not been there since. This allegation is intended to meet the view taken by the court in the Matter of Adams,1 in 1844. Adams, a resident of Ohio, was indicted in the city of New York for obtaining goods by false pretences. On that charge he was suddenly delivered up from Ohio, without an opportunity to apply for a writ of habeas corpus. After his arrival in the city of New York, he obtained such a writ from Judge Vanderpool of the superior court of that city, and applied for discharge on the ground that he was not a fugitive from justice, not having been in New York when the offence was alleged to have been committed. It appeared, however, on the hearing, that some time after the date of the alleged offence Adams came to New York City on a bridal excursion. While there he made an engagement with a member of the firm which he was alleged to have defrauded, but suddenly left town without keeping it. The member in question stated that his firm was at the time taking steps to have Adams arrested. On these facts Judge Vanderpool held that Adams was a fugitive from justice, without going into the question whether the court could go behind the action of the executives of the two States in the matter.

We are free to admit that we do not perceive any great flaw in the reasoning of the court, restricting it, as it was restricted by the facts in the particular case, to offences to the commission of which corporeal presence is generally recognized as not essential. The form in which the question of constructive flight has most frequently been raised has been the allegation on the one side and the denial on the other that the person charged was in the demanding State at the time of the commission of the alleged offence, and upon these facts the decision of the court is naturally confined to the statement that the offender must, in order to be a fugitive from justice, have been in the demanding State at that time. Such were the circumstances in Ex parte Reggel,2 which is cited in the case of Juhn; and the Supreme Court said the appellant" was entitled, under the act of Congress, to insist 1 7 L. Rep. 386. 3 Supra, § 577.

2 114 U. S. 642.

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." In another place, however, the court said that upon the theory that the mere requisition, with a copy of an indictment found, or an affidavit charging the offence, was conclusive as to the fleeing from justice, the governor of the State in which the person charged was found would be compelled to deliver him up, although there was "incontestable proof" that he had "in fact never been in the demanding State, and, therefore, could not be said to have fled from its justice." The court, therefore, cannot be said to have decided that a person cannot be a fugitive from justice unless he was actually in the demanding State at the moment of the commission of the offence.1

§ 589. Proof of Flight. In In re Jackson, which involved

1 The subject of the commission of offences in a particular place by persons corporeally elsewhere is treated by the writer at great length in his "Report on Extraterritorial Crime," Government Printing Office, 1887; reprinted in Foreign Relations of the United States, 1887. The writer takes the liberty of quoting from that work the following passage :—

"The principle that a man who outside of a country wilfully puts in motion a force to take effect in it is answerable at the place where the evil is done, is recognized in the criminal jurisprudence of all countries. And the methods which modern invention has furnished for the performance of criminal acts in that manner has made this principle one of constantly growing importance and of increasing frequency of application.

"Its logical soundness and necessity received early recognition in the common law. Thus it was held that a man who erected a nuisance in one county which took effect in another, was criminally liable in the county in which the injury was done. Bulwer's case, 7 Co., 2 b., 3 b.; Com. Dig. Action, N. 3, 11. So, if a man, being in one place, circulates a libel in another, he is answerable at the latter place. Seven Bishops' Case, 12 State Trials, p. 331; Rex v. Johnson, 7 East, 65. The same rule applies to obtaining money or goods by false pretences; but it must appear that the false pretences were actually made at the place where the prisoner is held, and not merely that the pretences, which were made elsewhere, resulted in defrauding some one at the place of trial. Reg. v. Garrett, 6 Cox C. C. 260. So, if persons outside of a country procure therein the making and engraving of a plate for purposes of forgery, they are indictable there. Queen v. Bull & Schmidt, 1 Cox C. C. 281. Likewise for cheating by false papers. King v. Brisac & Scott, 4 East, 164. The same principle obtains in the United States."

Following this passage, the cases in the United States are fully discussed.

the question of actual presence in the demanding State, the court said: "The evidence that the person has fled from justice must not only be satisfactory to the governor, but must be legally sufficient, before the executive authority can be exercised. He cannot act upon rumor, nor upon the mere representation of a person, nor upon the demanding governor's certificate. It should be sworn evidence, such as will authorize a warrant of arrest in any other case."1 The statutes of Delaware, Iowa, Michigan (the State in which Jackson's case was decided), Massachusetts, and Ohio, require "sworn evidence" that the person charged is a fugitive from justice. This means that there must be at least a distinct allegation under oath that the person charged is such a fugitive. It is supposed that such an allegation in the affidavit accompanying the requisition would meet the requirements of the law, and, if properly stated and not overborne by other evidence, would be held to be sufficient. But it is the practice to furnish a separate affidavit or affidavits as to the fleeing from justice.2 Such affidavits, not being within the act of 1793, are not required to be certified as authentic by the demanding executive. In Ex parte Sheldon, before the supreme court of Ohio, it was objected that there was no evidence before the governor, or before the judge before whom, under the statute of that State, the fugitive was brought after his arrest on the warrant of the governor, to show that Sheldon was a fugitive from justice, or that he had fled from Missouri, where the crime was charged to have been committed, in order to avoid prosecution. One of the papers annexed to the requisition was the affidavit of the prosecuting attorney of Jackson county, Missouri, which was authenticated by the attestation of the clerk of the court in which the indictment was found, and also by that of the secretary of the State of Missouri; in which, after stating the finding of the indictment for embezzlement against Sheldon, affiant said, "That said Sheldon is a fugitive from justice

1 2 Flippin, 183.

2 H. D. Hyde, Report of Am. Bar Asso. (1880), p. 190. 3 Ex parte Swearingen, 13 S. C. 74.

434 Ohio St. 319.

from the said State of Missouri, and he has reason to believe, and does believe, that the said Sheldon is now in the city of Columbus in the State of Ohio." On this the supreme court of Ohio said: "While this does not in terms state that Sheldon had fled to avoid prosecution, it does state as a conclusion that he is a fugitive from justice; and it was for the executive to put a construction upon this language before issuing the extradition warrant; and under these circumstances the fugitive will not be discharged on the ground that there was no evidence before the executive issuing the warrant, showing that the fugitive had fled from the demanding State to avoid prosecution." In the Matter of Manchester,2 before the supreme court of California, it was contended that the affidavit did not sufficiently charge that the prisoner was a fugitive from justice. Murray, C. J., said: "I think that the allegation that he committed the crime and then secretly fled, is sufficient from which to deduce the conclusion." 3

1

§ 590. Construction of Act of 1793 as to Proof of Flight. The act of Congress refers to the person to be surrendered as a fugitive from justice. But it says that when he shall be demanded as such, and the copy of an indictment found, or an affidavit made before a magistrate charging the offence shall be produced, duly certified, it shall be the duty of the executive upon whom the demand is made, to deliver him up. It was held by the supreme court of South Carolina in Ex parte Swearingen, in 1880, that, under the act of Congress, an affidavit that the person charged was a fugitive from justice was unnecessary. The court observed that such an affidavit was one of the things in the absence of which Mr. Attorney-General Randolph, in his opinion upon the requisition of the governor of Pennsylvania upon the governor of Virginia, thought the requisition defective. But Congress, with this opinion before it, deliberately omitted such a provision from

1 To same effect is Ex parte Reggel, 114 U. S. 642. 25 Cal. 237.

3 See also Ex parte Reggel, 114 U. S. 642. 13 S. C. 74. The court said that if such an affidavit were required, it need not be certified as authentic by the demanding executive, since it was not within the act of Congress.

the act of 1793, "for the reason, perhaps," said the court, "that in most, if not all, cases that fact would sufficiently appear from the papers required by the act of 1793, and from the necessary course of proceedings in executing the provisions of the act." The court held that the fact so appeared from the papers before it. An affidavit accompanying the requisition showed, said the court, "that the petitioner committed the offence of riot in the State of Georgia, and this is sufficient to show that he was then in that State; and his appearance here, as well as his statements in his petition, shows that he was afterwards found in this State, and this in our judgment is quite sufficient to show that he is a fugitive from justice in the sense of those terms as used in the Constitution." In his petition the prisoner said that he was not, and never had been, a fugitive from the justice of the State of Georgia, which, said the court, was not a denial that he was in that State when the offence was committed, but merely a denial of a conclusion of law. The court moreover questioned the right of the prisoner to allege an alibi on a writ of habeas corpus. Willard, C. J., dissented, on the ground that the demandant State must allege the facts upon which the right of demand depends; that it must show that the person demanded is a fugitive from justice; that the requisition in the present case only stated that it had been represented to the governor of the demandant State that the person was a fugitive from justice; and there was no other proof. He thought the proceeding was in derogation of the rights of the relator under the law. Similar views to those held by the court in the case of Ex parte Swearingen were expressed by Judge Choate in the United States district court for the Southern District of New York, in Leary's case, in 1879.1 Without deciding the question whether the court could on habeas corpus go behind the warrant of surrender of the governor of New York and examine the grounds on which he acted, Judge Choate said that where it appeared by the recitals in the warrant that the governor had before him a duly

1 10 Benedict, 197.