Hartman v. Aveline.

sion, and the act of Congress upon the subject, relate only to persons who are personally present in the state or territory when the crime is alleged to have been committed, and who flee thence to another state or territory.

"If the law does not provide for a case like the present, it is an omission which the courts can not supply. Statutes, and even constitutions, in restraint of personal liberty, must be strictly construed. They can have no application beyond their plain meaning.

"I find that the construction thus placed upon the constitution and laws of the United States, respecting the extradition of fugitives from justice, is in harmony with that placed upon the same by our own Legislature, the members of which are bound by an official oath, the same as myself.

"Section 7 of 'An act to regulate the arrest and surrender of fugitives from justice from other states and territories,' approved March 9th, 1867, 2 R. S. 1876, p. 422, reads: No citizen or resident of this State shall be surrendered under pretence of being a fugitive from justice from any other state or territory, where it shall be clearly made to appear to the judge holding the examination provided for by the second section of this act, that such citizen or inhabitant was in this State at the time of the alleged commission of the offence, and not in the state or territory from which he is pretended to have fled, and in such case the judge holding the examination shall discharge the person arrested, and forthwith report the facts to the Governor.'

"Finding, as I do, therefore, that there is no legal cause for the restraint of the petitioner, Aveline, an order will be made for his discharge.

(Signed,)

"December 20th, 1878."

"E. P. HAMMOND, Judge.

The appellant excepted to the conclusions of law, and the court rendered judgment for the discharge of the ap

Hartman v. Aveline.

pellee from the appellant's custody, and from this judgment this appeal is now prosecuted.

In this court the appellant has assigned, as errors, the following decisions of the circuit court:

1. In hearing testimony and inquiring into the facts behind the appellant's return to the writ of habeas corpus, the appellee having already been identified;

2. The court had no jurisdiction to inquire as to the whereabouts of the appellee, at the time of the alleged commission of the crime charged;

3. The court erred in holding that the appellee was not a fugitive from justice, from the State of Illinois;

4. That no sufficient cause was shown for discharging the appellee from the appellant's custody, and the court erred in granting a discharge.

The appellant has not assigned as error, in express terms, that the court erred in its conclusions of law upon the facts found, though, perhaps, the third and fourth alleged errors are equivalent to such an assignment. By excepting to the court's conclusions of law, the appellant, in legal effect, admitted that the facts were fully and correctly found by the court, but that it had erred in applying the law to those facts. Cruzan v. Smith, 41 Ind. 288; Curry v. Miller, 42 Ind. 320; Lynch v. Jennings, 43 Ind. 276; Wharton v. Wilson, 60 Ind. 591. In this case, the controlling facts found by the court were, that, for a long time before, and at the time of, the alleged commission of the crime charged against him, and at no time since, the appellee had not been within the State of Illinois; and that, as to that crime, he had not fled from the State of Illinois, nor to this State, where he had resided for eight or ten years last past; and that, as to that crime, he was not, and could not have been, a fugitive from the justice of the State of Illinois. It is claimed, however, by the appellant's counsel, as we understand them, that the court below had no jurisdiction, un

Hartman v. Aveline.

der the constitution of the United States and the act of Congress pursuant thereto, to inquire and decide whether or not the appellee had fled from the State of Illinois to this State, or whether or not the appellee was in fact a fugitive from the justice of the State of Illinois, as to the crime charged against him.

Section 2 of article 4 of the constitution of the United States, as we construe its provisions, does not forbid such. inquiry and decision by the state courts; nor is there any such prohibition in section 5278 of the Revised Statutes of the United States, which section contains the legislation of Congress on the subject of the extradition of fugitives from justice, as between the different states and territories. Section 7 of the statute of this State in relation to the arrest and surrender of fugitives from justice, which section is set out at length in the special finding of Judge Hammond, supra, expressly authorized the proceedings had, and the decision made, in this case.

In the affidavit upon which the Governor of the State of Illinois issued his requisition upon the Governor of this State, for the arrest and surrender of the appellee, it was not charged, that the appellee had fled from the State of Illinois to this State, or that he was a fugitive from the justice of the State of Illinois; nor was it alleged in the appellant's return to the writ issued in this case, that the appellee had so fled, or that he was such fugitive, or that the appellant held him in custody as such fugitive. It seems to us that a citizen ought not to be arrested and surrendered to the authorities of another state or territory, as a fugitive from justice, without some better foundation for his arrest and surrender than the recitals in a governor's requisition. Ex parte Joseph Smith, 3 McLean, 121. In Hurd on Habeas Corpus, 2d ed., p. 612, it is said: "There must be an actual fleeing from justice, and of this the governor of the state of whom the demand is made as

Woods v. The State.

well as of the state making it should be satisfied. This is commonly shown by affidavit." 6 Am. Jurist, 226; Lewin Crown Cases, 266; In re Adams, 7 Law Rep. 386; Ex parte Manchester, 5 Cal. 237.

In conclusion, we hold that no error was committed by the circuit court in its conclusions of law upon the facts. found in this case.

The judgment is affirmed, at the appellant's costs.

WOODS v. THE STATE.

CRIMINAL LAW.-Duty of Coroner Holding Inquest.—Testimony Must be in
Writing. Where a coroner of this State is holding an inquest upon the
body of a decedent "supposed to have come to his death by violence or
casualty," it is his duty, under the provisions of sections 8 and 9 of the
act of May 27th, 1852, "prescribing the powers and duties of coroners,"
2 R. S. 1876, p. 20, to cause all testimony given before him by witnesses to
be reduced to writing, and subscribed by them respectively.
SAME.-Presumption.-Parol Evidence as to Testimony Before Coroner.-
Impeaching Witness.—Murder.—The law conclusively presumes, that, in
such case, the coroner has duly performed his whole duty, by causing all
of such testimony to be reduced to writing; and, unless the proper foun-
dation be laid for secondary evidence, parol evidence of the testimony
given before the coroner, by any such witness, is inadmissible, even to im-
peach evidence given by him as a witness on the trial of a defendant in-
dicted for the murder of the person over whose body such inquest was
held.

SAME. When Defendant's Evidence before Coroner is Admissible.-Where
the defendant in such case has testified in his own behalf, the written
statement of evidence given by him as a witness on such inquest is admis-
sible in evidence to contradict him,

From the Vanderburgh Circuit Court.

P. Maier, J. A. Coleman, J. E. McDonald, J. M. Butler, F. B. McDonald and G. C. Butler, for appellant.

T. W. Woollen, Attorney General, and J. Brownlee, Prosecuting Attorney, for the State.

VOL. LXIII.-23

Woods v. The State.

NIBLACK, J.—This was a prosecution for murder in the first degree.

George Woods, the defendant below and appellant here, was indicted for killing Millie M. Hobbs, on the 15th day of July, 1877.

The jury, to which the cause was submitted for trial, returned a verdict, finding the defendant guilty of murder in the second degree, and fixing his punishment at imprisonment in the State's prison during his natural life. After considering and overruling a motion for a new trial, the court rendered a judgment of conviction against the defendant upon the verdict.

The evidence showed that the deceased, with her husband, James D. Hobbs, occupied one portion, and one Alice Manley, a courtesan, occupied another portion, of a double tenement house on Eighth street, between Vine and Sycamore streets, in the city of Evansville; that the defendant, who was a frequent visitor of Miss Manley's, and who had spent the forenoon with her, returned to her house at somewhere from five to six o'clock in the afternoon of Sunday, July 15th, 1877, in a drunken and disageeable condition, and remained there until near the time at which the deceased was killed; that after a while Dan Groves, an acquaintance of defendant's, dropped in at Miss Manley's, and, by some time after eight o'clock, Mrs. Hobbs and two or three other persons had also assembled at Miss Manley's house, Mrs. Hobbs being on friendly and familiar terms with Miss Manley,and accustomed to being frequently in her house; that the defendant had, in the meantime, become offended with Miss Manley about some trivial matter, and was flourishing a knife in his hand, in a rather reckless and menacing manner, saying that Miss Manley would have to kill him or else he would kill her; that, about that time, one Frank Marsh, also a suitor of Miss Manley's and a rival of the defendant's, came in, and, perceiving the