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the elements so as to destroy jurisdiction of the offence, we should not divide them so as to defeat the recovery of jurisdiction over the offender.

§ 585. Case of Juhn. — The question of fleeing from justice was discussed before the governor of Maryland in July and August, 1890, in the case of Max Juhn, a merchant of the city of Baltimore, in that State, whose surrender was demanded by the governor of New York on a charge of obtaining goods by false pretences. Accompanying the requisition was a copy of an indictment in which it was charged that on the 14th of January, 1890, Juhn presented to the firm of H. B. Claflin & Co., of the city of New York, a false statement as to his financial standing whereby he obtained goods for which it turned out that he was unable to pay, owing to the fact that he was at the time insolvent. The case was argued before the governor of Maryland twice; first in July, on the prisoner's application for the revocation of a warrant of arrest which was issued in compliance with the requisition. This application having been granted, the case again came before the governor in August, on a new application of the State of New York for the fugitive's arrest and rendition. In behalf of Juhn it was alleged that he was not in New York on the 14th of January, when the false statement was said to have been personally delivered by him, and cheques were produced which appeared to have been signed by him in Baltimore on January 7, 8, 10, 11, 13, 14, 16, 17, and 18. It was also shown that the goods were not delivered to a carrier for shipment to Juhn until January 16, one of the days when there was proof that he was in Baltimore. It was contended by his counsel that, that being the date of the obtaining of the goods, the offence could not have been committed until that day, when the accused was not in New York, and it was argued upon that ground also he could not be demanded as a fugitive from justice. After the hearing of the application for the revocation of the warrant of arrest, the governor submitted the case to merely grew out of the fact that the grand juries were supposed to know what passed in their own county, and nothing else.

1 Baltimore Sun, Aug. 30, 1890.

the attorney-general, who, on the 29th of July, gave an extended opinion, in which he said :

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The person must have been in the State of New York when the crime here charged was committed, and must have fled into this State, to justify his extradition. The indictment charges Juhn with making a written false statement of the condition of his firm, and exhibiting and delivering the same to H. B. Claflin & Co. in New York on the 14th day of January, 1890, and obtaining their property on the faith of that false representation. It will be observed that the indictment charges that the offence was committed by Max Juhn, in New York, on the 14th January, 1890. The affidavit of Leo Frank, the collector and adjuster for H. B. Claflin & Co. (found among the requisition papers), declares that Max Juhn, on the 14th of January, 1890, committed the offence charged in the city of New York, and was actually in the State of New York" at that time, and on that day personally delivered to the said firm the paper writing containing the false representation. In this inquiry it is essential that a definite time shall be fixed, at which time the presence of the accused is alleged to have been in the demanding State, when and where he committed the crime. Where the time becomes material, either as constituting an element of the crime, or as affording the accused a bar to the proceeding, it must be accurately stated. State v. Robinson, 29 N. H. 274; State v. Caverly, 51 Ib. 446. Here the time when the offence was committed in New York is positively stated as January 14, 1890. The proofs presented by the accused at the investigation before me, on the 25th inst., prove conclusively to my mind that Max Juhn was not in the city of New York on the 14th of January, 1890, but was in the city of Baltimore, conducting his business in the ordinary way. The affidavits, checks, and other papers relating to this matter are submitted for your consideration. It was set up at the examination that there was an error in the date charged in the indictment, and that the paper writing was delivered in New York on the 15th of January, 1890, and the original paper writing was produced, and on its face is now written," Handed writer by Max Juhn, January 15, '90; " but it is remarkable that the "writer" in his affidavit filed at the examination only says that it was handed to him “on or about the 15th January, 1890." I cannot satisfy myself that these words were written at the time named, for I will not do the district attorney of New York the injustice to suppose that he

VOL. 11.9

would charge in an indictment the commission of an offence at a time one day earlier than the day named on the face of the paper writing constituting the false representation, as the actual date on which the false representation was made. He could not have charged a person with committing a crime on the 14th, when, the face of his criminating evidence, it was plainly shown that the crime could not have been committed before the 15th. Besides this, an inspection of the copy of the same paper, set out in the body of the indictment, does not disclose any such words written on the paper writing at the time of the finding of the indictment. It is also worthy of note that although the offence is charged to have been committed on the 14th of January, 1890, the proof shows that the goods were not delivered in New York until the 16th. The evidence proves that Max Juhn was not in New York on the 14th January, 1890, and did not personally deliver to Claflin & Co. the paper writing referred to on that day in that State, and did not flee from that State after the commission of the crime, and consequently, upon the proofs now before you, in my opinion he ought not to be extradited as a fugitive from justice.

Respectfully submitted,

WM. PINKNEY WHYTE,
Attorney-General ̧1

It will be observed that while reference is made in the opinion of the attorney-general to the fact that the goods were not delivered in New York until January 16, that fact is not emphasized, and it is insisted upon that Juhn was not a fugitive from justice because he was not in New York on the day on which the false statement was averred to have been personally made by him, which was the date of the offence as laid in the indictment.

When the renewed application was made for Juhn's surrender, a new indictment was furnished, in which the false statement was alleged to have been presented and the offence to have been committed on the 15th of January. How far the effect of this was considered does not appear; for, at the conclusion of the hearing, in which it was strongly insisted that

1 Baltimore Daily News, July 30, 1890.

the application for surrender was made for the collection of a debt and not for the promotion of criminal justice, the governor is reported to have announced his decision in the following terms: "I am satisfied in my mind about the matter, and under all the circumstances, I decline to surrender this man:"

§ 586. Provision in Laws of Indiana. By an act of the legislature of Indiana of March 9, 1867, provision was made against the recognition of the theory of constructive presence. This provision is now embodied in the Revised Statutes of the State as follows:

"No citizen or resident of this State shall be surrendered under pretence of being a fugitive from justice from any other State or Territory, where it shall be clearly made to appear to the judge holding the examination provided for by the second section of this act, that such citizen or inhabitant was in this State at the time of the alleged commission of the offence, and not in the State or Territory from which he is pretended to have fled, and in such case the judge holding the examination shall discharge the person arrested, and forthwith report the facts to the governor."

The constitutionality of this act was maintained and its provisions applied by the supreme court of Indiana in 1878, in Hartman v. Aveline,2 it being shown that Aveline, who was in custody on a warrant of the governor of Indiana, issued in compliance with the requisition of the governor of Illinois, charging him with obtaining goods in the latter State by false pretences in writing, had resided in Indiana for eight or ten years, and had not been in Illinois for a long period, antedating and including the time of the alleged offence. It appears that Governor Robinson, of New York, declined to surrender one Baldwin, charged with conspiracy to defraud in New Jersey, on the ground that he was not in New Jersey, but

1 Baltimore Sun, Aug. 30, 1890. The decision was announced on the preceding day.

"citizen

2 63 Ind. 344. It may be observed that the statute only refers to a or resident," or a "citizen or inhabitant," of the State, who was in the State of Indiana, and not in the demanding State, at the time of the commission of the offence in the latter.

in New York, at the time the offence was alleged to have been committed, and therefore could not have fled from New Jersey, nor be stopping in New York as a fugitive from justice.1

§ 587. Tennessee Case. - In 1876, the governor of Massachusetts demanded of the governor of Tennessee the surrender of two brothers named Dickerson, charged with obtaining money by false pretences in Boston. A warrant for their arrest and delivery up having been issued, they applied through their counsel, Colonel Patterson, of Memphis, to Governor Porter, of Tennessee, for its revocation. Accompanying the requisition of the governor of Massachusetts was an indictment in which it was charged that the Dickersons obtained money in Boston by means of certain fraudulent bills of lading, falsely representing cotton to have been shipped on a steamer at Memphis. The money was alleged to have been obtained in Boston on the day on which the bills of lading were made out and signed at Memphis. There was also an affidavit of the prosecutor in Boston that the Dickersons were fugitives from the justice of that State, but it was inconclusive in its statements. On the other hand, counsel for the prisoners filed numerous affidavits showing that the alleged fugitives were not in Massachusetts, but in Tennessee, at the time of the commission of the alleged crime. Governor Porter, on December 23, 1876, accordingly revoked his warrant on the ground that the prisoners were not fugitives from justice.2

§ 588. Coming of Offender within demanding State after commission of Crime. In the foregoing cases relating to fugitives by construction, it is to be observed that an allegation is often made that the person charged was not in the demanding State at the date of the alleged offence and has

1 H. D. Hyde, 3d Annual Meeting Am. Bar Asso. (1880), p. 190.

2 I am indebted to Governor Porter for a reference to the above case as well as for the excellent brief of Colonel Patterson in manuscript. The Interstate Extradition Conference held in New York City in August, 1887, refused to adopt a recommendation to the governors of the various States and Territories that no demand be complied with where the fleeing was constructive, on the ground that the decisions of the courts already covered the case.

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