore- said. •P. L. 1898, p. 903. Section 103. Receipt for Body op Person Arrested.] It shall then be lawful for such officer or agent aforesaid to take such person or persons out of this State, giving a receipt for the body or bodies, of such person or persons to the said officer, who shall transmit the same to the pro- secutor of the pleas of the county where such person or persons may be arrested, who shall forward the same to the secretary of the State. P. L. 1898, p. 903. Section 104. Magistrates to Issue Warrants of Ar- rest.] It shall be lawful for any magistrate, on satis- factory evidence under oath being presented to him that application has been made, or is about to be made by the authorities of any State to the governor of this State for the extradition of any person or persons within the juris- diction of such magistrate to issue a warrant or warrants for the arrest of such person or persons and to commit such person or persons to the county jail, or to take bail for his or their appearance from day to day for a period not to exceed thirty days from the date of the arrest of said person or persons; provided, that any person or persons who may be so arrested and committed to the county jail shall not be detained or imprisoned for a longer period than thirty days. P. L. 1898, p. 903. Section 105. Expenses of Returning Fugitives from Justice ; how paid.] In any case where a person charged in this State with a crime shall flee from justice and be found in another State, and the attorney-general or the 420 THE LAW OF INTERSTATE EENDITION. prosecutor of the pleas for any county where such person is so charged shall recommend to the governor or person administering the government of this State to demand the said fugitive, so that he may be brought into this State for trial, and the said fugitive shall, on the demand of the executive authority of this State, be delivered up for removal to this State, the expense of such removal being first ascertained to the satisfaction of the prose- cutor of the pleas of the county where such person is charged, and being approved by a judge of the court of oyer and terminer of said county, shall be paid by the county collector of said county out of the funds of said county. P. L. 1898, p. 903. XXIX. NEW MEXICO. (From New Mexico Statutes, 1915, Chapter 46, Sections 2406 to 2423, pages 726 to 728.) Fugitives from Justice. 2406. Fugitives from State — Duty of Magistrate.] "Whenever a crime has been committed in this State and the perpetrator has escaped beyond the limits of the State so that the ordinary process of law cannot be served upon him, it shall be the duty of any magistrate imme- diately to enter upon the due investigation and examina- tion, and as soon as concluded he shall transmit to the governor a certified copy of such examination. 2407. Requisitions.] The governor of the State, as soon as he receives such certified copy and ascertains in what State or Territory the accused is, shall, without delay, make a requisition upon the governor of the State or Territory into which the accused has taken refuge, for his delivery to the authorities of this State. STATE STATUTES OP NEW MEXICO. 421 2408. EXTBADITION ^PAYMENT OF EXPBNSE. ] The gOV- emor is authorized to pay the costs and expenses incurred in the apprehension and transportation to this State of such accused from the State funds. 2409. Id.] The State auditor shall approve and the State treasurer shall pay, any sum which the governor may approve and order under the provisions of the three preceeding sections, from any State funds not otherwise appropriated. 2410. Eequisitions — How Honored.] Any person charged in any State or Territory of the United States with treason, felony or other crime, and who shall escape from justice and be found in this State, shall be, on a requisition from the executive authority of the State or Territory from which he shall have escaped, delivered up by the governor of this State, in order that he may be carried to the State or Territory that has jurisdiction of said crime. 2411. Fugithtes feom Othee States — ^Wabeant foe Aeeest.J Any justice of the peace or other authority shall have power to issue a process for the apprehension of any person thus charged, who shall have fled from justice and be found in this State. 2412. Id. — Peooeduee — Evidence.] The proceedings for the apprehension and imprisonment of any person charged with a criminal offense shall be in all respects similar to those proceedings in our code for the appre- hension and imprisonment of a person charged with a criminal offense, with the exception, that an exemplified copy of the accusation attached to other judicial proceed- ings had against him in the State or Territory in which he may have been charged to have committed the offense, shall be received as conclusive evidence before the justice. 2413. Id. — Heaeing — Confinement — Bail.] If it should appear on the examination, that the person ac- cused, has committed the crime alleged, the justice, by a written order setting forth the accusation, shall confine him to jail for any time specified iu the order that he may deem sufficient, in order that the arrest of the fugitive 422 THE LAW OF INTEESTATB RENDITION. may be made by order of the executive of this State, upon a requisition of the executive authority of the State or Territory in which he shall have committed the offense, unless the accused shall give security as provided in the following section, or imtil he shall be legally set at liberty. 2414. Id. — Bail..] It shall be the duty of the justice of the peace, unless the offense of which the fugitive is charged shall be proved to be an offense that merits capital punishment according to the laws of the State or Territory in which the offense was committed, to admit the person arrested to bail under a bond with sufficient securities, in any sum that the justice may deem sufficient for his appearance before him at the time specified in the bond given, and to deliver himself up for the purpose of being arrested upon the requisition of the governor of this State. 2415. Id. — Discharge under Bond.] The person so arrested shall be set at liberty under the bond, unless that before the time designated in the order or bond, he shall be arrested under a process from the governor of this State. 2416. Id. — Forfeiture op Bond.] If the fugitive should be set at liberty under bonds, and shall fail to deliver himself up according to his bond, the justice shall indorse on his bond, "Forfeited," signing his name to the same, and transmit it to the clerk of the district court by the first day of the next ensuing term, and a condi- tional judgment shall be rendered thereon, and proceed- ings had as in case of forfeited bonds in that court, the indorsement of the justice being presumptive evidence of the forfeiture. 2417. Id. — Power of Justice op the Peace.] At the expiration of the time specified in the process, the justice, may set him at liberty, remand him to jail until the fol- lowing day, or may admit him to bail for his appearance and surrender, as provided in section 2414; if he shall have given bond, and shall appear according to the bonds entered into, the justice may set him at liberty or may STATE STATUTES OF NEW MEXICO. 423 require him to give new bonds for his appearance and surrender at any future day. 2418. Id. — ^Persons held foe Offenses in this State.] Any person against whom prosecution shall have been commenced under the laws of this State for an offense against the law, any such person may be surrendered or not surrendered, at the discretion of the governor, be- fore he shall have been tried or set at liberty, or if he shall be sentenced or punished for the same. 2419. Id. — ^Process.] The process of the executive may be directed to the sheriff or any other officer who may be deemed competent to take charge of the exami- nation. 2420. Id. — ^Authority of Officer.] Such process shall authorize the officer or person to whom it is di- rected, to arrest the fugitive in any place withia the limits of the State, and to require the assistance of all sheriffs and constables to whom the process may be shown, to aid in the execution thereof. 2421. Id. — Authority of Officer.] Every officer or person charged with the execution or service of the pro- cess has the same authority to arrest the fugitive, to re- quire assistance to do so, as sheriffs and other officers have by law m the execution of process directed to them, and those who shall refuse to assist them shall be sub- ject to the same penalties. 2422. Id. — Confinement of Prisoner.] The officer or person executing such process may, when it shall be necessary, confine the prisoner arrested by him, in the jail of any county through which he may pass, and the jailor of said jaU shall receive and keep him securely until the person who has him in charge is ready to pro- ceed on his way with him, and said person shall be re- sponsible for the payment of the expenses of his reten- tion in jail. 2423. Accused Person Fleeing to Other County.] Whenever any person who shall have committed any criminal offense in any county, shall escape into any other, any magistrate within the county ia which such 424 THE LAW OF INTERSTATE EENDITION. offender may be found may issue his warrant for his apprehension, or may indorse a warrant which has been issued by a magistrate ia the county from which the criminal escaped, and have him. apprehended thereon and sent before some magistrate of the county in which the offense was committed, for trial. XXX. NEW YOEK. (From Cook's Criminal Code of the State of New York, 1915, Title 5, Chapter 1, Sections 827 to 834, pages 476 to 483.) Proceedings Against Fugitives from Justice. Section 827. To be Delivered up by the Governor, on Demand, etc.] It shall be the duty of the governor, in all cases where, by virtue of a requisition made upon him by the governor of another State or Territory, any citi- zen, inhabitant or temporary resident of this State is to be arrested, as a fugitive from justice (J)rovided that said requisition be accompanied by a duly certified copy of the indictment or information from the authorities of such other State or Territory, charging such person with treason, felony or crime in such State or Territory), to issue and transmit a warrant for such purpose to the sheriff of the proper county or his under sheriff, or in the cities of this State, (except in the city and county of New York, where such warrant shall only be issued to the superintendent or any inspector of police) to the chiefs, inspectors or superintendents of police, and only such officers as are above mentioned, and such assistants as they may designate to act under their direction shall be competent to make service of or execute the same. The governor may direct that any such fugitive be brought before him, and may for cause, by him deemed proper, revoke any warrant issued by him, as herein provided. The officer to whom is directed and intrusted STATE STATUTES OP NEW TOEK. 425 the execution of the governor's warrant must, within thirty days from its date, unless sooner requested, return the same and make return to the governor of all his pro- ceedings had thereunder, and of all facts and circum- stances relating thereto. Anj officer of this State, or of any city, county, town or village thereof, must upon re- quest of the governor, furnish him with such informa- tion as he may desire in regard to any person or matter mentioned in this chapter. 2. Before any officer to whom such warrant shall be directed or intrusted shall deliver the person arrested into the custody of the agent or agents named in the warrant of the governor of this State, such officer must, unless the same is waived, as hereinafter stated, take the prisoner or prisoners before a judge of the supreme court, or a county judge, who shall, in open court if in session, otherwise at chambers, inform the prisoner or prisoners of the cause of his or their arrest, the nature of the process, and instruct him or them that if he or they claim not to be the particular person or persons mentioned in said requisition, indictment, affidavit or warrant annexed thereto, or in the warrant issued by the governor thereon, he or they may have a writ of habeas corpus upon filing an affidavit to that effect. Said person or persons so arrested may, in writing, consent to waive the right to be taken before said court or a judge thereof at chambers. Such consent or waiver shall be witnessed by the officer intrusted with the execution of the warrant of the governor, and one of the judges aforesaid or a counselor at law of this State, and such waiver shall be immediately forwarded to the governor by the officer who executed said warrant. If, after a summary hearing as speedily as may be consistent with justice, the prisoner or prisoners shall be found to be the person or persons indicted or informed against, and mentioned in the requisition, the accompanying papers and the warrant issued by the governor thereon, then the court or judge shall order and direct the officer intrusted with the execution of the said warrant of the governor 426 THE LAW OP INTERSTATE BENDITIOIT. to deliver the prisoner or prisoners into the custody of the agent or agents designated in the requisition and the warrant issued thereon, as the agent or agents upon the . part of such State to receive him or them; otherwise to be discharged from custody by the court or judge. If upon such hearing the warrant of the governor shall ap- pear to be defective or improperly executed, it shall be by the court or judge returned to the governor, together with a statement of the defect or defects, for the purpose of being corrected and returned to the court or judge, and such hearing shall be adjourned a sufficient time for the purpose, and in such interval the prisoner or prison- ers shall be held in custody untU such hearing be finally disposed of. 3. It shall not be lawful for any person, agent or offi- cer to take any person or persons out of this State, upon the claim, ground or pretext that the prisoner or prison- ers consent to go, or by reason of his or their willingness to waive the proceedings afore described, a:nd any officer, agent, person or persons who shall procure, incite or aid in the arrest of any citizen, inhabitant or temporary resi- dent of this State, for the purpose of taking him or send- ing him to another State, without a requisition first duly had and obtained, and without a warrant duly issued by the governor of this State, served by some officer as in this section provided, and without, except in case of waiver in writing as aforesaid, taking him before a court or judge as aforesaid, unless in pursuance to the provi- sions of the following sections of this chapter, and any officer, agent, person or persons who shall, by threats or undue influence, persuade any citizen, inhabitant or tem- porary resident of this State to sign the waiver of his right to go before a court or judge as hereinbefore pro- vided, or who shall do any of the acts declared by this chapter to be unlawful, shall be guilty of a felony, and upon conviction be sentenced to imprisonment in a State prison or penitentiary for the term of one year. Any wilful violation of this act by any of the above named officers shall be deemed a misdemeanor in office. STATE STATUTES OP NEW YOBK. 427 Amended by L. 1886, ch. 638; L. 1895, ch. 880. Section 828. Magistbate to Issue Wakbant.] A magistrate may issue a warrant as a prelimiriary pro- ceedings to tlie issuing of a requisition by the governor of another State or Territory upon the governor of this State for the apprehension of a person charged with treason, felony or other crime, who shall flee from jus- tice and be found within this State. Amended by L. 1886, ch. 628. Section 829. Proceedings foe Aeeest and Commit- ment OP THE Pebson Chabged.] The proceedings for the arrest and commitment of the person charged are in all respects similar to those provided in this Code, for the arrest and commitment of a person charged with a pub- lic offense committed in this State ; except, that an exem- plified copy of an indictment found, or other judicial proceedings had against him, in the State or Territory in which he is charged to have committed the offense, may be received as evidence before the magistrate. Section 830. When and fob What Time to be Com- mitted.] If from the examination under such warrant it appears to the satisfaction of the magistrate that the person under arrest is charged in such other State or Territory with treason, felony or other crime and has fled from justice, the magistrate, by warrant reciting the accusation, must commit him to the proper custody in his county for a time specified in the warrant, to enable an arrest of the fugitive to be made under the warrant of the governor of this State, which commitment shall not exceed thirty days, exclusive of the day of arrest, on the requisition of the executive authority of the State or Territory m which he is charged to have committed the offense, unless he give bail, as provided in the next section, or xmtil he be legally discharged. Amended by L. 1896, ch. 638; L. 1897, ch. 427. Section 831. His Admission to Bail,.] Any judge of any court named in section eight hundred and twenty- seven may, in his discretion, admit the person arrested to baU, by an undertaking, with sufficient sureties and 428 THE LAW OF INTEESTATE BENDITION. in such sum as he deems proper, for his appearance be- fore him at a time specified in the undertaking, which must not be later than the expiration of thirty days from the date of arrest exclusive of such date, and for his sur- render to be arrested upon the warrant of the governor of this State. Amended by L. 1886, ch. 638. Section 832. Magistrate to give Notice to the Dis- trict Attorney of the Name of the Person and the Cause of his Abeest.] Immediately upon the arrest of the person charged, the magistrate must give notice to the district attorney of the county of the name of the person and the cause of his arrest. Section 833. District Attorney to give Notice to Executive Authority of the State or Territory, etc.] The district attorney must immediately thereafter give notice to the executive authority of the State or Terri- tory, or to the prosecuting attorney or presiding judge of the criminal court of the city or county thereia, having jurisdiction of the offense, to the end that a d&mand may be made for the arrest and surrender of the person charged. Section 834. Person Aerested to be DisfcHARGED, un- less Surrendered within the Time Limited.] The per- son arrested must be discharged from custody or bail, unless before the expiration of the time designated in the warrant or undertaking, he be arrested under the warrant of the governor of this State. XXXI. NORTH CAROLINA. (From the Revised General Statutes of State of North Carolina, 1908, Vol. 2, Chapter 80, Sections 3183 to 3189, pages 1698 to 1701.) Fugitives. 3183. Felons Fleeing from Justice, Outlawed.] In all cases where any two justices of the peace, or any STATE STATUTES OF NOETH CAEOLINA. 429 judge of the supreme, superior or criminal court, shall, on written affidavit, filed and retained by such justice or judge, receive information that a felony has been committed by any person, and that such person flees from justice, conceals himself and evades arrest, and service of the usual process of the law, the said judge, or the said two justices, being justices of the county wherein such person is supposed to lurk or conceal himself, are hereby empowered and required to issue proclamation against him reciting his name, if known, and thereby re- quiring him forthwith to surrender himself; and also, when issued by any judge, empowering and requiring the sheriff of any county in the State in which said fugitive shall be, and when issued by two justices, empowered and requiring the sheriff of the county of said justices, to take such power with him as he shall think fit and necessary for the going in search and pursuit of, and effectually apprehending, such fugitive from justice, which proclamation shall be published at the door of the courthouse of any county in which such fugitive is sup- posed to lurk or conceal himself, and at such other places as the judge or justices shall direct; and if any person against whom proclamation hath been thus issued, con- tinue to stay out, lurk and conceal himself, and do not immediately surrender himself, any citizen of the State may capture, arrest and bring to justice, and in case of flight or resistance by him, after being called on and warned to surrender, may slay him without accusation or impeachment of any crime. 3184. Fkom: Another State, How Arrested and Held.] Any justice of the supreme court, or any judge of the superior court or of any criminal court, or any justice of the peace, or mayor of any city, or chief magis- trate of any incorporated town, on satisfactory informa- tion laid before him that any fugitive or other person in the State has committed, out of the State and within the United States, any offense, which by law of the State in which the offense was committed, is punishable either capitally or by imprisonment for one year or upwards 430 THE LAW OF INTERSTATE EENDITION". in any State prison, shall have full power and authority, and is hereby required to issue a warrant for said fugi- tive or other person and commit him to any jail within the State for the space of six months, unless sooner de- manded by the public authorities of the State wherein the offense may have been committed, pursuant to the act of Congress in that case made and provided. If no demand be made within that time the said fugitive or other person shall be liberated, unless sufficient cause be shown to the contrary. 3185. Magisteate to Keep Record ; Transmit Copy to Govern OR. J Every magistrate committing any person under the preceding section, shall keep a record of the whole proceedings before him, and immediately transmit a copy thereof to the governor for such action as he may deem fit therein under the law. 3186. DxjTT OP GrovERNOR.J The governor shall imme- diately inform) the governor of the State or Territory in which the crime is alleged to have been committed, or the president of the United States, if it be alleged to have been committed within the District of Columbia, of the proceedings had in such case. 3187. Surrendered on Order op Governor.] Every sheriff or jailer, in whose custody any person so com- mitted shall be, upon the order of the governor, shall surrender him to the person named in such order. 3188. Governor mat Employ Agents, and Opper Re- wards POR AuREST OP."] The governor, on information made to him of any person, whether the name of such person be known or unknown, having committed a felony or other infamous crime within the State, and of having fled out of the jurisdiction thereof, or who conceals him.- self within the State to avoid arrest, or who, having been convicted, has escaped and cannot otherwise be appre- hended, may either employ a special agent, with a suffi- cient escort, to pursue and apprehend such fugitive, or issue his proclamation, and therein offer a reward, not exceeding four hundred dollars, according to the nature of the case, as in his opinion may be sufficient for the STATE STATUTES OF llOBTH DAKOTA. 431 purpose, to be paid to him who shall apprehend and deliver the fugitive to such person and at such place as in the proclamation shall be directed; and he may from time to time issue his warrants on the State treasurer for sufficient sums of money for such purpose. 3189. Expenses of Bringing fbom Another State Paid. J In all cases where the governor of the State has made a requisition on the governor of another State for any fugitive from justice and has sent an agent to re- ceive said fugitive, it shall be lawful for the governor to issue a warrant on the State treasurer for the amount of money necessary to pay the expenses of said agent and other costs in the arresting of said fugitive from justice, to be paid by the treasurer of the State. XXXII. NOETH DAKOTA. (From the Compiled Laws of North Dakota, (1914), Vol. 2, Chapter 13, Article 12, Sections 11150 to 11165, bottom paging 2506 to 2508.) Proceedings Against Fugitives from Justice. Section 11150. Governor mat Offer Eeward for Crim- inal.] The governor may offer a reward not exceeding $1,000.00, payable out of the general fund, for the appre- hension : 1. Of any convict who has escaped from the State Prison, or, 2. Of any person who has committed, or is charged with the commission of an offense punishable with death, or, 3. Of any person who is charged with having ab- sconded with or embezzled, or unlawfully taken and car- ried away any funds, assets or property of any State or National bank, doing business in this State. Section 11151. Delivery of Fugitives upon Eequisi- TiON.] A person charged in any State of the United 432 THE LAW OP INTERSTATE KENDITION. States with treason, felony or otlier crime, who flees from justice and is found in this State, must, on the demand of the executive authority of the State, from which he fled, be delivered up by the governor of this State, to be removed to the State having jurisdiction of the crime. Section 11152. Magistrate to Issue Warrant.] A magistrate may issue a warrant for the apprehension of the person so charged, who flees from justice and is found in this State. Section 11153. PiROCEEDiNos for Arrest and Commit- ment.] The proceedings for the arrest and commitment of a person so charged are, in all respects, similar to those provided in this Code for the arrest and commit- ment of a person charged with a public offense committed in this State, except that an exemplified copy of indict- ment found, or other judicial proceedings had against him, in the State in which he is charged to have com- mitted the offense, may be received as evidence before the magistrate. Section 11154. Accused may be Committed — Time.] If, from the examination, it appears that the accused has committed the crime alleged, the magistrate, by warrant reciting the accusation, must commit him to the proper custody in his county, for such time, to be specified in the warrant, as the magistrate may deem reasonable, to enable the arrest of the fugitive under the warrant of the executive authority of this State, on the requisition of the executive authority of the State in which he com- mitted the offense, unless he gives bail as approved in next section, or until he is legally discharged. Section 11155. Accused may be Admitted to Bail.] The magistrate may admit the person arrested to bail by an undertaking with sufficient sureties, and in such sum as he deems proper, for his appearance before him at a time specified in the undertaking, and for his surrender to arrest upon the warrant of the governor of this State, Section 11156. Notice to State's Attorney.] Imme- diately upon the arrest of the person so charged, the STATE STATUTES OF NORTH DAKOTA. 433 ma^strate must give notice thereof to the State's attor- ney of the county. Section 11157. Durr of State's Attorney.] The State's attorney of the county must immediately there- after give notice to the executive authority of the State, or to the prosecuting attorney or the presiding judge of the court of the city or coimty within the State having jurisdiction of the offense, to the end that a demand may be made for the arrest and surrender of the person so charged. Section 11158. When Accused must be Discharged.] The person arrested must be discharged from custody or baO, unless before the expiration of the time designated in the warrant or undertaking, he is arrested under the warrant of the governor of this State. Section 11159. Magistrate to make Return. Duty of District Court.] The magistrate must return his pro- ceedings to the next district court of the county, which thereupon must inquire into the cause of the arrest and detention of the person charged, and if in custody, or the time of his arrest has elapsed, it may discharge him from detention, or may order his undertaking or bail canceled, or may continue his detention for a longer time, or readmit him to baO, to appear and surrender himself within a time specified in the undertaking. Section 11160. Fugitive Granted Twenty-Four Hours. Counsel. Habeas Corpus.] Any person who is arrested within this State, by virtue of a warrant issued by the governor of this State, upon the requisition of the governor of any other State or Territory, as a fugitive from justice, under the laws of the United States, shall not be delivered to the agent of such State or Territory until notified of the demand made for his surrender, and given twenty-four hours to make demand for counsel; and should such dfemand be made for the purpose of suing out a writ of habeas corpus, the prisoner shall be forth- with taken to the nearest judge of the district court, and ample time given to sue out such writ, such time to be determined by the judge of the district court. 434 THE LAW OF INTERSTATE RENDITION. Section 11161. Penalty foe Disobedience of Last Section.] Any officer who shall deliver such person to such agent for extradition without first having complied with the provisions of the preceding section, shall be deemed guilty of a misdemeanor. Section 11162. Governor may Demand Fugitives. Ap- point Agents for Eeturn of. Payment of Agents.] The governor of this State may in any case authorized by the Constitution and laws of the United States, de- mand of the executive authority of any other State or Territory within the United States, any fugitive from justice or any person charged with treason, felony or other crimes in this State, and appoint agents to receive such persons for and on behalf of this State. The ac- count of any such agent or agents employed for such purpose shall in cases of fugitive and felbny be paid by the State, and for other crime be audited by the board of county commissioners of the county in which the crime was committed, and paid by such county; provided, that only the sheriff of said county, or one of his deputies, or a constable or policeman thereof, shall be appointed such agent, and such agent shall not be paid more than his actual expenses, and a per diem of three dollars while in actual discharge of his duty. Section 11163. Provision for the Payment of Costs and Expenses in Extradition Cases.] In all cases or proceedings which have been or may hereafter be brought for the return of a fugitive from justice from any foreign State or country, under and by virtue of the laws of the United States, on application of the governor of this State, all necessary costs and expenses shall be allowed and shall be paid by the State in cases of treason and felony, in the same manner as costs and expenses are paid in case of demand of the governor of this State upon the executive authority of any other State. Section 11164. No Compensation Allowed. Excep- tions.] No compensation, fee or reward of any kind, can be paid to or received by a public officer of this State, for a service rendered or incurred in procuring from the STATE STATUTES OF OHIO. 435 governor the demand mentioned in tlie last section, or tlie surrender of the fugitive, or for conveying him to this State, or detaining him herein, except as provided in section 11162. Section 11165. Violation a Misdemeanor.] A viola- tion of the last section is a misdemeanor. xxxin. OHIO. (From WUson's Ohio Criminal Code, 1911, Chapter 6, Sections 13520 to 13522, pages 661, 662 and 663.) Fugitives from Other States. Section 13520. Arrest of Fugitives from Other Spates.] When an affidavit is filed before a judge of a common pleas, probate or police court or a justice of the peace, setting forth that a person charged with the com- mission of an offense against the laws of another State or Territory of the United States, which, if committed in this State would, by the laws thereof, have been a crime, is, at the time of filing such affidavit, within the county where it is fiJed, such judge or justice of the peace shall issue a warrant directed to the sheriff or any constable of the county, commanding him forthwith to arrest and bring before him the person so charged. B. S. Sec. 7156; 66 v. 319, sec. 211; S. & S. 608; S. & C. 1197. Section 13521. Mat be Committed to Jah..] When a person is arrested in pursuance of the next preceding section, and brought before the officer who issued the warrant, he shall hear and examine such charge, and, upon proof adjudged by him to be sufficient, commit such person to the jaU of the county in which such examination is had, or cause him to be delivered to a suitable person to be removed before such judge or justice of the proper county in which to take such examination, who shall take it and proceed as if the warrant had been issued by him. ■^36 THE LAW or INTEESTATE RENDITION. R. S. Sec. 1757; 66 v. 319, Sec. 212; S. & C. 1197; S. & S. 609. Section 13522. Notice to be Given to Judge oe Magis- TEATE.J When a person is committed to jail by a judge or justice of the peace, under the next preceding section, such judge or justice shall forthwith give notice, by letter or otherwise, to the sheriff of the county in which such offense was committed, or to the person injured by such offense. A person so committed shall not be detained in jail longer than to allow a reasonable time to the persons receiving such notice to apply for and obtain the proper requisition for such person. R. S. Sec. 7158; 66 v. 319, Sec. 213; S. & C. 1197; S. & S. 609. Section 13530. Examining Couet to be Held by Peo- BATE Judge, When and How. J When a person is com- mitted to jail charged with the commission of an offense, and. wishes to be discharged therefrom, the sheriff or jailer shall forthwith give to the probate judge, clerk and prosecuting attorney of the proper county, at least three days' notice of the time of holding an examining court, to attend, according to such notice, at the courthouse. The judge having examined the witnesses, including the accused, if he request an examination shall discharge him, if he find there is no probable cause for holding him to answer; otherwise he shall admit him to bail or remand him to jail. Such judge may adjourn the examination from day to day or for such longer period as is necessary for the furtherance of justice, on good cause shown by the State or the accused. E. S. Sec. 7165; 66 v. 294, Sec. 48; S. & C. 1179. STATE STATUTES OP OKLAHOMA. 437 XXXrV. OKLAHOMA. (From Revised Laws of the State of Oklahoma, (1910), Vol. 2, Article XX, Sections 6080 to 6094, pages 1682 to 1684.) Fugitives feom Justice. Section 6080. Governor may Offer Reward.] The governor may offer a reward not exceeding one thousand dollars payable out of the general fund, for the appre- hension : 1. Of any convict who has escaped from the State Prison, or 2. Of any person wha has committed, or is charged with the commission of an offense punishable with death. Section 6081. Delivery of Criminals on Requisition.] A person charged in any State of the United States with treason, felony or other crime, who flees from justice and is found in this State, must, on demand of the executive authority of the State, from which he fled, be delivered up by the governor of this State, to be removed to the State having jurisdiction of the crime. Section 6082. Magistrate to Issue Warrant.] A magistrate may issue a warrant for the apprehension of the person so charged, who flees from justice and is found in this State. Section 6083. Proceedings for the Akbest and Com- mitment OF Fugitive.] The proceedings for the arrest and commitment of a person so charged are, in all re- spects, similar to those provided in this Code for the arrest and commitment of a person charged with a public offense committed in this State, except that an exempli- fied copy of indictment found, or other judicial proceed- ings had against him, in the State in which he is charged to have committed the offense, may be received as evi- dence before the magistrate. Section 6084. Commitment.] If, from the examina- tion, it appears that the accused has committed the crime alleged, the magistrate, by warrant reciting the accusa- 438 THE LAW OP INTERSTATE BENDITION. tion, must commit ^lim to the proper custody in his coun- ty, for such time, to be specified in the warrant, as the magistrate may deem reasonable, to enable the arrest of the fugitive under the warrant of the executive au- thority of this State, on the requisition of the executive authority of the State in which he committed the crime, unless he gives bail as approved in the next section, or until he is legally discharged. Section 6085. Admission to Bail.] The magistrate may admit the person arrested to baU by an undertak- ing with sufficient sureties, and in such sum as he deems piroper, for his appearance before him at a time specified in the undertaking, and for his surrender to airest upon the warrant of the governor of this State. Section 6086. Notice to County Attorney.] Imme- diately upon the arrest of the person so charged, the magistrate must give notice thereof to the county attor- ney of the county. Section 6087. Duty op County Attorney.] The county attorney of the county must immediately there- after give notice to the executive authority of the State, or to the prosecuting attorney or the presiding judge of the court of the city or county within the State having jurisdiction of the offense, to the end that a demand may be made for the arrest and surrender of the person so charged. Section 6088. Person Discharged, When.] The per- son arrested must be discharged from custody or bail, unless, before the expiration of the time designated in the warrant or undertaking, he is arrested under the warrant of the governor of this State. Section 6089. District Court to Inquire into Case.] The magistrate must return his proceedings to the next district court of the county, which thereupon must in- quire into the cause of the arrest and detention of the person charged, and if in custody, or the time of his ar- rest has elapsed, it may discharge him from detention, or may order his undertaking or bail canceled, or may continue his detention for a longer time, or readmit him STATE STATUTES OP OKLAHOMA. 439 to bail, to appear and surrender hjLmself witMn a time specified in the undertaking. Section 6090. Fugitive Geanted Twenty-Foub HouBS.] Any person who is arrested within this State, by virtue of a warrant issued by the governor of this State, upon the requisition of the governor of any other State or Territory, as a fugitive from justice, under the laws of the United States, shall not be delivered to the agent of such State or Territory, until notified of the de- mand made for his surrender, and given twenty-four hours to make demand for counsel; and should such de- mand be made for the purpose of suing out a writ of habeas corpus, the prisoner shall be forthwith taken be- fore the nearest judge of the district court, and ample time given to sue out such writ, such time to be deter- mined by the judge of the district court. Section 6091. Penalty for Unlawful Dbltvert op Fugitive.] Any officer who shall deliver such person to such agent for extradition without first having complied with the provisions of the preceding section, shall be deemed guilty of a misdemeanor. Section 6092. Expenses op Foreign Arrests.] When- ever the governor of this State shall demand from the executive authority of a State or Territory of the United States, or of a foreign government, the surrender to the authorities of this State of a fugitive from justice, the accounts of the person employed by him for that purpose must be paid out of the county treasury of the county in which the crime is alleged to have been committed, and to which said fugitive is returned for trial. Provided, that the persons employed by virtue of this section shall receive for their services three dollars per diem and actual expenses while actually and necessarily employed, and no more. Section 6093. Same.] No compensation, fee or re- ward of any kind shall be paid to or received by any person for service rendered or expense incurred in pro- curing from the governor the demand mentioned in the preceding section for the arrest or surrender of the fugi- 440 THE LAW OF INTERSTATE EENDITION, tive, or for conveying him to the county in which the al- leged crime, for which he is arrested, is claimed to have been committed, except as provided in the preceding section. Section 6094. Violation a Misdemeanor.] A viola- tion hereof is a misdemeanor. XXXV. OREGON. (From Lord's Oregon Laws, 1910, Vol. 1, Title 18, Chap- ter 25, Section 1870 to 1888, pages 854, 855, 856 and 857.) Proceedings in Relation to Fugitives from Justice. 1870. Agent to Demand Fugitive, Governor may Ap- point.] Whenever a person charged with treason, felony or other crime in this State shall flee from justice, the governor of this State may appoint an agent to demand such fugitive of the executive authority of any State or Territory of the United States in which he may be found. L. 1864; D. Sec. 487; H. Sec. 1695; B. & C. Sec. 1718. 1871. Governor may Require Report prom District Attorney.] Before appointing such agent the governor may require the district attorney of the county to investi- gate the matter and report to him the material circum- stances, together with his opinion upon the expediency of allowing the application. L. 1864; D. Sec. 488; H. 1696; B. & 0. Sec. 1719. Sec. 1867-1871. 1872. Agent's Expenses, How Paid.] The account of the agent, embracing his actual expenses incurred in per- forming the service, must be paid by the State, after being audited and allowed as other claims against the State. L. 1864; D. Sec. 489; H. 1697; B. & C. 1720. state statutes op obegon. 441 1873. Fugitive, When to be Delivebed up by Gov- ernor.] A person charged in any State or Territory of the United States with treason, felony, or other crime, who shall flee from justice and be found in this State, must, on demand of the executive authority of the State or Territory from which he fled, be delivered up by the governor of this State, to be removed to the State or Territory making the demand. L. 1864; D. Sec. 490; H. Sec. 1698; B. & C. Sec. 1721. 1874. When Fugitive not to be Delivered, and When A Matter op Discretion.] When the person demanded is in custody in this State, either upon a criminal charge, an indictment for a crime, or a judgment upon a con- viction thereof, he cajinot be delivered up until he is le- gally discharged from such custody; but if he be in cus- tody upon civil process only, the governor may deliver him up or not before the termination of such custody, as he may deem most conducive to the public good. L. 1864; D. 491 ; H. Sec. 1699; B. & C. Sec. 1722. 1875. Eepobt op District Attorney in Relation to Custody op Fugitive.] Before issuing a warrant for the delivery of a fugitive from justice, the governor may re- quire the district attorney of the county to ascertain and report to him whether such fugitive is in custody as men- tioned in the last section, and if he be so upon civil pro- cess only, whether such custody be with the consent or procurement of the fugitive. L. 1864; D. Sec. 492; H. Sec. 1700; B. & C. Sec. 1723. 1876. When and to Whom Governor to Issue War- rant FOR Arrest.] When the governor finds that the demand is conformable to law, and the person demanded should be given up, either then or at some future time, if he be in custody, he must issue his warrant, under the seal of the State and attested by the secretary of State, directed to the person who makes the demand, and au- thorizing him, either forthwith or at some future time 442 THE LAW OP INTERSTATE RENDITION. therein designated, to take and transport the fugitive to the border line of the State. L. 1864; D. Sec. 493; H. Sec. 1701; B. & C. Sec. 1724. 1877. ExECtTTivE Warrant, What to Require.] The executive warrant must also require all peace officers and magistrates, when requested by the person to whom the warrant is directed, to render all needful assistance in the execution thereof, and in so doing, such officers or magistrates may exercise the same power and authority to prevent a rescue, an escape, or to effect a recapture, as if the fugitive was in arrest upon a charge of crime committed in this State. L. 1864; D. Sec. 494; H. Sec. 1702; B. & C. Sec. 1725. 1878. Magistrate may Issue Warrant.] A magis- trate authorized to issue a warrant of arrest may issue a warrant for the arrest of a person charged as provided in section 1873 who shall flee from justice and be found in this State. L. 1864; D. Sec. 495; H. Sec. 1703; B. & C. Sec. 1726. 1879. Proceedings for Arrest Prescribed.] The pro- ceedings for the arrest and commitment of the person charged are in all respects similar to those provided in this code for the arrest and commitment of a person charged with a crime committed in this State, except that an exemplified copy of an indictment found, or other judicial proceedings had against him, in the State or Territory in which he is charged to have committed the crime, may be received as evidence before the magistrate. L. 1864; D. Sec. 496; H. Sec. 1704; B. & C. Sec. 1727. 1880. When Magistrate to Commit.] If from the examination it appear that the person charged has com- mitted the crime alleged, the magistrate must commit him to the proper custody in his county for a time speci- fied in the commitment, which the magistrate deems reasonable, to enable the arrest of the fugitive under the STATE STATUTES OP OEEGON. 443 "warrant of the executive of this State, on the requisition of the executive authority of the State or Territory in which he committed the crime, or until he be legally dis- charged, unless he give bail as provided in the next sec- tion. L. 1864; D. Sec. 497; H. Sec. 1705; B. & C. Sec. 1728. 1881. Admission op Fugitive to Bail.] The magis- trate may admit the person arrested to bail by an under- taking, with sufficient sureties and in such an amount as he deems proper, for his appearance before him. at a time specified in the undertaking, and for his surrender to be arrested upon the warrant of the governor of this State. L. 1864; D. Sec. 498; H. Sec. 1706; B. & C. Sec. 1729. 1882. Magistrate to give Notice to Goveenoe op Com- mitment.] Immediately upon the commitment of the person charged, the magistrate must inform the governor of this State of the name of the person, the cause of the arrest, and his commitment ; and the governor must there- upon give the like notice to the executive authority of the State or Territory having jurisdiction of the crime, to the end that a demand be made for the arrest and sur- render of the person charged. L. 1864; D. Sec. 499; H. Sec. 1707; B. & C. Sec. 1730. 1883. Fugitive tO be Dischaeged, Unless.] The per- son arrested mupt be discharged from custody or bail, unless, before the expiration of the time designated in the warrant or undertaking, he be arrested under the warrant of the governor of this State. L. 1864; D. Sec. 500; H. Sec. 1708; B. & C. Sec. 1731. 1884. Pebson Causing Waeeant to Issue Liable — When Fugitive Discharged.] The person making the complaint of the , magistrate is liable for the costs and expenses of the proceeding, and for the support in the jaU of the person so committed; and unless he advance 444 THE LAW OF INTERSTATE RENDITION. to the jailor, from week to week during the commitment, a sum sufficient for such support, the jailor may, upon the order of any magistrate of the county, discharge such person from custody. L. 1864; D. Sec. 501; H. Sec. 1709; B. & C. Sec. 1732. 1885. Reward of not to Exceed One Thousand Dol- lars, County may Offer.] If any person or persons charged with or convicted of any felony within this State shall break prison, escape, or .flee from justice, or ab- scond, or secrete himself, in such cases it shall be lawful for the county court of such county where said crime has been committed, if the said court shall deem neces- sary, to offer a reward not to exceed the sum of $1,000 for the apprehension and delivery of each of the bodies of said person or persons to the custody of such officer as the said county court shall direct. L. 1893, p. 82, Sec. 1; B. & C. Sec. 1733. 1886. County Court Authorized to Pay Reward.] Any person apprehending and delivering the body or bodies of such person or persons to the proper officer, and producing to the county court, the receipt of such officer, shall be entitled to and shall be paid the reward offered by the county court. L. 1893, p. 82, Sec. 2, B. & C. Sec. 1734. 1887. Clerk to Issue Warrant for Reward, When.] The county court on the presentation of the duly certi- fied claim of the applicant for reward and accompanied by the proper orders and receipts, shall certify the amount offered in such reward to the county clerk of such county under the seal of such county court, and the county clerk of such county shall draw a warrant on the treasurer of such county for the amount so authorized. L. 1893, p. 82, Sec. 3; B. & C. Sec. 1735. 1888. Sheriff may Elect to Receive either Reward OR Legal Fees.] If the sheriff of any other county than the one where said crime was committed apprehend the said criminal, he shall elect to receive either the re- STATE STATUTES OF PENNSYLVANIA. 445 ward offered or the regular fees allowed him by law for such service. L. 1893, p. 82, Sec. 4; B. & C. Sec. 1736. XXXVI. PENNSYLVANIA. (From Pepper and Lewis' Digest of the Laws of Penn- sylvania, 1907, Vol. 1, Criminal Procedure, Sections 4, 5, 6, 7 and 8, pages 2423, 2424 and 2425.) Fugitives from Justice. Section 4. Warrant to Issue for Arrest of Fugitives FROM Another State.] It shall be the duty of the gov- ernor of this commonwealth, in all cases where, by virtue of a requisition made upon him by the governor of an- other State or Territory, any citizen, inhabitant or tem- porary resident of this commonwealth, is to be arrested as a fugitive from justice, {provided that the said requi- sition be accompanied with a certified copy of the indict- ment or information, from the authorities of such other State or Territory, charging such person with any crime in such State or Territory) to issue and transmit a war- rant for such purpose to the sheriff of the proper county, or other officer authorized by law to execute warrants, in which the requisition describes the party or parties to be residing or domiciled ; and the sheriff or the deputy sheriff, or other officer, as aforesaid of the county, shall alone be competent to make service of the same. 1878, May 24; P. L. 137, Sec. 1. Section 5. Proceedings and Hearing.] Before the sheriff, or his deputy, or other officer, as aforesaid, shall deliver the person arrested into the custody of the officer or officers named in the requisition, it shall be the duty of the sheriff or other officer as aforesaid to take the prisoner or prisoners before a judge of a court of record, who shall in open court, if in session, otherwise at cham- bers inform the prisoner or prisoners of the cause of his 446 THE LAW OF INTERSTATE RENDITION. or their arrest, tlie nature of the process, and instruct him or them that if he or they claim not to he the particu- lar person or persons mentioned in said requisition, indict- ment or aflSdavit before a magistrate of said other State or Territory, charging said person with some crime and warrant of arrest, he or they may have a writ of habeas corpus, upon filing an affidavit to that effect, except the said person or persons so arrested or taken shall have previously consented to and waived in writing the right to go before said judge for the purpose of availing him- self to the writ of habeas corpus: Provided, however, the investigation and hearing under said writ shall be limited to the question of identification, and shall not enter into the merits of facts of the charge, indictment or information accompanying or referred to in the requi- sition; and if after due hearing, the prisoner or prisoners shall be found to be the parties indicted or informed against and mentioned in the requisition or warrant, then the court shall order and direct the sheriff or other officer as aforesaid to deliver the prisoner or prisoners into the custody of the officer designated in the requisition as the agent upon the part of such State to receive him. or them; otherwise to be discharged from custody by the court. 1879, June 4; P. L. 95, Sec. 1. Section 6. No Person to be taken from State with- out Eequisition and Hearing.] It shall not be lawful for any person or officer to take any person or persons out of this commonwealth, upon the ground that the prisoner or prisoners consent to go, or by reason of his or their willingness to waive the proceedings afore de- scribed; and any person or persons who shall arrest or procure the arrest of any citizen, inhabitant or temporary resident of this commonwealth, for the purpose of taking or sending him to another State, without a requisition first had and obtained, accompanied by a certified copy of the indictment or information, and without a warrant issued by or under the direction of the governor of this commonwealth, served by the sheriff or his deputy, and without first taking him before a judge of a court of STATE STATUTES OF PENNSYLVANIA. 447 record, as aforesaid, shall be guilty of a misdemeanor, and upon conviction be sentenced to one year imprison- ment. 1878, May 24; P. L. 137, Sec. 3. Section 7. Violation of Act by Sheriff a Misdemean- or IN Office.] Any violation of this act, on the part of the sheriff or his deputy, or other officer, as aforesaid, shall be deemed a misdemeanor in office. 1878, May 24; P. L. 137, Sec. 4. Section 8. Act not to Prevent Arrest of Fugitive ON Information of Offense, and Warrant.] Nothing in this act shall be construed to prevent the sheriff of any coimty, or chief of police of any city, or other person, to cause the arrest of any person or persons, upon in- formation of the offense or crime committed in another State, and that a warrant has there been issued for the arrest of the said party or parties, or has there been indicted: Provided, the officers of any town, city or coun- ty, or authorities of such other State or Territory, shall procure a requisition and have the same presented to the governor of this commonwealth, within ninety days after the arrest shall have been made ; and the prisoner or prisoners, upon being arrested or detained, shall be brought before a court or judge, in the manner and for the purpose in the second section of this act : Provided, such person shall not be committed or held to bail for a longer period than ninety days exclusive of the day of arrest, at the expiration of which time, if the sheriff has not received the requisition or warrant from the govern- or of this commonwealth, then the person or persons so arrested and detained shall be discharged from custody. 1879, June 4th, P. L. 95 Sec. 1. 448 THE LAW OF INTBESTATB EENDITION. XXXVII. RHODE ISLAND. (From the General Laws of Ehode Island, 1909, Title 37, Chapter 355, Sections 1 to 9, pages 1312, 1313 and 1314.) Fugitives from Justice. Section 1, Wabbant of any Court to Abbest a Fugi- tive, When and upon What Complaint to be Issued.] Whenever any person shall be found within this State charged with an offense committed in any other State or Territory and be liable by the Constitution and laws of the United States to be .delivered over upon the demand of any executive of any other State or Territory, any court authorized to issue warrants in criminal cases may, upon complauit under oath, setting forth the crime or offense and such other matters as are necessary to bring the case within the provisions of law, issue his warrant to bring the person so charged before the same or some other court within the State, to answer such complaint as in other cases. Section 2. Of Examination, and Proceedings in Case OP Probable Guilt. J If upon the examination of any person so charged, it shall appear that there is reason- able cause to believe the complaint true, and that such person may be lawfully demanded of the executive of this State, he shall, if charged with an offense bailable by such magistrate, when committed within this State, be required to recognize in a reasonable sum with sufficient sureties to appear before such court at some future day, allowing a reasonable time to obtain a warrant from the executive and to abide the order of such magistrate on such complaint. Section 3. Accused to Recognize oe be Committed.] If such person shall not so recognize, he shall be com- mitted to jail and be there detained until he gives such recognizance or until such day. Section 4. Pbocbbdings on Default of Rboognizanoe.] If he shall recognize and shall fail to appear according STATE STATUTES OF BHODE ISLAND. 449 to the conditions of Ms recognizance, he shall be de- faulted, and like proceedings shall be had as in case of other recognizances entered into before a magistrate. Section 5. Fugitive, by Whom to be Bailed. If such person shall be charged with an offense not bailable by such court when committed within this State, he shall be committed to prison and there detained until the day appointed for his appearance before such court; but in such case the said person shall be bailable in the same manner as he would be if such offense had been com- mitted in this State. Section 6. When Entitled to be Discharged, unless Demanded; to be taken on Executive Warrant.] If the person so recognized or committed shall appear before such court upon the day appointed, he shall be discharged unless he shall be demanded by some person authorized by a warrant of the executive to receive bim : Provided, that whether such person so charged be recognized, com- mitted or discharged, any person authorized by a war- rant from the executive of this State may at all times take him in custody, and the same shall be a discharge of the recognizance, if any, and shall not be deemed an escape. Section 7. To Procure Warrant, Recognizance must be given.] No warrant shall be issued in pursuance of the provisions of section one of this chapter until the complainant shall have given recognizance, with surety, in such sum as the court shall approve and direct, to pay all the costs that may accrue thereon, including the board of the person complained of, if committed to jail, nor shall any such warrant supersede any arrest, either on civil or criminal process theretofore made, nor shall any arrest, either on civil or criminal process heretofore made, supersede any arrest made on any such warrant or on any warrant issued by the executive of this State in such cases. Section 8. Opeicebs op Adjoining States Secured in Transit through this State with Prisoners, etc.] Sheriffs, deputy-sheriffs, constables and other officers of 450 THE LAW OP INTERSTATE EBNDITION". the adjoining States, with their assistants, in the legal execution of any writ, warrant or other process issuing from and returnable to courts in their respective States, shall have full liberty, power and authority to pass and repass and also to convey such persons or things as they may legally have in their custody by virtue of any writ or warrant, in or by any of the roads or ways laying in or leading through any of the towns or lands of this State, in as full, free and ample manner as the officers of justice of this State do use and exercise in the discharge of their duty and office. Section 9. Penalty fob Obstructing such Officers.] Any person who shall obstruct any such officer of any of the United States in such execution of his office, whUe he is passing through any of the lands or roads of this State, shall be subject to the same pains and penalties as persons would by law be subject to for obstructing similar officers of justice of this State in the due execu- tion of their office. XXXVIII. SOUTH CAEOLINA. (From the Code of Laws of South Carolina, 1912, Vol. 2, Criminal Code, Title 1, Chapter 1, Sections 7 and 8, Page 217.) Section 7. Officers may Issue Warrants for Fugi- tives Charged with Crime — Proceedings.] Any officer in the State authorized by law to issue warrants for the arrest of persons charged with crime shall, on satisfac- tory information laid before him under the oath of any credible person, that any fugitive in the State has com- mitted, out of the State, and within any other State, any offense which by the law of the State in which the offense was committed is punishable, either capitally or by im- prisonment for one year or upwards, in any State prison, shall have full power and authority, and is hereby re- STATE STATUTES OF SOUTH CAKOLIKA. 451 quired, to issue a warrant for said fugitive, and conunit him to any jail within the State for the space of twenty days, unless sooner demanded by the public authorities of the State wherein the offense may have been com- mitted, agreeable to the act of Congress in that case made and provided ; if no demand be made within the time, the said fugitive shall be liberated, unless sufficient cause be shown to the contrary : Provided, that nothing herein contained shall be construed to deprive any person so arrested of the right to release on bail as in cases of similar character of offenses against the laws of this State. ('2.) To KEEP Record and Transmit to Gtovkbnob.] Every officer committing any person under this section shall keep a record of the whole proceedings before him, and immediately transmit a copy thereof to the governor of this State for such action as he toay deem fit therein under the laws. (3.) Governor to Inform Governor of Foreign State.] The governor of this State shall immediately inform the governor of the State in which the crime is alleged to have been conunitted of the proceedings had in such case. (4.) Sheriff and Jaileb to Surrender Fugitive un- der Order of Governor.] Every sheriff or jailer, in whose custody any person committed under this section shall be, upon the order of the governor of the State, shall surrender him to the person named in said order for that purpose. When felony committed fugitive may be arrested without warrant. State v. Anderson, (1833), 1 Hill 327; State v. Whittle, (1900), 59 S. C. 297, 37 S. E. 293. Section 8. Agents Appointed by the Governor to Ee- ceive $3 A Day and Expenses.] In all cases of requisi- tion for the delivery of fugitives from justice the agents appointed by the governor to bring such fugitives into this State shall receive in compensation for their services the sum of three dollars per day for the time actually 452 THE LAW OF INTERSTATE EENDITION. employed, and shall be reimbursed their expenses actually and necessarily incurred in the performance of their du- ties. Approval of AccotrNTS — ^Payment.] Upon presenta- tion to the governor of the accounts of such agents, item- ized and duly verified by their affidavits thereto annexed, the governor, if he approves the same as correct, shall endorse his approval thereon, and upon presentation of said accounts, so endorsed, to the controller general, he shall draw his warrants on the State treasurer for the amount thereof, payable out of the regular contingent fund of the governor. XXXIX. SOUTH DAKOTA. (From The Compiled Laws, (1910), State of South Da- kota, Vol. 2, Chapter 13, Sections 615 to 628, pages 737 and 738.) PlROCEEDINGS AGAINST FUGITIVES FROM JUSTICE. Section 615. Governor may Offer Eewaed for Crim- inal.] The governor may offer a reward not exceeding one thousand dollars payable out of the general fund, for the apprehension: 1. Of any convict who has escaped from the State Prison or, 2. Of any person who has committed, or is charged with the commission of an offense punishable with death. Section 616. Delivery of Criminals on Eequisition.] A person charged in any State of the United States with treason, felony or other crime, who flees from justice and is found in this State, must, on demand of the executive authority of the State, from which he fled, be delivered up by the governor of this State, to be removed to the State having jurisdiction of the crime. Section 617. Magistrate to Issue Warrant.] A magistrate may issue a warrant for the apprehension of STATE STATUTES OP SOUTH DAKOTA. 453 the person so charged, who flees from justice and is found in this State. Section 618. Pboce.ei>ings for Aeebst and Commit- ment.] The proceedings for the arrest and commitment of a person so charged are, in all respects, similar to those provided in this Code for the arrest and commit- ment of a person charged with a public offense committed in this State, except that an exemplified copy of indict- ment found, or other judicial proceedings had against him, in the State in which he is charged to have com- mittt'd the offense, may be received as evidence before the magistrate. Section 619. Persons Charged may be Committed fob A Eeasonable Time.] If, from the examination, it ap- pears that the accused has committed the crime alleged, the magistrate, by warrant reciting the accusation, must commit him to the proper custody in his county, for such time, to be specified in the warrant, as the magistrate may deem reasonable, to ena-ble the arrest of the fugitive under the warrant of the executive authority of this State, on the requisition on the executive authority of the State in which he committed the offense, unless he gives bail as approved in the next section, or until he is legally discharged. Section 620. Admission to Bail.] The magistrate may admit the person arrested to bail by an undertaking with sufficient sureties, and in such sum as he deems proper, for his appearance before him at a time specified in the undertaking, and for his surrender to arrest upon the warrant of the governor of this State. Section 621. Notice to State's Attorney.] Imme- diately upon the arrest of the person so charged, the magistrate must give notice thereof to the State's attor- ney of the county. Section 622. Duty op the State's Attorney.] The State's attorney of the county must immediately there- after give notice to the executive authority of the State, or to the prosecuting attorney or the presiding judge of the court of the city or county within the State having 454 THE LAW OF INTEESTATB EENDITION. jurisdiction of the offense, to the end that a demand may be made for the arrest and surrender of the person so charged. Section 623. Person Dischaegbd, When.] The per- son arrested must be discharged from custody or bail, unless, before the expiration of the time designated in the warrant or undertaking, he is arrested under the war- rant of the governor of this State. Section 624. The Magisteate to make Retuen of Peoceedings.J The magistrate must return his proceed- ings to the next circuit court of the county, which there- upon must inquire into the cause of the arrest and deten- tion of the person charged, and if in custody, or the time of his arrest has elapsed, it may discharge him from detention, or may order his undertaking or bail can- celled, or may continue his detention for a longer time, or readmit him to bail, to appear and surrender himself within a time specified in the undertaking. Section 625. Fugitive Geanted Twentt-Foue Hotjes.] Any person who is arrested within this State, by virtue of a warrant issued by the governor of this State, upon the requisition of the governor of any other State or Territory, as a fugitive from justice, imder the laws of the United States, shall not be delivered to the agent of such State or Territory until notified of the demand made for his surrender, and given twenty-four hours to make demand for counsel; and should such demand be made for the purpose of suing out a writ of habeas cor- pus, the prisoner shall be forthwith taken to the nearest judge of the circuit court, and ample time given to sue out such writ, such time to be determined by the judge of the circuit court. Section 626. Penalty foe Unlawful Deliveey of Fugitive.] Any officer who shall deliver such person to such agent for extradition without first having complied with the provisions of the preceding section, shall be deemed guilty of a misdemeanor. Section 627. Foeeign Aeeests. Compensation.] Whenever the governor of this State shall demand from STATE STATUTES OF TENNESSEE. 455 the executive authority of a State or Territory of the United States, or of a foreign government, the surrender to the authorities of this State of a fugitive from justice, the accounts of the person employed by him for that purpose must be paid out of the county treasury of the county in which the crime is alleged to have been com- mitted, and to which said fugitive is returned for trial. Provided, that the persons employed by virtue of this section shall receive for their services three dollars per diem and actual expenses while actnaUy and necessarily employed, and no more. Section - 628. No Compensation foe PBOoimiNG De- mand FROM G0VEENOR.J That no compensation, fee or re- ward of any kind shall be paid to or received by any person for service rendered or expense incurred in pro- curing from the governor the demand mentioned in the preceding section for the arrest or the surrender of the fugitive, or for conveying hiTin to the county in which the alleged crime, for which he is arrested, is claimed to have been committed, eixcept as provided in the preceding section. XL. TENNESSEE. (From Code of the State of Tennessee, 1896, Title 5, Chapter 5, Sections 7318 to 7320, and 7321 to 7331, pages 1733, 1734 and 1735.) FuGmVES FROM JUSTICE. 7318 (5340) 6185. Goveenoe may Appoint Agent to Demand Fugitive.] The governor may appoint an agent to demand of the executive authority of any other State or Territory, any fugitive from justice, or other person charged with treason, felony, or other crime ia this State. 1847-48, ch. 121. 7319 (5341) 6186. Who may Employ Guabd.J Such agent may, if necessary, employ a sufficient guard or es- 456 THE LAW OP INTEESTATE RENDITION. cort to bring such criminal to this State, and contract other expenses absolutely required in performing the du- ties of the agency, lb. 7320 (5342) 6187. Expense and Compensation, how Paid.] The expenses thus necessarily incurred, and reasonable compensation to such agent, guard, and es- cort, shall be paid by the treasurer, upon the warrant of the governor. lb. 7321 (5343) 6188. Govebnob may Issue Waebant fob Fugitive fbom anothbb State.] .Whenever a demand is made upon the governor of this State or Territory, in any case authorized by the Constitution and laws of the United States, for the delivery of any person charged in such State or Territory with any crime, if such person is not held in custody or under bail to answer for any offense against the laws of the United States or of this State, he shall issue a warrant for the apprehension of such person. Iowa code of 1851, sec. 3283. 7322 (5344) 6189. Substance op Wabbant.] The warrant shall be under the seal of the State, and author- ize the agent who makes the demand, either forthwith or at such time as may be therein designated, to take and transport such person to the line of this State at the expense of such agent, and may also require all peace officers to afford needful assistance in the execution thereof. lb. 7323 (5345) 6190. Magistbate may Issue Wabbant, When.] If any person be found in this State charged with any crime committed in any other State or Terri- tory, and liable by the Constitution and laws of the United States to be delivered over upon the demand of the gov- ernor thereof, any magistrate may, upon complaint, on oath, setting forth the offense and such other matters as are necessary to bring the case within the provisions of law, issue a warrant to arrest such person. Id., sec. 3284. STATE STATUTES OF TENNESSEE. 457 7324 (5346) 6191. Pboceedings Thebeon.] If, upon examination, it appear that there is reasonahle cause to believe the complaint true, and that such person may be lawfully demanded of the governor, he shall, if not charged with an offense punished capitally by the laws of the State in which it was committed, be required to give bail by bond or undertaking, with sufficient security, in a reasonable stmi, to appear before such magistrate at a future day specified, allowing sufficient time to ob- tain the warrant from the governor, and abide the order of such magistrate in the premises. Id., see. 3285. 7325 (5347) 6192. Same.J If such person does not give bail, or if he is charged with a capital offense, he shall be committed to prison, and there detained until such day, in like manner as if the offense charged had been committed within this State. Id., sec. 3286. 7326 (5348) 6193. Defendant Disohabged, When.] If such person appear before the magistrate upon the day specified, he shall be discharged unless he is de- manded under warrant of the governor, or unless the magistrate see good cause to commit him to some other day, or to require him to give bail for his appearance at such day, to await a warrant from the governor. Id., sec. 3287. 7327 (5349) 6194. Failtjbe to Appear.] A failure of such person to attend before the magistrate at the time and place mentioned in the bond or undertaking, is a forfeiture thereof, and the same should be indorsed "for- feited" by the magistrate, and returned to the next crim- inal or circuit court, as the case may be, where such proceedings shall be had as in the case of bonds or under- takings forfeited in that court. Id., see. 3288. 7328 (5350) 6195^ Arrest ttndeb Gtovkbnob's Wab- KANT.] Whether the person so charged be bound to ap- pear, be committed or discharged, any person authorized 458 THE LAW OP INTEESTATE KENDITION. I ■ i ■ ; by the warrant of the governor may at any time take him into custody, and such apprehension is a discharge of the bond or undertaking, if there be one. Iowa code of 1851, sec. 3289. 7329 (5351) 6196. Costs and Chabges.J The com- plainant in any such case is answerable for all costs and charges, and for the support in prison of any person so committed, and the magistrate, before issuing his war- rant, shall require him to give security for the payment of all such costs, or may require them to be paid in ad- vance to the officers entitled. Id., sec. 3290. 7330 (5352) 6197. Jail Fees to be Paid in Advance.] And no jaUer is bound to receive any person committed under a warrant issued by virtue of the provisions of this chapter until his jail fees for the time specified in such warrant are paid in advance. 7331 (5353) 6198. Such Pebson to be Received in Jails of State.] But the officer or person executing such warrant may, when necessary, by paying the jail fees in advance, or otherwise securing them to the satisfaction of the jailer, confine the prisoner arrested by him in the jail of any county through which he may pass, and the jailer, in such case, shall receive and safely keep the prisoner untU the person having charge of him is ready to proceed on his route. XLI. TEXAS. (From Vernon's Criminal Statutes of Texas, 1916, Vol. 2, Title 14, Articles 1088 to 1105a, pages 950 to 955.) Fugitives feom Justice. Art, 1088. (1051) Fugitive feom Justice Deliveked UP, When.] A person charged in any other State or Territory of the United States with treason, felony or other crime, who shall flee from justice and be found in STATE STATUTES OP TEXAS. 459 this State, shall, on demand of the executive authority of the State or Territory from which he fled, be delivered up, to be removed to the State or Territory having juris- diction of the crime. C. C. 878. Art. 1089. (1052) Judicial and Peace Officees h ttatt. Aid in the Arrest of.] It is declared to be the duty of all judicial and peace officers of the State to give aid in the arrest and detention of a fugitive from any other State or Territory, that he may be held subject to a requisition by the governor of the State or Territory from which he may have escaped. 0. C. 879. Art. 1090. (1053) Magisteate shat.t. Issue Warrant FOE Arrest op Fugitive, When.] Whenever, a com- plaint, on oath, is made to a magistrate that any person, within his jurisdiction, is a fugitive from justice from another State or Territory, it is his duty to issue a war- rant of arrest for the apprehension of the person accused. O. C. 882. Art. 1091. (1054) Complaint shall be Suppicient, if IT Eecites, etc.] The complaint shall be sufficient if it recites : 1. The name of the person accused. 2. The State or Territory from which he has fled. 3. The offense committed by the accused. 4. That he has fled to this State from the State or Territory where the offense was committed. 5. That the act alleged to have been committed by the accused is a violation of the penal law of the State or Territory from which he fled. O. C. 883. Art. 1092. (1055) Warrant op Abbest from Magis- trate.] The warrant of a magistrate to arrest a fugi- tive from justice shall direct a peace officer to apprehend the person accused, and bring him before such magistrate. Ar t- 1093. (1056) Shall Eequire Bail ob Commit Ac- cused, When.] When the person accused is brought be- fore the magistrate he shall hear proof, and, if satisfied 460 THE LAW OP INTERSTATE RENDITION. that the defendant is charged in another State or Terri- tory with the offense named in the complaint, he shall require of him bail, with good and sufficient security, in such amount as such magistrate may deem reasonable, to appear before such magistrate at a specified time ; and, in default of such bail, he may commit the defendant to jail, to await a requisition from the governor of the State or Territory from which he fled. 0. C. 885. Art. 1094. (1057) Certified Transcript op Indict- ment, Evidence.] A properly certified transcript of an indictment against the accused shall be evidence to show that he is charged with the crime alleged. O. C. 886. Art. 1095. (1058) Person Arrested shall, not be Com- mitted, OR ETC.] A person arrested under the provisions of this title shall not be committed or held to bail for a longer time than ninety days. O. C. 887. Art. 1096. (1059) Magistrate shall Notipy Secretary OF State, etc.] The magistrate by whose authority a fugitive from justice has been held to bail or committed shall immediately notify the secretary of State of the fact, stating in such notice the name of such fugitive, the State or Territory from which he is a fugitive, the crime with which he is charged, and the date when he was conmaitted or held to bail. Such notice may be forwarded either through the mail or by telegraph. 0. C. 888. Art. 1097. (1060) Shall also Notify District or Coun- ty Attorney, who shall Notify etc.] The magistrate shall also immediately notify the district or county attor- ney of his county of the facts of the case, who shall forth- with give notice of such facts to the executive authority of the State or Territory from which the accused is charged to have fled. Art. 1098. (1061) Secretary op State shall Commu- nicate Information, etc.] The secretary of State, upon receiving information as provided in article 1096, shall STATE STATUTES OF TEXAS. 461 forthwitli conununicate such information by telegraph, when practicable, or, if not practicable, by mail, to the executive authority of the proper State or Territory. Art. 1099. (1062) Accused shall be Discharged, When.] If the accused is not arrested under a warrant from the governor of this State before the expiration of ninety days from the day of his commitment or the date of the bail bond, he shall be discharged. 0. C. 889. Art. 1100. (1063) Shall not be Aeeested a Second Time, Except, etc.] A person who shall have once been arrested under the provisions of the preceding article, or by habeas corpus, shall not be again arrested upon a charge of the same offense, except by a warrant from the governor of this State. 0. C. 890. Art. 1101. (1064) GovEENOE of this State can De- mand Fugitive from Justice, how.] "Whenever the gov- ernor of this State may think proper to demand a person who has committed an offense in this State and has fled to another State or Territory, he may commission any suitable person to take such requisition ; and the accused person, if brought back to the State, shall be delivered up to the sheriff of the county in which it is alleged he has committed the offense. 0. G. 881. Art. 1102 (1065) Reasonable Pay to Person Commis- sioned, etc.] The person commissioned by the governor to bear a requisition for a fugitive from justice to an- other State or Territory shall be paid out of the State treasury a reasonable compensation for his services, to be paid upon the certificate of the governor, specifying the services rendered and the amount allowed therefor. 0. C. 881. Art. 1103. (1066) GtOVERNor may Offer a Eeward, When.] The governor may, whenever he deems it proper, offer a reward for the apprehension of any per- son accused of a felony in this State, and who is evading an arrest. 462 THE LAW OP INTEESTATE EENDITION. Art. 1104 (1067) Shall be Published, How. J Wlien tlie governor offers a reward, he shall cause the same to be published in such manner, as, in his judgment, will be most likely to effect the arrest of the accused. Art. 1105. (1068) Eewaed shall be Paid by State,] The person who may become entitled to such reward shall be paid the same out of the State treasury upon the cer- tificate of the governor, stating the amount thereof, and that such person is entitled to receive the same, and the facts which so entitle such person to receive it. Art. 1105a. List op Fugitives to be sent to Adjutant G-ENEBAL.J It shall be the duty of each sheriff in this State, upon the close of any regular term of the district court in his county, or within thirty days thereafter, to make out and forward by mail to the adjutant general of this State a certified list of all persons who, after indictment for a felony, have fled from said county. Such lists shall contain the full name of each of such fugitives, with a discription giving his age, height, weight, color and occupation, the complexion of skin and the color of eyes and hair, and any peculiarities in person, speech, manner or gait that may serve to identify such fugitive, so far as the sheriff may be able to give them, and shall state the offense with which such person is charged. The adjutant general shall prescribe, have printed and for- ward to the sheriffs of the several counties the necessary blanks upon which are to be made the lists herein re- quired. Act 1887, p. 44, sec. 1; Amend. 1895, Sen. Jour. ' No. 97, p. 484. XLII. UTAH. (From the Compiled Laws of the State of Utah, 1907. Chapter 57, Code of Criminal Procedure, Sections 5103 to 5117, pages 1469 to 1471.) Section 5103. Rewards por Apprehension op Fugi- tives.] The governor may offer a reward not exceeding STATE STATUTES OF UTAH. 463 $1,000.00, payable out of the general fund, for the appre- hension : 1. Of any convict who has escaped from the State Prison, or, 2. Of any person who has committed, or is charged with the commission of an offense punishable with death, or, 3. Of any person who is charged with having ab- sconded with or embezzled, or unlawfully taken and car- ried away any funds, assets or property of any State or National bank, doing business in this State. Section 5104. Deliveky of Fugitive upon Eequisi- TiON.J A person charged in any State or Territory of the United States with treason, felony, or other crime, who shall flee from justice and be found in this State, shall, on demand of the executive authority of the State or Territory from which he shall have fled, be delivered over by the governor of this State, to be removed to the State or Territory having jurisdiction of the crime. Section 5105. Magistrate may Issue "Waekant.] A magistrate may issue a warrant for the apprehension of a person so charged, who shall flee from justice and be found within this State. Section 5106. Proceedings for Arrest and Commit- ment OF Fugitive. J The proceedings for the arrest and commitment of a person so charged are, in aU respects, similar to those provided in this Code for the arrest and commitment of a person charged with a public offense committed in this State, except that an exemplified copy of an indictment found, or other judicial proceedings had against him, in the State in which he is charged to have committed the offense, may be received as evidence be- fore the magistrate. Section 5107. Commitment of Accused to Await Eequisition.] If, from the examination, it appears that the accused has committed the crime alleged, the magis- trate, by warrant reciting the accusation, must commit biTn to the proper custody in his county, for such time, to be specified in the warrant, as the magistrate may 464 THE LAW OF INTERSTATE BENDITION. deem reasonable, to enable the arrest of tbe accused fugi- tive under the warrant of the executive authority of this State, on the requisition of the executive authority of the State in which he conunitted the offense, unless he gives bail as approved in next section or until he is legally dis- charged. Section 5108. Id. Bail.] The magistrate may admit the person arrested to bail by an undertaking with suffi- cient sureties, and in such sum as he deems proper, for his appearance before him at a time specified in the un- dertaking, and for his surrender to arrest upon the war- rant of the governor of this State. Section 5109. Notice to District Attorney of Ar- rest.] Immediately upon the arrest of the person so charged, the magistrate must give notice thereof to the district attorney of the county. Section 5110. Duty of District Attorney.] The district attorney of the county must immediately there- after give notice to the executive authority of the State or to the prosecuting officer or the presiding judge of the court of the city or county within the State having juris- diction of the offense, to the end that a demand may be made for the arrest and surrender of the person so charged. Section 5111. Discharge of Accused for Lack of Prosecution.] The person arrested must be discharged from custody or bail, unless before the expiration of the time designated in the warrant or undertaking, he is ar- rested under the warrant of the governor of this State. Section 5112. Ebtubn of Magistrate. Procedure in THE District Court.] The magistrate must return his proceedings to the next district court of the county, which thereupon must inquire into the cause, of the arrest and detention of the person charged, and if in custody, or the time of his arrest has elapsed, it may discharge him from detention, or may order his undertaking or bail canceled, or may continue his detention for a longer time, or read- mit him to bail, to appear and surrender himself within a time specified in the imdertaking. STATE STATUTES OF UTAH. 465 Section 5113. Fugitive given Twenty- Four Houes to Demand Counsel. Habeas Corpus.] Any person wlio is arrested within this State, by virtue of a warrant is- sued by the governor of this State, upon the requisition of the governor of any other State or Territory, as a fugitive from justice, under the laws of the United States, shall not be delivered to the agent of such State or Territory until notified of the demand made for his surrender, and given twenty-four hours to make demand for counsel; and should such demand be made for the purpose of suing out a writ of habeas corpus, the pris- oner shall be forthwith taken to the nearest judge of the district court, and ample time given to sue out such writ, such time to be determined by the judge of the district court. Section 5114. Id. Penalty foe Violation.] Any of- ficer who shall deliver such person to such agent for ex- tradition without first having complied with the provi- sions of the preceding section, shall be deemed guilty of a misdemeanor. Section 5115. Fugitives feom this State. Demand. Costs.] The governor of this State may in any case au- thorized by the Constitution and laws of the United States, demand of the executive authority of any other State or Territory vdthin the United States, any fugi- tive from justice or any person charged with treason, fel- ony, or other crimes in this State, and appoint agents to receive such persons for and on behalf of this State. The account of any such agent or agents employed for such purpose shall in cases of fugitive and felony be paid by the State, and for other crime be audited by the board of county commissioners of the county in which the crime was committed, and paid out of such county treas- ury; provided, that only the sheriff of said county, or one of his deputies, or a constable or policeman thereof, shall be appointed such agent, and such agent shall not be paid more than his expenses and a per diem of three doUars while in actual discharge of his duty. 466 THE LAW OP INTBESTATB RENDITION. Section 5116. Id. No Ebwaed to Public Opfiobb.] No compensation, fee or reward of any kind, can be paid to or received by any public officer of this State, for a service rendered or incurred in procuring from the gov- ernor the demand mentioned in the last section, or the surrender of the fugitive, or for conveying him to this State, or detaining him herein, except as provided in section 5115. Section 5117. Id. Violation a Misdemeanor.] A vi- olation of the last section is a misdemeanor. XLIII. VEKMONT. (From the Public Statutes of Vermont, 1906, Title 12, Chapter 116, Sections 2402 to 2411, pages 501, 502 and 503.) Extradition. Section 2402. Person Aurestbd fob Extradition to HAVE Time to being Habeas Corpus.] A person arrested in this State by virtue of a warrant issued by the gov- ernor upon a requisition of the governor of another State, as a fugitive from justice under the laws of the United States, shall not be delivered to the agent of such State, until notified of the demand made for his surren- der, and given opportunity to apply for a writ of habeas corpus, if he claims such right of the officer making the arrest within twenty-four hours after being notified of the demand made for his surrender. Section 2403. Penalty por not Complying with Pre- ceding Section.] An officer who delivers said person to said agent for extradition without having complied with the provisions of the preceding section shall be fined not more than five hundred dollars. Section 2404. Criminal Fleeing to British Terri- tory. Justice to take Depositions.] If a justice has reason to suspect that the crime of murder, or assault STATE STATUTES OF VERMONT. 467 with intent to commit murder, or piracy, arson, robbery, forgery or the utterance of forged paper, has been com- mitted within the county in which said justice has juris- diction, and that the person who committed the crime is in the Territory of Great Britain or the dependencies thereof, he shall summon before him a person having knowledge respecting the commission of such crime, who shall thereupon make his deposition in writing before said justice, of the facts within his knowledge as to the commission of such crime; and such deposition shall be kept on file in the office of said justice. Section 2405. Same ; Jitstice to Issxje Warrant.] If, upon the taking of such depositions, the justice is of the opinion that the same contain sufficient ground to war- rant the apprehension and detention for trial of the per- son suspected of such crime, he shall issue his warrant for the apprehension of the suspected person, in the same form as in complaints made by town grand jurors. Section 2406. Proceedings.] Proceedings in such cases may also be had in the manner heretofore provided by law. Section 2407. Eeceiving Person from Officer of an- other State.] A sheriff shall receive a person charged with crime, delivered to him by an officer of another State having a warrant from proper authority for delivering said person, and shall forthwith take him before a jus- tice for examination. Transportation of New York Prisoners. Section 2408. By Officers op New York through this State.] The authorities of the State of New York shaU have the same power and authority to detain and transport through the Territory of this State persons convicted of offenses and sentenced to be confined in a penitentiary in the State of New York, which they have to detain and transport them in such State. 468 the law of intbbstate bendition. Transportation of New Hampshire Prisoners. Section 2409. By Officers of New Hampshire through this State.] The officers of th.e State of New Hampshire shall have the same power and authority to detain and transport through this State prisoners ar- rested in New Hampshire and held for trial or commit- ment by a court of record in New Hampshire, which they have to detain and transport them in that State. Service of Criminal, Returnable in Massachusetts. Section 2410. By Massachusetts Officer.] Juris- diction to serve criminal process returnable to a court in the commonwealth of Massachusetts is hereby given to officers who, by laws of such commonwealth, may serve such process, over a building situated partly in such com- monwealth and partly in this State. Section 2411. When Preceding Section takes Ef- 6539.] The preceding section shall take effect when the commonwealth of Massachusetts has given like jurisdic^ tion to similar officers in this State to serve criminal process returnable to a court in Vermont. XLIV. VIRGINIA. (From Code of Virginia, 1904, Vol. 2, Title 56, Chapter 205, Sections 4188 to 4196, pages 2183, 2184 and 2185.) Fugitives from Justice, and the Governor's Authobitt IN Criminal Cases. Section 4188. Governor to Surrender Fugitive fbom Foreign Nation on Requisition of President of United States.] The governor shall, whenever required by the executive authority of the United States, pursuant to the constitution and laws thereof, deliver over to justice any person found within the State, who is charged with hav- STATE STATUTES OP VIEGINIA. 469 ing committed any crime without the jurisdictioii of the United States. (1877-8, p. 372.) Section 4189. Discbetion in Governor to Deliver Fugitive without such Requisition; when Deuvert made; WHAT Evidence Required; how Expense De- frayed.] The governor, though not so required, may, in his discretion, deliver over to justice any person found within the State, who is charged with having committed, without the jurisdiction of the United States, any crime, except treason, which by the laws of this State, if com- mitted therein, is punishable with death or confinement in the penitentiary ; such delivery shall only be made on the requisition of the duly authorized officers or agents of the government, within the jurisdiction of which the crime is charged to have been committed; and the gov- ernor shall require such evidence of the guilt of the per- son so charged, as would be necessary to justify his ap- prehension and commitment for trial had the crime charged been committed within this State. The expense of apprehension and delivery shall be defrayed by those to whom the delivery is made. (1877-8, p. 372.) Section 4190. Surrender of Fugitives from other States.] Any person charged m another State of this Union with treason, felony, or other crime, who shall flee from justice and be found within this State, shall on de- mand of the executive authority of the State from which he fled, made in the manner prescribed by the constitu- tion and laws of the United States, be delivered up, ac- cording to the said constitution and laws, to be removed to the State having jurisdiction of the crime. (1877-8, p. 373.) Section 4191. When a Justice may Issue Warrant OF Arrest ; where Officer may Execute it ; before whom Accused to be beought.] Whenever any person is found within this State, charged with treason, felony or other crime, committed in any other State, any justice may, upon complaint on oath, or other satisfactory evi- dence, that such person committed the offense, issue a warrant to bring the person so charged before the same 470 THE LAW OF JNTEESTATB KENDITION. or some other justice within the State; and the officer, to whom such warrant is directed, may execute the same in any county or corporation in the State, and bring the party, when arrested, before any justice of the same or any other county or corporation. (1877-8, p. 373.) Section 4192. Proceedings befoee the Justice aptbb Abbest.] If it shall appear to the justice before whom the person charged is brought, that there is a reasonable cause to believe that the complaint is true, he shall, if he would have been bailable by a justice, in case the offense had been committed in this State, be required to enter into a recognizance with sufficient surety, in a reasonable sum, to appear before the court of the county or corpo- ration of the justice before whom he is brought, at a fu- ture day, allowing a reasonable time to obtain the war- rant of the executive, and to abide the order of the court; and, if such person do not enter into such recognizance, he shall be committed to jail, and be there detained until such day. The recognizance, if any, shall be returned to the said court without delay ; and if the person entering into the recognizance fail to appear according to the con- dition thereof, his default shall be entered of record, and the like proceedings be had as in the case of other recog- nizances entered into before a justice; but if such person would not have been bailable by a justice, in case the of- fense had been committed in this State, he shall be com- mitted to jail, and there detained until the day so ap- pointed for his appearance before the court. (1877-8, p. 373.) Section 4193. The Justice to Inform Gtoveenoe; his DUTY.] The justice, by whom such person is so recog- nized or committed, shall immediately, by letter, apprise the governor of the fact, who shall thereupon communi- cate the same to the executive of the State, where the crime is charged to have been committed. (1877-8, p. 373.) Section 4194. If Accused appear before the Court as Ordered, he shall be Discharged, unless, &c. ; When AND BY WHOM HE MAY BE EeTAKEN INTO CuSTODY.] If the STATE STATUTES OF VIRGINIA. 471 person so recognized or committed, shall appear before the court on the day ordered, he shall be discharged, un- less he shaU be demanded by some person authorized by the warrant of the governor to receive him, or unless the court see cause to commit him, or to require him to enter into a new recognizance for his appearance on some other day; and if, when ordered, he do not enter into such rec- ognizance, he shall be committed and detained as before. But whether the person so charged shall be recognized, committed, or discharged, any person authorized by the warrant of the governor may, at aU times, take him into custody, and the same shall be a discharge of the recog- nizance, if any, and shall not be deemed an escape. (1877-8, p. 373.) Section 4195. Complainant Liable foe Costs, &c. ; Jailoe, if not Paid, may Dischaege Accused.] The com- plainant in such case shall be answerable for all the ac- tual costs and charges, and for the support, in jail, of any person so committed, to be paid in the same manner as by a creditor for his debtor committed on execution; and if the charge for his support in jaU shall not be so paid, the jailor may discharge him in like manner as if he had been committed for debt on an execution. (1877-8, p. 374.) Section 4196. When Fugitive to be Detained hebe.] No person under prosecution for any offense, alleged to be committed within this State, shall be delivered up to the executive authority of another State, or of the United States, until such prosecution shall have been deter- mined, and the person prosecuted shall have been pun- ished, if condemned; nor shall any person, under recog- nizance to appear as a isdtness in any such prosecution, be so delivered up, until said prosecution be determined. Nor shall any person, who was in custody upon an execu- tion, or upon process in any suit, at the time of his ar- rest for a crime charged to have been committed with- out the jurisdiction of this State, be so delivered up, without the consent of the plaintiff in such execution or suit, until the amount of such execution shall have been 472 THE LAW OP INTERSTATE BENDITION. paid, or until such person shall he otherwise discharged from such execution or process. (1877-8, p. 374.) XLV. WASHINGTON. (From, Pierce's Code of the State of Washington, 1912, Title 135, Chapter 79, Sections 943, 971 to 976, pages 768, 769 and 770.) Demanding Fugitives prom Justice. 135. Sec. 943. State to Pay Expense op Foreign GfovBRNMENT. Scc. 1.] That the State auditor is here- hy authorized to audit and allow all just and legal claims which any foreign government or its officers may have against this State, in accordance with the general fee- bills for like services, for the capture, detention, and keeping of any criminal who has escaped from this State and taken refuge in any foreign jurisdiction, and upon the allowance of any such claim, he shall draw his war- rant upon the State treasury therefor; and the State treasurer is hereby required to pay the same out of any funds in the State treasury not otherwise appropriated. (H. C. Sec. 2946.) 135. See. 231. Agents to Demand Fugitives. Sec. 971. J The governor of this State may appoint agents to demand of the executive authority of any State or Territory any fugitive from justice, or any other person charged with felony or any other crime in this State; and whenever an application shall be mad" to the gov- ernor for that purpose the prosecuting attorney, when required by the governor, shall forthwith investigate the ground of such application and report to the governor all material circumstances which may come to his knowl- edge, with an abstract of the evidence and his opinion as to the expediency of the demand; but the governor may in any case appoint such agents without requiring the opinion of or any report from the prosecuting attor- STATE STATUTES OP WASHINGTON. 473 ney, and the accounts of the agents appointed for such purposes shall in all cases be audited by the State au- ditor and paid from the State treasury. (B. C. Sec. 7015 ; 2 H. C. Sec. 1387.) 135. Sec. 933. Eendition op Foreign Fugitite. Sec. 972. 209. J When a demand shall be made upon the governor of this State by the executive of any State or Territory, in any case authorized by the Constitution and laws of the United States, for the delivery over of any person charged in such State or Tterritory with treason, felony or any other crime, the prosecuting attorney or any other prosecuting officer, when required by the gov- ernor, shall forthwith investigate the ground of such de- mand, and report to the governor all material facts which may come to his knowledge as to the situation and circumstances of the person so demanded, especially as to whether he is held in custody or is under recognizance to answer for any offense against the laws of this State or of the United States, or by force of any civil process, and also whether such demand is made according to law, so that such person ought to be delivered up ; and if the governor be satisfied that such demand is conformable to law and ought to be complied with, he shall issue his war- rant under the seal of the State, authorizing the agents who make such demand, either forthwith or at such time as shall be designated by the warrant, to take and trans- port such person to the line of the State at the expense of such agents, and shaU also by such warrant require the civil officers within this State to afford aU needful assist- ance in the execution thereof. (B. C Sec. 7016; 2 H. C. Sec. 1388.) 135. Sec. 935. Duty of Domestic Peace Ofpicebs. Sec. 973. 210.] Whenever any person shall be found within this State charged with an offense committed in any State or Territory, and liable by the constitution and laws of the United States, to be delivered on the demand of the executive of such State or Territory, any court or magistrate authorized to issue warrants in criminal cases, may, upon complaint under oath, setting forth the 474 THE LAW OP INTERSTATE RENDITION. offense, and such, other matters as are necessary to bring the offense within the provisions of law, issue a warrant to bring the person so charged before tbe same or some other court, or magistrate, so authorized within the State, to answer such complaint as in other cases. (B. C. Sec. 7017; 2 H. C. Sec. 1389.) 135. Sec. 937. Fugitivb to be Held. Sec. 974. 211.] If, upon the examination of the person charged, it shall appear to the court or magistrate, by proof in addition to the oath of the complainant, that there is reasonable cause to believe that the complaint is true, and that such person may be lawfully demanded of the governor, lie shall, if not charged with a capital crime, be required to recognize with sufficient sureties, in a reasonable sum, to appear before such court or magistrate at a future day, allowing a reasonable time to obtain a warrant of tbe ex- ecutive, and to abide the order of the court or magistrate, and if such person shaU not so recognize, he sball be com- mitted to prison and there be detained until such day, in like mianner as if the offense charged had been committed in this State ; and if the person so recognizing shall fail to appear according to tbe conditions of his recogni- zance, he shall be defaulted, and like proceedings shall be had as in the case of other recognisances entered into before such court or magistrate; but if sucb person be charged with a capital crime, he shall be committed to prison, and there be detained until the -day so appointed for his appearance before tbe court or magistrate. (B. C. Sec. 7018; 2 H. C. Sec. 1390.) 135. Sec. 939. Fugitive Discharged Re-Abrbst. Sec. 975. 212.] If the person so recognized or commit- ted shall appear before the court or magistrate upon tbe day ordered, he shall be discharged, unless he be de- manded by some person authorized by the warrant of tbe executive to receive him, or unless the court or magis- trate shall see cause to commit him, or to require of him to recognize anew for his appearance at some other day; and, if, when ordered, he shaU not so recognize, he shall be committed and be detained as before provided. STATE STATUTES OF WEST VIEGINIA. 475 Whenever the person so appearing shall be recognized, committed or discharged, any person authorized by the warrant of the executive may at all times take him into custody, and the same shall be a discharge of the recogni- zance if any, and shall not be deemed an escape. (B. C. Sec. 7019 ; 2 H. C. Sec. 1391.) 135. Sec. 941. Costs. Sec. 976. 213.] The com- plainant in such cases shall be answerable for the actual costs and charges, and for the support in prison of any person so committed, and shall advance to the jailor one week's board at the time of commitment, and so from week to week, so long as such person shall remain in jail ; and if he fails to do so, the jailor may forthwith dis- charge the person from his custody. (B. C. Sec. 7020; 2 H. C. Sec. 1392.) XLVI. WEST VIRGINIA. (From Hogg's West Virginia Statutes, 1914, Vol. 1, Chapter 14, Sections 356 to 364, pages 148 to 151.) 356. Fugitives feom Foreign Nations — Duty of GovEKNOB TO DELIVER.] The govcmor, whenever re- quired by the executive authority of the United States pursuant to the constitution and laws thereof, shall de- liver over to justice any person found within this State who shall be charged with having committed any crime without the jurisdiction of the United States. (Code Va. 1860, p. 118; Acts 1882, c. 144.) 357. Same — ^When Governor may delivee at Discre- tion — Evidence — Expenses.] The governor though not so required, may in his discretion deliver over to justice any person found within this State who shall be charged with having committed without the jurisdiction of the United States, any crime, except treason, which by the laws of this State, if committed therein, would be punish- able by death or imprisonment in the penitentiary. The 476 THE LAW OF INTERSTATE RENDITION. governor shall require such, evidence of the guilt of the person so charged, as would be necessary to justify an in- dictment against him, had the crime charged been com- mitted in this State. The expense of the apprehension and delivery shall be defrayed by those to whom the de- livery is made. (Code Va. 1860, p. 118; Acts 1882, c. 144.) 358. Fugitives from States or Territories — Powers OF GrOVERNOR APPOINTMENT OF EXTRADITION AgENT Evidence — Complaint or Indictment — ^Affidavits — Ex- penses.] The governor, in any case, authorized by the constitution of the United States, may, on demand, de- liver over to the executive of any other State or Terri- tory any person charged therein, with treason, felony, or other crime committed therein, and he may on applica- tion appoint an agent to demand of the executive author- ity of any other State or T'erritory any offender fleeing from the justice of this State; Provided, That such de- mand or application is accompanied by sworn evidence that the party charged is a fugitive from justice, and that the demand or application is made in good faith for the punishment of crime, and not for the purpose of collect- ing a debt or pecuniary mulct, or of removing the alleged fugitive to a foreign jurisdiction with a view there to serve him with civil process ; and also by a duly attested copy of an indictment, or a duly attested copy of a com- plaint mjade before a court or magistrate authorized to take the same, such complaint to be accompanied by affi- davits to the facts constituting the offense charged, by persons having actual knowledge thereof, and such fur- ther evidence in support thereof as the governor may require. The governor may pay out of the civil contin- gent fund any reasonable expenses incurred under this section. (Code Va. 1860, p. 119; Acts 1882, c. 144.) 359. Same — Warrant for Arrest of Person Charged — Issuance — Execution.] Whenever any person shall be found within this State, charged with treason, felony or other crime committed in any other State, any justice may, upon complaint on oath, or other satisfactory evi- STATE STATUTES OF WEST VIBGINIA. 477 dence that such i)erson. committed the offense, issue a warrant to bring the person so charged before the same, or some other justice within the State ; and the officer to whom such warrant may be directed may execute the same in any county in the State, and bring the party, when arrested, before any justice of the same or any other county. (Code Va. 1860, p. 119 ; Acts 1882, c. 144.) 360. Same — Eecognizance of Pebson Chaeged — Com- mitment — Failuee to Appeab — FoKFEiTirEE of Eecogni- zance.] If it shall appear to the justice before whom the person charged may be brought that there is reason- able cause to believe that the complaint is true, he shall if he would have been baQable by a justice, in case the offense had been comlnitted in this State, be required to recognize, with sufScient sureties, in a reasonable sum, to appear before the circuit court of the county at a future day, allowing a reasonable time to obtain the warrant of the executive, and to abide the order of the court ; and if such person shaU not so recognize he shall be committed to prison, and be there detained until such day. The recognizance, if any, shall be returned to the said court without delay; and if the person so recognizing shall fail to appear according to the condition of his recognizance, he shall be defaulted, and the Kke proceeding shall be had, as in the case of other recognizances entered into before a justice ; but if such person would not have been bailable by a justice in case the offense had been commit- ted in this State, he shall be committed to prison, and there detained until the day so appointed for his appear- ance before the court. (Code Va. 1860, p. 119 ; Acts 1882, c. 144.) 361. Same — Duty of Justice taking Eecognizance.] The justice by whom such person may be so recognized or committed, shaU immediately, by letter, apprise the governor of the fact, who shall thereupon communicate the same to the executive of the State where the crime is charged to have been committed. (Code Va. 1860, p. 119 ; Acts 1882, c. 144.) 478 the law op interstate rendition. 362. Same — Appearance by Person Eecognized — ^Dis- charge — Commitment — New Eecognizance — Discharge — Commitment — New Eecognizance — Discharge of Ee- cognizance.] If tlie person so recognized or committed shall appear before the court upon the day ordered, he shall be discharged, unless he shall be demanded by some person authorized by the warrant of the governor to re- ceive him or unless the court shall see cause to commit him or to require him to recognize anew for his appear- ance at some other day ; and if when ordered, he shall not so recognize, he shall be comlmitted and detained as be- fore. But whether the person, so charged shall be recog- nized, committed or discharged, any person authorized by the warrant of the governor may at aU times, take him into custody, and the same shall be a discharge of the recognizance, if any, and shall not be deemed an escape. (Code Va. 1860, p. 119; Acts 1882, c. 144.) 363. Same — ^Ijiability of Complainant for Costs — Charges and Support of Person Ajbrested.J The com- plainant in each case shall be answerable for all the ac- tual costs and charges, and for the support in prison of any person so committed ; and if the charge for his sup- port in prison shall not be paid when demanded, the jail- or may discharge such person from prison. (Code Va. 1860, p. 120; Acts 1882, c. 144.) 364. Same — Detention of Fugitives under Prosecu- tion FOR Offense Committed in State.] No person un- der prosecution for any offense alleged to be committed within this State shall be delivered up to the executive authority of another State, or of the United States, until such prosecution shall have been determined, and the person prosecuted shall have been punished, if con- denmed ; nor shall any person imder recognizance to ap- pear as a witness in any such prosecution be so delivered up until said prosecution shall be determined. Nor shall any person who was in custody upon any execution, or upon process in any suit, at the time of being appre- hended for a crime charged to have been committed with- out the jurisdiction of this State, be so delivered up with- STATE STATUTES OF WISCONSIN. 479 out the consent of the plaintiff in such execution or suit, until the amount of such execution shall have been paid, or until such person shall be otherwise discharged from such execution or process. (Code Va. 1860, p. 120; Acts 1882, c. 14-4.) XLVII. WISCONSIN. (From the Wisconsin Statutes, 1915, Chapter 37, Sec- tions 731a and 731b, pages 471 and 472 ; Chapter 198, Sections 4843 to 4854, pages 2243 to 2245.) Fugitives feom Justice and Peoceedings Thereon. Section 731a. Pee Diem and Expensps on Eequisi- TiON.] In aU. cases where by the laws of this State the governor thereof is authorized to demand of the execu- tive authority of any other State, any fugitive from jus- tice or any person charged with felony or any other crime in this State, and appoint an agent to receive the same, and such fugitive from justice or person charged with felony or other crime, is apprehended in any other State, by the sheriff or deputy sheriff of the county of this State, where the warrant for such fugitive from jus- tice is properly issued, or such felony or other crime com- mitted, and such fugitive from justice voluntarily re- turns with said sheriff to this State without requisition, such sheriff shall be entitled to the same fees as an agent of the governor appoiated to receive such fugitive in cases of requisition, namely eight-dollars per day for the time necessarily expended in traveling to, apprehending and returning with such fugitive, and his actual and nec- essary expenses for such time, which compensation and expenses shall be allowed by the county board of such county upon the presentation thereto of an itemized and verified account, stating the number of days he was en- gaged, the number of miles traveled and each item of ex- pense iucurred in rendering such services, including the 480 THE LAW OF INTERSTATE RENDITION. transportation and board of such fugitive from justice. No allowance whatever shall be made him as mileage. (1901 c. 126 s. 1; Supl. 1906 s. 731a; 1907 c. 118.) Section 731b. No Fee unless Apprehension is Au- thorized BY District Attorney.] No sheriff of this State shall receive the compensation for the apprehen- sion and voluntary return of fugitives from justice as provided in section 731a, unless such apprehension shall have been duly authorized in writing by the district at- torney or by the county judge of the county wherein the felony or other crime was committed, which written au- thority shall further certify that the ends of justice wiU be subserved by the apprehension and return of such fugitive, and such certificate shall be by such sheriff at- tached to and filed with his itemized account of such ser- vices. This section shall not apply to counties having a population of three hundred thousand or more. (1901 c. 126 s. 2; Supl. 1906 s. 731b; 1907 c. 118; 1911 c. 663 s. 69; 1915 c. 259.) Section 4843. Investigation op Demand; Agent's Compensation.] The governor of this State may, in any case authorized by the Constitution and laws of the United States, demand of the executive authority of any other State or Territory any fugitive from justice or any person charged with felony or any other crime in this State and appoint agents to receive the same ; and when- ever an application shall be made to the governor for that purpose the district attorney or any other prosecut- ing officer of the State, when required by the governor, shall forthwith investigate the grounds of such applica- tion and report to the governor all material circum- stances which may come to his knowledge, with an abstract of the evidence and his opinion as to the expedi- ency of the demand; but the governor may in any case appoint such agents without requiring the opinion of or any report from the district attorney; and the accounts of the agents appointed for such purpose shall in all cases be audited by the county board of supervisors of the county from which such fugitive may have fled and paid . STATE STATUTES OF WISCOKSIN, 481 from the treasury of such county. The compensation of such agent shall be eight doUars per day for the time necessarily devoted to the performance of his duties and his actual and necessary expenses for such time, which compensation and expenses shall be allowed by the coun- ty board upon the presentation thereto of an itemized and verified account, stating the number of days he was engaged, the number of miles traveled and each item of expense incurred as and while acting as such agent. No allowance whatever shall be made him as mileage. (E. S. 1849, c. 143 s. 1; E. S. 1858 c. 174 s. 1; R. S. 1878, s. 4843; Ann. Stats. 1889 s. 4843; 1895 c. 259; Stats. 1898 s. 4843.) Section 4844. Appboval, of Application.] The dis- trict attorney or other prosecuting officer of the State shall certify that he approves of the application; that the party whose arrest is sought is a fugitive from jus- tice ; that he believes the said fugitive to have taken ref- uge iu the State or Territory of (naming the same,) and that the ends of justice require that the said fugitive should be brought back to this State for trial. (R. S. 1849 c. 143 s. 2; R. S. 1858 c. 174 s. 2; R. S. 1878 s. 4844; Ann. Stats. 1889 s. 4844; Stats. 1898 s. 4844.) Section 4845. Goveenok not Bound by Ofmceb's Ac- tion.] Nothing in the preceding section shall be con- strued as prohibiting the issue of requisitions by the gov- ernor in cases where the district attorney or other officer of this State shall refuse to make the application or when, by reason of sickness or vacancy in the office, the applica- tion cannot be made by a district attorney or other offi- cer; or in other cases where, by proper affidavits, ample proofs of the propriety and necessity of a requisition shall be furnished to the governor, but which for good reasons cannot be placed in the form prescribed in the preceding section. (R. S. 1849 c. 143 s. 5 ; R. S. 1858 c 174 s. 5; R. S. 1878 s. 4845; Ann. Stats. 1889 s. 4845; Stats. 1898 s. 4845.) Section 4846. Copies of Papebs to be Filed.] Dupli- cate originals or certified copies of all papers necessary 482 THE LAW OP INTEESTATE RENDITION. upon application for a requisition, including the applies^ tion and all other papers in the case, must be furnished to the governor ; and when a requisition is asked for from more than one State an additional copy thereof must be furnished for each State, and one set of such papers shall be filed and kept in the executive office ; and in all cases, except upon indictment, duplicate originals or certified copies of the affidavits and of the papers made before the magistrate for the arrest and examination of the accused must be furnished with the certificate of such magistrate that the person making any such affidavit is to be be- lieved, and with the certificate of the clerk of the circuit court of the county that such magistrate is a lawful mag- istrate of such county (and name the town.) R. S. 1849 0. 143 s. 3, 4; E. S. 1858 c. 174 s. 3, 4; R. S. 1878 s. 4846; Ann. Stats. 1889 s. 4846; Stats. 1898 s. 4846.) Section 4847. Governor, When to Issue Warrant.] When a demand shall be made upon the governor of this State by the executive of any other State or Territory, in any case authorized by the Constitution and laws of the United States, for the delivery over of any person charged in such State or Territory with treason, felony or any other crime the district attorney or any other prosecuting officer of the State, wihen required by the governor, shall forthwith investigate the ground of such demand and report to the governor all material facts which m-ay come to his knowledge as to the situation and circumstances of the person so demanded, especially whether he is held in custody or is under recognizance to answer for any offense against the laws of this State or of the United States or by force of any civil process, and also whether such demand is made according to law, so that such person ought to be delivered up ; if the gover- nor is satisfied that such demand is conformable to law and ought to be complied with he shall issue his war- rant, under the seal of the State, authorizing any duly appointed agent of the executive who makes such demand forthwith, or at any such time as shall be designated by the warrant, to take and transport such person to the STATE STATUTES OF WISCONSIN. 483 line of tlie State at the expense of such, agents, and shall also by warrant require the civil officers within this State to afford all needful assistance in the execution thereof. (K S. 1849 c. 143 s. 6; E. S. 1858 c. 174 s. 6; R. S. 1878 s. 4847; Ann. Stats. 1889 s. 4847; Stats. 1898 s. 4847.) Section 4848. Warrant fob Aeeest of Fugitive. J Whenever any person shall be found in this State charged with any offense committed in any other State or Territory and liable by the constitution and laws of the United States to be delivered over upon the demand of the executive of such other State or Territory any court or magistrate authorized to issue warrants in crim- inal cases may, upon complaint under oath setting forth the offense and such other matters as are necessary to bring the case within the provisions of law, issue a war- rant to bring the person so chargied before the same or some other court or magistrate within the State to an- swer to such complaint, as in other cases. (E. S. 1858 c. 174 s. 7; E. S. 1878 s. 4848; Ann. Stats. 1889 s. 4848; Stats. 1898 s. 4848.) Section 4849. Proceedings.] If upon the examina- tion of the person charged it shall appear to the court or magistrate that there is reasonable cause to believe that the complaint is true and that such person may be law- fully demanded of the governor he shall, if not charged with a capital crime, be required to recognize, with suffi- cient sureties in a reasonable sum, to appear before such court or magistrate at a future day, allowing a reason- able time to obtain the warrant of the executive, and to abide the order of the court or magistrate; and if such person shall not so recognize he shall be committed to prison and be there detained untU such day, in like man- ner as if the offense charged had been committed within this State ; and if the person so recognizing shall fail to appear, according to the condition of his recognizance, he shall be defaulted, and the like proceedings shall be had as in the case of other recognizances entered into be- fore such court or magistrate; but if such person be charged with a capital crime he shall be committed to 484 THE LAW OF INTEESTATE KENDITION. prison and there detained until the day so appointed for his appearance before the court of magistrate. (B. S. 1858 c. 174 s. 8 ; E. S. 1878 s. 4849 ; Ann. Stats. 1889 s. 4849; Stats. 1898 s. 4849.) Section 4850. Disohakge op Accused.] If the person so recognized or committed shall appear before the court or magistrate upon the day ordered he shall be dis- charged unless he be demanded by some person author- ized by the warrant of the executive to receive him or un- less the court or magistrate shall see cause to commit him or to require him to recognize anew for his appearance at some other day, and if, when ordered, he shall not so recognize, he shall be committed and detained as before provided ; whether the person so charged shall be recog- nized, committed or discharged any person authorized by the warrant of the executive may at all times take him into custody, and the same shall be a discharge of the recognizance, if any, and shall not be deemed an escape. (E. S. 1858 c. 174 s. 9; E. S. 1878 s. 4850; Ann. Stats. 1889 s. 4850; Stats. 1898 s. 4850.) Section 4851. Liability of Complainant.] The com- plainant in such case shall be answerable for all the ac- tual costs and charges and for the support in prison of any person so committed, and shall advance to the jailer one week's board as the time of commitment, and so from week to week as long as such person shall remain in jail ; and if he fail to do so the jailer may forthwith dis- charge such person from his custody. (E, S'. 1858 c. 174 s. 10; E. S. 1878 s. 4851; Ann. Stats. 1889 s. 4851; Sts. 1898 s. 4851.) Section 4852. Michigan Peisonees.] It shall be law- ful for aU officers in the State of Michigan or other per- sons duly authorized, on lawful warrants from any judi- cial officer of that State, to convey any person who has been convicted of or may be charged with any crime com- mitted within the State of Michigan through the State of Wisconsin, from the upper peninsula to the lower penin- sula or from the lower peninsula to the upper peninsula of Michigan, for the purpose of final execution or trial. STATE STATtTTES OP WYOMING. 485 (E. S. 1858 e. 174 s. 11; E. S. 1878 s. 4852; Ann. Stats. 1889 s. 4852; Stats. 1898 s. 4852.) Section 4853. Not to have Habeas Corpus.] If any person so convicted of or charged with, crime in the State of Michigan or being so conveyed by such officers or other person dnly authorized under the laws of Michigan to have the custody of snch person, shall sne out a writ of habeas corpius it shall be a sufficient answer to said writ by the person having such custody that he holds such person by viri;ue of a lawful warrant from any judicial offer of the State of Michigan, and he shall annex to such answer a copy of the writ by which he claims the custody of such person. (E. S. 1858 c. 174 s. 12; E. S. 1878 s. 4853; Ann. Stats. 1889 s. 4853; Stats. 1898 s. 4853.) Section 4854. Atoing Escape.] Any or all persons who shall in any manner aid such person so being con- veyed through the State of Wisconsin by virtue of any such writ or warrant to escape or shall resist any officer or person while engaged in carrying any such prisoner through this State shall be liable to the same penalties as now provided by the laws of this State against persons aiding prisoners to escape or resisting officers of this State. (E. S. 1858 c. 174 s. 13; E. S. 1878 s. 4854; Ann. Stats. 1889 s. 4854; Stats. 1898 s. 4854.) XLVin. WYOMING. (From Compiled Statutes of Wyoming, 1910, chap. 414, sections 6136, 6323, 6324, 6325, pa^es 1416 and 1448.) Fugitives feom Justice. 6136. Fugitives feom Justice.] Any fugitive from justice against whom an information may be filed may be demanded by the governor of this State from and of the executive authority of any other State or of any Terri- tory, or of any foreign government, in the same manner. 486 THE LAW OF INTERSTATE EENDITION. and the same proceedings may be had therein, as is now or may hereafter be provided by law, in like cases of de- mand upon an indictmient found. (1895, ch. 123, S. 9; E. S. 1899, 5275.) 6323. Arrest of Fugitives from other States.] When an affidavit shall be filed before any judge of a district court, police court, or any justice of the peace within this State, setting forth that any person charged with the commission of any criminal offense against the laws of any other state or of the territories of the United States and which, if the act had been committed in this State would by the laws thereof, have been a crime, is, at the timie of filing such affidavit, within the county where the same may be filed it shall be lawful, and it is hereby made the duty of such judge or justice of the peace to issue his warrant, directed by the sheriff or any constable of the county, commanding him forthwith to ar- rest and bring before the officer issuing such writ, the person so charged. (E. S. 1887, S. 3361; E. S. 1899, S. 5452.) 6324. Examination and Commitment op Fugitive.] When the person arrested, as provided in the preceding section, shall be brought before the officer issuing such warrant, it shall be lawful, and it is hereby made the duty of such officer to hear and examine such charge, and upon proof by him Euijudged to be sufficient, to commit such person to the jail of the county in which such exam- ination shall take place, or cause such person to be de- livered to some suitable person to be removed to the proper place of prosecution. E. S. 1887; S. 3362 ; E. S. 1899, S. 5453.) 6325. Notice of Detention.] Whenever any person is committed to jail or justice of the peace, by either of the provisions of the preceding section, it shaU. be the duty of such judge or justice of the peace, forthwith to give notice, by letter or otherwise, to the sheriff of the county in which such offense shall have been committed or to the person injured by such offense, and no person so committed shall be delayed longer in jail than neces- STATUTES OF THE TEREITOB.Y OF ALASKi. 487 sary to allow a reasonable time to tlie person so notified, after they shall have received such notice, to apply for and obtain the proper requisition for the person so com- mitted. (R. S. 1887, S. 3363; E. S. 1899, S. 5454.) XLIX. TEERITORY OF ALASKA. (From the Compiled Laws of the Territory of Alaska, 1913, Chapter 39, Sections 2502 to 2516, pages 771 and 772.) Proceedings in Relation to Fugitives from Justice. Section 2502. Gtovernor to Appoint Agent to De- mand Fugitive from Justice.] That whenever a person charged with treason or other felony, in said District shall flee from justice the governor of said District may appoint an agent to demand such fugitive of the execu- tive authority of any State or Territory of the United States in which he may be found. Section 2503. Governor may Require Report from District Attorney.] That before appointing such agent the governor may require the district attorney to investi- gate the matter and report to him the material circum- stances, together with his opinion upon the expediency of allowing the application. Section 2504. Payment of Expenses of Agent.] That the account of the agent, including his actual ex- penses incurred in performing the service, must be paid by the United States marshal, after being allowed by the district court, out of moneys appropriated to pay the ex- penses of United States courts. Section 2505. Fugitive from Justice, When to be De- livered UP BY Governor.] That a person charged in any State or Territory of the United States with treason, fel- ony, or other crime, who may flee from justice and be found in said District, must, on demand of the executive authority of the State or Territory from which he fled. 488 THE LAW OP INTEBSTATE EENBITION. be delivered up by the governor of said District, to be re- moved to tbe State or Territory making the demand. Section 2506. When Fugitive not to be Delivered, AND WHEN HE MAY BE. J That when the person demanded is in custody in said District, either upon a criminal charge, an indictment for a crime, or a judgment upon a conviction thereof, he can not be delivered up until he is legally discharged from such custody ; but if he be in cus- tody upon civil process only, the governor may deliver him up or not before the termination of such custody, as he may deem most conducive to the public good. Section 2507. Eepobt of District Attorney in Rela- tion to Custody op Fugitive.] That before issuing a warrant for the delivery of a fugitive from justice, the governor may require the district attorney to ascertain and report to him whether such fugitive is in custody as mentioned in the last section, and if he be so upon civil process only, whether such custody be with the consent or procurement of the fugitive. Section 2508. When and to whom Governor to Issue Warrant for Arrest.] That when the governor finds that the demand is conformable to law, and the person de- manded should be given up, either then or at some future time, if he be in custody, he must issue his warrant under the seal of the District, directed to the person who makes the demand, and authorizing him, either forthwith or at some future time therein designated, to take and trans- port the fugitive to the border line of said District at the expense of the person demanding the fugitive. Section 2509. Executive Warrant to Direct Oppicees AND Magistrate to Aid in its Execution.] That the ex- ecutive warrant must also require all peace officers and magistrates, when requested by the person to whom the warrant is directed, to render all needful assistance in the execution thereof; and in so doing such officers or miagistrates may exercise the same power and authority to prevent a rescue, an escape, or to effect a recapture, as if the fugitive was in arrest upon a charge of crime com- mitted in said District. STATtTTES OP THE TEEEITOET OP AT.AR TTA. 489 Section 2510. Magistrate mat Issue Warrant poe Ab- EEST OP Ftjgitivb.] That a magistrate authorized to is- sue a warrant of arrest may issue a warrant for the ar- rest of a person charged as provided ia section twenty- five hundred and five of this title who shall flee from jus- tice and be found in said District. Section 2511. Peoceedings for Arrest and Commit- ment OF Fugitive before Magistrate.] That the pro- ceedings for the arrest and commitment of the person charged are in all respects similar to those provided ia this act for the arrest and com mi tment of a person charged with a crime committed in said District, except that an exemplified copy of an indictment found, or other judicial proceedings had agaiast him, lq the State or Ter- ritory in which he is charged to have committed the crime, may be received as evidence before the magistrate. Section 2512. When Magistrate to Commit, and for WHAT time.] That if from the examination it api)ear that the person charged has committed the crime alleged, the magistrate must commit him to the proper custody for a time specified in the commitment, which the magis- trate deems reasonable, to enable the arrest of the fugi- tive under the warrant of the executive authority of said District on the requisition of the executive authority of the State or Territory in which he committed the crime, or until he be legally discharged, unless he give bail as provided in the next section. Sec. 2513. Magistrate mat Admit Person Arrested TO Bail.] That the magistrate may admit the person arrested to bail by an undertaking, with sufficient sure- ties and in such amount as he deems proper, for his ap- pearance before him at a time specified in the under- taking, and for his surrender to be arrested upon the warrant of the governor of said District. Section 2514. Magistrate to Gira Notice to Goveenoe OP Commitment.] That immediately upon the commit- ment of the person charged the magistrate must inform the governor of said District of the name of the person, the cause of the arrest, and his commitment; and the gov- 490 THE LAW OP INTEESTATE EENDITION. emor must thereupon give the like notice to the execu- tive authority of the State or Territory haAong jurisdic- tion of the crime, to the end that a demand may be made for the arrest and surrender of the person charged. Section 2515. Person Arrested to be Discharged un- less TAKEN UNDER EXECUTIVE Warbant.] That the per- son arrested must be discharged from custody or bail un- less, before the expiration of the time designated in the warrant or undertaking, he be arrested under the war- rant of the governor of said District, Section 2516. Person Causing Arrest Liable fob Costs and Expenses.] That the person making the com- plaint to the magistrate is liable for the costs and ex- penses of the proceedings and for the support in the jail of the person so committed ; and unless he advance to the jailer or other proper officer, fromi week to week during the commitment, a sum sufficient for his support the jailer or other officer having such person in custody may, upon the order of the magistrate, discharge such person from custody. L. POETD RICO. (From the Revised Statutes and Codes of Porto Rico, 1913, Title XIV, Sections 6577 to 6588, pages 1023 to 1024.) Proceedings against Fugitives fbom Justice. Section 6577. GtOvernor mat Offer Reward foe Ap- prehension of.] The governor may offer a reward, not exceeding one thousand dollars, for the apprehension — 1. Of any convict who has escaped from the peniten- tiary or, 2. Of any person who has committed, or is charged with the commission of, an offense punishable with death. Section 6578. Delivery to S^ate having Jurisdiction OF Crime.] A person charged in any State of the United STATUTES OP PORTO RICO. 491 States with, treason, felony, or other crime, who flees from justice and is found in Portio Rico, must on demand of the executive authority of the State fromi which he fled, be delivered up by the governor of Porto Eico, to be removed to the State having jurisdiction of the crime. Section 6579. Magistrate may Issue Warrant for Ar- rest.] A magistrate may issue a warrant for th.e appre- hension of a person so charged who flees from justice and is found in Porto Rico. Section 6580. Proceedings for Arrest and Commit- ment.] The proceedings for the arrest and commitment of a person charged are, in all requests similar to those provisions of this code for the arrest and commitment of a person charged with a pubKe offense committed in Porto Rico, except that an exemplified copy of an indictment found or other judicial proceedings had against him, in the State in which he is charged to have committed the offense, may be received as evidence before the magis- trate. Section 6581. May Commit.] If, from the examina- tion, it appears that the accused has committed the crime alleged, the miagistrate by warrant reciting the accusa^ tion, must commit him to the proper custody in his dis- trict, for such time, to be specified in the warrant, as the magistrate may deem reasonable, to enable the arrest of the fugitive under the warrant of the executive of Porto Rico, on the requisition of the executive authority of the State in which he committed the offense, unless he gives bail as provided in the next section, or until he is legally discharged. Section 6582. May Admit to Baiil.] The magistrate may admit the person arrested to bail by an undertaking with sufficient sureties, and in such sum as he deems proper, for his appearance before him at a time specified in the undertaking, and for his surrender to arrest upon the warrant of the governor of Porto Rico. Section 6583. To give Notice op Commitment.] Im- mediately upon the arrest of the person charged, the 492 THE LAW OP INTEESTATE EENDITIOIT. magistrate must give notice thereof to the prosecuting attorney of the district. Section 6584. Duty op Pbosecuting Attorney.] The prosecuting attorney must immediately thereafter give notice to the executive authority of the State or to the prosecuting attorney or presiding judge of the court of the city or county within the State having jurisdiction of the offense, to the end that a demand may be made for the arrest and surrender of the person charged. Section 6585. Person Aeeested when Dischaeged.] The person arrested must be discharged from custody or bail, imless before the expiration of the time designated in the warrant, or undertaking, he is arrested under the warrant of the governor of Porto Rico. Section 6586. Eetuen op Magistrate to Disteiot CoxjET AND Peoceedings theeein.] The magistrate must return his proceedings to the district court of the district which must thereupon inquire into the cause of the arrest and detention of the person charged, and if he is in custody or the timie of his arrest has not elapsed, it may discharge him from detention, or may order his un- dertaking of bail to be cancelled, or may continue his detention for a longer time, or re-admit him to bail, to appear and surrender himself within a time specified in the undertaking. Section 6587. Payment op Expenses op Agent.] When the governor of Porto Rico, in the exercise of the authority conferred by the executive authority of any State of the United States, or of any foreign government (demands) the surrender to the authorities of Porto Rico, of a fugitive who has been found and arrested in such State or foreign government, the accounts of the person employed by him to bring back such fugitive mast be audited and paid out of the Insular Treasury. Section 6588. Compensation, Fee oe Rewaed, how Allowed.] No compensation, fee or reward of any kind can be paid to or received by a public ofl&cer of Porto Rico, or other person, for a service rendered in procur- ing from the governor the demand mentioned in the pre- STATUTES OF POBTO BICO, 493 ceding section, or the surrender of tlie fugitive or for con- veying him to Porto Eico, or detaining Mm therein, ex- cept as provided for in such section. See Kopel v. Bingham, (1908), 211 U. S. 468, Sup. Ct. 190, 53 L. ed. 286. LI. TERBITORY OF HAWAII. The Hawaiian Islands being a Territory of the United States the Federal law on interstate rendition applies to this Territory as to any other State or Territory. LII. PHILIPPINE ISLANDS. See chapter XXII, section 221. Lin. DISTRICT OF COLUMBIA. See chapter TV, sections 27 to 34. TABLE OF CASES CITED (BBFEEBNCES ABE TO SECTIONS OT THIS BOOK.) Ableman v. Booth, 21 How. 506: 21, 128. Adrlance v. Lagrave, 59 N. Y. 110: 136. Allen V. Miller, 11 Ohio St. 374: 137. American Banana Co. v. United Fruit Co., 213 U. S. 347: 214. Appleyard v. Commonwealth, 203 U. S. 222: 52, 59, 143, 183, 186, 206, 207, 208, 212. Armstrong v. Van De Venter, 21 "Wash. 682: 77, 86, 183. B. Bagnall t. Ableman, 4 Wis. 163: 220. Baker v. State, 88 Wis. 147: 132. Barnes v. Nelson, 23 S. D. 181: 183. Barrenger v. Baum, 103 Ga. 465: 85. Barriere v. State, 142 Ala. 72: 92, 183, 185. Bassing v. Cady, 208 U. S. 386: 208. Beacon t. Rogers, 79 Hun, 220: 137. Belt, Petitioner, 159 U. S. 95: 197. Benn v. Oswell, 37 How. Pr. 235: 136. Benson v. Henkel, 198 U. S. 1: 30, 218, 221. V. Palmer, 31 App. Cas. (D. C.) 561: 56. Bergman v. Backer, 157 U. S. 655: 183, 197. Bergman v. State, 60 Tex. Crim. 8: 183. Blackwell v. Jennings, 128 Ga. 264: Appendix — page 356. Blodgett V. Race, 18 Hun. 132: 34. Botts V. Williams, 56 Ky. (17 B. Mon.) 687: Appendix— page 385. Brockaway v. Crawford, 48 N. C. 433: 183. Browning v. Abrams, 51 How. Pr. 172: 136. Brown's Case, 112 Mass. 409: 7, 19. Bruce t. Raynor, 124 Fed. 481: 200. c. Campbell v. State, 166 Ala. 33: 107. Carpenter v. Spooner. 2 Sandf. 717: 136, 128. Carper r. Fitzgerald, 121 U. S. 87: 197. (495) 496 TABLE OP OASES CITED. (RErEEENCES ABM TO SECTIONS OF THIS BOOK.) Carr v. State, 104 Ala. 43: 132. Carroll's Case, Chicago L. N., Sept 28, 1878: 100. Carruth v. Taylor, 8 N. D. 166: 185. Case of Bailey, 1 "Woolw. 422: 34. Case of Bollman, 2 Cranch, 75: 34. Cavanaugh v. Smith, 84 Ind. 384: 137. City of Annapolis v. Howard, 80 Md. 244: 185. Cohens v. Virginia, 6 Wheat. 264: 197. Coleman v. State, 53 Tex. Crim. 93: 52, 90. Cook V. Brown, 125 Mass. 503: 137. Cook V. Hart, 146 U. S. 183: 54, 194, 197, 198. Commonwealth v. Cooke, 55 Pa. Supr. Ct. 435: 183. V. Daniel, 4 Clark, 49: 136. V. Johnson, 2 Pa. Dist. 673: 79. V. Macloon, 101 Mass. 1: 214. V. Phelps, 209 Mass. 396: 107. V. Smith, 11 Allen (Mass.) 243: 214. V. Tracy, 5 Met. 549: 39. V. Wright, 158 Mass. 149: 131, 195. Commonwealth Bank v. Griffith, 14 Pet. 56: 197. Commonwealth ex rel. Burlingame v. Hare, 36 Pa. Supr. Ct. 125: 52, 53, 153. Commonwealth ex rel. Schneider v. Chess, 21 Pa. Dist. 523: 105. Commonwealth ex rel. v. McCandlass, 7 Pa. Co. Ct. 51: 110. Commonwealth ex rel. v. Supt. etc., 220 Pa. St. 401: 110, 144, 161. Commonwealth of Mass. v. Klaus, 129 N. Y. Supp. 1117: 63. V. Klaus, 145 App. D. 798: 63. Compton V. Alabama, 214 U. S. 1: 211, 213. v. State, 152 Ala. 68: 211. V. Wilder, 40 Ohio St. 130: 136, 149. Cousouland v. Rosomano, 176 Fed. 481: 137. Covington v. Arrington, 32 Miss. 144: 185. Cunningham v. Baker, 104 Ala. 160: 102, 183. D. Daniel's Case, Binn's Justice, 8th Ed., 439: 125. Dauber v. Dalzell, 10 Ohio Dec. 227: 136. Davis' Case, 122 Mass. 324: 85, 209. Day V. Townsend, 70 Iowa 538: Appendix — page 374. Dennlson v. Christian, 196 U. S. 637: 52, 143, 200. V. Christian, 72 Neb. 703: 92, 200. Depoilly V. Palmer, 28 App. Cas. (D. C.) 324: 52, 53, 90. Dow's Case, 18 Pa. St. 37: 107. Drew V. Thaw, 235 U. S. 432: 145, 215. TABLE OF OASES CITED. 497 (bEFEEBNCES ABE TO SECTIONS OF THIS BOOK.) Drinkall v. Speigle, 68 Conn. 441: 19, 53, 60. Dunkin v. Seifert, 123 Iowa, 64: 185. Dunlap V. Cody, 31 Iowa, 260: 137. E. Elmore v. State, 45 Ark. 243: 129. Ex parte Alnsworth, 27 Tex. 731: 185. Amnions, 34 Ohio St. 518: 39, 112. Bain, 121 U. S. 1: 81, 84. Baker, 43 Tiex. Crlm. 281: 92. Barker, 87 Ala. 4: 129. Bergman, 18 Nev. 331: 185. Bergman, 60 Tex. Crlm. 8: 39. Bigelow, 113 U. S. 328: 197. Block, 147 Fed. 836: 221. Brown, 28 Fed. 653: 53. 206. Brown, 178 S. W. 366: 92, 183. Brunell, 80 Wis. 563: 185. Canavan, 17 N. M. 100: 185. Chambers, 221 Mass. 178: 183. Cheatham, 50 Tex. Crim. 51: 92, 163, 183, Chung Kin Tow, 218 Fed. 185: 52. Cubreth, 49 Cal. 436: 39, 46, 102. Dawson, 83 Fed. 306: 77. Denning, 50 Tex. Crim. 629: 47. Devine, 74 Miss. 714: 90, 153, 183. Dickson, 4 Ind. Ter. 481: 77. Ditomlg, 74 Cal. 164: 92, 93, 183. Dorr, 3 How. 103: 197. Doyle, 62 W. Va. 280. Duddy, 219 Mass. 548: 183. Edwards, 11 Fla. 174: 185. Edwards, 91 Miss. 621: 82, 145, 185. Fonda, 117 U. S. 516: 194, 197. Faihtinger, 163 S. W. 441: 69. Good, 19 Ark. 410: 185. Goodman, 182 S. W. 1120: 183. Graham, 216 Fed. 813: 183. Hampton, 1 Ohio N. P. 181: 73, 183. Hart, 63 Fed. 240: 84, 183. Hart, 59 Fed. 894: 84, 199. Hohbs, 32 Tex. Crim. 312: 100. Hoffstot, 218 U. S. 665: 183, 213. Hoffstot, 180 Fed. 240: 183, 213. 214. 498 TABLE OF CASES CITED. (eefebences ake to sections of this book.) Ex parte Hose, 34 Nev. 91: 80. Howe, 26 Oregon, 181: 185. Innes, 173 S. W. 291: 215a. Johnson, 167 U. S. 120: 128. Ker, 18 Fed. 167: 129. Knowles, 16 Ky. Law, 263: 198. Krause, 228 Fed. 547: 217. Lacrouts, 134 La. 900: 185. Law, 2 Ala. App. 257: 52. Lewis, 79 Cal. 95: 172. Lewis, 34 Nev. 29: 183. Lewis, 170 S. W. 1098: 183, 92. Lorraine, 16 Nev. 63: 39, 183. Masse, 95 S. C. 315: 145, 185. McDaniel, 173 S. W. 1018: 101. McKean, 3 Hughes, (U. S.) 23: 39, 183. McKnight, 48 Ohio St. 588: 125. Morgan, 20 Fed. 298: 41, 84, 92, 210. Overfield, 152 Pac. 568: 183. Owen, 10 Okl. Grim. 284: 84, 92, 183. Pearce, 155 Fed. 663: 196. Pearce, 32 Tex. Crim. 301: 85, 209. Pfitzer, 28 Ind. 450: 92, 183. Phillips, 57 Miss. 357: 185. Powell, 20 Fla. 806: 75, 97, 183, 185. Reggel, 114 U. S. 642: 19, 48, 53, 54, 59, 74, 130, 143, 166, 183, 192, 193, 197, 198, 199, 206, 207, 212. Richards, 102 Ind. 260: 185. Ring, 28 Cal. 247: 185. Romanes, 1 Utah, 23: 200. Rowland, 35 Tex. Crlm. 108:' 92, 183. Royall, 117 U. S. 241: 197, 199. Scott, 9 B. & C. 446: 129. Sheldon, 34 Ohio St. 319: 183, 200. Slauson, 73 Fed. 666: 92, 146. Spears, 88 Cal. 640: 92. Spencer, 34 Nev. 240: 183. Smith, 3 MacLean, 121: 40, 60, 68, 84, 91, 92, 99, 162, 183. Stanley, 25 Tex. Crim. 372: 74, 77. Swearingen, 13 S. C. 80: 142, 153, 206. Thaw, 214 Fed. 423: 215. Thomas, 53 Tex. Crim. 37: 183. Thompson, 93 111. 89: 185. Thornton, 9 Tex. Crlm. 635: 41, 69, 96, 102, 183. Wall, 84 Miss. 783: 159. TABLE OF CASES CITED. 499 (BEFEBENCES ABE TO SECTIONS Or THIS BOOK.) Ex parte Walters, — Miss. — , 64 So. 2: 70. White, 49 Cal. 434: 82, 183, 200. White, 2 Cal. App. 726: 185. Whitten, 67 Fed. 320: 197. Williams, 10 Okl. Grim. 344: 60. Williard & Wife, Serg-t Con. Law, 395: 162. F. Farrall v. Hawley, 78 Conn. 150: 143, 163, 183. Faust V. Judge, 30 Mich. 266: 185. Filer V. Smith, 96 Mich. 347: 102. Fleming v. Commas, 31 W. Va. 608: 185. Forbes v. Hicks, 27 Neb. Ill: Appendix — page 410. G. GaflBgan & Merrick Case, Spear on Extradition, 713: 100. Gillis V. Leekley, 38 Wash. 156: 116, 183. Gonzales v. Williams, 192 U. S. 15: 210. Gordon v. Caldleugh, 3 Cranch, 268: 197. Gordon v. Hobart, 2 Sumner, 401: 211. H. Hall V. Patterson, 45 Fed. 352: 129. Ham V. State, 4 Tex. App. 645: 56, 131, 195. Hammond v. People, 32 111. 446: 185. Harland v. Terr. Wash., 3 Wash. Terr. 131: 88. Harris v. Magee, 150 Iowa, 144: 153, 163. Hartman v. Aveline, 63 Ind. 344: 40, 56, 69, 198. Hayes v. Palmer, 21 App. Cas. (D. C.) 450: 183. Haywood v. Nichols, 203 U. S. 222: 203. Hackney v. Welsh, 107 Ind. 253: 73, 126, 183. Heinekamp v. Beaty, 74 Md. 395: 137. Henderson v. Jones, 52 Ohio St. 530: 185. Hibler v. State, 43 Tex. 197: 50, 53, 90, 206. Higgins V. Tax Assessors, 27 R. I. 401: 185. Hill V. Goodrich, 32 Conn. 588: 137. Holley V. Mix, 3 Wend. 350: 106. Holmes v. Jannlson, 14 Pet 540: 15. Hopkins v. Coburn, 1 Wend. 292: 139. Houston V. Moore, 5 Wheat. 21: 38. Howe V. State, 9 Mo. 682: 185. Hudson V. State, 52 Ohio St 673: 19. 500 TABLE OF CASES CITED. (BEFEBENCES ABE TO SECTIONS OF THIS BOOK.) Hughes V. Pflanz, 138 Fed. 980: 60. Hutardo v. California, 110 U. S. 516: 81, 84. Hyatt V. People ex rel. Corkran, 188 U. S. 691: 51, 52, 55, 59, 94, 96, 109, 143, 163, 187, 198, 200, 206, 207, 209, 212. 213, 214. Hyland v. Rochelle, 179 Ind. 671: 39, 183. Innes v. Tobin, 240 U. S. 127: 215a. In re Baker, 21 Wash. 259: 183. Benson, 130 Fed. 486: 30, 221. Bloch, 87 Fed. 981: 53, 206. Brophy, 2 Ohio N. P. 230: 127. Bruchman, 28 N. B. 358: 152. Buell, 3 Dill. 116: 30. Buell, 4 Dill. 323: 40. Burkhardt, 33 Fed. 25: 34. Burrus, 136 U. S. 586: 197. Charleston, 34 Fed. 531: 116. Clark, 9 "Wend. 212: 85, 143, 153. aasby, 3 Utah, 183: 185. Cook, 49 Fed. 833: 147, 163, 214. Cooper, 32 Vt. 253: 185. DooWoon, 18 Fed. 898: 69, 84, 92, 96, 183. Duncan, 139 U. S. 449: 197. Dana, 7 Ben. 1: 33, 34, 221. Fairman, 3 Ohio N. P. (N. S.) 485: 88. Ferez, 7 Blanchf. 345: 34. Fetter, 3 Zab. 311: 9, 93, 105, 107, 198. Fitton, 45 Fed. 474: 92, 148. FItton, 55 Fed. 273: 132. Flack, 88 Kan. 616: 3, 127, 132. Fowles, 89 Kan. 430: 129. Frederich, 149 U. S. 70: 197. Galbreath, 24 N. D. 582: 50. Garfinkle, 37 Wash. 650: 185. Gill, 92 Ky. 118: 185. Greaser, 72 Neb. 612: 185. Greenough, 31 Vt. 279: 85, 91, 118, 153, 154, 183. Guden, 171 N. T. 529: 163. Hammil, 9 S. D. 390: 185. Haywood, 12 Idaho, 265: 202. Henderson, 27 S. D. 155: 137. Henry, 29 How. Pr. 185: 106. Hey ward, 1 Sandf. 701: 92, 102, 183. TABLE OP CASES CITED. 501 (BEFEEENCES ABE TO SECTIONS OF THIS BOOK.) In re Hooper, 52 Wis. 699: 82, 183. Hughes, Phlll. (N. C.) L. 57: 50, 100. Jackson, 2 Flipp. 183: 45, 60, 183. Jugiro, 140 Fed. 291: 197. Keller, 36 Fed. 681: 52, 85. King, 169 Mass. 46: 185. Klyne, 52 Kan. 441: 185. Kopel, 148 Fed. 505: 93, 210. Kuhns, 36 Nev. 487: 50, 183, 92. Lane, 135 U. S. 443: 210. Lawrence, 80 Fed. 103: 132. Leary, 10 Ben. 197: 19, 117, 171, 183. Leland, 7 Abb. Pr. (N. S.) 64: 92. Little, 129 Mich. 454: 127, 132, 133. Loney, 134 Fed. 372: 197. Lyon, 24 Wash. L. R. 679: 56. Mahany, 29 Col. 442: 185. Mahon, 34 Fed. 525: 128. Manchester, 5 pal. 238: 159. McPhun, 30 Fed. 57: 108. McMaster, 9 Okl. 436: 185. Miles, 52 Vt. 609: 129, 195. Miller, 23 Fed. 23: 129. Mitchell, 4 N. Y. Crim. 596: 183. Mitchell, 171 Fed. 289: 159. Mohr, 73 Ala. 503: 39, 153, 163, 198, 206. Moore, 75 Fed. 822: 132. Moyer, 12 Idaho, 250: 202. Mutchler, 8 Ohio N. P. (N. S.) 345: 183. Neagle, 135 U. S. 1: 197. Noyes, 17 Alb. L. J. 407: 131. Palmer, 138 Mich. 36: 142. Perkins, 2 Cal. 424: 185. Price, 83 Fed. 831: 221. Pettibone, 12 Idaho, 264: 202. Renshaw, 18 S. D. 32: 90. Roberts, 24 Fed. 132: 85, 150, 193. Robinson. 29 Nev. 137: 137. Rosenblat, 51 Cal. 285: Appendix — page 340. Rothaker, 11 Abb. N. C. 122: 34. Rule of Court, 3 Woods, 502: 34. Runkle, 125 Fed. 998: 221. Rutter, 7 Abb. Pr. (N. S.) 67: 40, 69, 92, 183. Snyder, 10 Idaho, 682: 185. Spangler, 11 Mich. 298: 128. 502 TABLE OF CASES CITED. (EEFEBENCES ABE TO SECTIONS OP THIS BOOK.) In re Strauss, 197 U. S. 324: 82, 201, 209. Strauss, 126 Fed. 327: 52, 90, 183, 201, 213. Sultan, 115 N. C. 57: 53, 100, 214. Taylor, 29 R. I. 131: 137. Terrell, 51 Fed. 213: 221. Tod, 12 S. D. 386: 42, 50, 92, 95, 183. VanScelver, 42 Nev. 772: 85, 185, 209. Voorhees, 3 Vroom, 142: 7, 50, 53, 153, 206, 209. Walker, 61 Neb. 814: 132, 136. Waterman, 29 Nev. 288: 86, 183. White, 45 Fed. 237: 41, 85. White, 55 Fed. 54: 53, 122, 153, 183, 198, 206. Williard, 93 Neb. 298: 52, 119. Wilson, 140 U. S. 575: 197. Wood, 140 U. S. 279: 197. Jackson v. Archibald, 12 Ohio C. C. 155: 79. Jones V. Leonard, 50 Iowa, 106: 55, 198. Johnston v. Riley, 13 Ga. 94 : 108. Appendix— page 356. K. Katyuga v. Cosgrove, 67 N. J. L. 213: 77. Kaufman v. Kennedy, 25 Fed. 785: 128. Kentucky v. Dennison, 24 How. 66: 2, 6, 7, 16, 19, 44, 47, 67, 74, 130, 190, 192, 193, 198, 200, 206, 215. Ker V. Illinois, 119 TJ. S. 436: 129, 194. V. People, 110 111. 637: 129. Kemper v. Metzger, 169 Ind. 112: 77, 183. Kingsbury's Case, 106 Mass. 223: 50, 73, 85, 183, 198, 206. Knowlton v. Baker, 72 Maine, 203: 183. Knowlton's Case, 5 Crim. L. Mag. 250: 100. Knox V. State, 164 Ind. 230: 3, 126, 132. Kopel V. Bingham, 211 U. S. 468: 210. Kurtz V. State, 22 Fla. 36: 85, 100, 151. L. Lambert v. Barrett, 157 U. S. 697: 197. Langdon v. People, 133 111. 382: 71. Lascelles v. Georgia, 148 U. S. 543: 2, 3, 19, 126, 130, 195. V. State, 90 Ga. 347: 130. Lavina v. State, 63 Ga. 513: Appendix — page 357. TABLE OF CASES CITED. 503 (BEFEEENCES ABE TO SECTIONS OP THIS BOOK.) Leary's Case, 6 Abb. N. C. (N. Y.) 44: 171. Lippman v. People, 175 111. 110: 93, 183. Livingston v. Livingston, 24 Ga. 379: 185. Lopez V. Sattler, 1 D. & B. Crown Cases, 525: 128. Leonard v. Zweifel, 151 N. W. 1054: 183. M. Mahon v. Justice, 127 U. S. 714: 128, 194. Malcolmson v. Gibbons, 56 Mich. 459: 102, 104, 183. Marbles v. Creecy, 215 U. S. 63: 186, 212. Mark v. Browning, (Utah), 115 Pac. 275: 3, 183. Martin v. Hunter, 1 Wheat. 304: 197. Matter of Cannon, 47 Mich. 481: 125, 133, 148, 78. Briscoe, 51 How. Pr. 422: 163. Hughes, Phill. L. (N. C.) 57: 100. Sylvester, 21 Wash. 263: 171. Titus, 8 Ben. (U. S.) 411: 40. Merrill v. George, 23 How. Pr. 331: 139. Metcalf V. Clark, 41 Barb. 45: 136, 128. Missouri v. Andriano, 138 U. S. 496: 197. Moletor v. Sinnen, 76 Wis. 308: 136. Monynahaji v. Wilson, 2 Flipp. 130: 128. Moore v. Green, 73 N. C. 394: 138. Morey v. Whitney, 203 U. S. 222: 205. Morrill v. Quarles, 35 Ala. 544: 102. Morrison v. Dyer, 143 Iowa, 502: 52, 183. Morton v. Skinner, 48 Ind. 123: Appendix — page 367. Moyer v. Nichols, 203 U. S. 222: 204. Munsey v. Clough, 196 U. S. 364: 49, 57, 59, 90, 101, 143, 199, 207, 209, 212, 215. Murray v. Wilcox, 122 Iowa, 188: 136. Musgrave v. State, 133 Ind. 297: 126. McCullough V. Maryland, 4 Wheat. 316: 201. McNichols V. Pease, 207 U. S. 110: 52, 53, 59, 87, 90, 109, 143, 207, 208, 212. McReady v. Nick, 33 Conn. 321: 185. N. New York v. Eno, 155 U. S. 89: 197. Nicholas v. Cornelius, 7 Ind. 611: Appendix — page 368. Noles V. State, 24 Ala. 672: 196. Norris v. Beach, 2 J. R. 294: 139. 504 TABLE OP CASES CITED. (bEFEBENCES ABE TO SECTIONS OF THIS BOOK.) 0. Oley V. Brown, 5 How. Pr. 92: 137. O'Malley v. Quigg, 172 Ind. 350: 183. Paine v. Kelley, 197 Mass. 23: 137. People V. Pratt, 78 Cal. 345: 129. V. Strosnlder, 264 111. 435: 132. V. Stockwell, 135 Mich. 341: 82, 183. People ex rel. Bowers v. Barrett, 2 111. Cir. 149: 140. People ex rel. Breslin v. Lawrence, 107 N. Y. 607: 185. People ex rel. Corkran v. Hyatt, 172 N. Y. 182: 39, 51, 55, 93, 101, 109, 143, 163, 198. People ex rel. Cornett v. Warden, 60 Misc. (N. Y.) 525: 92, 183. People ex rel. Draper v. Pinkerton, 77 N. Y. 245: 50, 162. People ex rel Genna v. McLaughlin, 145 App. Div. (N. Y.) 513: 52, 143. People ex rel. Kopel v. Bingham, 189 N. Y. 124: 210. People ex rel. Jourdan v. Donohue, 84 N. Y. 438: 97. People ex rel. Kopel v. Bingham, 117 App. Div. (N. Y.) 411: 210. People ex rel. Lawrence v. Brady, 56 N. Y. 182: 3, 92, 153, 167, 183, 198. People ex rel. Livingston v. Wyatt, 186 N. Y. 386: 93. People ex rel. Marshall v. Moore, 153 N. Y. Supp. 10: 19, 40. People ex rel. Meeker v. Baker, 127 N. Y. Supp. 382: 183. People ex rel. McCoy v. Warden, 3 N. Y. Crim. 370: 109. People ex rel. Nubell v. Byrnes, 33 Hun. 108: 183. People ex rel. Post v. Cross, 135 N. Y. Supp. 536: 131, 195. People ex rel. Ryan v. Conlin, 15 Misc. (N. Y.) 303: 109, 143. People ex rel. Tweed v. Lipscomb, 60 N. Y. 559: 159, 185. People ex rel. Watson v. Judge, 40 Mich. 729: 136. Person v. Grier, 66 N. Y. 124: 139. Pepka V. Cfonin, 155 U. S. 100: 197. Pettlbone v. Nichols, 203 U. S. 192: 39, 53, 58, 59, 147, 202, 206, 207, 212, 215. PettuB v. State, 42 Ga. 358: 40. Pflffner V. Krapfall, 28 Iowa, 27: 128. Pearce v. Texas, 155 U. S. 387: 86, 196, 197, 199. Pierce v. Creecy, 210 U. S. 387: 2, 209, 214, 215. Pratt V. Hill, 16 Barb. 307: 106. Price V. McCarty, 89 Fed. 84: 221. Prigg V. Commonwealth, 16 Pet. 539: 38, 123. TABLE OP OASES OITED. 505 (eeferences aee to sections op this boos.) E. Rea V. Smith, 2 Handy, (Ohio) 193: 102. Reed v. United States, 224 Fed. 378: 183. Reed v. Williams, 29 N. J. L. 385: 128, 137. Reld V. Ham, 54 Minn. 305: 132. Roberts v. Reilly, 116 U. S. 80: 53, 54, 59, 65, 85. 88, 163, 164, 193, 197, 198, 199, 200, 207, 209, 212, 214, 215. Robb V. Connolly, 111 U. S. 624: 40, 59, 94, 165, 168, 191, 193, 197, 198, 207. Robinson v. Flanders, 29 Ind. 10: 39, 111, 183. Rosenthal v. Circuit Judge, 98 Mich. 208: 137. Ross V. Crofutt, 84 Conn. 370: 79, 183. Russell V. Commonwealth, 1 Penn. & W. 82: 185. Rutledge v. Krauss, 73 N. J. L. 397: 132, 136. Ryan v. Rogers, 21 Wyo. 311: 52. S. Sanford v. Chase, 3 Cow. 381: 139. Saveland v. Conners, 121 Wis. 30: 137. Seaver v. Robinson, 3 Durr. 622: 139. Simmons v. Vandyke, 138 Ind. 380: 106, 183. Simpson v. State, 92 Ga. 41: 196, 214. Singleton v. State, 144 Ala. 104: 183. Small V. Montgomery, 17 Fed. 865: 128. Smith V. State, 21 Neb. 552: 79, 92. Snelling v. Watrous, 2 Paige, 314: 128. Solomon's Case, 1 Abb. Pr. (N. S.) 347: 75, 84, 92. Speer v. Davis, 38 Ind. 271: 185. Steele v. Shirley, 13 Smd. & M. (Miss.) 106: 185. State V. Anderson, 1 Hill, 327: Appendix — page 451. Stein V. Valkenhuysen, 3 B. B. & E. 65: 128. Strassheim v. Daily, 221 U. S. 280: 61, 140, 214. State V. Bates, 101 Minn. 303: 183. V. Brewster, 7 Vt. 118: 128. V. Buckhan, 29 Minn. 462: 185. V. Buzine, 4 Harr. 577: 103, 118, 183. V. Currie, 174 Ala. 1: 69. V. Curtis, 111 Minn. 240: 183. V. Cutshall, 110 N. C. 536: 70. V. Day, 58 Iowa, 678: 129. V. Daniels, 6 Pa. L. J. 417: 118. V. Dunn, 66 Kan. 483: 127. T. Fitzgerald, 51 Minn. 534: 129. 506 TABLE OF CASES CITED. (EEFERENCES ABE TO SECTIONS OF THIS BOOK.) State V. Gleason, 32 Kan. 338: 93, 183. V. Glover, 112 N. C. 896: 132. V. Goss, 66 Minn. 291: 209. V. Hall, 40 Kan. 338: 39, 125, 127. V. Hall, 114 N. C. 909: 53, 198. V. Hall, 115 N. C. 811: 53, 93. V. Harv^U, 89 Mo. 588: Appendix — page 405. V. Howell, R. M. Charlt. (Ga.) 120: 102. V. Hudson, 2 Ohio N. P. 1: 19. V. Hufford, 28 Iowa, 391: 82, 92, 183. V. Kealy, 89 Iowa, 94: 132. V. Loper, Ga. Dec. Part II, 35: 102. V. McNaspy, 58 Kan. 691: 127. V. O'Connor, 38 Minn. 243: 153, 183, 209. V. Patterson, 116 Mo. 505: 127. V. Richardson, 34 Minn. 115: 92, 183. V. Richter, 37 Minn. 436: 206. V. Ross, 21 Iowa, 467: 129. V. Schlemm, 4 Harr. 577: 118, 153, 162. V. Sheldon, 79 N. C. 605: 102. V. Stewart, 60 Wis. 587: 195. V. Smith, 1 Bailey S. C. L. 283: 128. V. Swope, 72 Mo. 402: Appendix — page 405. V. Whittle, 59 S. C. 297: Appendix — page 451. V. Taylor, 70 Vt. 1: 103, 183. V. Vaughan, 71 Conn. 457: 159. V. Walker, 119 Mo. 467: 127. V. Wine, 7 N. D. 18: 132. State ex rel. Arnold v. Justus, 84 Minn. 237: 52, 97, 101, 103, 183. State ex rel. Brown v. Stewart, 60 Wis. 587: 131. State ex rel. Denton v. Curtis, 111 Minn. 240: 74. State ex rel. Fowler v. Langum, 147 N. W. 708: 145. State ex rel. Grande v. Bates, 101 Minn. 303: 117. State ex rel. Grass v. White, 40 Wash. 560: 183. State ex rel. Hattabaugh v. Boynton, 140 Wis. 89: 136. State ex rel. Herbert v. Coleman, 310 Cir. App. 316: 145. State ex rel. Jackson v. Kennie, 24 Mont. 45: 185. State ex rel. Munsey v. Clough, 71 N. H. 594: 57, 185, 199, 209. State ex rel. Nisbett v. O'Toole, 69 Minn. 104: 100. State ex rel. Retry v. Leidigh, 47 Neb. 126: 132. State ex rel. Register v. McGahey, 12 N. D. 535: 93. State ex rel. Rinne v. Gerbes, 111 Minn. 132: 87. Sternaman v. Peck, 80 Fed. 883: 221. Stewart v. United States, 119 Fed. 93: 221. Sweet V. Kimball, 166 Mass. 332: 137. Swift V. United States, 196 U. S. 375: 214. TABLE OP CASES CITED. 507 (refebencbs are to sections of this book.) T. Tarble's Case, 13 Wall. 397: 128. Taylor v. Commonwealth, 29 Ky. L. 714: 132. Taylor v. Taintor, 16 Wall. 366: 44. Taylor v. Wise, 126 N. W. (Iowa,) 1126: 50. Tennessee v. Jackson, 36 Fed. 258: 56, 147. Thomas v. Evans, 73 Ohio St. 145: 39, 112. Thompson v. State, 25 Ala. 41: 196. Thorp V. Metzger. 77 Wash. 62: 172. Tiberg v. Warren, 192 Fed. 458: 176. Tlnsley v. Treat, 205 U. S. 20: 219, 220. Townsend v. Smith, 47 Wis. 623: 136. Tullis T. Fleming, 69 Ind. 15: 153. Tytler v. Tytler, 15 Wyo. 319: 185. u. United States v. Brawner, 7 Fed. 86: 34. V. Campbell, 179 Fed. 762: 30, 221. V. Case, 8 Blanchf. 251: 34. V. Dana, 68 Fed. 886: 30, 32. V. Greene, 100 Fed. 942: 221. V. Haskins, 3 Sawy. 262: 54. V. Horton, 2 Dill. 94: 34. V. Lee, 84 Fed. 627: 221. V. Pope, Fed. Cas. No. 16,069: 34, 146. V. Polite, 35 Fed. 58: 34. V. Martin, 17 Fed. 150: 34. V. Rauseher, 119 U. S. 407: 127, 130, 131. V. Rundlett, 2 Curt. 41: 34, 218. V. Tureaund, 20 Fed. 621: 34, 93. V. Winsatt, 161 Fed. 586: 221. V. Yarbrough, 122 Fed. 293: 221. Underwood v. Fetter, 6 N. Y. Leg. Obs. 66: 137. Union Pacific Co. v. Belek, 211 Fed. 699: 105. Union Sugar Refinery Co. v. Matheassen, 2 Cliff. 304: 128. V. Vallad V. State, 2 Mo. 26: 183. VanHorn v. Great West. Mfg. Co., 37 Kan. 526: 137. Van Liew v. Johnson, — N. Y. — unreported: 139. Vanvabry v. Staton, 88 Tenn. 334: 185. Virginia v. Paul, 148 U. S. 107: 201. VoUmer v. County, 53 Ind. App. 149: 183. 508 TABLE OP CASES CITED. (eefeeences are to sections of this book.) w. Walton V. Gatlin, 1 Winst. (N. C.) 318: 185. Wanzer v. Bright, 52 111. 35: 137. Waterman v. State, 116 Ind. 51: 126. Weale v. Clinton, 158 Mich. 563: 137. Webh V. York, 79 Fed. 616: 85. Wells V. Gurney, 8 Barn. & Cresw. 769: 136. Whitten v. Tomlinson, 160 U. S. 245: 86, 197. Wilcox V. Nolze, 34 Ohio St. 522: 56, 112, 185, 198. Wildenhaus' Case, 120 U. S. 1: 197. Williams ads. Reed, 29 N. J. L. 385: 128, 137. Williams v. Webber, 1 Colo. App. 191: 124. Williamson v. Bacon, 10 Wend. 636: 137. Wood V. Wood, 78 Ky. 624: 137. Work V. Corrington, 34 Ohio St. 64: 69, 100. Worth V. Wheatley, 108 N. E. 958: 88. Wright V. Henkle, 190 U. S. 40: 159. Wyeth V. Richardson, 76 Mass. 240: 185. Yates V. People, 6 Johns. 337: 185. Young V. State, 155 Ala. 145: 79. z. Zulch V. Roach, 151 Pac. 1101: 183. See Addenda for latest cases: pages 328-330. INDEX (ntjmbebs refeb to pages of this book.) A. ABSENCE— from State when crime Is committed, 77, 203, 268, 302. proof of, a difference from alibi, 204. ABUSE OF POWER— dangerous to the citizen but Infrequent, 196. ABUSE OF PROCESS— use of process for ulterior purpose is, 206, 218-220. governor If convinced of, should refuse warrant, 216, 221. in interstate rendition a fraud is, 220. Tennessee v. Jackson discussion of, 221. ruUng of Michigan supreme court on, 223. Compton v. Wilder, Ohio rule on, 224-228. fugitive when entitled to discharge, 232-233. ACCUSED — (See Fugitive from Justice.) if no legal charge of crime is entitled to discharge, 129. at hearing is entitled to be represented by counsel, 253. competent witness in own behalf, when, 257. AFFIDAVIT— must be presented to governor to confer jurisdiction, 129, 310. charge of crime may be by, 130. certified copy of, must accompany the demand, 130. not conclusive as to commission of crime, 149-150. distinguished from an indictment, 149. must charge the crime alleged explicitly, 149. insufSciency of, ground for discharge of fugitive, 150. based on information and belief void, 151. no crime shown in, no rendition, 152, 232. failure to annex, to requisition, fatal, 270. (509) 510 INDEX. (numbers befee to pages of this book.) AGENT OR MESSENGER— not officer of Federal Government, 56, 279. representative of the executive of demanding State, 56. not liable to fugitive for damages, 56. ALABAMA— fee for honoring requisition, 97. rules relating to interstate rendition, 97, 98. habeas corpus reviewable by Supreme Court, 271. text of statute on fugitives from justice, 331-334. ALASKA— no fee or regulations, 123. text of statutes on fugitives from justice, 487-490. ALIBI— to defeat rendition, when admissible, 203, 204. proof of, a distinction, 204. South Carolina rule discussed, 204, 205. supreme court of New York on, 206-215. AMENDMENTS— (See Constitution of the United States.) ANNULMENT— (See Revocation.) by governor of warrant of rendition, 159. APPEAL— governor's action In demanding State not subject to, 62, 93. final, to the U. S. Supreme Court, 270. States holding habeas corpus reviewable, 271. States holding habeas corpus not reviewable, 273. APPLBYARD V. MASSACHUSETTS— cited, 72, 83, 209, 268, 276, 300, 304, 306, 312, 322. decision discussed and reviewed, 300-302. ARIZONA— no fee for "honoring requisition, 98. no special rules in rendition, 98. INDEX. 511 (numbers refer to pages or this book.) ARIZONA — Continued. habeas corpus reviewable by Supreme Court, 271. text of statutes on fugitives from justice, 338-340. ARKANSAS— fee for honoring requisition, 98. habeas corpus reviewable by Supreme Court, 271. text of statutes on fugitives from justice, 334-337. ARREST OF FUGITIVE— before executive demand, 161. with or without warrant, when legal, 161-162. when illegal, Michigan rule, 163-164. from a constitutional viewpoint, 164. duty of officer making, 165-167. the rule in New York, 166. guilty and innocent alike liable to, 167. ARTICLES OF CONB^DERATION— third compact on interstate rendition, 183. difference between, and the Constitution on fugitives, 184. ASYLUM— fugitive in interstate rendition no right to, 180. ATTORNEY GENERAL RANDOLPH— on interstate rendition, 27-30. AUTHENTICATION— force and effect of, 124. act of Congress of 1793 as to, 124. power and authority of governor as to, 125. object and purpose of, 126. presumptions as to, 127. AUTHORITY— source of, in interstate rendition, 10-11. 512 INDEX. (mrMBEES Mam to pages or this book.) B. BAIL— fugitive who has forfeited, subject to rendition, 69. may be allowed pending habeas corpus proceedings, 236. of person held to answer, discharged by rendition, 237. BASSING V. CADY— cited, 304, 322. doctrine discussed, 304-306. BASTARDY— not such a crime for which rendition may be asked, 130. BURDEN OF PROOF— on habeas corpus hearing in rendition, 256. fugitive denying Identity, is on respondent, 257. c. CALIFORNIA— executive rules on rendition, 98, 99, 100. fee for honoring requisition, 9S. habeas corpus not reviewable by Supreme Court, 273. text of statutes on fugitives from justice, 340-343. CERTIFIED COPIES— of charge of crime sufficient, 130. in rendition when conclusive, 255. how produced in habeas corpus proceedings, 256. agent not legally required to produce, 257. CERTIORARI— cannot force production of papers by, 157. CHARGE OF CRIME— In Interstate rendition, meaning of, 129. statutory requirements of, 130, 131. must be by indictment or affidavit, 130. validity of an information as, 131. INDEX. 513 (mjMBEES KEFEE TO PAGES OF THIS BOOK.) CHARGE OF CRIME — Continued. Supreme Court's estimate of information as, 132. an extra judicial opinion, without authority, 133. Federal legislation on, construed, 135. the Hart case on, sound in reason, 135, 136. an indictment substantially failing as, void, 144. failure to annex, fatal to rendition, 270. CIVIL ACTIONS— when exempt from service of process in, 197. returned fugitive and process in, 198. induced by fraud to return and, 199. suitors and witnesses entitled to immunity in, 200, 201. the rule as to fugitives in New York, 201. COLORADO— executive rules on rendition, 100. fee for honoring requisition, 100. habeas corpus reviewable by Supreme Court, 271. text of statutes on fugitives from justice, 343-346. COMMITMENT— see U. S. Rev. Stat., sees. 5278 and 5279 as to, 25. text of State statutes as to law of, in each State, 331-403. COMMON LAW— presumption as to its interpretation, 252. COMPLAINT— not possessing eJements of affidavit, insufficient, 268. COMPTON V. ALABAMA— cited, 309, 314. doctrine discussed, 309-311. CONCUBRBNT JURISDICTION— when State and B^deral courts have, 279. see Robb v. Connolly, 279, 280. 514 INDEX. (l^TJMBEBS EEfEB TO PAGES Or THIS BOOK.) CONGRESS— act of 1793, relating to rendition, 24, 25. has exclusive power over interstate rendition, 44. CONNECTICUT— fee for honoring requisition, 100. habeas corpus reviewable by Supreme Court, 271. text of statutes on fugitives from justice, 347-351. CONSTITUTION OF UNITED STATES— provision of, for interstate rendition, 13. supremacy of, 20. as interpreted by the highest court, 18, 19, 289-291. CONSTRUCTIVE PRESENCE— not recognized in rendition, 75, 76. as settled by U. S. Supreme Court, 76. CONTEMPT— when in rendition person guilty of, 279, 280. see Robb v. Connolly, 279. COOK V. HART— cited, 75, 283, 289, 291. doctrine discussed, 283-286. COSTS— must be paid by demanding State, 26. failure to pay, does not effect legality, 312. COUNSEL— fugitive entitled to be heard by, 253. COURT— rulings follow disputes, 8. right to examine papers on which warrant Issued, 235, 236. INDEX. 515 (nxtmbees eepeb to pages of this book.) CRIMES— violations of any criminal law of State, 21. statutory and common law offenses included, 21, 22. constructively committed, no rendition, 75, 76. specifically charged, ground for rendition, 129. charged necessary to jurisdiction in rendition, 129, 130. must be a, in State where charged, 130. to be charged by affidavit valid, 130, 149. charge of, by ex officio information questioned, 131, 132. date when committed essential, 144, 145, 218. all offenses, felony or misdemeanor, extraditable, 280. OULLOM, GOVERNOR— on executive duty in rendition, 59-61. D. DATE OF CRIME— must be a fixed period in rendition, 144, 145. or neighborhood thereof says the highest court, 203. DEBT— ruling of the Michigan Supreme Court, 223. ruling of the Ohio Supreme Court, 224. rendition for purpose of collecting, a fraud, 224. duty of governor in this regard, 227. DELAWARE— fee for honoring requisition, 100. habeas corpus not reviewable by Supreme Court, 273. text of statutes on fugitives from justice, 351-354. DELIVERY— when imperative in Interstate rendition, 9. obligation of, when created, 59. DEMIAND — rule as set forth by U. S. Supreme Court, 82, 91. formal and official, its requisites, 90. positive proof of charge of crime required, 91. 516 INDEX. (nitmbebs befes to pages of this book.) DENNISON V. CHRISTIAN— cited, 150, 213, 293. doctrine of, discussed, 293-295. DISCRETION— the rule as understood by Gov. CuUom, 59, 61. demanding State executive may exercise, 91, 92. governor of asylum State has no right of, 93. DISCHARGE— when fugitive entitled to his, 257. order of, may be afterwards vacated, 258. effect of vacation of order of, 258. DISTRICT OF COLUMBIA— special law by Congress relating to, 31. return of fugitives to, 32. section 1014, U. S. Rev. Stat, and the, 33. when ceded to United States as, 34. is it a "district" under the law, 34, 35. did Congress muddle the whole matter, 35, 36. DRHIW V. THAW— cited, 218, 316. doctrine of, discussed, 316-319. "DUTY"— executive, under act of 1793, defined, 9. E. ESCAPED CONVICT— when a fugitive from justice, 83, 84. EVIDENCE— of flight must be positive, 64, 65. courts may hear oral, outside of papers, 71, 72. accused may show by, that he is not a fugitive, 72, 73. in rendition no rules of, prescribed by Congress, 73, 74. suflSciency of, as to flight, 81. INDEX. 517 (nUMBEES BEFEat TO PAGES OF THIS BOOK.) EVIDENCE— CoJitinMed. recitals in demand must be supported by, 94. when fugitive may give, in own behalf, 257. strict common law, not necessary, 292. EXCLUSIVE JURISDICTION— Federal courts have not, in rendition, 280. EXECUTIVE AUTHORITY— (See Governor.) EX PARTE HOPFSTOT— cited, 268, 312. doctrine discussed, 312-314. EX PARTE REGGEL— cited, 21, 67, 72, 73, 75. 194, 209, 248, 268, 280, 283, 289, 293, 302, 304, 312, 322. doctrine of discussed, 280-281. EXPENSES OF RENDITION— must be paid by demanding State, 312. EXTRADITABLE OFFENSES- in international extradition, and rendition, 3. F. FAIR TRIAL.— assumed, unless proof to contrary, 312. FEDERAL HABEAS CORPUS— (See Habeas Corpus.) FEDERAL COURTS— have concurrent power with State courts in rendition, 247. form of petition for habeas corpus to, 258-260. form of writ of habeas corpus of, 260. duty of, as defined by the highest court, 299. 518 INDEX. (nitmbebs befer to pages of this book.) FEES OF STATES — for arrest and surrender of fugitives, 96-123. State regulations on, in rendition, 97-122. FELONY— as discussed by Attorney General Randolph, 27. as defined by the U. S. Supreme Court, 278. FLIGHT— misconception of the law as to, 64-67. the Constitution and fugitives, 70. act of Congress of 1793 as to, 70. proof of, must be positive in rendition, 82. the doctrine of, as discussed in early cases, 85. FLORIDA— fee for honoring requisition, 100. habeas corpus reviewable by Supreme Court, 271. text of statutes on fugitives from justice, 354-356. FORMS— of petition for habeas corpus to U. S. judge, 258, 259. of writ of habeas corpus in U. S. court, 260. of petition for habeas corpus State court or judge, 261. of affidavit to petition for writ, 262. of State writ of habeas corptis, 263. of officer's return to writ, 264. of prisoner's or fugitive's traverse, 264, 265. FRAUD- induced by, to come to a place and civil process, 199, 200. if rendition not in accord with law it is, 218-220. FUGITIVES FROM JUSTICE— misconception of the law as to, 64. Roy Blackburn case and Illegal rendition, 65, 66, 67. who are held to be, 68, 69, 81. doctrine as to who may be, discussed, 70. a noticeable difference of opinion, 71. final decision by U. S. Supreme Court, 72, 73, 74. INDEX. 519 (ntjmbees befeb to pages of this book.) FUGITIVES FROM JVSTIC^i— Continued. Jurisdictional defects how waived by, 75. no constructive presence by, in rendition, 75. presence in State of, necessary when crime is committed, 77. the fact that one is, la jurisdictional, 77. when accused not a, in rendition, 77. rendited for one crime, may be tried for another, 185, 188. accused and charged with crime, a distinction, 270. whether one Is a, is a question of fact, 291. rule as to. In the Pettlbone case, 298-300. G. GEORGIA— no fee for honoring requisition, 101. habeas corpus reviewable by Supreme Court, 271. text of statutes on fugitives from justice, 356-358. GENERAL GOVERNMENT— and the States of the Union, 20. GOOD FAITH— of the prosecution in rendition, discussed, 216-228. GOVERNOR— cannot be forced to honor requisition, 9. power of, as to rendition, from Federal law, 55. no delegation of power to another, 57. warrant of rendition void unless signed by, 58. demand for rendition of fugitive discretionary, 62. surrender of fugitive by, not discretionary, 63. carelessness of, in discharging duty, 67. may not honor demand without proof of crime and flight, 82. GREAT SEAI^- warrant of rendition must bear impress of, 155, 269. GUILT OR INNOCENCE— of fugitive, no such inquiry in rendition, 229. when proof of crime Is prohibited, 230. 520 INDEX. (nitubebs befeb to pages of this book.) H. HABEAS CORPUS— jurisdiction of Federal and State courts, 235, 236. Federal law on rendition silent as to, 237. no legislative power to abrogate, 237. State courts power to Issue, come from statutes, 237, 238. U. S. Supreme Court on right of, 246, 250. prompt relief from unlawful arrest by, 252. first step towards securing a writ of, 253. States wherein writ of, is reviewable, 271-273. States wherein writ of, Is not reviewable, 273, 274. appropriate proceeding in rendition, 303. HAWAII, TERRITORY OF— no fee or special regulations, 123. law on rendition applicable, 493. HAYWOOD V. NICHOLS— cited, 300. HEARING— fugitive no constitutional right to, before governor, 71, 292. on habeas corpus proceedings in rendition, 256, 257. HYATT V. PEOPLE EX REL. CORKRAN— cited, 70, 71, 75, 82, 154, 156, 171, 210, 241, 277, 295, 302, 304, 307, 312, 314, 316, 322. doctrine discussed, 289-293. IDAHO— fee for honoring requisition, 101. habeas corpus not reviewable by Supreme Court, 273. text of statutes on fugitives from justice, 358-360. IDENTITY— of fugitive in rendition all important, 168. law of. In New York, 169-171. law of. In Pennsylvania, 171-173. INDEX. 521 (numbers befee to pages op this book.) IDENTITY— Oowtmiied. law of. In Indiana, 173-174. law of. In Ohio, 174-175. law of, In Kentucky, 176. law of. In Delaware, 176. rule In other States as to, 177. how question of, raised in rendition, 177. in absence of proof of, prima faoie case conclusive, 178. fugitive in custody his, must be positive, 179. ILLINOIS— fee for honoring requisition, 101. Jiobeaa corpus not reviewable by Supreme Court, 273. text of statutes on fugitives from justice, 361-367. IMMUNITY— from criminal prosecution no, in rendition, 185. Judge Cooley's doctrine of, 186. returned fugitive and civil process, 198. induced by fraud to return and, 199. suitors and witnesses entitled to, 200. INDIANA— fee for honoring requisition, 101. habeas corpus reviewable by Supreme Court, 272. text of statutes on fugitives from justice, 367-373. INDICTMENT— as a charge of crime in rendition, 142. date when crime is committed as fixed in, 144-145. attempt to evade the Federal law as to, 152-154. Information instead of, not favored, 269. failure to annex copy of, to demand fatal, 270. dispensing with time and venue In, 286-287. rule of the U. S. Supreme Court as to, 289-291. one may be Indicted but not extradited, 313. INFORMATION— validity of, as a charge of crime, 131, 132. U. S. Supreme Court's estimate of an, 132, 133. attorney-general of Illinois on validity of, 140, 141, 142. rendition based on, must be sworn to, 269. 522 INDEX. (NUMBEES BEFEE TO PAGES OF THIS BOOK.) INFORMATION AND BELIEF— not sufficient basis for charge of crime in rendition, 269. INNES V. TOBIN— reviewed, 320, 321, 322. INTERNATIONAL EXTRADITION— and interstate rendition diiference, 2. INTERSTATE RENDITION— meaning of tlie term, 1. "extradition" discussed, 2. misapplication of tlie word "extradition," 2. international extradition and, difference, 2. authorities sustaining the use of, 4, 5. early disputes on, and results thereof, 5. Congress ends controversies by act of 1793, 6, 7. court rulings follow disputes on, 8. Kentucky v. Dennison, its authority considered, 9. U. S. Supreme Court ruling controls in all, 10. power of State in, to arrest and surrender fugitives, 10, 11. slavery the cause of disputes on, 11. unadjudicated questions on, 12. historically considered, 15, 16. distinction between, and "extradition," 17. IN RE STRAUSS— cited, 133, 134. doctrine discussed, 295, 296, 297. IOWA— executive rules on rendition, 101, 102. fee for honoring requisition, 101. haieas corpus reviewable by Supreme Court, 272. text of statutes on fugitives from justice, 373-377. JirpiCIARY ACT— section 33 of, passed by Congress 1789, 35, 323, 324. authority for removal of Federal prisoners, 36, 324. INDEX. 523 (NUMBEBS BEFEE TO PAGES OP THIS BOOK.) JUSTICES OF THE PEACE— (See Magistrate.) JURISDICTION— early Federal view on, 237-239. Federal and State courts alike have, in rendition, 280. K. KANSAS— no fee for honoring requisition, 102. habeas corpus reviewable by Supreme Court, 272. text of statutes on fugitives from justice, 377-384. KENTUCKY— fee for honoring requisition, 102. Tiaieas corpus reviewable by court of appeals, 272. text of statutes on fugitives from justice, 384-386. KENTUCKY V. DENNISON— cited, 3, 8, 18, 19, 21, 50, 62, 93, 125, 194, 281, 283, 291, 295, 302, 319, 322. authority of, considered, 9, 10. discussion of, 278, 279. KER V. ILLINOIS— doctrine discussed, 191, 192. cited, 284. KOPEL V. BINGHAM— reviewed, 308, 309. LASCELLES V. GEORGIA- cited, 3, 5, 22, 188, 192, 322. reviewed and doctrine discussed, 285, 286. LEGISLATION BY STATES— Federal law supreme in rendition, 43. validity of, generally upheld, 44, 45. 524 INDEX. (numbebs refeb to pages op this book.) LEGISLATION BY STATVi— Continued. U. S. Supreme Court on, 46. legality of, as viewed by State courts, 47-54. LOUISIANA— fee for honoring requisition, 102. habeas corpus not reviewable by Supreme Court, 273. text of statutes on fugitives from justice, 386-388. M. MAGISTRATE— under rendition law, defined, 310. MAINE— no fee for honoring requisition, 102. executive rules for rendition, 102. habeas corpus not reviewable by Supreme Court, 273. text of statutes on fugitives from justice, 388-390. MANDATE — (See Warrant of Rendition.) MARBLES V. CREECY— cited, 276. reviewed, 311, 312. MARYLAND— no fee for honoring requisition, 102. executive rules relating to rendition, 102, 103, 104. habeas corpus not reviewable by Supreme Court, 273. text of statutes on fugitives from justice, 390-391. MASSACHUSETTS— no fee for honoring requisition, 104. executive rules relating to rendition, 104. habeas corpus not reviewable by Supreme Court, 273. text of statutes on fugitives from justice, 391-394. McNICHOLS V. PEASE— cited, 72, 73, 81, 145. 147, 171, 209, 212, 214, 306, 312, doctrine discussed, 302-304. INDEX. 525 (numbers befbb to pages of this book.) MICHIGAN— fee for honoring requisition, 104. executive rules relating to rendition, 104. habeas corpus not reviewable by Supreme Court, 273. text of statutes on fugitives from justice, 394-397. MINNESOTA— fee for honoring requisition, 104. executive rules relating to rendition, 104. hateas corpus reviewable by Supreme Court, 272. text of statutes on fugitives from justice, 397-401. MISSISSIPPI— no fee for honoring requisition, 104. habeas corpus reviewable by Supreme Court. 272. text of statutes on fugitives from justice, 401-402. MISSOURI— fee for honoring requisition, 104. habeas corpus not reviewable by Supreme Court, 273. text of statutes on fugitives from justice, 403-407. MOB VIOLENCE— positive proof of, justifies denial, 270. fair trial assumed, unless proof to contrary, 312. MONTANA— fee for honoring requisition, 105. habeas corpus not reviewable by Supreme Court, 273. text of statutes on fugitives from justice, 408-410. MOORE, JOHN BASSETT— on interstate rendition, 4. MOREY V. WHITNEY— cited, 300. MOYER V. NICHOLS— cited, 300. 526 INDEX. (numbebs befeb to pages of this book.) MUNSEY V. CLOUGH— cited, 68, 78, 83, 147, 160, 209, 211, 304, 307, 312, 319. reviewed and discussed, 292, 293. N. NEBRASKA— fee for honoring requisition, 105. executive rules relating to rendition, 105. habeas corpus reviewable by Supreme Court, 272. text of statutes on fugitives from justice, 410-412. NEVADA— no fee for h.onoring requisition, 105. hateas corpus not reviewable by Supreme Court, 274. text of statutes on fugitives from justice, 412-415. NEW HAMPSHIRE— no fee for honoring requisition, 105. executive rules relating to rendition, 105. habeas corpus not reviewable by Supreme Court, 273. text of statutes on fugitives from justice, 415-417. NEW JERSEY— no fee for honoring requisition, 105. habeas corpus reviewable by Supreme Court, 272. text of statutes on fugitives from justice, 418-420. NEW MEXICO— fee for honoring requisition, 105. executive rules relating to rendition, 105. habeas corpus not reviewable by Supreme Court, 274. text of statutes on fugitives from justice, 420-424. NEW YORK— no fee for honoring requisition, 105. executive rules relating to rendition, 105.^ habeas corpus reviewable by court of appeals, 272. text of statutes on fugitives from justice, 424-428. INDEX. 527 (numbebs kefek to pages of this book.) NORTH CAROLINA— fee for honoring requisition, 105. executive rules relating to rendition, 105. habeas corpus reviewable by Supreme Court, 272. text of statutes on fugitives from justice, 428-431. NORTH DAKOTA— fee for honoring requisition, 105. habeas corpus not reviewable by Supreme Court, 274. text of statutes on fugitives from justice, 431-435. o. OHIO— fee for honoring requisition, 105. executive rules relating to rendition, 105, 106, 107, 108, 109. habeas corpus reviewable by Supreme Court, 272. text of statutes on fugitives from justice, 435-436. OKLAHOMA— fee for honoring requisition, 109. executive rules relating to rendition, 109. habeas corpus reviewable by Supreme Court, 272. text of statutes on fugitives from justice, 437-440. OREGON— fee for honoring requisition, 109. executive rules relating to rendition, 109, 110, 111. habeas corpus reviewable by Supreme Court, 272. text of statutes on fugitives from justice, 440-445. "OTHER CRIME" — (See Crimes.) PAPERS— the requisition and accompanying, must be regular, 90, 91. suflSciency of requisition and, main question, 91. absence of proper, makes void requisition, 92. on hearing how, may be produced, 255. 528 INDEX. (NTJMBEBS SEFER to pages of THI8 BOOK.) PAROLED CONVICT— when a fugitive from justice, 83, 84. PERSONAL, PRE3SENCE— necessary in State when crime committed, 77, 315. questions settled by U. S. Supreme Court, 81, 82, 306. PENNSYLVANIA— fee for honoring requisition. 111. executive rules relating to rendition, 111. haieas corpus not reviewable by Supreme Court, 274. text of statutes on fugitives from justice, 445-447. PETITION FOR HABEAS CORPUS— Federal and State form of, 258-261. PETTIBONE V. NICHOLS— cited, 52, 72, 83, 218, 304, 312, 319. doctrine discussed, 298-300. PHILIPPINE ISLANDS— no fee for honoring requisitions, 123. rendition of fugitives to and from, 326. act of Congress February 9, 1903, 327. PIERCE V. CRBECY— cited, 3, 316, 319. doctrine discussed, 306-398. PEARCE V. TEXAS— cited, 289, 293. reviewed, 286, 287. doctrine discussed, 143, 144. PLEADING AND PRACTICE— accused entitled to be represented by counsel, 253. rights may be waived by lack of knowledge of, 253. rules of, in rendition procedure, 254. purpose of petition for Tiabeaa corpiw, 254. INDEX. 529 (NUMBBaiS BBFEB TO PAGES OF THIS BOOK.) PLEADING AND PRACTICE— Oomtmwed. resirandent's return to the writ, 254. the fugitive's or relator's traverse, 265. the joinder of Issue and hearing, 256. how papers may be produced, 255, 256. scope of Inquiry on habeas corpus, 257. burden of proof rests on the accused, 257. Identity burden shifts to respondent, 257. order of discharge may be vacated, 258. PORTO RICO— no fee or special regulations, 123. rendition of fugitives to and from, 309. territorial statutes of, on fugitives, 490-493. POWER OF STATES— to arrest and surrender fugitives, 10. PRESUMPTION— as to law in another State, in absence of proof, 252. PRISONER — (See Accused and Fugitives from Justice.) PROCEDURE — (See Pleading and Practice.) Q. QUESTIONS— unsettled, so far by U. S. Supreme Court, 12. not covered by laws of the United States, 44. R. RECORD-^ (See Papers.) REMOVAL LAW— section 1014, U. S. Revised Statutes, 36, 324. RENDITION— and extradition, a wide distinction, 17. 530 IKDBX. (nxtmbebs befer to pages op this book.) RENDITION OF WITNESSES— from and to New York and other States, 86-88. REQUISITION— (See Demand.) formal and oflBclal demand In rendition, 90. rule as to essentials fixed by Supreme Court, 91. left to governor's discretion in making, 92. legality of, question for governor of asylum State, 92-93. no power In Federal government to force governor to honor, 93. governor's failure to issue not reviewable, 93. copy of Indictment or affidavit must accompany, 94. based on forgery, Illinois case, 95-96. fees for honoring and rules by States, 97-122. RESCUING FUGITIVE— penalty for. Federal statutes, 26, RETURN OF FUGITIVE— method of, not open to complaint, 189-190. RETURN TO HABEAS CORPUS WRIT— respondent's, must show why he holds fugitive, 264. REVOCATION OF WARRANT— a noted Illinois case of, 59-61. governor may order, and issue alias, 159. RHODE ISLAND— no fee for honoring requisition, 111. executive rules relating to rendition, 111, 112, 113. Jiaieas corpus not reviewable by Supreme Court, 274. text of statutes on fugitives from justice, 448-450. ROBB V. CONNOLLY— cited, 56, 81, 153, 241, 247, 252, 253, 283, 289, 291, 304. doctrine discussed, 279-280. ROBERTS V. RBILLY— cited, 72, 75, 82, 91, 143, 145, 241, 247, 289, 291, 293, 295, 302, 304. 307, 312, 316, 319, 322. doctrine discussed, 281-283. INDEX. 531 (numbers BErBB TO PAGES OF THIS BOOK.) RULES AND REGULATIONS— as to interstate rendition by the States, 97-122. s. SOUTH CAROLINA— no fee for honoring requisition, 113. habeas corpus reviewable by Supreme Court, 272. text of statutes on fugitives from justice, 450-452. SOUTH DAKOTA— fee for honoring requisition, 113. habeas corpus reviewable by Supreme Court, 272. text of statutes on fugitives from justice, 452-455. STATE COURTS— Federal rule on rendition as to, 91. STATE LEGISLATION— (See Legislation by the States.) STATE OFFICER agent or messenger in rendition is only, 56, 279. STATUTES— Federal, in aid of Constitution on rendition, 25-26. State, relating to fugitives from justice, 331-492. STRASSHEIM V. DAILEY— cited, 84, 86, 203. doctrine discussed, 314-316. SURRENDER— when the obligation to, is absolute, 4. SUITORS AND WITNESSES- (See Irmrmnity.) T. TENNESSEE— fee for honoring requisition, 113. habeas corpus reviewable possibly, 272. text of statutes on fugitives from justice, 455-458. 532 IHDBX. (nxtmbebs bbfee to pages of this book.) TEXAS— fee for honoring requisition, 113. habeas corpus reviewable by court of last resort, 272. text of statutes on fugitives from justice, 458-462. TIM&— date of crime as fixed in charge, 77. one not in State at, of crime, not a fugitive, 144-145. "TREASON, FELONY, OR OTHEHl CRIME"— as defined by U. S. Supreme Court, 8. u. UNADJUDICATBD QUESTIONS— relating to interstate rendition, 12. UNITED STATES SUPREME COURT— tribunal of last resort in rendition, 10. jurisdiction essential, 277. has no extra-jurisdictional power, 277. takes judicial notice of certain facts, 304. UTAH— no fee for honoring requisition, 113. Jiaieas corpus not reviewable by Supreme Court, 274. text of statutes on fugitives from justice, 462-466. V. VERMONT— no fee for honoring requisition, 113. rules of the executive on rendition, 113, 114, 116. habeas corpus reviewable by Supreme Court, 272. text of statutes on fugitive from justice, 466-468. VIOLENCE— (See Moi Violence.) INDEX. 533 (numbkes befer to pages of this book.) VIRGINIA— fee for honoring requisition, 116. executive rules on rendition, 116. habeas corpus reviewatile by highest court, 273. text of statutes on fugitives from justice, 468-472. w. WARRANT OF RENDITION— executive process, its force and power, 155. must be legally issued, 156. recitals prima facie evidence of legality, 157. who may serve, 158. entitled to no greater sanctity than other process, 158. revocation by governor when, 159. rules relating to, 160. definition of, 288. WASHINGTON— fee for honoring requisition, 116. habeas corpus reviewable by Supreme Court, 273. text of statutes on fugitives from justice, 472-475. WEST VIRGINIA— fee for honoring requisition, 116. executive rules relating to rendition, 116, 117, 118, 119. habeas corpus reviewable by Supreme Court, 273. text of statutes on fugitives from justice, 475-479. WRITTEN V. TOMLINSON— cited, 143. reviewed, 288, 289. WISCONSIN— no fee for honoring requisition, 120. executive rules on rendition, 120, 121. 122. habeas corpus reviewable by Supreme Court, 273. text of statutes on fugitives from justice, 479-485. WITNESSES— '(See Rendition of Witnesses.) 534 INDEX. (numbkks ekfeb to pages or this book.) WORDS AND PHRASES— "rendition" defined, 1. "extradition" meaning of, 1, 2, 3, 4. "treason, felony, or other crime," defined, 8. "duty" in act of Congress of 1793, 9. "a person cliarged" defined, 27, 28. "or other crime," defined, 28. "who shall flee from justice," explained, 28. "found in another State," meaning of, 29. "the State having jurisdiction," explained, 29. "fugitive from justice," defined, 68, 69, 81. "executive discretion," meaning of, 62, 93, 94. "certified as authentic," meaning of, 124. "in due form," meaning of, 127. "information," defined, 131, 132, 133. "charge of crime," defined, 135, 297. "indictment," defined, 142, 143, 144. "affidavit," defined, 148. "governor's warrant of rendition," meaning of, 155. "identity," meaning of, 168. "alibi," meaning of, 203, 204. "good faith," scope of inquiry, 216, 217. "complaint," meaning of, 268. "great seal," meaning of, 155, 269. WYOMING— fee for honoring requisition, 122. executive rules relating to rendition, 122. habeas corpus not reviewable by Supreme Court, 174. text of statutes on fugitives from justice, 485-487.