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§ 490d. Custody and protection of persons extradited from foreign countries. "Whenever any person is delivered by any foreign government to an agent of the United States, for the purpose of being brought within the United States and tried for any crime of which he is duly accused, the President shall have power to take all necessary measures for the transportation and safe-keeping of such accused person, and for his security against lawless violence, until the final conclusion of his trial for the crimes or offenses specified in the warrant of extradition, and until his final discharge from custody or imprisonment for or on account of such crimes or offenses, and for a reasonable time thereafter, and may employ such portion of the land or naval forces of the United States, or of the militia thereof, as may be necessary for the safe-keeping and protection of the accused." 1

"Any person duly appointed as agent to receive, in behalf of the United States, the delivery, by a foreign government, of any person accused of crime committed within the jurisdiction. of the United States, and to convey him to the place of his trial, shall have all the powers of a marshal of the United States, in the several districts through which it may be necessary for him to pass with such prisoner, so far as such power is requisite for the prisoner's safe-keeping." 2

"Every person who knowingly and wilfully obstructs, resists, or opposes such agent in the execution of his duties, or who rescues or attempts to rescue such prisoner, whether in the custody of the agent or of any officer or person to whom his custody has lawfully been committed, shall be punishable by a fine of not more than one thousand dollars, and by imprisonment of not more than one year.' 113 A person extradited from a foreign country is not protected from being tried and convicted for a crime committed in the State after extradition, such as perjury committed on the trial of the crime for which the party was extradited.

§ 490d. 1 U. S. R. S., § 5275, 3 Fed. St. Ann. 78, Pierce Fed. Code § 4014.

2 U. S. R. S., § 5276, 3 Fed. St. Ann. 78, Pierce Fed. Code, § 4015.

3 U. S. R. S., § 5277, 3 Fed. St. Ann. 78, Pierce Fed. Code, § 4016. 4 Collins v. Johnston, 237 U. S. 502.

§ 490e. Extradition of seamen. By the Revised Statutes: On application of a consul or vice-consul of any foreign government having a treaty with the United States stipulating for

the

restoration of seamen deserting, made in writing, stating

that the person therein has deserted from a vessel of any such government, while in any port of the United States, and on Proof by the exhibition of the register of the vessel, ship's roll, or other official document, that the person named belonged, at the time of desertion, to the crew of such vessel, it shall be the of any court, judge, commissioner of any circuit court, duty justice, or other magistrate, having competent power, to issue warrants to cause such person to be arrested for examination. If, on examination, the facts stated are found to be true, the person arrested not being a citizen of the United States, shall be delivered up to the consul or vice-consul, to be sent back to the dominions of any such government, or, on the request and at the expense of the consul or vice-consul, shall be detained until the consul or vice-consul finds an opportunity to send him back to the dominions of any such government. No person so arrested shall be detained more than two months after his arrest; but at the end of that time shall be set at liberty, and shall not be again molested for the same cause. If any such deserter shall be found to have committed any crime or offense, his surrender may be delayed until the tribunal before which the case shall be depending, or may be cognizable, shall have pronounced its sentence, and such sentence shall have been carried into effect.1

This section has been repealed; the repeal to take effect upon the expiration of the treaties which stipulate for such restoration.2

§ 490f. Extradition from the Philippines. By the Act of February 6, 1905, it is provided that these provisions of the Revised Statutes concerning extradition to foreign countries. shall apply to the Philippine Islands:

"Such fugitive from justice of a foreign country may, upon

§ 490e. 1 U. S. R. S., § 5280, 3 Fed. St. Ann. 86, 6 Fed. St. Ann. 916, Pierce Fed. Code, § 4019, Comp. St. § 10129.

Fed. Prac. Vol. III-26

2 Act of March 4, 1915, Ch. 153, §§ 16-18, 38, St. at L. 1184, Comp. St., §§ 8382a-8382c.

warrant duly issued by any judge or magistrate of the Philippine Islands, and agreeably to the usual mode of process against offenders therein, be arrested and brought before such judge or magistrate, who shall proceed in the matter in accordance with the provisions of the Revised Statutes hereby made applicable to the Philippine Islands: Provided, That for the purposes of this section the order or warrant for delivery of a person committed for extradition prescribed by section fifty-two hundred and seventy-two of the Revised Statutes shall be issued by the governor of the Philippine Islands under his hand and seal of office, and not by the Secretary of State."1

§ 491. Extradition from one State to another. The Constitution ordains: "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 fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. No Person held to Service or Labor in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labor, but shall be delivered upon claim of the party to whom such service or Labor may be due."1

The Revised Statutes provide: "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 fled, 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

§ 490f. 1 Act of Feb. 6, 1905, 33 St. at L. 698, 10 Fed. St. Ann. 260, Comp. St. Supp. 714, Pierce Fed. Code, § 4028.

§ 491. 1 Art. IV, Section 2.

1

appear.

agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall If no such agent appears within six months from the of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the State or Territory making such demand, shall be paid by such State or Territory." 2

time

Any agent so appointed who receives the fugitive into his

Custody shall be empowered to transport him to the State or Territory from which he has fled. And every person who, by sets at liberty or rescues the fugitive from such agent force, So transporting him, shall be fined not more than five while hundred dollars or 'imprisoned not more than one year." 3 A person charged with a misdemeanor may be thus removed.4 The removal should be made where the act charged is a crime. by the laws of the State from which the accused has fled, although it is not a crime in the State into which he has come.5 A person be extradited as a fugitive from justice although he has may left the State on legitimate business, or upon his return to his home in another State, or by a State to which he has been extradited upon another charge from the State to which he originally fled, but not if, at the time the crime was committed, he was only constructively in a State which demands him and not personally within its borders. Where the crime consists of

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5 Commonwealth of Kentucky v. Dennison, 24 How. 66, 103, 16 L. ed. 717, 727. Cf. Holmes v. Jennison, 14 Peters, 540, 10 L. ed. 579.

6 Re White, C. C. A., 55 Fed. 54, 5 C. C. A. 29; Roberts v. Reilly, 116 U. S. 80, 6 S. Ct. 291, 29 L. ed. 544, affirming 24 Fed. 132; Biddinger v. Commissioner of Police of the City of

New York, 245 U. S. 728; Re Bruce, 132 Fed. 390; Re Bloch, 87 Fed. 981; Ex parte Brown, 28 Fed.

6

653. But see Re Tod, 12 S. D. 386, 81 N. W. 637, 76 Am. St. Rep. 616, 47 L. R A. 566.

7 Roberts v. Reilly, 116 U. S. 80, 6 S. Ct. 291, 29 L. ed. 544, affirming 24 Fed. 132; Ex parte Brown, 28 Fed. 653; Re Keller, 36 Fed. 681; Re White, C. C. A., 55 Fed. 54, 5 C. C. A. 29; Re Bloch, 87 Fed. 981; Re Bruce, 132 Fed. 390. But see Re Tod, 12 S. D. 386, 81 N. W. 637, 76 Am. St. Rep. 616, 47 L. R. A. 566.

8 Innes v. Tobin, 240 U. S. 127. But see Re Whittington (Cal., July, 1917), 67 Pac. 404, criticized N. Y. L. J. Oct. 25, 1917.

9 Hyatt v. People, 188 U. S. 691,

several acts, and the accused commits one of them within the State, but departs before the others, which he authorized or contemplated, he is a fugitive from justice within the meaning of the Constitution.10 This may be when the crime consists in obtaining money or goods by false pretenses; 11 and receiving deposits in a bank which is insolvent; 12 and in running a gambling house.18

A statement in the affidavit annexed to the requisition that the accused is a fugitive, is prima facie evidence of that fact; 14 but it may be rebutted by the accused.15 The indictment should set out the substance of the crime against the law of the demanding State.16 An extradition proceeding, however, will not be dismissed because of technical defects therein.17 If an affidavit is presented in the place of an indictment it must set out the crime charged sufficiently to apprise the receiving governor of the facts that constitute the offense.18 It need not, however, have the technical exactness of an indictment.19. It

713, 23 S. Ct. 456, 47 L. ed. 657 affirming People v. Hyatt, 172 N. Y. 176, 60 L. R. A. 774, 64 N. E. 825, 92 Am. St. Rep. 706; Tennessee v. Jackson, 36 Fed. 258, 1 L. R. A. 370. But see Adams v. People, 1 N. Y. 173; Ex parte Graham, 216 Fed. 813.

10 Re Sultan, 115 N. C. 57, 20 S. E. 375, 44 Am. St. Rep. 433, 28 L. R. A. 294; Ex parte Montgomery, 244 Fed. 967. It was held to be sufficient under an indictment for a continuing conspiracy; that after the formation of the conspiracy the accused had been for a short time in a part of the State remote from the place of such formation and that at another time he passed through the State without alighting from his railroad train in company and in conference with one of his fellow conspirators.

11 Re Cook, 49 Fed. 833; aff'd 146 U. S. 983, 13 S. Ct. 40, 36 L. ed.

12 Hayes v. Palmer, 21 App. Cas. (D. C.) 450.

13 State v. Clough, 71 N. H. 594, 43 Atl. 1086, 67 L. R. A. 946; 19 Cyc. 87, 88.

14 Ex parte Reggel, 114 U. S. 642, 5 S. Ct. 1148, 29 L. ed. 250.

15 Ibid. Tennessee v. Jackson, 36 Fed. 258, 1 L. R. A. 370.

16 Roberts v. Reilly, 116 U. S. 80, 6 S. Ct. 291, 29 L. ed. 544, affirming 24 Fed. 132; Ex parte Reggel, 114 U. S. 642, 5 S. Ct. 1148, 29 L. ed. 250; Reichman v. Harris, C. C. A., 252 Fed. 371.

17 Ex parte Reggel, 114 U. S. 642, 5 Sup. Ct. 1148, 29 L. ed. 250; Ex parte Graham, 216 Fed. 813.

18 Webb v. York, C. C. A., 79 Fed. 616, 25 C. C. A. 133; People v. Brady, 56 N. Y. 182; Ex parte Slausen, 73 Fed. 666.

19 Ex parte Manchester, 5 Cal. 237; State v. Goss, 66 Minn. 291, 68 N. W. 1089.

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