tution was not self-acting, but that it required a law of Congress to put it into effect. Section 5278 of the Revised Statutes of the United States, provides: "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 which 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, after certain preliminaries had, to deliver him to the authorities of the demanding state. Before the executive warrant can issue under the above section, it must appear by the papers accompanying the requisition of the demanding governor: (1) That a crime has been committed by a person who, at the time, was actually within the territorial limit of the demanding state; (2) that the offender subsequently fled into another state, and is within the state on which the demand is made; (3) that he has been accused either by an indictment found by a grand jury or by an affidavit made before a magistrate in the state from which he has fled. § 36. Applies to all crime. It will be observed that extradition applies to, "treason, felony or other crime." By a well known rule of construction, it would seem that the words, "or other crime," should be restricted to serious crimes similar to felonies, and not to misdemeanors; but the Supreme Court of the United States has held, that the words "or other crime" include every crime known to the law. This construction offers possibilities of abuse; for by it, a person who in good faith removes to one state from another can be carried back and prosecuted for some technical or trifling offense, regardless of distance, or the sex, or condition of the accused. This is a proper subject for congressional regulation. § 37. Who is a fugitive from justice? In order to render the extradition laws effective, it is held that if a person, being within the territorial limits of a state, commits a crime in it, and then even for a legitimate purpose, leaves the state previous to trial, he is a fugitive from justice. However, to make a person a fugitive from justice, he must have been actually present within the demanding state at the time of the offense. A constructive presence is not sufficient (10). Thus, where a person standing within North Carolina fired across the state line, and killed a person in Tennessee, it was held that he was not guilty in North Carolina, for the homicide was in Tennessee (11); yet he could not be extradited, because he did not flee from Tennessee (12). § 38. The governor not compellable to grant the warrant. It has long been settled by the United States Supreme Court that there is no power to compel a governor (10) Hyatt v. People, 188 U. S. 691. (11) State v. Hull, 114 N. C. 909. (12) State v. Hull, 115 N. C. 811. to grant an extradition warrant (13). It is generally conceded that the claims of the demanding state are not superior to the state on whom the demand is made. If a demand is made upon a state that has any special claim upon the presence of the accused, the requisition need not be honored. Where a prisoner escaped while being conveyed from Texas to Alabama, and then fled back to Texas and there resisted an effort to retake him, wounding an officer, it was held that he should be retained in Texas until he was tried for the latter crime (14). § 39. For what may the extradited criminal be tried? One who has been brought by extradition from a foreign country can be tried only for the offense on charge of which he was surrendered up, for it has been thought that to procure his surrender on one charge and then try him on another might be considered a violation of faith with the other country, and embarrass future extradition. But when one has been surrendered by the authorities of one state to the authorities of another he may be tried in the latter state, not only for the crime on charge of which he was surrendered up but on any other charge whatever (15). § 40. Trial of criminals kidnaped and returned. It has been held by the Supreme Court of the United States that if a fugitive from justice be kidnaped in a foreign country and brought back, he cannot avail himself of the (13) See note (9) above. (14) Ex parte Hobbs, 32 Tex. Cr. Rep. 312. (15) Lascelles v. Georgia, 148 U. S. 537. irregularity but must stand trial upon the criminal charge. If the foreign government makes complaint, the question will then be considered. If the defendant has been injured by the unlawful act of others, the courts are open to him to obtain redress for this wrong, but that is no reason why he should not be punished for his own crime (16). Where a criminal was kidnaped from another state, it was held legal to refuse his return upon the demand of the governor of the state from which he was taken (16a). § 41. Habeas corpus. This ancient writ applies to both civil and criminal proceedings. Aside from the suggestion that it is often resorted to in determining the right to the custody of children, or to bring prisoners into court to testify as witnesses, we shall treat it purely as a writ of liberty. § 42. Its use in criminal proceedings. The writ of habeas corpus is not a writ to correct errors, but to restore liberty, unlawfully withheld. Guilt and innocence are not subjects of its inquiry. It inquires into matters of power and jurisdiction, and as to the legality or illegality of the restraint. If the imprisonment is upon an arrest without a warrant, the inquiry is whether there was a legal cause for the arrest. If the imprisonment is by virtue of a warrant, the complaint on which the warrant issues may be brought into question. If the imprisonment is based upon an indictment, which is not only fatally defective but the context of which shows that there are no grounds for a prosecution, habeas corpus is a proper remedy (16a). If the prosecution is based on an unconstitutional act of a legislature, the prisoner is entitled to be discharged upon writ of habeas corpus, because such an act is considered, not to possess the character of law (16b). If a court, in passing sentence, is improperly constituted, as where the law requires three judges and only two preside, the sentence and imprisonment are void, and the prisoner may be discharged upon a writ of habeas corpus (17). If a court is properly constituted and has jurisdiction of the case before it but renders a sentence not authorized by law, the person so imprisoned may be released by writ of habeas corpus (18). Although the court will not inquire into the evidence on which a conviction is based, it will into the evidence upon which a prisoner is held to await the action of the grand jury (19). If a prisoner is denied his right to give bail, or if the bail is fixed at an unreasonable amount, he may be admitted to bail through a writ of habeas corpus. It was even held, after a prisoner had served seventeen years in a penitentiary, that he was entitled to his release upon a writ of habeas corpus because the indictment against him had been returned by an illegally constituted grand jury (20). (16a) State v. Huegin, 110 Wis. 189. (18) Ex parte Seibold, 100 U. S. 371. (19) In re Devine, 21 How. Pr. 80 (N. Y.). (20) Ex parte Cox, 3 Idaho 530. |