A person for whose delivery a demand has been made by executive
authority of one state upon the executive authority of another
state under clause 2 of section 2 of Article IV of the
Constitution, and who shows conclusively, and upon conceded facts,
that he was not within the demanding state at the time stated in
the indictment, nor at any time when the acts were, if ever,
committed, is not a fugitive from justice within the meaning of
Rev.Stat. sec. 6278, and the federal statute upon the subject of
interstate extradition and rendition.
If the governor of the state upon whom the demand is made issues
a warrant for the apprehension and delivery of such a person, the
warrant is but
prima facie sufficient to hold the accused,
and it is open to him, on habeas corpus proceedings, to show that
the charge upon which his delivery is demanded assumes that he was
absent from the demanding state at the time the crime alleged was,
if ever, committed.
This proceeding by habeas corpus was commenced by the relator,
defendant in error, to obtain his discharge from imprisonment by
the plaintiff in error, the Chief of Police in the City of Albany,
State of New York, who held the relator by means of a warrant
issued in extradition proceedings by the governor of New York. The
justice of the supreme court of New York to whom the petition for
the writ was addressed, and also, upon appeal, the appellate
division of the supreme court of New York, refused to grant the
relator's discharge, but the Court of Appeals reversed their orders
and discharged him. 172 N.Y. 176. A writ of error has been taken
from this Court to review the latter judgment.
Page 188 U. S. 692
The relator stated in his petition for the writ that he was
arrested and detained by virtue of a warrant by the Governor of New
York, granted on a requisition from the Governor of Tennessee,
reciting that relator had been indicted in that state for the crime
of grand larceny and false pretenses, and that he was a fugitive
from the justice of that state; that the warrant under which he was
held showed that the crimes with which he was charged were
committed in Tennessee, and the relator stated that nowhere did it
appear in the papers that he was personally present within the
State of Tennessee at the time the alleged crimes were stated to
have been committed; that the Governor had no jurisdiction to issue
his warrant, in that it did not appear before him that the relator
was a fugitive from the justice of the State of Tennessee, or had
fled therefrom; that it did not appear that there was any evidence
that relator was personally or continuously present in Tennessee
when the crimes were alleged to have been committed; that it
appeared on the face of the indictments accompanying the
requisition that no crime under the laws of Tennessee was charged
or had been committed. Upon this petition, the writ was issued and
served.
The return of the plaintiff in error, the chief of police, was
to the effect that the relator was held by virtue of a warrant of
the Governor of New York, and a copy of it was annexed.
The Governor's warrant reads as follows:
"New York"
"Executive Chamber"
"The Governor of the State of New York to the Chief of Police,
Albany, N.Y. and the sheriffs, undersheriffs and other officers of
and in the several cities and counties of this state authorized by
subdivision 1 of section 827 of the Code of Criminal Procedure to
execute this warrant:"
"It having been represented to me by the Governor of the State
of Tennessee that Charles E. Corkran stands charged in that state
with having committed therein, in the County of Davidson, the
crimes of larceny and false pretenses, which the said Governor
certifies to be crimes, under the laws of the said state, and that
the said Charles E. Corkran has fled therefrom
Page 188 U. S. 693
and taken refuge in the State of New York, and the said Governor
of the State of Tennessee having, pursuant to the Constitution and
laws of the United States, demanded of me that I cause the said
Charles E. Corkran to be arrested and delivered to Vernon Sharpe,
who is duly authorized to receive him into his custody and convey
him back to the said State of Tennessee; which said demand is
accompanied by copies of indictment and other documents duly
certified by the said Governor of the State of Tennessee to be
authentic and duly authenticated and charging the said Charles E.
Corkran with having committed the said crimes and fled from the
said state and taken refuge in the State of New York;"
"You are hereby required to arrest and secure the said Charles
E. Corkran wherever he may be found within this state and
thereafter and after compliance with the requirements of section
827 of the Code of Criminal Procedure to deliver him into the
custody of the said Vernon Sharpe, to be taken back to the said
state from which he fled, pursuant to the said requisition, and
also to return this warrant and make return to the executive
chamber within thirty days from the date hereof of all your
proceedings had thereunder, and of the facts and circumstances
relating thereto."
"Given under my seal and the privy seal of the state at the
capitol in the City of Albany, this 13th day of March, in the year
of our Lord one thousand nine hundred and two."
"[L. S.] B. B. Odell, Jr."
"By the Governor: James G. Graham,"
"
Secretary to the Governor"
No other paper was returned by the chief of police bearing upon
his right to detain the relator. Upon the filing of the return, the
relator traversed it in an affidavit, in which he denied that he
had committed either the crime of larceny or false pretenses, or
any other crime, in the State of Tennessee. He denied that he was
within the State of Tennessee at the times mentioned in the
indictment upon which the requisition of the Governor was issued;
he alleged that he had read the indictments before the Governor of
the State of New York, upon which
Page 188 U. S. 694
the warrant of arrest was issued, and that they charged him with
the commission of the crime of larceny and false pretenses on the
20th and 30th days of April, the 8th day of May, and the 17th and
the 24th days of June, 1901. The relator in his affidavit also
asserted that he was not in the State of Tennessee at any time in
the months of March, April, May, or June, 1901, or at any time for
more than a year prior to the month of March, 1901, and he denied
that he had fled from the State of Tennessee, or that he was a
fugitive from the justice of that state. He further therein stated
that he had heard read the papers accompanying the requisition of
the Governor of Tennessee to the Governor of New York, and that
those papers did not contain any evidence or proof that he had been
in the State of Tennessee at any stated time since the 26th and
27th days of May, 1899, and they contained no evidence or proof
that he was in the State of Tennessee on any day in any of the
months set forth in the indictments when the crime or crimes were
alleged to have been committed.
Upon the hearing, the following paper, signed by the respective
attorneys for the parties, was filed:
"It is conceded that the relator was not within the State of
Tennessee between the first day of May, 1899, and the first day of
July, 1901. It is also conceded that the relator was in the State
of Tennessee on the 2d day of July, 1901."
There is also another stipulation in the record, signed by the
attorneys, and reading as follows:
"The following additional facts are hereby conceded, and the
same shall be incorporated in the appeal record herein, as a part
thereof, and shall constitute a part of the record upon which the
appellate division may hear and determine the appeal herein,
i.e. --"
"It is hereby stipulated by and between the parties to the above
entitled special proceeding that three indictments were attached to
the requisition papers sent by the Governor of the State of
Tennessee to the Governor of the State of New York for the
extradition of Charles E. Corkran; that each of the said
indictments was found on the 26th day of February, 1902, and that
the alleged crimes were charged in said indictments to
Page 188 U. S. 695
have been committed on the first day of May, 1901, on the 8th
day of May, 1901, and on the 24th day of June, 1901,
respectively."
Upon the hearing before the judge on March 17, 1902, the relator
was sworn without out objection, and testified that he had been
living in the State of New York for the past fourteen months; that
his residence when at home was in Lutherville, Maryland; that he
was in the City of Nashville, in the State of Tennessee, on July 2,
1901, and (under objection as immaterial) had gone there on
business connected with a lumber company in which he was a heavy
stockholder; that he arrived in the city on July 2, in the morning,
and left about half-past seven in the evening of the same day, and
while there he notified the Union Bank & Trust Company (the
subsequent prosecutor herein) that the resignation of the president
of the lumber company had been demanded, and would probably be
accepted that day. After such notification, and on the same day,
the resignation was obtained, and the Union Bank & Trust
Company was notified thereof by the relator before leaving the city
on the evening of that day; that he passed through the City of
Nashville on the 16th or 17th of July thereafter on his way to
Chattanooga, but did not stop at Nashville at that time, and had
not been in the State of Tennessee since the 16th day of July, 1901
at the time he went to Chattanooga; that he had never lived in the
State of Tennessee, and had not been in that state between the 26th
or 27th of May, 1899, and the second day of July, 1901.
Upon this state of facts, the judge before whom the hearing was
had dismissed the writ and remanded the relator to the custody of
the defendant Hyatt, as chief of police. This order was affirmed
without any opinion by the appellate division of the supreme court,
but, as stated, it was reversed by the Court of Appeals and the
relator discharged.
Page 188 U. S. 708
MR. JUSTICE PECKHAM, after making the foregoing statement of
facts, delivered the opinion of the Court.
By clause 2 of section 2 of Article IV of the Constitution of
the United States it is provided:
"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 having
jurisdiction of the crime."
It was held in
Kentucky v.
Dennison, 24 How. 66,
65 U. S. 104,
that this provision of the Constitution was not self-executing, and
that it required the action of
Page 188 U. S. 709
Congress in that regard. Congress did act by passing the statute
approved February 12, 1793. The substance of that act is reproduced
in section 5278 of the Revised Statutes, as follows:
"SEC. 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 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. If no such agent appears within six months from the time of
the arrest, the prisoner may be discharged. All costs or expenses
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."
The proceedings in this case were under this section, and the
warrant issued by the Governor was sufficient
prima facie
to justify the arrest of the relator and his delivery to the agent
of the State of Tennessee. Certain facts, however, must appear
before the Governor has the right to issue his warrant. As was said
in
Roberts v. Reilly, 116 U. S. 80,
116 U. S. 95, it
must appear to the Governor, before he can lawfully comply with the
demand for extradition, 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
affidavit, etc., and that the person demanded is a fugitive from
the justice of the state the executive authority of which makes the
demand. It was also stated in the same case that the question
whether the person demanded was substantially charged
Page 188 U. S. 710
with a crime or not was a question of law and open upon the face
of the papers to judicial inquiry upon application for a discharge
under the writ of habeas corpus; that the question whether the
person demanded was a fugitive from the justice of the state was a
question of fact which the Governor upon whom the demand was made
must decide upon such evidence as he might deem satisfactory. How
far his decision might be reviewed judicially in proceedings in
habeas corpus, or whether it was conclusive or not, were, as
stated, questions not settled by harmonious judicial decisions nor
by any authoritative judgment of this Court, and the opinion
continues as follows:
"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 on 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 until the presumption in its
favor is overthrown by contrary proof"
In
People v. Brady, 56 N.Y. 182, it was held that the
courts have jurisdiction to interfere by writ of habeas corpus, and
to examine the grounds upon which an executive warrant for the
apprehension of an alleged fugitive from justice from another state
is issued, and, in case the papers are defective and insufficient,
to discharge the prisoner.
In the case before us, the New York Court of Appeals held that,
if upon the return to the writ of habeas corpus it is clearly shown
that the relator is not a fugitive from justice, and there is no
evidence from which a contrary view can be entertained, the court
will discharge the person from imprisonment, but that mere evidence
of an alibi, or evidence that the person demanded was not in the
state as alleged, would not justify his discharge, where there was
some evidence on the other side, as habeas corpus was not the
proper proceeding to try the question of the guilt or innocence of
the accused. And the court also held that the conceded facts showed
the absence of the accused at the time when the crimes, if ever,
were committed, and that the demand was in truth based upon the
doctrine that a constructive presence of the accused in the
demanding state
Page 188 U. S. 711
at the time of the alleged commission of the crime was
sufficient to authorize the demand for his surrender.
We are of opinion that the warrant of the Governor is but
prima facie sufficient to hold the accused, and that it is
open to him to show by admissions, such as are herein produced, or
by other conclusive evidence, that the charge upon which
extradition is demanded assumes the absence of the accused person
from the state at the time the crime was, if ever, committed. This
is in accordance with the authorities in the states cited in the
opinion of Judge Cullen in the New York Court of Appeals, and is,
as we think, founded upon correct principles.
Robb v.
Connolly, 111 U. S. 624,
recognizing authority of states to act by habeas corpus in
extradition proceedings.
If upon a question of fact, made before the Governor, which he
ought to decide, there were evidence
pro and
con,
the courts might not be justified in reviewing the decision of the
Governor upon such question. In a case like that, where there was
some evidence sustaining the finding, the courts might regard the
decision of the Governor as conclusive. But here, as we have the
testimony of the relator (uncontradicted) and the stipulation of
counsel as to what the facts were, we have the right, and it is our
duty on such proof and concession, to say whether a case was made
out within the federal statute, justifying the action of the
Governor. It is upon the statute that the inquiry must rest.
In the case before us, it is conceded that the relator was not
in the state at the various times when it is alleged in the
indictments the crimes were committed, nor until eight days after
the time when the last one is alleged to have been committed. That
the prosecution on the trial of such an indictment need not prove
with exactness the commission of the crime at the very time alleged
in the indictment is immaterial. The indictments 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 named in the indictments, and that the dates
therein named were erroneously stated, it is sufficient for the
party charged to show that he was not in the
Page 188 U. S. 712
state at the times named in the indictments, and when those
facts are proved so that there is no dispute in regard 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,
committed.
The New York Court of Appeals has construed the stipulation as
conceding these facts, and we think that its construction of the
stipulation is the correct one.
It is, however, contended that a person may be guilty of a
larceny or false pretense within a state without being personally
present in the state at the time. Therefore, the indictments found
were sufficient justification for the requisition and for the
action of the Governor of New York thereon. This raises the
question whether the relator could have been a fugitive from
justice when it is conceded he was not in the State of Tennessee at
the time of the commission of those acts for which he had been
indicted, assuming that he committed them outside of the state.
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 proposition.
The language of section 5278, Rev.Stat., 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 demand 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 person has fled, and it provides that a copy of the
indictment found, or affidavit made before a magistrate 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 the duty of the
executive authority of the state
to which such person has
fled to cause him to be arrested and secured.
Page 188 U. S. 713
Thus, the person who is sought must be one who 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 present?
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 had not been in the state at the time when, if
ever, the offense was committed, and who had not therefore in fact
fled therefrom.
In
Ex Parte Reggel, 114 U. S. 642,
114 U. S. 651,
it was stated by MR. JUSTICE HARLAN, in speaking for the Court:
"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 appellant 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 jurisdiction, so
that he could not be reached by her criminal 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,
Page 188 U. S. 714
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 that act. Any other
interpretation would lead to the conclusion that the mere
requisition by the executive of the demanding state, accompanied by
the copy of an indictment, or an affidavit before a magistrate,
certified by him to be authentic, charging the accused with crime
committed within her limits, imposes upon the executive of the
state or territory where the accused is found the duty of
surrendering him, although he may be satisfied, from incontestible
proof, that the accused had, in fact never been in the demanding
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 demanding state.
He does not fail 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."
To the same effect is
Roberts v. Reilly, 116 U. S.
80. In that case, the issue was made about the presence
of the party in the demanding state at the time the act was alleged
to have been committed, and there was direct and positive proof
before the Governor of Georgia, upon whom the demand had been made,
and there was no other evidence in the record which contradicted
it. It was said (p.
116 U. S.
97):
"The appellant, in his affidavit, does not deny that he was in
the State of New York about the date of the day laid in the
indictment, when the offense is alleged to have been committed, and
states, by way of inference only, that he was not in that state on
that very day, and the fact that he has not been within the state
since the finding of the indictment is irrelevant and
immaterial."
It is clear that it was regarded by the court as essential that
the person should have been in the state which demanded his
surrender at the time of the commission of the offense alleged
Page 188 U. S. 715
in the affidavit or indictment, and that it was a fact
jurisdictional in its nature, without which he could not be
proceeded against under the federal statute.
Cook v. Hart, 146 U. S. 183,
decides nothing to the contrary. In that case, the party was
arrested in Illinois on account of a crime which, it was alleged,
had been committed by him in Wisconsin. He sued out a writ of
habeas corpus in Illinois to test the legality of his arrest under
the circumstances appearing in the case. Upon the hearing, the
court decided the arrest to be legal, and the party arrested
acquiesced in this disposition of the case, and made no attempt to
obtain a review of the judgment in a superior court. It was not
until after his arrival in Wisconsin, whither he was taken by
virtue of the warrant issued by the Governor of Illinois, and after
his trial had begun in Wisconsin, that he made application to the
circuit court of the United States in Wisconsin to be released upon
habeas corpus, upon the ground he had originally urged, that he was
not a fugitive from justice within the meaning of the Constitution
and laws of the United States. The court decided against him,
holding that he had been properly surrendered. This Court said
that, assuming that the question might be jurisdictional when
raised before the executive or the courts of the surrendering
state, that it was presented in a somewhat different aspect after
the person had been delivered to the agent of the demanding state,
and had actually entered the territory of that state and was held
under the process of its courts. And it was said 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; that it is too late for him to object even to
jurisdictional defects in his surrender, and that he was rightfully
held under the process of the demanding state. Whether the claim
made by the party brought to Wisconsin that he was illegally
arrested in Illinois was well founded or not this Court did not
feel called upon to consider, or to review the propriety of the
dicision of the court below, and this on the ground that it was
proper to wait until the state court had finally acted upon the
case, and then to require the accused to sue out his writ of error
from this Court to
Page 188 U. S. 716
the highest state court where a decision could be had, instead
of determining the question summarily on habeas corpus.
It is contended, however, that there are cases in this Court
which sustain the proposition maintained by the plaintiff in error
herein, and
Kentucky v.
Dennison, 24 How. 66,
supra, is referred
to as authority. It is therein held that the words "treason,
felony, or other crime," spoken of in the Constitution, included
every offense forbidden and made punishable by the laws of the
state where the offense is committed, and it is therefore argued
that, as an act committed outside its borders may, under certain
circumstances, become a crime against the state, a person thus
committing such an act comes within the meaning of the
Constitution, and should be surrendered upon demand of the Governor
of the state whose law he is alleged to have violated.
On looking at that case, it is seen that the facts were wholly
different, and the court had no such case as the one before us in
mind. The party against whom the demand was made had committed the
crime, as alleged, within the State of Kentucky, and no question
arose as to his liability to be returned to Kentucky for any act
done by him outside its borders. The Governor of Ohio, upon whom
the demand was made, acting under the advice of his attorney
general, refused to surrender the fugitive because the crime
alleged was neither treason nor felony at common law, nor was it
one which was regarded as a crime by the usages and laws of
civilized nations, and the Governor was advised that obviously a
line must be somewhere where drawn distinguishing offenses which
did, from offenses which did not, fall within the scope of the
power granted by the Constitution. It was in regard to this
contention that this Court held as stated. Mr. Chief Justice Taney,
delivering the opinion of the Court, said (p.
65 U. S. 99):
"The words 'treason, felony, or other crime,' in their plain and
obvious import, as well as in their legal and technical sense,
embrace every act forbidden and made punishable by a law of the
state. The word 'crime' of itself includes every offense, from the
highest to the lowest in the grade of offenses, and includes what
are called 'misdemeanors,' as well as treason and
Page 188 U. S. 717
felony. 4 Bl.Com. 5, 6, and note 3, Wendell's edition. But as
the word 'crime' would have included treason and felony, without
specially mentioning those offenses, it seems to be supposed that
the natural and legal import of the word, by associating it with
those offenses, must be restricted and confined to offenses already
known to the common law and to the usage of nations, and regarded
as offenses in every civilized community, and that they do not
extend to acts made offenses by local statute, growing out of local
circumstances, nor to offenses against ordinary police regulations.
This is one of the grounds upon which the Governor of Ohio refused
to deliver Lago, under the advice of the attorney general of that
state."
"But this inference is founded upon an obvious mistake as to the
purposes for which the words 'treason and felony' were introduced.
They were introduced for the purpose of guarding against any
restriction of the word 'crime,' and to prevent this provision from
being construed by the rules and usages of independent nations in
compacts for delivering up fugitives from justice."
"
* * * *"
"This compact, ingrafted in the Constitution, included, and was
intended to include, every offense made punishable by the law of
the state in which it was committed, and that it gives the right to
the executive authority of the state to demand the fugitive from
the executive authority of the state in which he is found; that the
right given to 'demand' implies that it is an absolute right, and
it follows that there must be a correlative obligation to deliver,
without any reference to the character of the crime charged, or to
the policy or laws of the state to which the fugitive has
fled."
The court, however, held that, while it was the duty of the
executive authority of Ohio under the circumstances to deliver the
person demanded, and that such duty was merely ministerial and the
Governor had no right to exercise any discretionary power as to the
nature or character of the crime charged in the indictment, yet it
was also held that the federal courts had no means to compel the
Governor to perform the moral obligation of the state under the
compact in the Constitution,
Page 188 U. S. 718
and that the courts could not coerce the state executive or
other state officer as such to perform any duty by act of Congress.
On that ground, the motion for a mandamus to compel the Governor of
Ohio to issue his warrant was refused. Nothing in that case can be
regarded as any authority for the proposition contended for here.
The case assumed the presence of the party in the state at the time
of the alleged commission of the crime. The question was whether,
upon such assumption, the executive of the state upon whom the
demand was made could examine as to the character of the crime and
refuse to deliver up, in his discretion.
To the same effect is
Ex Parte Reggel, 114 U.
S. 642. In that case, the objection was made in the
court of original jurisdiction that there could be no valid
requisition based upon an indictment for an offense less than a
felony. It was held that such view was erroneous, and
Kentucky
v. Dennison, supra, was cited in support of that proposition,
yet it was in this very case of
Reggel that the remarks
already quoted were made, that the person demanded was entitled to
insist upon proof that he was within the demanding state at the
time that he is charged to have committed the crime, and
subsequently withdrew therefrom to another jurisdiction, so that he
could not be reached by the criminal process of the state where the
act was committed.
Many state courts before whom the question has come have held
that a merely constructive presence in the demanding state at the
time of the alleged commission of the offense was not sufficient to
render the person a fugitive from justice; that he must have been
personally present within the state at the time of the alleged
commission of the act, or else he could not be regarded as a
fugitive from justice. Spear and also Moore on Extradition are to
the same effect. Those authorities and text writers are referred to
in the margin.
*
Page 188 U. S. 719
In the case of
In re White, 55 F. 54, 58, in the United
States Circuit Court of Appeals for the Second Circuit, it was said
by Lacombe, Circuit Judge, that it was proper to inquire upon
habeas corpus whether the prisoner was in fact within the demanding
state when the alleged crime was committed, for if he were not, it
could not be properly held that he had fled from it.
The subsequent presence for one day (under the circumstances
stated above) of the relator in the State of Tennessee, eight days
after the alleged commission of the act, did not, when he left the
state, render him a fugitive from justice within the meaning of the
statute. There is no evidence or claim that he then committed any
act which brought him within the criminal law of the State of
Tennessee, or that he was indicted for any act then committed. The
proof is uncontradicted that he went there on business, transacted
it, and came away. The complaint was not made, nor the indictments
found, until months after that time. His departure from the state
after the conclusion of his business cannot be regarded as a
fleeing from justice within the meaning of the statute. He must
have been there when the crime was committed, as alleged, and if
not, a subsequent going there and coming away is not a flight.
We are of opinion that, as the relator showed without
contradiction and upon conceded facts that he was not within the
State of Tennessee at the times stated in the indictments found in
the Tennessee court, nor at any time when the acts were, if ever,
committed, he was not a fugitive from justice within the meaning of
the federal statute upon that subject, and upon these facts the
warrant of the Governor of the State of New York was improperly
issued, and the judgment of the Court of Appeals of the State of
New York discharging the relator from imprisonment by reason of
such warrant must be affirmed.
*
Wilcox v. Nolze, (1878) 34 Ohio St. 520, 324;
Jones v. Leonard, (1878) 50 Ia. 106;
In re Mohr,
(1883) 73 Ala. 503, 514;
In re Fetter, (1852) 23 N.J.L.
311;
Hartman v. Aveline, (1878) 63 Ind. 345;
Ex Parte
Knowles, (1894) 16 Ky. Law Rep. 263;
Kingsbury's
Case, (1870) 106 Mass. 223, 227;
State v. Hall,
(1894) 115 N.C. 811; 2 Moore on Extradition secs. 579, 581, 584;
Spear on Extradition 310
et seq.; Cooley, Const.Lim., 4th
ed., 21, note 1; 3 Crim.Law Rep. 806
et seq., published
1882.
