§ 595. New Jersey and Alabama. In the Matter of Fetter,1 before Green, C. J., of the supreme court of New Jersey, on habeas corpus, at chambers, in 1852, the relator was detained in custody as a fugitive from justice from the State of California, by virtue of a commitment, issued March 20, 1852, by William C. Howell, a justice of the peace for Mercer county, New Jersey. On the hearing of the application for the writ, it was developed, either by affidavit or by admission of counsel, that the prisoner was a citizen and resident of the State of Pennsylvania, carrying on business in New Jersey; that, upon a requisition of the governor of California, accompanied with a duly authenticated copy of an indictment of the relator for grand larceny in that State, the governor of Pennsylvania had issued a warrant for his arrest and surrender. Before the arrest could be effected in Pennsylvania the relator came into New Jersey, where he was arrested and committed, as above stated, "to await the requisition of the governor of California, or otherwise be thence delivered by due course of law." It was contended that the whole authority conferred by the Constitution in respect to the surrender of criminals was deducible from or consequent upon the demand for surrender, and that no such demand having been made upon the governor of New Jersey, the magistrates of that State had no jurisdiction to commit the prisoner. Chief Justice Green in an elaborate opinion sustained the commitment on the principles of the common law and the practice before and after the adoption of the Constitution. This case is cited in Morrell v. Quarles,2 in 1860, in which the supreme court of Alabama maintained the regularity of the apprehension by a police officer of New Orleans of a person who had committed an assault with intent to murder in Alabama, and sought refuge in Louisiana. An offer of reward had been made for the apprehension of the fugitive, but no demand had at the time of the arrest been preferred for his surrender. requisition cannot be used as a warrant of arrest.3

1 3 Zabr. 311.

8 Matter of Rutter, 7 Abb. Pr. (N. 8.) 67.

2 35 Ala. 544.

A

2. Under State Statutes.

§ 596. General existence of Statutes. Although it appears that upon common-law principles the preliminary arrest and detention of an offender for delivery up under the Constitution might be effected through the courts upon probable cause supported by oath or affirmation, yet the subject has now very generally been regulated by positive legislation. Some of the statutes are found to be merely declaratory of the common law; others are perhaps still more liberal; others yet are onerously restrictive of the common-law practice. In Alabama the statutes provide that the proceedings for the preliminary arrest and commitment of the fugitive shall be the same as for the arrest and commitment of a person charged with an offence in Alabama, except that an exemplified copy of an indictment or other judicial proceeding in the State or Territory in which the fugitive is charged "must be received as conclusive evidence before the magistrate." With the substitution for the last clause of the provision that the indictment or other proceedings "may" or "shall" be "received as evidence" before the magistrate, substantially the same enactment is found in the statutes of Arizona, California, Idaho, Nevada, New Mexico, and Oregon. The statute of Colorado provides for the issuance by the magistrate of a preliminary warrant when the fugitive is charged with murder, rape, robbery, burglary, arson, larceny, forgery, and counterfeiting. Various provisions are found in the laws of other States and Territories, some requiring only " probable cause for commitment, others evidence of guilt, and others reasonable" cause to believe the complaint to be true. The law of North Carolina contains the exceptional provision that the judges may issue a warrant and commit the fugitive on satisfactory information laid before them that he has committed an offence punishable by the laws of the State where it was committed, either capitally or with imprisonment for a year or more in the State prison. The same provision is found in the statute of South Carolina.

§ 597. Statutory Provisions must be observed.

66

Where pre

liminary arrest is regulated by statute, the law must be observed. Thus, in Price v. Graham,' before the supreme court of North Carolina in 1856, a warrant was issued by a justice of the peace for Henderson county for the arrest of Graham, for the murder of a certain person "somewhere between this place and the State of Texas." The court said that the warrant was void for two reasons. It was too vague and uncertain. And, in the second place, if it was intended to be a warrant to apprehend a fugitive from justice, it was void, since the statute of North Carolina, at the date of the issuance of the warrant, require it to be issued by two justices. This requirement was subsequently abolished. In State v. Shelton et al.,2 the same court in 1878 sustained a conviction of assault and battery based on the arrest without warrant of a person charged with felony in another State, the laws of North Carolina containing an express statutory provision on the subject, which was not followed. In Ex parte Cubreth,3 the supreme court of California in 1875 held that under the penal code of that State a warrant merely charging a person with being "a fugitive from justice," and specifying no offence, was invalid; and discharged the relator, although it appeared that the warrant was issued by a justice of the peace on an affidavit which alleged that the relator stood charged in the Territory of Utah with the crime of forgery, committed in that Territory on the 10th of January, 1875, and that the charge was made on oath, by George F. Prescott, before J. Toohey, a magistrate in said Territory, and that he was a fugitive from justice found in the State of California. The article of the code on which the decision was rendered required that the proceedings for the arrest and commitment of a fugitive should be the same as for the arrest and commitment of a person charged with an offence against the laws of California. The warrant in question would doubtless have been held to be invalid, had there been no statute. In the Matter of

1 3 Jones Law (N. C.) 546.

2 79 N. C. 605.

8 49 Cal. 435.

4 Reading section 1550 of the penal code of California in connection with section 861, it would seem that where a person is arrested charged with the commis

Leland,1 before the superior court of the city of New York in 1869, it was held that a warrant of commitment was insufficient, which merely directed the warden of the city prison to receive and safely keep for examination the body of Martin Leland, charged with forgery on oath of." The district attorney produced an affidavit of one Willits, who did not state where he resided or where he could be found, and who said that Leland came to No. 57 South Street, Philadelphia, and bought a city warrant of the city of Philadelphia, of the value of $233.95. He further deposed, on information and belief, that two warrants, exact counterparts of the one so bought by Leland, each for a thousand dollars, were sold to brokers in Philadelphia, and that said warrants were forged. The court held that this affidavit was fatally defective in that it merely embodied a repetition of a rumor, and did not incorporate the charge pending against the prisoner in Pennsylvania.

§ 598. Evidence for Commitment. The State and Territorial statutes generally exact more evidence for the commitment of a fugitive to await the reception of a demand for his surrender than they require for the issuance of the warrant for his arrest and examination prior to the decision of the question of commitment. This is in accordance with common-law principles. It is usually stated that both the issuance of a warrant of arrest in a criminal proceeding and the commitment of the accused for trial are based upon "probable cause." In one sense this is true. But, in the first case, the "probable cause" is the result of an ex parte statement; in the second, of an examination in the presence of the accused, with an opportunity for cross-examination and explanation. The statute of Virginia provides for the arrest of a person as a fugitive from justice upon a complaint on oath or other satisfactory evidence. When the alleged fugitive is arrested he is brought sion of a crime in another State, before a demand for his surrender is made, he is entitled to be discharged if, after his examination has commenced, it is postponed against his consent for a longer period than that mentioned in section 861. The court expressed this opinion without deciding the question.. Ex parte Rosenblat, 51 Cal. 385.

17 Abb. Pr. (N. S.) 64.

before a magistrate, who commits if "there is reasonable cause to believe that the complaint is true." In Ex parte McKean,1 before Judge Hughes, in the United States district court for the Eastern District of Virginia, in 1878, the relator was arrested by the Richmond police on suspicion, based on a description in a detective newspaper, of being a fugitive forger from Kansas, and was committed by a police justice on the same evidence. Judge Hughes, in discharging the relator from arrest, said:

"If the committing magistrate were merely holding this prisoner from day to day awaiting such testimony as the law requires, I should remand the prisoner to him and await his final action; because it is customary as an act of comity between States that, in such cases, a reasonable time shall be allowed for sending on the requisite proofs of the crime and of the charges from the State where the crime was committed. But it seems that the magistrate has taken final action in the matter, and exhausted the powers intrusted to him by the State law, so that the prisoner is before me on the validity of the mittimus, which is made part of the return of the jailer of Richmond to the writ of habeas corpus. The committing order of the magistrate does not set out in terms such facts as are required by law to give him authority to arrest and detain this prisoner. There is no demand from another State. There is no evidence that a crime has been committed. Nor is there evidence that this prisoner committed such a crime as the magistrate knew of only by hearsay. The prisoner must be discharged."

In the Matter of Rutter,2 it was held that an affidavit embodying "a hearsay statement, communicated by telegraph," that a person was charged with crime in Tennessee, but not incorporating the charge, was insufficient to warrant his commitment, although he had been arrested and detained on it for several days.

§ 599. Proof that Person is Charged. In order that the alleged fugitive may be arrested and held, many of the statutes require proof that he is charged with the offence in the State or Territory in which he is said to have committed it.

1 3 Hughes, 23.

27 Abb. Pr. (N. s.) 67.