606] *SECTION IV. THE FLIGHT OF THE ACCUSED. There must be an actual fleeing from justice, and of this the governor of the state of whom the demand is made as well as of the state making it should be satisfied. This is commonly shown by affidavit. “In Hall's case in 1845, a long and angry controversy arose between the governors of New York and Pennsylvania. Judge Kane, then Attorney-General of Pennsylvania, advised against surrender of the alleged fugitive, for want of an affidavit of actual fleeing. He based his • opinion upon usage more than upon the words of the act of Congress. To the same effect was the advice of the Supreme Court of Maine before quoted, given to the governor in 1837. Governor Fairfield in his opinion,' says: "Each governor has the right of determining the fact whether the person charged be a fugitive from justice or not," and in respect to small crimes, at least, he thinks, that the mere production of an indictment should not be regarded as proof of the fact that the person indicted is a fugitive. "Where a person, who committed a crime in a state where he was temporarily sojourning, departed 607] *from it for his ordinary and permanent residence in Pennsylvania; the Attorney-General of the latter state advised the governor thereof that the person could not be considered a fugitive from justice under the Constitution and act of congress.""" The governor of Maine' expresses himself upon this point as follows: 1 Kane's Letter to Gov. Shunk, March 14, 1845; 6 Penn. Law Jour. 412. 26 Am. Jurist, 226. 3 Lewis's Cr. Law, 266. 46 Am. Jurist, 226. "Now what will constitute a fleeing within the meaning of the Constitution? Making the charge in one state and finding the accused in another, will not. I am clearly of the opinion that where one is conscious of having committed 'treason, felony or other crime' in one state and leaves that state, knowing that by remaining he is subject to prosecution, a sufficient time not having elapsed or other circumstances occurred to remove all reasonable apprehension of a prosecution, he may fairly be regarded as a fugitive from justice within the meaning of the 4th art. of the Constitution." The Superior Court of the city of New York, in 1844, In the matter of Adams,' said: "If a man within a state secretly commits a crime and suddenly departs, the crime not being discovered till months after his departure, though he may have left for purposes other than fleeing from the justice of the state against which he offended; yet he surely might be treated and proceeded against as a fugitive from justice. The consciousness of his having committed the crime, of his being amenable to the laws of the state against which he offended, might and would probably be regarded as the motive for going out of its limits, and form a legitimate basis for an executive requisition and surrender.""2 *SECTION V. [608 THE DEMAND OF THE FUGITIVE. This consists of a written application by the governor of the state where the crime was committed, addressed 17 Law Rep. 386. It is not necessary that the affidavit should state that the prisoner is a "fugitive from justice;" the allegation that he committed the crime, and then, secretly fled, is sufficient. In matter of Manchester, 5 Cal. 237. to the governor of the state to which the offender has fled, requesting his delivery to some person therein appointed to receive him. It states the crime of which the fugitive is accused, the fact that he has fled from the justice of the state, and must be accompanied by a copy of the indictment found or affidavits showing the charge.' SECTION VI. THE ARREST AND SURRENDER. The arrest may be before the requisition. In some states statutes have been passed authorizing magistrates to apprehend fugitives from other states before any warrant issues from the executive. In Ohio it may be doubted whether the intervention of either executive is required. Very ample powers are conferred upon the justices of the peace to hear and examine the charge preferred against any person brought before him, and "charged with the commission of any criminal offence against the laws of any other state or the territories of the United States," and upon proof by him adjudged sufficient, to commit, &c., or "cause such person to be delivered to some suitable person to be removed to the proper place of jurisdiction," &c. Swan. St., 541.* 1 In Massachusetts it is not necessary that the sworn evidence required by the statutes of that state, to accompany the demand of the governor of another state for the surrender of a fugitive from justice, shall be annexed to the demand. Kingsbury's case, 106 Mass. 223. The issue of a warrant by the gov ernor, for the surrender of a fugitive from the justice of another state, upon the demand of the governor thereof, is conclusive that the demand is conformable to law and ought to be complied with, unless there is some defect apparent on the record. Ib. Where a requisition recited that "the annexed papers duly authenticated show that by affidavit, the prisoner stands charged with larceny, and there was no copy of the affidavit," it was held that the governor was not authorized to issue his warrant for the arrest of the fugitive. Ex parte Pfitzer, 28 Ind. 450. 2 S. and S. 608. By this act the same powers possessed by justices of the peace are extended to common pleas and probate judges. *In New York "To enable a magistrate to arrest [609 and examine an alleged fugitive from justice from another state, it must be shown to him by a complaint, in writing, on oath, that a crime has been committed in the foreign state; that the accused has been charged in such state with the commission of such crime, and that he has fled from such state and is found here. The judge said: "I think the affidavit on which the warrant was issued is defective in not showing positively that the alleged crime was committed in the state of Pennsylvania, and because it does not state positively that the prisoner had fled from the state. It is true that it may be readily inferred from the affidavit, the residence of the parties and the facts in the case, that the alleged crime was committed within the state of Pennsylvania, and that the prisoner fled from that state to avoid the consequences of the alleged offence. But mere inference is not sufficient to found the exercise of criminal jurisdiction. The facts sufficient to confer that jurisdiction must be alleged positively.' 9991 In Pennsylvania it is said: "The principle appears to be recognized that in order more effectually to accomplish what is intended by the Constitution and laws of the United States, it is the duty of the magistrates, as it has been the practice, to cause to be arrested, offenders who have fled from one of the United States to another, even before a demand has been made for them by the executive of the state from which they fled." "It is not necessary in order to arrest a fugitive that a requisition should be produced from the governor at the time of the arrest. If the oath on which the warrant issues is sufficient to raise a good reason for believing that a crime has been committed in a sister state, it is the duty of the magistrate to commit the accused till 1 Matter of Hayward, 1 Sanf. Sup. Ct. R. 701. time be given to take the legal steps for demanding a surrender." 610] *In the case of Goodhue, charged with obtaining money in Kentucky by false pretences, the recorder of the city of New York remanded the prisoner to be detained in custody six weeks in order to give time for the executive of Kentucky to demand him under the Constitution and laws of the United States." Similar authority was recognized in Ex parte Smith,' and in The People v. Lynch. In these cases the relators were accused of offences against the United States, but the principle for the detention is the same. The court in the former case say: "Detaining a prisoner by state authority in order that he may be delivered over for prosecution to the United States is by no means an unusual exercise of power." But unreasonable delay would be ground for discharge. In Georgia "A person charged with committing a felony in one state may be detained in another on the principle of comity, 'under the law of nations and the common law of this land,' to afford the former an opportunity to demand the accused." In Delaware, in 1847, in the case of The State v. Buzine, the same views are maintained in an elaborate opinion by Ch. J. Booth. That was a proceeding in habeas corpus. The petitioner had been committed by the mayor of the city of Wilmington on a complaint of having committed a crime in Pennsylvania and fled, &c. No demand had been made for his surrender, and one ground relied on for his discharge was that the mayor had no authority to arrest and commit a fugitive from 611] justice from *another state prior to a demand, &c. 1 Vaux's Cases, 32; Lewis's Crim. Law, 260. 22 Johns. 477. 8 5 Cow. 273. 4 11 Johns. Rep. 549. 5 R. M. Charlt. Rep. 228; State v. Loper, 2 Geo. Decis. 33. 64 Harring. 575. |