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Governor of Ohio that the accused stands charged in that State of the crime of securing property by false pretences, which is a crime under its law, and that he has filed from that State. It also recites that the requisition was accompanied by affidavits and other papers, duly certified by the Governor of Ohio to be authentic, charging the accused with having committed the said crime and with having fled from Ohio and taken refuge in the State of New York.
On August 29, after the arrest of the petitioner, a writ of habeas corpus was allowed by the District Court. The police commissioner made return that he held the accused by virtue of the Governor's warrant. On September 16, 1902, the District Court discharged the writ and remanded the accused to the custody of the police commissioner. This order was taken on appeal to the Circuit Court of Appeals of the Second Circuit, which certified the following questions:
“First. Whether the delivery up of an alleged fugitive from justice against whom a complaint for the crime of securing property by false pretences has been sworn to and is pending before a justice of the peace of Ohio having the jurisdiction conferred upon him by the laws of that State is authorized in view of the provisions of Article IV, section 2, subdivision 2, of the Constitution?
"Second. Is section 5278 of the Revised Statutes, in as far as it authorizes the delivery up of an alleged fugitive from justice upon an affidavit of complaint pending before a justice of the peace in Ohio for the crime of securing property by false pretences, which said justice of the peace has the jurisdiction conferred upon him by the laws of the said State, violative of Article IV, section 2, subdivision 2, of the Constitution?”
Article IV, section 2, subd. 2, of the Constitution reads:
“A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall on demand of the executive authority of the State from which he Aed, be delivered up to be removed to the State having jurisdiction of the crime.”
Revised Statutes, sec. 5278, so far as is material, is:
“Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the Governor or chief magistrate of the State or Territory from whence the person so charged has fed, it shall be the duty of the executive authority of the State or Territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear."
Mr. Max J. Kohler, with whom Mr. Moses H. Grossman was on the brief, for appellant:
The constitutional provision for the delivery up only of persons charged with treason, felony or other crime, to be removed to the State having jurisdiction of the crime, means that the charge must be pending in a court that can try defendant, and not merely before a committing magistrate who can only discharge or hold for another tribunal. Kentucky v. Dennison, 24 How. 66; Thornton's article on Fugitives from Justice, Cr. Law Mag., vol. 3, 787; Virginia v. Paul, 148 U. S. 107, 119; Pennsylvania v. Artman, 5 Philadelphia, 304; S.C., 19 Fed. Cas. No. 10,952; Virginia v. Felts, 133 Fed. Rep. 85. Where the case is actually triable before the justice it is different. Virginia v. Bingham, 88 Fed. Rep. 561.
These preliminary proceedings were merely a melioration of the practice of arresting without warrants for crime, to secure presence on indictment to be found. Stephens' History of the Criminal Law, 190; Kinghorn on “The Preliminary In
Argument for Appellant.
vestigation of Crime,” in Crim. Law Mag., vol. 3, p. 297; 16 Ency. of Pl. & Pr., 820; 5 Blackstone (Tucker), 300.
The English common law practice authorized removal only after indictment found. In re Dana, 68 Fed. Rep. 886, 893.
Oppressive removals to the mother country for trial for alleged crime, was one of the grievances specifically set forth in the Declaration of Independence. Friedenwald: The Declaration of Independence (1904), 249; Winsor: Narrative and Critical History of America, vol. 6, 53; Bancroft: History of the U. S., 1857 ed., vol. 6, 417, 441, 450; Jack v. Martin, 14 Wend. 507, 525; 20 Am. State Papers, Lowrie & Franklin, 1842, 41.
Gross hardship, entirely unnecessary, would result from permitting rendition on mere complaint before a committing magistrate. Beavers v. Henkel, 194 U. S. 73, 83; Lawrence v. Brady, 56 N. Y. 186; Seward's Works, vol. 21, 528; 6 Pa. Law Jour., 413 (1847); Cockran v. Hyatt, 172 N. Y. 176, 182.
The words “charged with treason, felony or other crime" were used by the framers of the Constitution in the same sense as that in which analogous words are elsewhere used in the same instrument concerning criminal proceedings, and are inapplicable to preliminary examinations.
As to Art. III, 82, subd. 3, of the Fifth and Sixth Amendments, in this respect, see Ex parte Siebold, 100 U. S. 371, 391; Ex parte Milligan, 4 Wall. 2; Ex parte Wilson, 114 U. S. 417; Ex parte Bain, 121 U. S. 1; In re Dana, 7 Ben. 1.
The word “charge” in Article IV, sec. 2, subd. 2, where it is connected with the phrase "to be removed to the State having jurisdiction of the crime,” is used in the same sense in which the framers of the Constitution, in Article III defined "cases" within the “judicial power of the United States” to be “vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish,” and that the former should be construed in the same manner in which the latter have been defined, as excluding mere preliminary examinations before mere committing magis
Argument for Appellee.'
trates acting as conservators of the peace. Robertson v. Baldwin, 165 U. S. 275; Todd v. United States, 158 U. S. 278.
As to Rev. Stat. 5278 the decisions are to the effect that the charges must be made “in the regular course of judicial proceedings." The affidavit of charge must itself be produced, and an affidavit merely averring that defendant is charged in the other State is not sufficient. State y. Kufford, 28 Iowa, 391; Smith v. State, 21 Nebraska, 552; Forbes v. Hicks, 27 Nebraska, 111, 116; Ex parte Pfitzer, 28 Indiana, 450; Ex parte Lorraine, 16 Nevada, 63; Ex parte White, 49 California, 435; Ex parte Powell, 20 Florida, 807; State v. Richardson, 34 Minnesota, 115; Ex parte Pearce, 32 Tex. Civ. App. 301; Ex parte Hart, 63 Fed. Rep. 249, 259; In re Hooper, 52 Wisconsin, 699; People v. Stockwell, 97 N. W. Rep. 765 (Minn.); In re Van Scriever, 42 Nebraska, 772, 778; United States v. Dominci, 78 Fed. Rep. 334.
Mr. William Travers Jerome and Mr. Howard S. Gans for appellee submitted:
The construction for which the relator contends, involves results so absurd and so detrimental to the public interest as to make it impossible that it should be adopted even if the words of the Constitution were on their face reasonably susceptible of such interpretation. Prigg v. Pennsylvania, 16 Pet. 539, 612; In re Chapman, 166 U. S. 661, 667; Lau Ow Bew v. United States, 144 U. S. 47, 59; Holy Trinity Church v. United States, 143 U. S. 457; Jarrolt v. Moberly, 103 U. S. 580, 586. It would create a chaotic condition in the law, requiring the rendition to one State from another under conditions in which the asylum State would have no reciprocal rights as against the demanding State, and it would favor those States which afford the least safeguards to the accused as against those that afford the greater. It would render the rendition of a fugitive from a sister State more difficult than an extradition from a foreign power, and would create an in
vidious discrimination in favor of major criminals as against minor ones to the extent of insuring to the major criminal a chance of escape which was denied to his little brother in crime. Nor would it serve as a safeguard to the accused or prevent unwarranted extraditions.
The language of the Constitution does not restrict the right of rendition to cases where the criminal pleading accompanies the demand and such restriction is at variance both with the contemporaneous construction and the history and origin of the provision.
In view of the decisions construing the term “fugitives from justice” as describing all persons in the demanding State at or about the time of the commission of the offense, charged with committing it there, defendants are frequently only "fugitives from justice” by construction, and their removal is sought to States other than that of their domicile. Roberts v. Reilly, 116 U. S. 80, 197; Streep v. United States, 160 U. S. 128; Prigg v. Pennsylvania, 16 Pet. 539, 620; Kentucky v. Dennison, 24 How. 66, 104; Ex parte Reggel, 114 U. S. 642.
As to the construction of the word “charged ”, see cases cited supra and 2 Moore on Extrad. 9 546; Spear on Extrad. 266; Bouvier; Blackstone, Bk. IV, ch. 21; Hale's Pleas of the Crown, 1st Am. ed. 108.
MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.
The Constitution provides for the surrender of a person charged with treason, felony or other crime. The statute prescribes the evidence of the charge to be produced, to wit: “A copy of an indictment found or an affidavit made before a magistrate charging
treason, felony, or other crime." The offense for which extradition was sought is under the Ohio statute a felony Bates' Annotated Ohio Stat. 4th ed. sec. 7076), and subject to trial only upon an