even if guilty of the crime charged, have left the demanding State with knowledge thereof, or as apprehending punishment, or as ficeing in order to escape the consequences of an act. "This theory has the support of many opinions rendered by attorney-generals, and has been followed by many of the governors of the Commonwealth. It has other eminent support. In Re Fugi. tives, 24 Am. Jurist, 266, Governor Fairfield says, after referring to the first theory : "I cannot concur in the supposed correctness of these views, but, on the contrary, am of the opinion that all the circumstances should be inquired into in relation to the commission of the offence, the subsequent conduct of the accused, the time and manner of his leaving the State having jurisdiction of his offence, . . . in order to determine the question whether he has fled to avoid a prosecution. 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 having occurred to remove all reasonable apprehension of a prosecution, he may fairly be regarded as a fugitive from justice.'1 "The cases which hold to the contrary are cases in which the question of consciousness of guilt was not material, there being ample evidence that the flight was intentional and in order to escape the consequences of the crime alleged to have been committed. This is true of the only Massachusetts case, In re Kingsbury, upon the point. Applying these two theories to the present case, it is for your Excellency to say whether, under all the facts and circumstances, as presented, the prima facie case made out by the papers is rebutted and controlled, and whether William L. Vinal is, as a fact, a fugitive from justice in the true sense of the Constitution." On the day of § 576. Vinal Case; Decision of Governor. which the above report bears date, the governor of Massachusetts addressed to the governor of New York the following communication: 1 Mr. Wyman cites In re Mitchell, 4 N. Y. Criminal Reports (opinion by Gov. ernor Hill), 596, as overruling People v. Pinkerton, 17 Hun, 199; Ex parte Smith, ubi supra; Hurd on Habeas Corpus, 606 et seq. ; Spear on Extradition; Burrill's Law Dictionary, title "Fugitives from Justice;" Bouvier's Law Dictionary, title "Fugitives from Justice." COMMONWEALTH OF MASSACHUSETTS, EXECUTIVE DEPARTMENT, To His Excellency David B. Hill, Governor, Albany, N. Y. SIR,- Upon the 25th day of April last past I received from your Excellency a requisition for the return of William L. Vinal, an alleged fugitive from justice. Before the same was acted upon, or report made upon the sufficiency of the papers by the attorneygeneral, to whom I had referred them, counsel for the demanded person asked for a hearing. This, in accordance with the practice obtaining in this Commonwealth and elsewhere, was accorded, and April 26 was fixed as the date therefor. At that time the demanded person was represented by counsel, and the State of New York by Assistant District-Attorney John D. Lindsay, of New York County. The hearing was adjourned to May 5, when arguments were made and evidence introduced. It was again adjourned to May 9, in order that replies to the affidavits presented by counsel for the alleged fugitive might be filed. On the latter date these replies were submitted and arguments made by Colonel Fellows, the district attorney for New York county, on behalf of the State of New York, and by Messrs. Benton, Elder, and Swasey, for the demanded perThese arguments, after considerable delay in receipt of the stenographer's report thereof, together with all the evidence and other papers in the case, I transmitted to the attorney-general for an examination as to the legal questions involved. His report, a copy of which is herewith respectfully submitted, I have just received, and in its conclusions I concur. To the question whether the demanded person is in fact a fugitive from justice I have given my personal attention, and after careful examination of the same, and the facts offered in evidence at the hearings before me, and which were not before your Excellency at the time the requisition was issued, I am unable to satisfy myself that William L. Vinal is, in the true sense of the Constitution, a fugitive from justice. As your Excellency so well said in your able decision in the case of Mitchell, reported in Fourth New York Criminal Reports, "the power of extradition vested in the executive is a high prerogative which should be cautiously and judiciously exercised, and only in clear cases should it be invoked." Actuated by the same spirit and feeling, the same sense of duty, both to the citizens of the Commonwealth and to the State of New York, which is so well son. expressed by your Excellency in the opinion above referred to, I cannot satisfy myself that the provisions of the Constitution, in the true sense, and as interpreted by eminent authorities, apply to this case. It follows that I must respectfully decline to comply with the requisition. I have the honor to be, yours with great respect, Governor of Massachusetts. While the report of Mr. Wyman positively advised the governor on two points, -the sufficiency of the indictment and the inadmissibility of an investigation of the motives of the prosecution, it left him to form his own conclusions on the question whether Vinal was a fugitive from justice. It has been suggested that upon the principles laid down for the determination of that question, the governor should have delivered him up, since the acts with which Vinal was charged, and upon proof of which he was indicted, jointly with the two other persons named in the indictment, constituted the offence of conspiracy at common law. It was also stated in the affidavit of the district attorney of the city of New York, above referred to, that the facts originally brought to his attention tended to show a conspiracy, and that upon the evidence submitted to the grand jury, sufficient proof existed to warrant the finding of an indictment against the persons named for having, in pursuance of an unlawful combination and agreement, violated the article of the penal code under which the indictment was found. It may readily be conceded that, if the indictment had, in substance, charged a conspiracy, the governor would, upon the principles laid down for his guidance, have been bound to deliver Vinal up, although the indictment had not under the statute charged a conspiracy in form. But the indictment merely charged the three persons joined in it with having feloniously and knowingly circulated false rumors for the unlawful purpose set forth, and did not substantially charge a conspiracy; and Vinal might have been separately convicted and sentenced under it without any proof of conspiracy at all. It seems to us, therefore, that the governor would not have been war ranted in assuming that Vinal was charged with conspiracy because he was jointly indicted with other persons, although a conspiracy to commit the particular acts alleged would no doubt have been indictable as a conspiracy at common law.1 In determining whether Vinal was a fugitive from justice, the governor was bound to decide whether he was a fugitive from justice in respect to the offence charged, and could not consider facts which were not material as proof of that offence, though they tended to establish the commission of another crime, in respect of which, if it had formed the basis of the requisition, he would have been bound to hold that Vinal was a fugitive. On the other hand it would seem that the authorities of New York, standing upon the constitutional provision, were bound to indict Vinal under the statute. The offence charged is a felony, whereas conspiracy is only a misdemeanor; and, moreover, by proceeding under the statute they avoided the technical difficulties that always attend a prosecution for conspiracy. § 577. Vinal Case; Examination of Report. The report of Mr. Wyman, made and submitted by direction of the attorney-general of Massachusetts, marks, if it shall hereafter be accepted and followed in that State, what must be regarded as 1 "Every one commits the misdemeanor of conspiracy who agrees with any other person or persons to do any act with intent to defraud the public, or any particular person, or class of persons, or to extort from any person any money or goods. Such a conspiracy may be criminal, although the act agreed upon is not in itself a crime. "An offender convicted of this offence may be sentenced to hard labor. "Illustrations. defraud: The following are instances of conspiracies with intent to "A conspiracy to defraud the public by a mock auction. R. v. Lewis, 11 Cox C. C. 404. A conspiracy to raise the price of the funds by false rumors. R. v. De Berenger, 3 M. & S. 67. A conspiracy to induce a person to buy horses by falsely alleging that they were the property of a private person, and not of a horse dealer. R. v. Kendrick, 5 Q. B. 49. A conspiracy to induce a man to take a lower price than that for which he had sold a horse, by representing that it had been discovered to be unsound. Carlisle's case, Dears. 337. A conspiracy to defraud generally, by getting a settling day for shares of a new company. R. v. Aspinwall, L. R. 1 Q. B. D. 730." Sir J. F. Stephen, Dig. C. L. art. 336; cited by Wharton, Crim. L. § 1347. See also Bishop's Crim. L. vol. ii. §§ 171, 172; 7th ed. Reg. v. Esdaile, 1 F. & F. 213; Reg. v. Brown, 7 Cox C. C. 442; Reg. v. Gurney, 11 Id. 414. the adoption of a different theory and a different practice from those that have sometimes prevailed there in interstate rendition. The rule which it lays down in regard to the sufficiency of the indictment, as evidence of the existence of a charge of crime, is that which is generally held except by those who contend, both upon principle and upon the authority of several well-considered cases, that the requisition of the demanding governor, accompanied with a duly certified copy of an indictment, is, within the meaning of the Constitution and the act of Congress, conclusive evidence of the existence of such a charge, behind which the executive upon whom the demand is made cannot go. But the report is of especial significance in rejecting that broad theory of executive discretion which prevailed in the case of Kimpton,' and in the case of Pickert.2 To say that the executive upon whom the demand is made is authorized and at liberty to inquire into the motives of the requisition, and impute ulterior purposes to the authorities of another State, is an extreme pretension. This topic, however, we shall more fully discuss hereafter.3 The subject now to be examined is the decision upon the question of fleeing from justice. The report of Mr. Wyman contained no definitive opinion on that point, leaving it to the governor to determine the question upon the principles furnished him. In the first place, the report in part accepted and in part rejected the theory that, in order to constitute a person a fugitive from justice within the meaning of the Constitution, it is sufficient to show that he is charged with the commission of a crime in one State and is found in another State. In the second place, it also in part accepted and in part rejected the theory that only those are fugitives from justice who "consciously flee," under a sense of guilt. In regard to the latter theory it was objected that, carried to its full extent, it would exempt a person who negligently shot another, and ignorant that he had done so went into another State. The reconciliation of the two theories and the test of their accepta2 Supra, § 574, note. 1 Infra, chapter on Surrender. 3 Infra, chapter VI. |