CHAPTER XLII. OF PROCEEDINGS IN RELATION TO FUGITIVES FROM JUSTICE § 1695. Governor to appoint agent to demand fugitive from justice. § 1696. § 1697. Governor may require report from district attorney. § 1698. § 1699. § 1700. Fugitive from justice, when to be delivered up by governor. § 1704. Proceeding for arrest and commitment of fugitive before magistrate, how regulated. Oct. 19, 1864, Ø 487. Governor to § 1708. Person arrested to be discharged, unless taken under executive warrant. § 1709. Person causing arrest liable for costs and expenses; when person committed may be discharged for want of payment of jail fees. § 1695. [487.] Whenever a person charged with treason, felony, or other crime in this state shall flee appoint agent 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. to demand fugitive from justice. 10 Or. 470. Fugitives from justice generally: See an article in 3 Crim. Law Mag. 787; and see the note to Matter of Fetter, 57 Am. Dec. 389; and an article in 3 West Coast Rep. 265, 317; and see the note to art. 4, § 2, U. S. Constitution, ante, p. 39. - Extradition generally. The right of extradition between the several states of the United States is derived from article 4, section 2, of the federal constitution, which provides that "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." This provision, being a part of the supreme law of the land, is a part of the law of each state, and state officers whose duty it is to adjudicate or execute the laws are governed by it the same as by every other law in force: Matter of Romaine, 23 Cal. 585. The particular object to be effected by the constitutional provision just cited is to supply the defect in the administration of criminal justice resulting from the rule that courts have no control over offenses committed beyond their jurisdiction. The state to which the fugitive escapes having no power to try the offense, it was enjoined by the constitution to surrender him to the state having jurisdiction, simply on demand, in order that, within the United States, the administration of criminal justice might be perfect: Brown v. Maryland, 12 Wheat. 419, 437. The states can pass no laws inconsistent with this constitutional provision, or with the legislation of Congress, for its execution. Both are parts of "the supreme law of the land," and neither can be invaded or superseded by the legislative power of the states: Spear on Extradition, 243. See the subject recently discussed, with respect to the power of state courts over the person of one held on a writ issued pursuant to a requisition from the governor of another state, in the various phases of the celebrated Robb Case, as reported in 64 Cal. 431, S. C., 9 Saw. 568, and in the supreme court of the United States, under the title of Robb v. Connolly, 111 U. S. 624. "Person charged."-The constitution of the United States nowhere defines the word "charged," as used in section 2 of article 4 (and likewise used in the above section), or tells how the charge should be made or authenticated. Congress, however, by an act passed February 12, 1793, the substance of which has been reenacted as section 5278 of the Revised Statutes, provided that the charge must be in the form of "an indictment found or affidavit made before a magistrate of any state or territory" in which the crime is alleged to have been committed, and that "a copy' of such indictment or affidavit, tified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled," shall be produced as evidence that the charge has been made in the proper manner: Spear on Extradition, 231. This act was declared constitutional in Prigg v. Commonwealth, 16 Pet. 539, "in all its leading provisions." The executive is the sole judge of the authenticity of the affidavit: Matter of Manchester, 5 Cal. 237. 66 cer For what offenses. The clause, "charged with treason, felony, or other crime" (as used both in the United States constitution and in the above section), embraces every act forbidden and made punishable by the law of the state, and the right of a state to demand the surrender of fugitives from justice extends to all cases of the violation of its criminal law: People v. Brady, 56 N. Y. 182; Morton v. Skinner, 48 Ind. 123; Taylor v. Taintor, 16 Wall. 366; Johnston v. Riley, 13 Ga. 97; Matter of Voorhees, 32 N. J. L. 141. It embraces "every act forbidden and made punishable by a law of the state," "every offense Oct. 19, 1864, made punishable by a law of the state § 487. in which it was committed,' every offense known to the law of the state from which the party charged had fled," "without any exception as to the character and nature of the crime": Commonwealth v. Dennison, 24 How. 66, 99-103, per Taney, C. J.; 1 Bishop's Crim. Proc., sec. 220. The object of connecting the words "treason" and "felony" with the words "other crime" was for the purpose of excluding the possible construction that political offenders were not to be surrendered the same as others: Commonwealth v. Dennison, 24 How. 66. demeanors are included as well as felonies: Morton v. Skinner, 48 Ind. 123; People v. Brady, 56 N. Y. 182, 188; Brown's Case, 112 Mass. 409. So if the criminal act be such in the state demanding the fugitive, although not in the state surrendering, it is sufficient: Johnston v. Riley, 13 Ga. 97; In re Voorhees, 32 N. J. L. 141. Mis Who is fugitive from justice. — One who "flees from justice" is one who commits a crime in the state making the demand and flees to the other state: Ex parte Smith, 3 McLean, 121; In re Heyward, 1 Sand. 701. It is sufficient to constitute a fleeing that the person charged with crime has gone beyond the jurisdiction, so that there has been no reasonable opportunity to prosecute him since the facts were known; and it is immaterial that he has gone to the place of his domicile: Kingsbury's Case, 106 Mass. 223. So when a person infringes the criminal laws of a state, and departs therefrom without waiting to abide the consequences of such act, he is a fugitive from justice within the meaning of the constitutional provision in question: Matter of Voorhees, 32 N. J. L. 141. Whether a person who commits a crime in a state in which he is not personally present can be transferred against his will to the place of its commission, to be tried, is stated by Mr. Bishop not to have been judicially determined: 1 Bishop's Crim. Proc., sec. 220; see State v. Chapin, 17 Ark. Oct. 19, 1864, $487. Oct. 19, 1864, 488. Governor may and official application made by the governor of the state or territory in which the crime is charged to have been committed, upon the governor of the state or territory to which the criminal is assumed to have fled, and in which he is found. The order of the constitution is demand first and delivery afterwards": Spear on Extradition, 263. Without such demand, no executive, acting under this authority, has any power to make a delivery. The arrest of the fugitive and his detention by an order of the court does not of itself give any executive jurisdiction over the case: Id. The power must proceed from the demand, and nothing else: Botts v. Williams, 17 B. Mon. 687. It must also appear that judicial proceedings have been commenced against the person demanded, in the state from which the demand is made: Ex parte White, 49 Cal. 433. Evidence of charge. -The evidence required, that a person whose delivery is demanded has been charged with the commission of a crime, is "a copy of an indictment found or an affidavit made before a magistrate of any state or territory, charging the person with having committed" the particular crime therein set forth. This copy must be "certified as authentic by the governor, or other chief magistrate, of the state or territory from whence the person so charged has fled ": U. S. R. S., sec. 5278. Three things are necessary to give the executive jurisdiction: 1. The fugitive must be demanded by the executive of the state from which he fled; 2. A copy of the indictment found, or an affidavit made before a magistrate, charging the fugitive with having committed the crime; 3. Such copy of the indictment or affidavit must be certified as authentic by the executive: Matter of Clark, 9 Wend. 212; Re Rutter, 7 Abb. Pr., N. S., 67. The executive of the state issuing the requisition is the only proper judge of the authenticity of the affidavit: Matter of Manchester, 5 Cal. 237. It is not necessary that the affidavit should set forth the crime charged with all legal exactness necessary to be observed in an indictment. If it distinctly charge the commission of an offense, it is all that is necessary: Matter of Manchester, supra; Davis's Case, 122 Mass. 324. Nor need it state that the prisoner is a fugitive from justice: Davis's Case, supra. It has been uniformly held by the courts that the requirements of the law relating to the evidence of the charge shall be strictly complied with, as indispensable to the legality of the demand and resulting obligation of delivery: Spear on Extradition, 268; Ex parte Thornton, 9 Tex. 635; Soloman's Case, 1 Abb. Pr., N. S., 347. Release on habeas corpus. The courts will inquire on habeas corpus whether the prisoner is properly detained: Ex parte Smith, 3 McLean, 121; In re Manchester, 5 Cal. 237. Where the return to a writ of habens corpus sets forth the fact that the party is a fugitive from justice, that he was demanded as such, and was arrested and committed for the purpose of being surrendered, the only inquiry is, whether the provisions of the act of Congress of 1793 have been complied with. If it appear that the papers presented to the executive, and upon which the rendition of the person as a fugitive from justice is demanded, are in form and substance sufficient to authorize the issuing of the executive warrant, the prisoner will be remanded: People v. Brady, 56 N. Y. 182; State v. Schlemn, 4 Harr. (Del.) 577; Matter of Manchester, 5 Cal. 237. On such a return being made, the facts and circumstances of the alleged offense with which the party stands charged cannot be inquired into: State v. Schlemn, 4 Harr. (Del.) 577; see Nichols v. Cornelius, 7 Ind. 611; Matter of Clark, 9 Wend. 212. Mere formal defects in the indictment will not entitle the prisoner to his discharge: Davis's Case, 122 Mass. 324. § 1696. [488.] Before appointing such agent the governor may require the district attorney of the county to require report investigate the matter and report to him the material. circumstances, together with his opinion upon the expediency of allowing the application. from district attorney. § 1697. [489.] The account of the agent, embracing Oct. 19, 1864, his actual expenses incurred in performing the service, must be paid by the state, after being audited and expenses of allowed as other claims against the state. $489. Payment of agent. $490. Fugitive from justice, when up by gov to be delivered § 1698. [490.] A person charged in any state or ter- Oct. 19, 1864, ritory 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. See note to § 1693 [487], ante. ernor. Oct. 19, 1864, $491. When fugitive ered up, and be or not. § 1699. [491.] When the person demanded is in custody in this state, either upon a criminal charge, an not to be deliv indictment for a crime, or a judgment upon a conviction when he may thereof, he cannot be delivered up until he is legally discharged from such custody; but if he be in custody 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. § 492. Report of ney in relation to custody of fugitive. § 1700. [492.] Before issuing a warrant for the de- Oct. 19, 1864, livery of a fugitive from justice, the governor may require the district attorney of the county to ascertain district attorand 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. $493. When and to whom gover nor to issue arrest. § 1701. [493.] When the governor finds that the de- Oct. 19, 1864, mand 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 warrant for seal of the state and attested by the secretary of state, directed to the person who makes the demand, and authorizing him, either forthwith or at some future time therein designated, to take and transport the fugitive to the border line of the state. § 1702. [494.] The executive warrant must also re- Oct. 19, 1864, quire all peace officers and magistrates, when requested $ 494. Oct. 19, 1864, Ø 494. Executive to require. by the person to whom the warrant is directed, to render all needful assistance in the execution thereof, and warrant, what in so doing, such officers or magistrates may exercise the same power and authority to prevent a rescue, an escape, or to affect a recapture, as if the fugitive was in arrest upon a charge of crime committed in this state. § 1703. [495.] A magistrate authorized to issue a warrant of arrest may issue a warrant for the arrest of issue warrant a person charged as provided in section 1698 [490] who shall flee from justice and be found in this state. Oct. 19, 1864, $495. Magistrate may Oct. 19, 1864, § 496. Arrest before demand made. The law of this state authorizing the arrest of a fugitive from justice who has fled from another state before a demand by the executive of the state from which he fled, and his detention for a reasonable time to afford an opportunity for such executive demand, is not in conflict with the second section of article 4 of the constitution of the United States: Ex parte White, 49 Cal. 433; Ex parte Cubreth, 49 Id. 435; Ex parte Rosenblat, 51 Id. 285. A person who is thus arrested is entitled to his discharge if his examination is not brought on before the magistrate within six days: Ex parte Rosenblat supra. a Warrant for arrest. Before magistrate has any authority to issue a warrant for the arrest of a fugitive from justice who has fled from another state, there must be filed in his office a complaint, under oath, setting forth three things: 1. That a crime has been committed; 2. That the accused has been charged in the foreign state with the commission of such crime; 3. That he has fled from justice, and is found within this state: Matter of Heyward, 1 Sand. 701; Matter of Leland, 7 Abb. Pr., N. S., 64. The warrant issued for the arrest of such persons is similar in all respects to those issued against persons charged with public offenses committed within the territorial limits of the state: See the next section. Both, to be valid, should specify the offense alleged to have been committed by the accused; stating that the accused is a fugitive from justice is insufficient: Ex parte Cubreth, 49 Cal. 437; see People v. Brady, 56 N. Y. 182; Ex parte Pjitzer, 28 Ind. 450. § 1704. [496.] The proceedings for the arrest and commitment of the person charged are in all respects for arrest, how similar to those provided in this code for the arrest and Proceedings regulated. Oct. 19, 1864, $4.7. When magis trate to commit. 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. § 1705. [497.] If from the examination it appear that the person charged has committed the crime alleged, the magistrate must commit him to the proper custody in his county for a time specified in the commitment, which the magistrate deems reasonable, to enable the |