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we must assume to be true for the purpose | 23 Sup. Ct. Rep. 456. And the right to resist of our discussion), that the officers of one removal is not a right of asylum. To call state may falsely represent that a person it so in the state where the accused is was personally present in the state and com- is misleading. It is the right to be free mitted a crime there, and had fled from its from molestation. It is the right of personal justice, may arrest such person and take liberty in its most complete sense. And this him from another state, the officers of the right was vindicated in Hyatt v. New York, latter knowing of the false accusation, and and the fiction of a constructive presence in conniving in and aiding its purpose, thereby a state and a constructive flight from a condepriving him of an opportunity to appeal structive presence, rejected. This decision to the courts, and that such person cannot illustrates at once the value of the right and invoke the rights guaranteed to him by the the value of the means to enforce the right. Constitution and statutes of the United It is to be hoped that our criminal jurisStates in the state to which he is taken. prudence will not need for its efficient adAnd this, it is said, is supported by the ministration the destruction of either the cases of Ker v. Illinois, 119 U. S. 436, 30 L. right or the means to enforce it. The decied. 421, 7 Sup. Ct. Rep. 225, and Mahon v. sion in the case at bar, as I view it, brings Justice, 127 U. S. 700, 32 L. ed. 283, 8 Sup. us perilously near both results. Is this exCt. Rep. 1204. These cases, extreme as they aggeration? What are the facts in the case are, do not justify, in my judgment, the at bar as alleged in the petition, and which conclusion deduced from them. In neither it is conceded must be assumed to be true? case was the state the actor in the wrongs The complaint, which was the foundation of that brought within its confines the accused the extradition proceedings, charged against person.

In the cas: at bar, the states, the accused the crime of murder on the 30th through their officers, are the offenders. of December, 1905, at Caldwell, in the county They, by an illegal exertion of power, de- of Canyon, state of Idaho, by killing one prived the accused of a constitutional right. Frank Steunenberg, by throwing an exploThe distinction is important to be observed. sive bomb at and against his person. The It finds expression in Mahon v. Justice. But accused avers in his petition that he had not it does not need emphasizing. Kidnapping been "in the state of Idaho, in any way, is a crime, pure and simple. It is difficult to shape, or form, for a period of more than accomplish; hazardous at every step. All of ten years” prior to the acts of which he the officers of the law are supposed to be on complained, and that the governor of Idaho guard against it. All of the officers of the knew accused had not been in the state law may be invoked against it. But how is the day the murder was committed, “nor at it when the law becomes the kidnapper? any time near that day.” A conspiracy is When the officers of the law, using its alleged between the governor of the state of forms, and exerting its power, become Idaho and his advisers, and that the governabductors? This is not a distinction with or of the state of Colorado took part in out a difference,-another form of the the conspiracy, the purpose of which was “to crime of kidnapping, distinguished only avoid the Constitution of the United States from that committed by an individual and the act of Congress made in pursuance by circumstances. If a state may say thereof, and to prevent the accused from to one within her borders and upon whom asserting his constitutional right under her process is served, “I will not inquire how clause 2, § 2, of article 4, of the Constitution you came here; I must execute my laws and of the United States and the act made purremit you to proceedings against those who suant thereof.” The manner in which the have wronged you,” may she so plead against alleged conspiracy had been executed was set her own offenses? May she claim that by out in detail. It was in effect that the agent mere physical presence within her borders, of the state of Idaho arrived in Denver, an accused person is, within her jurisdiction, Thursday, February 15, 1906, but it was denuded of his constitutional rights, though agreed between him and the officers of Colohə has been brought there by her violence ? rado that the arrest of the accused should And constitutional rights the accused in this not be made until some time in the night of case certainly did have, and valuable ones. Saturday, after business hours,--after th: The foundation of extradition between the courts had closed and judges and lawyers states is that the accused should be a fugi- had departed to their homes; that the arrest tive from justice from the demanding state, should be kept a secret, and the body of the and he may challenge the fact by habeas cor accused should be clandestinely hurried out pus immediately upon his arrest. If he re- of the state of Colorado with all possible fute the fact he cannot be removed. Hyatt speed, without the knowledge of his friends v. New York, 188 U. S. 691, 47 L. ad. 657, l or his counsel; that he was at the usual

V.

place of business during Thursday, Friday, CHARLES H. MOYER, Appt,
and Saturday, but no attempt was made to
arrest him until 11:30 o'clock P. M. Satur-

JASPER C. NICHOLS.
day, when his house was surrounded and he
arrested. Moyer was
Moyer was arrested under the Pettibone v. Nichols, ante, p. 111.

This case is governed by the decision in same circumstances at 8:45, and he and accused "thrown into the county jail of the

[No. 250.] city and county of Denver.” It is further alleged that, in pursuance of the conspiracy, Argued October 10, 11, 1906. Decided De.

cember 3, 1906. between the hours of 5 and 6 o'clock on of the state and certain armed guards, be- | A United States the the districtes fofaahe ing a part of the forces of the malitia of the to review a judgment refusing to discharge, state of Colorado,” provided a special train on habeas corpus, a person held in custody for the purpose of forcibly removing him to await a trial for murder, because of the from the state of Colorado, and between said methods by which his personal presence in hours he was forcibly placed on said train the state was secured. Affirmed. and removed with all possible speed to the The facts are stated in the opinion. state of Idaho; that prior to his removal, and

Messrs. Edmund F. Richardson, Clarence at all times after his incarceration in the S. Darrow, and John H. Murphy for appeljail at Denver, he requested to be allowed lant.

Messrs. James H. Hawley and W. E. to communicate with his friends and his

Borah for appellee. counsel and his family, and the privilege was absolutely denied him. The train, it is al

Mr. Justice Harlan delivered the opinion leged, made no stop at any considerable sta- of the court: tion, but proceeded at great and unusual This case does not differ, in principle or in speed; and that he was accompanied by and its facts, from Pettibone v. Nichols, just desurrounded with armed guards, members of cided. Moyer was also charged with the the state militia of Colorado, under the or- murder of Steunenberg, and was arrested in ders and directions of the adjutant general Colorado, upon the warrant of the governor of the state.

of that state, and taken to Idaho, and deI submit that the facts in this case are dif- livered to its authorities. He was embraced ferent in kind and transcend in consequences in the same indictment with Pettibone, and those in the cases of Kər v. Illinois and Ma- was held in custody for trial under that inhon v. Justice, and differ from and transcend dictment. He sued out a writ of habeas them as the power of a state transcends corpus from the supreme court of Idaho, the power of an individual. No individual but the writ was dismissed by that court (Ex or individuals could have accomplished what parte Moyer, 85 Pac. 897), and a writ of the power of the two states accomplished; That is case No. 266 on our present doeket.

error has been prosecuted to this court. no individual or individuals could have com- He then sued out a writ of habeas corpus manded the means and success; could have from the circuit court of the United States, made two arrests of prominent citizens by and his discharge being refused by the court, invading their homes; could have command: he prosecuted the present appeal. ed the resources of jails, armed guards, and

For the reason stated in Pettibone's Case, special trains; could have successfully timed the final order is affirmed. all acts to prevent inquiry and judicial interference.

The final order of the circuit court of the The accused, as soon as he could have done United States for Idaho, in Haywood v. so, submitted his rights to the considera- Nichols, No. 251, on appeal, is assirnied on the tion of the courts. He could not have done authority of Pettibone v. Nichols, 203 U.S. so in Colorado, he could not have done so on 192, 51 L. ed. 148, 27 Sup. Ct. Rep. 111, from the way from Colorado, At the first instant which, as to the facts or the questions that the state of Idaho relaxed its restrain. ) involved, it does not differ. The orders in

Pettibone v. Whitney, No. 265, Morey V. ing power, he invoked the aid of habeas cor- Whitney, No. 266, and Haywood v. Whitney, pus successively of the supreme court of the No. 267,-each of which cases is here upon state and of the circuit court of the United writ of error to the supreme court of Idaho, States. He should not have been dismissed involves the same question as those deterfrom court, and the action of the circuit mined in Pettibone v. Nichols, and by agreecourt in so doing should be reversed. ment is to depend upon the judgment in that

I also dissent in Nos. 250, 251, 265, 266, case,-must also be affirmed. and 267.

It is so ordered.

ARTHUR E. APPLEYARD, Appt., latter state, to be there dealt with according V.

to law. With that requisition went properly COMMONWEALTH OF MASSACHU. authenticated copies of all the papers which SETTS.

had been submitted to the governor of New

York by the district attorney of Erie Extradition-fugitives from justice.

county. 1. The belief of the accused, when leaving the demanding state, that he had not

The governor of Massachusetts received committed any crime against the laws of

the requisition, and, pursuant to the statthat state, does not prevent his being a fu- utes of that commonwealth, referred it to gitive from justice within the meaning of the attorney general for examination and retne provision of U. S. Const. art. 4, § 2, and port. Giving the accused full opportunity U. S. Rev. Stat. § 5278 (U. S. Comp. Stat. to be heard and to introduce evidence, of 1901, p. 3597),) relating to extradition pro- which he availed himself, that officer examceedings.

ined the case and reported that the requisiExtradition-fugitives from justice.

tion was in regular and proper form and 2. To be a fugitive from justice within that there was no sufficient reason why it the meaning of the provisions of U. S. should not be honored. The governor thereConst, art. 4, § 2, and U. S. Rev. Stat. S 5278, relating to extradition proceedings, it upon issued a warrant for the arrest of Apis only necessary that the accused, having pleyard and his delivery to the agent of New been in the demanding state when the crime York, to be taken to that state, the officer was committed, thereafter leave that state who should execute the warrant being reand be found within the territory of an- quired to give the accused such opportunity other.*

to sue out a writ of habeas corpus as was

prescribed by the laws of Massachusetts in [No. 115.)

such cases. Appleyard, having been arrested Submitted November 16, 1906. Decided De-applied for a writ of habeas corpus to the cember 3, 1906.

supreme judicial court of Massachusetts.

This fact is stated in the return of the offi

of . United States for the District of Mas. That court, after hearing an argument, desachusetts to review a judgment discharging nied the application, and remanded the pea writ of habeas corpus to inquire into a de- titioner to the custody of the agent of New tention under an order of arrest in extradi. York, to be held in accordance with the wartion proceedings. Affirmed.

rant issued by the governor of MassachuThe facts are stated in the opinion.

setts. Messrs. Benjamin S. Minor and Fred H. The accused then applied to the circuit Williams for appellant.

court of the United States for a writ of Messrs. Dana Malone and Frederic B. habeas corpus, alleging that the warrant of Greenhalge for appellee.

the governor of Massachusetts and the or

der for his delivery to the agent of New Mr. Justice Harlan delivered the opinion York were issued without authority of law, of the court:

and contrary to the Constitution and laws, The appellant was indicted in the supreme as well of the United States as of Massacourt of New York, county of Erie, for the chusetts, and “especially contrary to § 2, crime of grand larceny, first degree, alleged article 4, of the Constitution of the United to have been committed in that county on States, and of § 5278 of the Revised Statthe 18th day of May, 1904.

utes of the United States (U. S. Comp. Stat. Upon that indictment a warrant of arrest 1901, p. 3597), in that your petitioner is was issued, but the accused was not arrest-not a fugitive from justice.” The writ was ed, for the reason that he was not found issued and a return was made of the above within the state.

facts. Then the district attorney of Erie county At the hearing in the circuit court the applied to the governor of New York for a accused requested a ruling that, on the evirequisition upon the governor of Massachu-dence, it did not appear that, within the setts for Appleyard as a fugitive from jus- meaning of the Constitution and laws of the tice. The application was based upon the United States, he was a fugitive from jusabove indictment and numerous accompany- tice, and, also, that he should be discharged ing affidavits, stating, among other things, from custody unless it appeared positively, that the accused was then in Massachusetts. by a preponderance of proof, that he "conA requisition was accordingly made upon sciously fled from justice when he left the the governor of that commonwealth for the state of New York." Those requests were : apprehension of Appleyard, and his delivery denied. But the court granted a request to a named agent of New York, who was that the finding by the governor of Massaauthorized to receive and convey him to the chusetts as a fact that the accused was a

Ed. Note.-For cases in point, see Cent. Dig. vol. 23, Extradition, $ 32.

fugitive from justice was not conclusive. , sonally present in that city on that day, and The court refused to find, as facts, that the that thereafter he left New York, although acts of Appleyard did not constitute a crime there was some evidence to the effect that under the laws of New York; that no crime on the particular day named he was not in was committed by him in that state; and the state. In his own affidavit, submitted that Appleyard was not in New York on and accepted as evidence, the accused speciMay 18th, 1904, the date of the alleged fied several days when he was in Buffalo, crime. It consequently discharged the writ prior to and subsequent to May 18th, 1904, of habeas corpus. From that order the but, as stated by the attorney general of present appeal was prosecuted.

Massachusetts in his report to the governor It cannot be said that the appellant has of that commonwealth, there was in that not had ample opportunity to test the ques. affidavit no statement directly denying that tion whether his detention was in violation he was in New York at the time and place of the Constitution and laws of the United indicated in the indictment. States. He has had three hearings upon that But the appellant contended below, as he question; first, before the executive authori- does here, that he had no belief when leavties of Massachusetts, then before the su- ing New York at any time that he had viopreme judicial court of that commonwealth, lated its criminal laws, and therefore, within and finally before the circuit court of the the meaning of the Constitution and laws United States. Upon each occasion he in- of the United States, he could not be deemed sisted that, within the meaning of the Con- a fugitive from its justice. This contention stitution and laws of the United States, he cannot be sustained; indeed, it could not be could not be regarded as a fugitive from sustained without materially impairing the justice. The decision at each hearing was efficacy of the constitutional and statutory adverse to that contention, and, unless this provisions relating to fugitives from justice. court reverses the judgment of the circuit An alleged fugitive may believe that he has court, he must stand his trial upon the not committed any crime against the laws of charge that he committed a crime against the state in which he is indicted, and yet, the laws of New York. In view of the his according to the laws of such state, as adtory of this case from the time of the de- minstered by its judicial tribunals, he may mand upon the governor of Massachusetts have done so, and his belief or want of befor the surrender of the appellant, this court lief may be without foundation in law. should hesitate, by disturbing the ruling be- It is the province of the courts of New York low, to further delay the administration by to declare what its laws are, and to deterNew York of its criminal laws through its mine whether particular acts on the part of own judicial tribunals. Regularly, the ac- an alleged offender constitute a crime under cused should have prosecuted a writ of er- such laws. The constitutional provision ror to the supreme judicial court of Massa- that a person charged with crime against chusetts before invoking the jurisdiction of the laws of a state, and who flees from its the circuit court of the United States upon justice, must be delivered up on proper dehabeas corpus. Ex parte Royall, 117 U. S. mand, is sufficiently comprehensive to em241, 251-253, 29 L. ed. 868, 871, 872, 6 Sup. brace any offense, whatever its nature, which Ct. Rep. 734; Markuson v. Boucher, 175 U. S. the state, consistently with the Constitution 184, 44 L. ed. 124, 20 Sup. Ct. Rep. 76; Min. and laws of the United States, may have nesota v. Brundage, 180 U. S. 499, 502, 45 made a crime against its laws. Kentucky L. ed. 639, 640, 21 Sup. Ct. Rep. 455; Reid v. Dennison, 24 How. 66, 69, 16 L. ed. 717; v. Jones, 187 U. S. 153, 47 L. ed. 116, 23 Ex parte Reggel, 114 U. S. 642, 650, 29 L. ed Sup. Ct. Rep. 89. But, in view of the long 250, 252, 5 Sup. Ct. Rep. 1148. So that the * time which has elapsed since the governor simple inquiry must be whether the person of New York made his requisition for the whose surrender is demanded is in fact a surrender of the accused, and as the case is fugitive from justice, not whether he conone which the public interests demand sciously fled from justice in order to avoid should be speedily determined, we think the prosecution for the crime with which he is ends of justice will be promoted if we pro-charged by the demanding state. A person ceed to a final judgment on this appeal. charged by indictment or by affidavit before

Upon a careful scrutiny of the record we a magistrate with the commission within a discover no ground for the assertion that the state of a crime covered by its laws, and detention of the appellant is in violation of who, after the date of the commission of the Constitution or laws of the United such crime, leaves the state,-no matter for States. The crime with which he is charged what purpose or with what motive, nor unis alleged in the indictment to have been der what belief,-becomes, from the time of committed at Buffalo, New York, on May such leaving, and within the meaning of the 18th, 1904. It is, we think, abundantly es- Constitution and the laws of the United tablished by the evidence that he was per- States, a fugitive from justice, and if found in another state must be delivered up by which the governor of the state upon whom the governor of such state to the state whose the demand is made must decide, upon such laws are alleged to have been violated, on evidence as he may deem satisfactory. How the production of such indictment or affida- far his decision may be reviewed judicially vit, certified as authentic by the governor of in proceedings in habeas corpus, or whether the state from which the accused departed. it is not conclusive, are questions not settled Such is the command of the supreme law of by harmonious judicial decisions, nor by any the land, which may not be disregarded by authoritative judgment of this court. It any state. The constitutional provision re- is conceded that the determination of the lating to fugitives from justice, as the his- fact by the executive of the state in issuing tory of its adoption will show, is in the na- his warrant of arrest, upon a demand made ture of a treaty stipulation entered into on that ground, whether the writ contains a for the purpose of securing a prompt and recital of an express finding to that effect efficient administration of the criminal laws or not, must be regarded as sufficient to of the several states,-an object of the first justify the removal until the presumption in concern to the people of the entire country, its favor is overthrown by contrary proof. and which each state is bound, in fidelity to Ex parte Reggel, 114 U. S. 642, 29 L. ed. 250, the Constitution, to recognize. A faithful, 5 Sup. Ct. Rep. 1148.” vigorous enforcement of that stipulation is Replying to the suggestion, in that case, vital to the harmony and welfare of the that the fugitive was not within the destates. And while a state should take care, manding state subsequent to the finding of within the limits of the law, that the rights the indictment, the court further said: of its people are protected against illegal "The appellant in his affidavit does not deny action, the judicial authorities of the Union that he was in the state of New York about should equally take care that the provisions the date of the day laid in the indictment of the Constitution be not so narrowly in- when the offense is alleged to have been comterpreted as to enable offenders against the mitted, and states, by way of inference only, laws of a state to find a permanent asylum that he was not in that state on that very in the territory of another state.

day; and the fact that he has not been In Roberts v. Reilly, 116 U. S. 80, 95, 97, within the state since the finding of the in29 L. ed. 544, 549, 6 Sup. Ct. Rep. 291, this dictment is irrelevant and immaterial. To court said that the act of Congress, $ 5278 be a fugitive from justice, in the sense of of the Revised Statutes, made it the duty the act of Congress regulating the subject of the executive authority of the state in under consideration, it is not necessary that which is found a person charged with crime the party charged should have left the state against the laws of another state, and who in which the crime is alleged to have been has fled from its justice, "to cause the arrest committed, after an indictment found, or of the alleged fugitive from justice when- for the purpose of avoiding a prosecution ever the executive authority of any state anticipated or begun, but simply that having demands such person as a fugitive from jus- within a state committed that which by its tice, and produces a copy of an indictment laws constitutes a crime, when he is sought found, or affidavit made before a magis to be subjected to its criminal process to trate of any state, charging the person de- answer for his offense, he has left its jurismanded with having committed a crime diction and is found within the territory of therein, certified as authentic by the gov- another.” To the same effect are Ex parte ernor or chief magistrate of the state from Brown, 28 Fed. 653, 655; Re White, 5 C. C. A. whence the person so charged has fled. It 29, 14 U. S. App. 87, 53 Fed. 54, 57; Re must appear, therefore, to the governor of Bloch, 87 Fed. 981, 983. It is suggested that the state to whom such a demand is pre- Roberts v. Reilly was substantially modified sented, before he can lawfully comply with in Streep v. United States, 160 U. S. 128, 134, it, first, that the person demanded is sub- 40 L. ed. 365, 369, 16 Sup. Ct. Rep. 244, in stantially charged with a crime against the which the court had occasion to construe s laws of the state from whose justice he is 1045 of the Revised Statutes (U. S. Comp. alleged to have fled, by an indictment or an Stat. 1901, p. 726). But this is an error. affidavit, certified as authentic by the gov- Interpreting the words "fleeing from jusernor of the state making the demand; and, tice” as found in that section, the court exsecond, that the person demanded is a fugi-pressly held that these words must receive tive from the justice of the state the exec- the same construction as was given in Robutive authority of which makes the demand. erts v. Reilly to like words in § 5278 of the The first of these prerequisites is a question Revised Statutes, the inquiry in that case of law, and is always open upon the face of being whether the accused was a fugitiva the papers to judicial inquiry, on an appli- from justice. cation for a discharge under a writ of habeas In support of his contention, the appellant corpus. The second is a question of fact, I refers to Hyatt v. New York, 188 U. S. 691,

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