CHAPTER V. ARREST. 1. Under Common Law. § 591. Opinion of Chief Justice Tilghman. The act of Con gress of 1793 made no provision for the arrest and detention of a fugitive from justice pending the reception of a requisition for his surrender. This deficiency is now generally supplied by State and Territorial statutes;1 but prior to their enactment it was held by the highest judicial authority that such arrest and detention might be effected through the agency of the courts. In the case of the Commonwealth v. Deacon,2 Chief Justice Tilghman referred to the practice of arresting and detaining offenders from one of the United States to another. In the case of Simmons v. Commonwealth,3 before the supreme court of Pennsylvania, in 1813, the plaintiff in error was sentenced by the mayor's court of the city of Philadelphia for larceny, upon a special verdict of a jury that he stole the goods in Delaware and brought them into Pennsylvania. The supreme court, Tilghman, C. J., reversed the judgment; but, instead of discharging the prisoner, directed the prothonotary to communicate the facts to the governor of Delaware, and made an order for the prisoner's discharge in three weeks, unless in the mean time a demand should be made for his surrender. 1 See Appendix II. 2 10 S. & R. 125. See in this relation Rex ". Hutchinson, 3 Keble, 785; Rex v. Lundy, 2 Ventris, 314; Rex v. Kimberly, 2 Stra. 848; E. I. Co. v. Campbell, 1 Ves. Sen. 246; Mure v. Kaye, 4 Taunt. 34. 8 5 Binney, 617. It is stated in Lewis's Criminal Law, p. 260, citing Com. v. Fassit, Vaux's Cases, 32, that a fugitive may be arrested in anticipation of a requisition, on a warrant issued by a magistrate upon a proper sworn charge affording good reason for believing that the party charged has committed a crime in another State. It is the duty of the magistrate to commit the accused till opportunity be afforded for taking the necessary steps for surrender. § 592. Opinion in Delaware. In the State v. Buzine,1 in 1846, Chief Justice Booth, of Delaware, stated the principle involved with great lucidity. He said that while the law might be considered as settled in the United States that the recovery and surrender of criminals in respect to foreign powers rested solely on treaty stipulations, yet "where separate States or Territories are part of the same empire, under one common sovereign or government, a person who commits a crime in one part and seeks shelter in another, may be arrested in the latter, and sent for trial where the offence was committed; or may be detained in prison for a reasonable time, to allow an application to be made to deliver him up to the proper authority, for the same purpose. This," he continued, "is a principle of the common law, founded in the common welfare and safety of society." § 593. New York Cases. A case very like that of Simmons v. Commonwealth is People v. Schenck, before the supreme court of New York, in 1807. The defendant was indicted at a court of general sessions of the peace in the city of New York for stealing a gun. The jury found a special verdict that he stole the gun in the State of New Jersey, and afterwards brought it into the State of New York and offered it for sale. The proceedings were brought before the 1 4 Harr. 572, 574. 2 Supra, § 583. 8 2 Johns. R. 478. In the case of People v. Wright et al., 2 Caine, 212, before the supreme court of New York in 1804, the defendants were in custody of the sheriff on very heavy civil process, and while thus detained, a warrant was issued against them by one of the special justices for the city of New York, grounded on an authenticated copy of an indictment found against them in Massachusetts, for a fraud alleged to have been there committed. The district attorney on these facts moved to have them taken out of the custody of the sheriff and committed to Bridewell. "Per curiam. 'We cannot do it. We have no jurisdiction over offences committed in other States. The Constitution points out a mode by which offenders, flying from one State into another, may be claimed. They must be demanded by the executive authority of the State from which they fled. The prisoners must be remanded.' "Motion denied." This view of the law (if correctly reported) did not prevail, and was set aside by the later cases in New York. In the Matter of Fetter, 3 Zabr. 311, in 1852, Chief Justice Green, of New Jersey, referred to People v. Wright as not being law, and said it had been overruled. 66 - supreme court by certiorari. That tribunal had just decided in People v. Gardner,1 that a person could not be convicted of stealing a horse in New York where the original taking was in Vermont. It was accordingly held that Schenck could not be convicted of the offence with which he was charged. But," said the court, "we think it proper to order, that he be detained in prison for three weeks; and in the mean time, let notice be given to the executive of the State of New Jersey that the prisoner is detained on a charge of felony committed in that State; and if no application be made for the delivery of the prisoner within that time, he must be discharged." Another most interesting case is that of Goodhue, first before the recorder of New York City, and then before Chancellor Kent. Before the former it is reported as the Matter of Goodhue. It first arose upon an application to the recorder for Goodhue's discharge on habeas corpus, in August, 1816. It was then found that he was committed on the following warrants: 1. A mittimus issued by a justice, on August 17, 1816, committing him on the ground that he was charged with obtaining money by false pretences in Kentucky. 2. A like mittimus, issued by another justice on August 21, 1816, for a like offence, committed in Kentucky. 3. A mittimus issued by a justice on August 14, stating that the defendant had been convicted before him as a disorderly person, and that he thereupon committed him to prison for sixty days. In addition to these warrants of commitment there was a deposition charging the relator with being a fugitive from the justice of the State of Kentucky. The recorder held that, so far as the commitment of the prisoner on conviction of being a disorderly person was concerned, he was entitled to bail, if under the circumstances of the case he ought to be bailed. But, he said, as it appeared by the oath of a witness that the relator had committed a public offence in Kentucky, and was a fugitive from the justice of that State, and as the Constitution of the United States required his arrest, a reasonable time should be given the executive of Kentucky to demand him; and he remanded the prisoner for six weeks for 1 2 Johns. R. 477. VOL. 11.10 21 Wheeler's C. C. 427. that purpose. On October 8, 1816, the prisoner was brought on habeas corpus before Chancellor Kent, who held that the conviction as a disorderly person being prima facie legal and regular, he could not discharge the defendant on habeas corpus. He did not notice the first two writs. On October 14, 1816, the sentence for being disorderly having expired, the prisoner was again brought before the Chancellor. "The Chancellor observed that a reasonable time had been allowed to the party complaining to procure from the executive of Kentucky a demand of the prisoner, as a fugitive from justice, for the misdemeanor alleged to have been committed in that State; and as no such demand appeared, he ought not to be detained any longer." In Ex parte Smith,2 before the supreme court of New York in 1826, the relator was committed on the following warrant : 1 Police office, city of Albany. The gaoler will receive, and safely keep for further examination, George W. Smith, who is charged with having been engaged in, or accessory to, a robbery of the United States mail, March 14, 1826. J. O. COLE, Justice of the Peace. On March 16, Smith was brought up on habeas corpus. The affidavit of the prisoner, on which the writ was allowed, stated that he understood the charge against him to be that of robbing the mail between Baltimore and Philadelphia; that he was not confined on any process, nor on the demand, of the executive of any State; nor upon any process from any of the United States courts. It was contended for the prisoner that he must be discharged, there being no demand of the executive of any State. Sutherland, J., said, that the governor of another State might know nothing of the arrest. A reasonable time must be allowed for giving him notice. Woodworth, J., said: "Detaining a prisoner by State authority, in order that he may be delivered over for prosecution to the United States, is by no means an unusual exercise of power. This court has repeatedly sanctioned such a proceeding; and in one case very lately." Yates, for the prisoner, 1 People v. Goodhue, 2 Johns. Ch. 198. 25 Cowen, 1826 said this was a matter of discretion with the court; and they should require proof of the attorney-general that there was at least probable cause for the detention. Savage, C. J., said: "If there had been unreasonable delay, that would be a ground of discharge, unless probable cause could be shown. But a very short time has elapsed since the commitment; and we are clear that, for the present, the prisoner must be remanded for further examination." A rule was made accordingly. § 594. Decisions in Georgia and South Carolina. - In State v. Howell, in 1821, and State v. Loper,2 in 1812, the courts of Georgia maintained the duty of preliminary arrest and detention on common-law principles. In State v. Anderson," before the court of appeals of South Carolina, in 1833, the defendant was convicted of murder for shooting and killing a person who was endeavoring, without a warrant, to arrest him for a murder committed in Georgia. No demand had been made by the governor of Georgia for his surrender; but it appeared that an indictment had been found against him in that State for a murder committed there, and that the governor of Georgia had issued a proclamation for his arrest; and that this was the information on which the person who endeavored to make the arrest was acting. The court held that it was sufficient to justify an arrest in South Carolina, by private persons, without warrant, to show that prima facie a felony had been committed in another State, and that the party arrested was the perpetrator; and that this might be done by proof of a voluntary homicide by the prisoner, and by the adduction of an indictment from the latter State charging him with murder, together with the finding of a "true bill," and by the proclamation of the governor of that State, offering a reward for his apprehension. The court said it was unnecessary, in order to prove the felony for the purposes of arrest for surrender, to produce a record of trial and conviction; for, if that were requisite, flight would be equivalent to acquittal. 1 R. M. Charlton, 120. 2 2 Ga. Dec. 33. |