ernor of Missouri, accompanying which was an affidavit, the material part of which was as follows:

Lilburn W. Boggs, who, being duly sworn, doth depose and say that on the night of the 16th day of May, 1842, while sitting in his dwelling in the town of Independence, in the County of Jackson, he was shot with intent to kill; and that his life was despaired of for several days; and that he believes, and has good reason to believe, from evidence and information now in his possession, that Joseph Smith, commonly called the Mormon prophet, was accessory before the fact of the intended murder, and that the said Joseph Smith is a citizen or resident of the State of Illinois."

Smith was brought before Judge Pope, district judge, in the circuit court of the United States for the District of Illinois, on a writ of habeas corpus, and was discharged on the ground of the insufficiency of the affidavit, because: (1) It was on information and belief, and not positive, and did not state the grounds of deponent's belief; (2) it charged no crime; (3) in swearing that Smith was an accessory before the fact, deponent swore to a conclusion of law, when he should simply have stated the facts and shown that they were committed in Missouri, leaving the question of law for the court; (4) the affidavit charged no crime committed in the State of Missouri. It could not, therefore, said the court, be inferred that Smith fled from the justice of the State of Missouri, nor that he had taken refuge in the State of Illinois. Where a fugitive was charged by affidavits with unlawfully combining and conspiring with certain persons by false pretences and devices to obtain the property of another person, with intent to cheat and defraud him, the Court of Appeals of New York discharged the fugitive, who had been taken on a warrant of surrender, on the ground of the insufficiency of the affidavits. The objections stated to them were, (1) that the false pretences were not set out, nor the means by which the cheat was to have been or was effected. This, said the court, would be required in an indictment; and an affidavit must, if anything, be more full in its allegations than an indictment, the former being an ex

1 Ex parte Joseph Smith, 3 McLean, 121.

parte statement, usually of the prosecutor, while an indictment is found by a body which stands indifferent between the parties, and charged upon oath to inquire of offences, and which, in finding the bill, is supposed to act upon competent proof. (2) The affidavits did not show that a conspiracy to do a wrongful act affecting the property of another was an offence in the State of Michigan, where the crime was alleged to have been committed. The court could not take judicial notice of the laws of Michigan, and in the absence of proof the presumption was that the courts of that State agreed with those of New York in their interpretation of the common law, and by the interpretation of the latter the acts charged would not constitute an offence at common law. The court also said that the fact that an inferior magistrate had issued a warrant of arrest upon the same proof as was presented to the executive of New York, did not justify the inference that a legal crime was charged in the affidavits; and moreover, the alleged warrant was in no way identified or referred to in the affidavits, and could not be considered by the executive in deciding the question presented to him. In the case of Sigismund Keller,2 above referred to, there was an affidavit which charged that "S. K., on or about the 1st day of October, 1888, at said city of Milwaukee, in said county, was then and there the clerk, servant, and employee of A. B., Son & Co., and he, the said S. K., not being then and there an apprentice, nor a person under the age of sixteen years, and while he was employed," had the care, custody, and possession of a specified sum of affiant's money, which, without affiant's consent, he embezzled and fraudulently converted to his own use. Judge Nelson, referring to sections 4418, 4667, and 4742 of the Revised Statutes of Wisconsin, held the affidavit to be sufficient. Sec

1 People, ex rel. Lawrence, v. Brady, 56 N. Y. 182. Decision by Andrews, J., Church, C. J., and Allen, Folger, Rapallo, Johnson, and Peckham, JJ., concurring; Graves, J., dissented. The case was brought up on a writ of error to the general term of the supreme court of New York, first judicial department, which had affirmed the judgment of the Hon. John R. Brady, one of its justices, dismissing the writ of habeas corpus. The judgment of the Court of Appeals reversed the judgment of the supreme court.

2 In re Keller, 36 Fed. Rep. 681. Supra, § 553.

tion 4418 provides for the punishment of embezzlement. Section 4667 provides that in any prosecution for embezzlement it shall be sufficient to allege, generally, in the indictment or information an embezzlement of money to a certain amount, without specifying any particulars of such embezzlement. Under the law of Wisconsin, said the court, an indictment or information in the language and form of the affidavit, would be sufficient. Moreover, section 4742 provides that "any statute relating to the form, substance, or amendment of indictments and informations, the statement of the offence therein, and the evidence thereunder, so far as applicable, shall apply to complaints, amendments, proceedings, and trials in criminal cases before justices of the peace." It was also objected to the affidavit in this case that it alleged that the offence was committed on or about the 1st day of October, 1888, while the prisoner swore that the offence, if committed at all, was perpetrated fourteen days earlier. The court held that the petitioner could not complain that the affidavit was not specific in fixing the very day.

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§ 556. Information and Belief. It has been seen that it was made a ground of objection by the court to the affidavit in the case of Joseph Smith, that it was made on information and belief. The affidavit nowhere directly charged Smith with the commission of the crime. The deponent stated that on a certain night he was shot with intent to kill, and that he believed and had good reason to believe, from evidence and information in his possession, that Smith was an accessory before the fact of the intended murder. In the case of Ex parte Morgan,2 the affiant employed very similar language, saying "that he has reason to believe, and does believe, from information received, that one Frank Morgan did commit the crime of wilful murder." The court held that this was merely a charge upon suspicion and insufficient, and cited Ex parte Smith. It is stated that in June, 1889, police officers from Chicago presented to Governor Hill of New York, at Albany, a requisition from Governor Fifer, of Illinois, for the surrender of two persons, named Moreney and McDonald, 1 Supra, § 555. 2 20 Fed. Rep. 298.

VOL. II.5

accused of the murder of Dr. Cronin, in Chicago. It is said that Governor Hill denied the application, without prejudice to its renewal, on the following grounds: "1. That the application was not accompanied with an indictment. 2. That no proof whatever was presented showing that the accused were guilty of the crime charged against them, as required by the laws of this and all other States." The application was based solely upon an affidavit made upon "information and belief." 1

It has, however, been held that where the affidavit charges the crime directly and positively, it is not vitiated by the conclusion, "as deponent verily believes." "Ordinarily," said the court, "a question of pleading is to be determined by the courts in which the pleading is made. If it is conceded that this court can construe this pleading and reject it, still I think it is not faulty. It is a statement of a fact which the deponent, in testifying to, verily believes to be true. A man swears to what he believes to be true, and, when he states a fact under oath, he says he verily believes it to be true. I do not think it is faulty on that account. I think this affidavit is sufficient." 2

§ 557. Held in South Carolina to be conclusive. It has been held in South Carolina that a requisition accompanied with a duly authenticated affidavit is conclusive evidence that there is a valid charge against the fugitive in the demanding State. In the case in which this was held, the affidavit came from Georgia, and it was objected that the person who made it was incompetent to do so in that, not being a citizen of that State, and not contributing anything to the expenses of courts of justice, nor having any interest in the enforcement of the laws, he could not lawfully commence a prosecution there. In reply to this, the supreme court of South Carolina said:

"It is quite sufficient to say that we are not at liberty to consider such a question. The authorities of the State of Georgia have undoubtedly recognized the fact that a prosecution has been lawfully commenced in that State, and it is not for us to question

1 N. Y. Sun, June 14, 1889.

2 In re Keller, 36 Fed. Rep. 681, 685.

it. Whether the charge has been made in proper legal form, or whether it can be sustained by legal evidence, are questions which belong exclusively to the tribunals of the State where the crime is alleged to have been committed, and they alone have jurisdiction to determine whether the laws of such State have been violated. Even, however, were the point raised a matter within our jurisdiction, we are altogether unable to discover any valid reason why a citizen of South Carolina may not commence a prosecution in the State of Georgia for an offence committed within the territorial limits of that State." 1

5. Certification.

§ 558. Must be in accordance with the Act of Congress. The certification of the indictment or affidavit must be in accordance with the act of Congress. Thus where an affidavit was sworn to before a justice of the peace in New Orleans, it was held in New York that the certification of his official character and of the formality of his attestation by the secretary of state, instead of by the governor, of Louisiana, was insufficient.2

§ 559. Imports Verity. The certification by the governor of the demanding State or Territory of the authenticity of the indictment or affidavit imports verity for the purposes of the act of Congress, and dispenses with other authentication. Thus if a copy of an indictment be so certified, it is immaterial that it is not certified by the clerk of the court with the accompanying certificate of the judge, or that there is no seal to the certificate of the clerk of the court in which the indictment purports to have been found, and no file mark. But the paper certified as the basis of the charge must be actually produced. Thus one Pfitzer was arrested on a warrant issued by the governor of Indiana in compliance with a

1 Ex parte Swearingen, 13 S. C. 74; 1880.

2 Soloman's Case, 1 Abb. Pr. (N. s.) 347. Leary's Case, 10 Ben. 197.

4 Hibler v. State, 43 Tex. 196. In Hackney v. Welsh, 107 Ind. 253, it was held that, assuming that the question of the authenticity of the affidavit could be examined, after its certification by the demanding executive, the affidavit and signature of the prosecuting attorney of the place from which the criminal escaped were sufficient evidence of authenticity.