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.

In State

§ 594. Decisions in Georgia and South Carolina. v. Howell,1 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.

3 1 Hill (S. C.), 327.

2 2 Ga. Dec. 33.

§ 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. A requisition cannot be used as a warrant of arrest.3

13 Zabr. 311.

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

2 35 Ala. 544.

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.

99

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