as a fugitive from justice. But he said that he was clearly of 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 a 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 fourth article of the Constitution." 1

§ 565. Motives of Departure not a Subject of Inquiry. The difficulties which are immediately suggested when we begin to inquire as to the motives with which a person left a State or Territory where he is charged to have committed a crime, have led the courts to discard the consideration of that question. In the matter of Voorhees,2 in 1867, Chief Justice Beasley, of New Jersey, said:

"A person who commits a crime within a State, and withdraws himself from such jurisdiction without waiting to abide the consequences of such act, must be regarded as a fugitive from the justice of the State whose laws he has infringed. Any other construction would not only be inconsistent with good sense, and with the obvious import of the word to be interpreted in the context in which it stands, but would likewise destroy, for most practical purposes, the efficacy of the entire constitutional provision."

This doctrine was adopted by the Supreme Court of the United States in Roberts v. Reilly, in which the court said:

"To be a fugitive from justice, in the sense of the act of Congress regulating the subject under consideration, it is not necessary that the party charged should have left the State in which the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun ; but simply that having, within a State, committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offence he has left its jurisdiction, and is found within the territory of another."

Citing this decision, the supreme court of Minnesota, in The State v. Richter,1 in 1887, held that it was sufficient, in legal intendment, to constitute a person a fugitive from justice, that he was not in the State to answer the charge when required. The purpose of his leaving was immaterial. In the case before the court the person charged was sought to be recovered from Minnesota to answer an indictment in Kansas. It was held to be no answer to the demand that after a plea of not guilty the defendant left the State of Kansas with the consent and by direction of the sheriff and prosecuting attorney of the county in which the indictment was pending, and went to Minnesota to answer a criminal charge there.

The definition of a fugitive from justice given by the Supreme Court in the case of Roberts v. Reilly, was adopted by Judge Nelson, of the United States district court for the District of Minnesota, in the case of Keller.2 The relator was held on a warrant of rendition issued by the governor of Minnesota, in compliance with a requisition of the governor of Wisconsin for his surrender on a charge of embezzlement in the latter State. He contended that he was not a fugitive from justice, on the ground, among others, that his home was in Minnesota and that he had not fled thither. Judge Nelson said:

"It is not necessary that I should determine that he was a resident of Wisconsin, and had committed a crime there, and had fled to avoid prosecution. That is not necessary. If it appeared simply that he was charged with a crime committed by him in the State

1 37 Minn. 436. In People v. Pinkerton, 17 Hun, 199, Judge Gilbert said: "The charge that he [the person demanded] committed the crime in that State [from which the demand proceeds], coupled with the fact that he is found in this State, is conclusive upon the question whether he is a fugitive from justice.”

The definition of a fugitive from justice given in Roberts v. Reilly may fairly be regarded as a more explicit statement of the rule laid down by the Supreme Court in Ex parte Reggel, 114 U. S. 642, in which the court said that the fugitive, who asserted that it was not shown that he was in the demanding State at the time of the alleged offence, was entitled, under the act of Congress, to insist upon proof that he was in the demanding State at the time he is alleged to have committed the crime charged, and subsequently withdrew from her jurisdiction, so that he could not be reached by her criminal process."

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2 In re Keller, 36 Fed. Rep. 681; Nov. 20, 1888.

of Wisconsin, and that, when he was sought to be brought to justice for that crime he was found outside of that jurisdiction, and in the State of Minnesota, I think it is sufficient. The Supreme Court of the United States holds so."

Immediately afterwards, however, Judge Nelson said:

"If a citizen of the State of Minnesota should go into the State of Wisconsin, and commit a crime in the State of Wisconsin intentionally, and afterwards, when prosecution was initiated against him, was found in the State of Minnesota, I take it that the State of Wisconsin would be justified in demanding him, and that the governor of Minnesota would send the prisoner back as a fugitive from justice, having committed a crime in another State. That appears to be this case."

The employment of the word "intentionally" in respect to the commission of the crime charged, makes the second statement of Judge Nelson bear a very different signification from his first definition, based upon the opinion of the Supreme Court. If it be necessary to show that the person charged intentionally committed a crime in the demanding State, grave questions might arise as to the surrender of persons for offences in which proof of intent is not essential, including the large class of negligent crimes; and in any case substantial proof of guilt would be necessary. We are, therefore, inclined to believe that the observation of the learned judge was not intended to be understood in that sense, and it had no effect upon the case before him, since the writ of habeas corpus was dismissed and the prisoner remanded. It is stated in the report of the case that from this decision an appeal was taken to the circuit court. The writer is informed by the clerk of the circuit court, Mr. Hillis, that the decision of that court, which was oral, affirmed the decision of Judge Nelson.

§ 566. Proof of seeking Asylum inadmissible. -It is no answer to the demand for the rendition of a person as a fugitive from justice that he was induced by fraud to come into the State from which his recovery is sought. Such was the decision of Governor Hill of New York in 1886, in the case of one Daniel Brown charged with perjury in Pennsylvania. It

appeared that Brown fled from Pennsylvania and went to Canada, from whence he was induced by stratagem and false representations to come into the State of New York, where he was arrested. Governor Hill ordered his surrender; and his decision was subsequently sustained on habeas corpus,1 the court adopting as its definition of a fugitive from justice the language above quoted from the decision of the Supreme Court of the United States in Roberts v. Reilly." In this relation it is to be observed that the provision of the Constitution is that a person charged in any State, &c., "who shall flee from justice, and be found in another State," shall be delivered up.

§ 567. Person may be a Fugitive, though he returns to his Home. On the principle that the motive of the prisoner in leaving the State in which he is charged to have committed the crime is not a proper subject of inquiry, it is held that a person may be a fugitive from justice though, after committing the crime charged, he returns to his home. In the case of one Hall, whose rendition was demanded by the governor of New York, in 1845, Attorney-General Kane advised the governor of Pennsylvania that the idea of fleeing from justice was not satisfied by departure from a place of temporary sojourn for one's ordinary and permanent residence, although a statute may have been violated in the former place. This precedent was referred to and disapproved by the supreme court of Massachusetts in Kingsbury's case, in which it was contended

1 Ex parte Brown, 28 Fed. Rep. 653.

2 Supra, § 566.

3 6 Pa. L. J. 418.

4 106 Mass. 223. It is stated in the brief of Mr. J. H. Benton, Jr., in the Vinal case (infra, § 570), that when the governor of Massachusetts issued his warrant of rendition in this case there was evidence before him that the accused left Maine to avoid prosecution. Mr. Benton says :—

"Kingsbury's case, 106 Mass. 223, is cited against the position that there must be actual, conscious flight in order to make the person a fugitive within the meaning of the Constitution. But the facts in that case as shown by the papers on file in the office of the Secretary of State, and which, as the opinion shows, were before the supreme court when it decided the cause upon habeas corpus, and are printed in the court papers, were, that the alleged fugitive, who lived in Boston, went to Maine, and secretly took four one thousand dollar United States bonds from the safe of her brother, on the 11th of October, and on the 13th left VOL II.-6

that as the prisoner's home was in Boston, to which place she returned after the commission of the acts in question in Maine, she was not a fugitive either under the act of Congress or the Massachusetts statute. The court said:

"We are referred to the opinion of the attorney-general of Pennsylvania, stated in Hurd on Habeas Corpus, 606, as an authority for this position. But we do not think it is sustained by a reasonable construction of either of the statutes above referred to. The material facts are, that the prisoner is charged with a crime in the manner prescribed, and has gone beyond the jurisdiction of the State, so that there has been no reasonable opportunity to prosecute him after the facts were known. The fact in this case, that she returned to her permanent home, cannot be material."

It has lately been held in several cases that the fact that the person accused returned to his home is no answer to the charge that he is a fugitive from justice.1

§ 568. Case of Gaffigan and Merrick. In December, 1878, an interesting decision was made by Governor Cullom, of Illinois, in the case of two persons named Gaffigan and Mer

Maine and came to Boston. It was also shown clearly that, before she left Maine, she told one of the affiants that she had taken the bonds, and upon being asked if she was not afraid that she should be arrested, said that she was not, but that she should not let any grass grow under her feet' before she got out of the State and invested the bonds, and that she should return to see her friends in Maine as soon as she dared to. In that case the crime was charged by a complaint to a magistrate in Maine, who issued a warrant thereon, and was shown by several clear and explicit affidavits accompanying the requisition, and before the court. The flight was also proved in the most explicit manner by the affidavits of several witnesses, and the guilty knowledge or intention to flee to avoid prosecution was conclusively shown by the affidavit of the person to whom Mrs. Kingsbury said she should not let grass grow under her feet' before she got away and invested the bonds, and that she should return to Maine as soon as she dared to.' There was absolute proof in that of the guilty knowledge' which, as was said in the Wyeth case, 'is the test of fugitiveness.''

It must be admitted that the language of the court, and the elements of "fugitiveness" therein defined, are less exacting and restrictive than was necessary upon the facts as disclosed by Mr. Benton. It would seem, therefore, that the court intended to lay down a more liberal rule than that which might have sustained the action of the governor upon the facts.

1 Ex parte Swearingen, 13 S. C. 74; In re Roberts, 24 Fed. Rep. 132; In re Keller, 36 Id. 681, 686.