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required to accompany a requisition must
be certified to be authentic by the gover-
nor of the state from which the person
charged has fled.

Ex parte Powell, 20 Fla. 809; Ex parte
Pfitzer, 28 Ind. 450; Kingsbury's Case, 106
Mass. 223; State ex rel. Stundahl v. Rich-
ardson, 34 Minn. 115, 24 N. W. 354; Hib-
ler v. State, 43 Tex. 197; Ex parte Hart,
28 L.R.A. 801, 11 C. C. A. 165, 25 U. S. App.
22, 63 Fed. 249; Re Leary, 10 Ben. 197,
Fed. Cas. No. 8,162.

The certificate need not state that the

papers are genuine, but only that they are
duly authenticated.

Hackney v. Welsh, 107 Ind. 253, 57 Am.
Rep. 101, 8 N. E. 141.

The certificate need not be in any par-
ticular form, so long as it makes clear the
fact that the documents are what they pur-
port to be.

Ex parte Sheldon, 34 Ohio St. 319; Ex parte Dawson, 28 C. C. A. 354, 49 U. S. App. 674, 83 Fed. 306; Ex parte Dickson, 4 Ind. Terr. 481, 69 S. W. 943; Re Manchester, 5 Cal. 237; Hibler v. State, 43 Tex. 197; Ex parte Camp, 8 Ohio S. & C. P. Dec. 681, 7 Ohio N. P. 614; Johnston v. Riley, 13 Ga. 97.

The facts are stated in the opinion. Messrs. Horace Frierson, Jr., Attorney As a governor's duty is absolute, he may General, Nicholls & Nicholls, and Harry not, because of facts which do not appear S. Stokes, for appellant: on the face of the requisition, use his disPetitioner is charged with violation of cretion whether to obey it or not. the statute against extortion.

The petition must state facts, as distinguished from conclusions of law, so that the court may exercise an intelligent discretion in passing upon the application.

Ex parte Swearingen, 13 S. C. 74; People ex rel. Draper v. Pinkerton, 17 Hunt. 199; Ex parte Van Vleck, Ohio Dec. Reprint, 636.

The courts should be clearly satisfied that an error has been committed by the executive who has caused the fugitive's arrest, before setting his act aside.

Ex parte White, 9 Ark. 222; Ex parte Walpole, 84 Cal. 584, 24 Pac. 308; Ex parte Voll, 41 Cal. 29; Ex parte Nye, 8 Kan. 99; State ex rel. Sherin v. Goss, 73 Minn. Ex parte Brown, 28 Fed. 653; Whitten 126, 75 N. W. 1132; State ex rel. Distin v. v. Tomlinson, 160 U. S. 231, 40 L. ed. 406, Ensign, 13 Neb. 250, 13 N. W. 216; Ex parte 16 Sup. Ct. Rep. 297; Re Strauss, 63 C. C. Deny, 10 Nev. 212; Kohl v. Lehlback, 160 A. 99, 126 Fed. 327; Ex parte Dawson, 28 U. S. 293, 40 L. ed. 432, 16 Sup. Ct. Rep. 304; Re Cuddy, 131 U. S. 280, 33 L. ed. 154, 9 Sup. Ct. Rep. 703; Re Count de Toulouse, 43 C. C. A. 42, 102 Fed. 878.

A person who is arrested as a fugitive from justice, on the warrant of the executive, must be securely held. He is there fore not entitled to bail.

Ex parte Erwin, 7 Tex. App. 288; Ex parte Hobbs, 32 Tex. Crim. Rep. 312, 40 Am. St. Rep. 782, 22 S. W. 1035; Re Foye, 21 Wash. 250, 57 Pac. 825.

The court could not properly proceed with this investigation under the writ, in the absence of petitioner and over the objection of the state.

Clark, Crim. Proc. p. 423.

The copy of the indictment found or affidavit made before a magistrate which is

C. C. A. 354, 49 U. S. App. 674, 83 Fed.
306; Bruce v. Rayner, 62 C. C. A. 501,
124 Fed. 481.

The general rules of the law of evidence
relating to the burden of proof, presump-
tions, and the admissibility and sufficiency
of evidence, are ordinarily applicable to
habeas corpus proceedings.

Barranger v. Baum, 103 Ga. 465, 68 Am. St. Rep. 113, 30 S. E. 524; People ex rel. Nubell v. Byrnes, 33 Hun, 98; Re Renshaw, 18 S. D. 32, 112 Am. St. Rep. 778, 99 N. W. 83; Hyatt v. New York, 188 U. S. 691, 47 L. ed. 657, 23 Sup. Ct. Rep. 456, 12 Am. Crim. Rep. 311, affirming 172 N. Y. 176, 60 L.R.A. 774, 92 Am. St. Rep. 706, 64 N. E. 825; Re Bloch, 87 Fed. 981.

When demand is made in due form, it is the duty of the executive on whom it is

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made to receive it, and he has no moral governor of Tennessee was conclusive, and right to refuse. evidence could not be heard to disprove it. Cooley's Const. Law, p. 199; Kentucky v. Re Manchester, 5 Cal. 237; Hibler V. Dennison, 24 How. 66, 16 L. ed. 717; Mun-State, 43 Tex. 197; Barranger v. Baum, 103 sey v. Clough, 196 U. S. 364, 49 L. ed. 515, 25 Sup. Ct. Rep. 282; Re Moyer, 12 Idaho, 250, 12 L.R.A. (N.S.) 227, 118 Am. St. Rep. 214, 85 Pac. 897; Barriere v. State, 142 Ala. 72, 39 So. 55; State ex rel. Arnold v. Justus, 84 Minn. 237, 55 L.R.A. 325, 87 N. W. 770; Ex parte Dickson, 4 Ind. Terr. 481, 69 S. W. 943; Vattel, Nations, bk. 2, chap. 7, §§ 84, 85; Johnston v. Riley, 13 Ga. 134. Where the defendant fails to appear and plead to an indictment for a mere misdemeanor, his recognizance may then be estreated, before trial, sentence, and issue of bench warrant.

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Ga. 465, 30 S. E. 524, 68 Am. St. Rep. 113; Re Van Sceiver, 43 Neb. 772, 47 Am. St. Rep. 730, 60 N. W. 1037; Kentucky v. Dennison, 24 How. 106, 16 L. ed. 729; Roberts v. Reilly, 116 U. S. 95, 29 L. ed. 549, 6 Sup. Ct. Rep. 291; Ex parte Reggel, 114 U. S. 642, 29 L. ed. 250, 5 Sup. Ct. Rep. 1148, 5 Am. Crim. Rep. 218; People ex rel. Nubell v. Byrnes, 33 Hun, 98; Jackson v. Archibald, 12 Ohio C. C. 155, 5 Ohio C. D. 533; Re Lyon, 24 Wash. L. Rep. 679; Re Voorhees, 32 N. J. L. 141.

Messrs. Sanders & De Pass, C. C. Wyche, and John Gary Evans for respondent.

Woods, J., delivered the opinion of the court:

The petitioner, W. J. Massee, was arrested by sheriff of Spartanburg county under the mandate of his Excellency Cole

Taylor v. Taintor, 16 Wall. 366, 21 L. ed. L. Blease, governor of South Carolina, is287.

The principal is bound to appear de die in diem until his matter is finally disposed of. People v. Hanaw, 106 Mich. 421, 64 N. W. 328; Rubush v. State, 112 Ind. 107, 13 N. E. 877.

sued on the 25th day of July, 1912, in accordance with a requisition from his Excellency Ben W. Hooper, governor of Tennessee. On the same day, upon the application of Massee, Hon. T. S. Sease, circuit judge, issued a writ of habeas corpus returnable in the afternoon of that day. The sheriff made return to the writ: "That W. J. Massee is held in my custody under telegram from Governor Cole L. Blease and warrant issued by Magistrate A. H. Kirby, The very nature of the proceeding in this charged with making threats and using ducase required the presence of the respond-ress to induce Robert Williams to dismiss ent, for without it the hearing would have an action in United States court." The been a mere farce and nullity.

The fact that the principal departed the court without license works a forfeiture. Com. v. Teevens, 143 Mass. 210, 58 Am. Rep. 131, 9 N. E. 524; 2 Am. & Eng. Enc. Law, 34.

Lowndes County v. Leigh, 69 Miss. 754, 13 So. 854; Nebraska Children's Home Soc. v. State, 57 Neb. 765, 78 N. W. 269; State v. Jones, 32 S. C. 583, 10 S. E. 577. The same rules of evidence apply in habeas corpus as in other matters. Re Hardigan, 57 Vt. 100; Re Heyward,

record contains this statement of the proceedings before Judge Sease: "Counsel for the petitioner then moved that the petitioner be admitted to bail pending the hearing of the foregoing writ. Counsel for the state objected on the ground that the statutory four days' notice had not been given. This objection was overruled, and his Honor passed the following order admitting MasThe admission of the affidavit of W. D. see to bail, his Honor ruling and holding McNeil, who was an attorney for respond-notice, but that he would admit the petithat appellant was entitled to four days' ent at the hearing, was palpably erroneous. tioner to bail in the meantime." AcRe Reynolds, Fed. Cas. No. 11,721; State v. Lyon, 1 N. J. L. 403; Ex parte Pitts, 35 Fla. 149, 17 So. 76.

1 Sandf. 701.

An instrument under seal can be revoked only by an instrument of equal dignity, to wit, a sealed instrument.

O'Brien v. Boland, 166 Mass. 481, 44 N. E. 602; Willard v. Tayloe, 8 Wall. 557,

19 L. ed. 501.

The authentication of the copy of the indictment contained in the requisition of the

cordingly, an order was made that Massee be discharged from custody on giving

bond in the sum of $10,000, conditioned for his appearance before Judge Sease on the 27th day of July, 1912. The bond was made, and Massee was discharged. In the meantime, on the 26th of July, Governor Blease, having received a telegram signed by Governor Hooper stating that the requisition had been signed by mistake and was revoked, requested Judge

Upon this showing, after argument,

Sease to continue the hearing until Gover-passed by him in this matter." Counsel
nor Hooper's telegram could be authenti- for the prosecution then produced a tele-
cated under the seal of the state of Ten-gram from Governor Hooper to Governor
nessee. An order was accordingly made Blease, dated July 26, 1912, withdrawing
postponing the hearing until the 7th of Au- the message of the day before purporting
gust, and requiring Massee to appear in to revoke the requisition.
person before Judge Sease on the 7th day
of August at 10:30 in the forenoon, and Judge Sease made the following findings
continuing the bond in force until that
time. In passing this order, Judge Sease
considered, without objection of counsel,
the telegram of Governor Blease to him, the
telegram of Governor Hooper to Governor
Blease, and a telegram from James B. Cox,
Esq., of Knoxville, to Massee, stating that
Governor Hooper had promised to revoke
the requisition.

is therefore ordered and adjudged that the
prisoner, W. J. Massee, be discharged from
the custody of the sheriff, and his recog-
nizance canceled of record, and that he be
allowed to go hence without delay."

and judgment: “(1) That the requisition is irregular on its face, and not in conformity with the act of Congress relating thereto, in that no copy of the indictment found by the courts of Tennessee, as required by law, was produced; (2) I find, as a matter of fact, that the requisition was not authorized by the governor of Tennessee, but the same was issued without auMassee did not appear on the 7th of Authority, and is therefore null and void. It gust, pleading illness as an excuse, and his counsel presented a paper, purporting to be signed by Massee, waiving his right to be present at the habeas corpus proceedings. Counsel for the state of Tennessee objected to the hearing in the ab- The validity of the requisition from the sence of the petitioner, on the grounds "(a) governor of Tennessee depends on whether that the bond was conditioned upon the the papers transmitted by him to Governor personal appearance of the petitioner, W. Blease were made out as required by the J. Massee, before his Honor, and, upon the Federal statute, and we think that Judge failure of the petitioner to enter his appear- Sease was clearly in error in holding that ance in person, the condition of the bond they were on their face irregular and dewas broken; (b) that in a habeas corpus fective. The statute provides: "Whenever proceeding in which ex vi termini, and, as the executive authority of any state or the law directs, the body of the petitioner territory demands any person as a fugimust be brought into court, the personal tive from justice, of the executive authority appearance of the petitioner was a duty, of any state or territory to which such perand not a personal right which could be son has fled, and produces a copy of an inwaived." Overruling these objections, dictment found or an affidavit made before Judge Sease proceeded with the hearing, a magistrate of any state or territory, and admitted for his consideration in the charging the person demanded of having matter the telegram from Governor Hooper committed treason, felony, or other erime, to Governor Blease purporting to revoke certified as authentic by the governor or the requisition, the telegram from James chief magistrate of the state or territory B. Cox, Esq., to Massee, stating that Gov- from whence the person so charged has ernor Hooper had promised to revoke the fled, it shall be the duty of the executive requisition, and an affidavit of W. D. Mc-authority of the state or territory to which Neil to the effect that, in a conversation such person has fled to cause him to be arwith him Governor Hooper gave his reasons rested and secured, and to cause notice of for reinstating the requisition, and stated the arrest to be given to the executive authat he did not previously sign the requisi-thority making such demand, or to the tion.

agent of such authority appointed to reIn overruling the objection to all these ceive the fugitive, and to cause the fugidocuments, made on the ground that they tive to be delivered to such agent when he were mere hearsay, and that the formal shall appear." Revised Statutes of United requisition of the governor of a state was States, § 5278, U. S. Comp. Stat. 1901, p. not subject to collateral attack in this man- 3597. The objection sustained was that no ner, and that counsel were taken by sur copy of the indictment found by the courts prise, and had no opportunity to meet the of Tennessee was produced. The record statements of the affidavits of McNeil, before us shows that the copy of an indictJudge Sease held "that, as such had been ment charging a crime under the laws of introduced before him, and considered by the state of Tennessee was attached to the him when he passed the order extending the requisition, and certified therein by Govertime for the hearing, they were already in. nor Hooper to be authentic. The objection and would be considered by him, as they that the certificate of the clerk of the cirwere referred to in an order previously cuit court stated that the paper purport

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would seem generally applicable to release pending examination." Ex parte Wall, 84 Miss. 783, 38 So. 628; Ex parte Hobbs, 32 Tex. Crim. Rep. 312, 40 Am. St. Rep. 782, 22 S. W. 1035; Re Foye, 21 Wash. 250, 57 Pac. 825; 19 Cyc. 96.

ing to be an indictment was a copy of the the bond, if forfeited, would hardly meet minutes of the court, and not of the indict- the international demand, and the regainment, has no foundation. Even under the ing of the eustody of the accused obviousstrictest verbal test, the certificate can bearly would be surrounded with serious emno other construction than that the indict- | barrassment. And the same reasons which ment appears in the minute book, and that induced the language used in the statute the indictment itself, not the minute book, was on file in the clerk's office. There can be no doubt that the requisition papers were on their face regular in every respect. The assigned error next in sequence is the admission of the petitioner to bail pending the hearing, without notice to the But under habeas corpus proceedings the attorneys representing the prosecution. courts may inquire whether the prisoner The question made is not now a practical really falls under the conditions of the one, for the bail bond was taken, and the Federal statute, that is, whether he is subpetitioner released, and it would be im- ject to extradition. For example, they may possible for this court to restore the status ascertain whether the prisoner is the perexisting before the bond was taken. But son charged, whether he is a fugitive from since the point is important, we may state justice, whether the papers show that he our views of it. Legislation in respect to was in the demanding state at the time extradition of fugitives from one state to the offense was committed, and whether another being within the power of Congress, the regulations fixed by Federal statutes are paramount to state Constitutions and statutes, and all that a state court can do under habeas corpus proceedings is to determine whether the conditions prescribed by the Federal Constitution and statutes have been complied with. If they have not, the court may release absolutely or on bail, according to its discretion.

The general rule in habeas corpus proceedings is well established, that, pending a final hearing, the judge or court may admit to bail. Barth v. Clise, 12 Wall. 400, 20 L. ed. 393; Re Kaine, 14 How. 134, 14 L. ed. 357. But extradition laws are enacted on the presumption that the state making the demand will accord to the fugitive his right to bail and all other legal rights, and, when it is remembered that the power of the court or judge under habeas corpus is necessarily limited to the inquiry whether the conditions of the Federal laws have been met, it seems obvious that bail should not be allowed pending the hearing, unless some departure from the Federal law has been made to appear. On this point the reasoning of the Supreme Court of the United States on the subject of international extradition applies with equal force to state extradition. In Wright v. Henkel, 190 U. S. 40, 47 L. ed. 948, 23 Sup. Ct. Rep. 781, 12 Am. Crim. Rep. 386, Chief Justice Fuller said: "The demanding government, when it has done all that the treaty and the law requires it to do, is entitled to the delivery of the accused on the issue of the proper warrant, and the other government is under obligation to make the surrender, an obligation which it might be impossible to fulfil if release on bail were permitted. The enforcement of

the act charged was a crime against the laws of the demanding state; but judicial inquiry cannot extend to the motive of the proceedings. The Supreme Court of the United States, in Robb v. Connolly, 111 U. S. 624, 28 L. ed. 542, 4 Sup. Ct. Rep. 544, declared the power of the state courts to inquire, under the writ of habeas corpus, whether the statutes of the United States have been complied with, using this language: "What we decide-and the present case requires nothing more-is that, so far as the Constitution and laws of the United States are concerned, it is competent for the courts of the state of California, or for any of her judges having power under her laws to issue writs of habeas corpus, to determine, upon writ of habeas corpus, whether the warrant of arrest and the delivery of the fugitive to the agent of the state of Oregon were in conformity with the statutes of the United States, if so, to remand him to the custody of the agent of [the state] of Oregon.”

In Pearce v. Texas, 155 U. S. 311, 39 L. ed. 164, 15 Sup. Ct. Rep. 116, the court approved of the action of the courts of the asylum state in leaving to the courts of the demanding state the protection of the prisoner in his constitutional rights.

In Hyatt v. New York, 188 U. S. 691, 47 L. ed. 657, 23 Sup. Ct. Rep. 456, 12 Am. Crim. Rep. 311, it was held that the court might discharge the prisoner when it ap peared on the face of the extradition papers that he was not in the demanding state at the time the crime was committed; but in Munsey v. Clough, 196 U. S. 364, 49 L. ed. 515, 25 Sup. Ct. Rep. 282, the court said: "But the court will not discharge a de fendant arrested under the governor's warrant where there is merely contradictory

evidence on the subject of presence in or which shows upon its face that all the reabsence from the state, as habeas corpus is not the proper proceeding to try the question of alibi, or any question as to the guilt or innocence of the accused."

The court held, in Pettibone v. Nichols, 203 U. S. 192, 51 L. ed. 148, 27 Sup. Ct. Rep. 111, 7 Ann. Cas. 1047, that the inquiry in habeas corpus, whether the prisoner was a fugitive from justice, could not extend to an inquiry into his guilt or innocence, saying that "the constitutional and statutory provisions referred to were based upon the theory that, as between the states, the proper place for the inquiry into the question of the guilt or innocence of an alleged fugitive from justice is in the courts of the state where the offense is charged to have been committed."

quirements of the act of Congress have been complied with, it is the duty of the proper authorities of this state to recognize the statements of fact made therein as true, and to surrender to the agent of the state making the demand the person demanded, in the fullest confidence that he will receive ample justice at the hands of the authorities of such state. The very fact that there is no mode of enforcing the performance of the duty imposed upon the governor of the state upon which the demand is made, by mandamus or otherwise (Kentucky v. Dennison, supra, 24 How. 66, 16 L. ed. 717), makes it all the more obligatory that he should be scrupulously exact and prompt in the performance of such duty, and that the courts should not lend their aid to defeat the provisions of the Constitution so essential to the preservation of that good will which ought always to exist between sister states, by demanding more than is required by the act of Congress." Re Sultan, 115 N. C. 57, 28 L.R.A. 294, 44 Am. St. Rep. 433, 20 S. E. 375; Barranger v. Baum, 103 Ga. 465, 68 Am. St. Rep. 113, 30 S. E. 524; Singleton v. State, 144 Ala. 104, 42 So. 23; Ex parte Edwards, 91 Miss. 621, 44 So. 827; Bruyneel v. Wies, 153 Iowa, 565, 133 N. W. 1057. See also extended note in 57 Am. Dec. 395; 21 Cyc. 329.

In Pierce v. Creecy, 210 U. S. 387, 52 L. ed. 1113, 28 Sup. Ct. Rep. 714, Mr. Justice Moody lays down the limitation of the judicial power of inquiry in habeas corpus in this language: "This court, in the cases already cited, has said, somewhat vaguely, but with as much precision as the subject admits, that the indictment, in order to constitute a sufficient charge of crime to warrant interstate extradition, need show no more than that the accused was substantially charged with crime. This indictment meets and surpasses that standard, and is enough. If more were required, it would Another established and obvious princiimpose upon courts, in the trial of writs ple is that, when the extradition papers of habeas corpus, the duty of a critical ex- are regular on their face, every intendment amination of the laws of states with whose is to be indulged in favor of their validity, jurisprudence and criminal procedure they and the burden is on the prisoner to show can have only a general acquaintance. that some one of the conditions of extraSuch a duty would be an intolerable bur-dition prescribed by the statutes, as above den, certain to lead to errors in decision, indicated, has not been met. Marbles v. irritable to the just pride of the states, and fruitful of miscarriages of justice. The duty ought not to be assumed, unless it is plainly required by the Constitution, and, in our opinion, there is nothing in the letter or the spirit of that instrument which requires or permits its performance."

Creecy, 215 U. S. 63, 54 L. ed. 92, 30 Sup. Ct. Rep. 32. When the prisoner has made that prima facie showing, the court or judge issuing the writ may admit him to bail pending the final hearing on the writ.

Applying these settled rules, it is perfectly clear that the circuit judge erred in These statements of the principle in admitting the prisoner to bail pending the volved by the tribunal to whose authority, final hearing. When the application was in questions of this kind, all other courts made, the showing before the judge conmust yield, have made clear the principle sisted of the requisition papers of the gov that the authority of the courts in extradi-ernor of Tennessee, and the mandate of the tion proceedings does not extend to in- governor of South Carolina, all made out quiry into the motive or into the merits of the case in any respect. The supreme court of this state and other state courts of high authority have explicitly laid down the same limitation.

in accordance with the statute, and the verified petition of the prisoner. This petition contained nothing but statements that he intended to show that, while the prisoner had violated the criminal laws of TennesIn Ex parte Swearingen, 13 S. C. 74, Mr. see, he was guilty of no moral wrong; that Justice McIver, with his usual force and the prosecution was a hardship on him; clearness, thus states the rule: "It seems that it was instituted to collect a debt, and to us that the true rule is that when a that the governor of Georgia had refused requisition comes to the governor of this to issue a requisition. All this had no state for any person found in this state, tendency to show that the extradition stat

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