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is misleading. It is the right to be free from molestation. It is the right of personal liberty in its most complete sense. And this right was vindicated in Hyatt v. New York, and the fiction of a constructive presence in a state and a constructive flight from a constructive presence, rejected. This decision illustrates at once the value of the right and the value of the means to enforce the right. It is to be hoped that our criminal jurisprudence will not need for its efficient administration the destruction of either the right or the means to enforce it. The decision in the case at bar, as I view it, brings us perilously near both results. Is this exaggeration? What are the facts in the case at bar as alleged in the petition, and which it is conceded must be assumed to be true? The complaint, which was the foundation of the extradition proceedings, charged against the accused the crime of murder on the 30th of December, 1905, at Caldwell, in the county of Canyon, state of Idaho, by killing one Frank Steunenberg, by throwing an explosive bomb at and against his person. The accused avers in his petition that he had not been "in the state of Idaho, in any way, shape, or form, for a period of more than ten years" prior to the acts of which he complained, and that the governor of Idaho knew accused had not been in the state the day the murder was committed, "nor at any time near that day." A conspiracy is alleged between the governor of the state of Idaho and his advisers, and that the governor of the state of Colorado took part in the conspiracy, the purpose of which was “to avoid the Constitution of the United States and the act of Congress made in pursuance thereof, and to prevent the accused from asserting his constitutional right under clause 2, § 2, of article 4, of the Constitution of the United States and the act made pursuant thereof." The manner in which the alleged conspiracy had been executed was set out in detail. It was in effect that the agent of the state of Idaho arrived in Denver, Thursday, February 15, 1906, but it was agreed between him and the officers of Colorado that the arrest of the accused should not be made until some time in the night of Saturday, after business hours,-after the courts had closed and judges and lawyers
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 committed a crime there, and had filed from its justice, may arrest such person and take him from another state, the officers of the latter knowing of the false accusation, and conniving in and aiding its purpose, thereby depriving him of an opportunity to appeal to the courts, and that such person cannot invoke the rights guaranteed to him by the Constitution and statutes of the United States in the state to which he is taken. And this, it is said, is supported by the cases of Ker v. Illinois, 119 U. S. 436, 30 L. ed. 421, 7 Sup. Ct. Rep. 225, and Mahon v. Justice, 127 U. S. 700, 32 L. ed. 283, 8 Sup. Ct. Rep. 1204. These cases, extreme as they are, do not justify, in my judgment, the conclusion deduced from them. In neither case was the state the actor in the wrongs that brought within its confines the accused person. In the case at bar, the states, through their officers, are the offenders. They, by an illegal exertion of power, deprived the accused of a constitutional right. The distinction is important to be observed. It finds expression in Mahon v. Justice. But it does not need emphasizing. Kidnapping is a crime, pure and simple. It is difficult to accomplish; hazardous at every step. All of the officers of the law are supposed to be on guard against it. All of the officers of the law may be invoked against it. But how is it when the law becomes the kidnapper? When the officers of the law, using its forms, and exerting its power, become abductors? This is not a distinction without a difference,-another difference, another form of form of the crime of kidnapping, distinguished only from that committed by an individual by circumstances. If a state may say to one within her borders and upon whom her process is served, "I will not inquire how you came here; I must execute my laws and remit you to proceedings against those who have wronged you," may she so plead against her own offenses? May she claim that by mere physical presence within her borders, an accused person is, within her jurisdiction, denuded of his constitutional rights, though he has been brought there by her violence? And constitutional rights the accused in this case certainly did have, and valuable ones. The foundation of extradition between the states is that the accused should be a fugi-had departed to their homes; that the arrest tive from justice from the demanding state, and he may challenge the fact by habeas corpus immediately upon his arrest. If he refute the fact he cannot be removed. Hyatt v. New York, 188 U. S. 691, 47 L. ad. 657,
should be kept a secret, and the body of the accused shoul be clandestinely hurried out of the state of Colorado with all possible speed, without the knowledge of his friends or his counsel; that he was at the usual
place of business during Thursday, Friday, and Saturday, but no attempt was made to arrest him until 11:30 o'clock P. M. Saturday, when his house was surrounded and he arrested. Moyer was arrested under the same circumstances at 8:45, and he and accused "thrown into the county jail of the city and county of Denver." It is further alleged that, in pursuance of the conspiracy, between the hours of 5 and 6 o'clock on Sunday morning, February 18, the officers
of the state and "certain armed guards, being a part of the forces of the malitia of the state of Colorado," provided a special train for the purpose of forcibly removing him from the state of Colorado, and between said hours he was forcibly placed on said train and removed with all possible speed to the state of Idaho; that prior to his removal, and at all times after his incarceration in the jail at Denver, he requested to be allowed to communicate with his friends and his counsel and his family, and the privilege was absolutely denied him. The train, it is alleged, made no stop at any considerable station, but proceeded at great and unusual speed; and that he was accompanied by and surrounded with armed guards, members of the state militia of Colorado, under the orders and directions of the adjutant general of the state.
I submit that the facts in this case are different in kind and transcend in consequences those in the cases of Ker v. Illinois and Mahon v. Justice, and differ from and transcend them as the power of a state transcends the power of an individual. No individual or individuals could have accomplished what the power of the two states accomplished; no individual or individuals could have commanded the means and success; could have made two arrests of prominent citizens by invading their homes; could have commanded the resources of jails, armed guards, and special trains; could have successfully timed all acts to prevent inquiry and judicial interference.
The accused, as soon as he could have done so, submitted his rights to the consideration of the courts. He could not have done so in Colorado, he could not have done so on
the way from Colorado, At the first instant that the state of Idaho relaxed its restraining power, he invoked the aid of habeas corpus successively of the supreme court of the state and of the circuit court of the United States. He should not have been dismissed from court, and the action of the circuit court in so doing should be reversed.
CHARLES H. MOYER, Appt.,
JASPER C. NICHOLS.
This case is governed by the decision in Pettibone v. Nichols, ante, p. 111.
Argued October 10, 11, 1906. Decided December 3, 1906.
PPEAL from the Circuit Court of the
A United States for the District of Idaho to review a judgment refusing to discharge, on habeas corpus, a person held in custody to await a trial for murder, because of the methods by which his personal presence in the state was secured. Affirmed.
The facts are stated in the opinion. Messrs. Edmund F. Richardson, Clarence S. Darrow, and John H. Murphy for appellant.
Messrs. James H. Hawley and W. E. Borah for appellee.
Mr. Justice Harlan delivered the opinion of the court:
This case does not differ, in principle or in its facts, from Pettibone v. Nichols, just decided. Moyer was also charged with the murder of Steunenberg, and was arrested in Colorado, upon the warrant of the governor of that state, and taken to Idaho, and delivered to its authorities. He was embraced in the same indictment with Pettibone, and was held in custody for trial under that indictment. He sued out a writ of habeas corpus from the supreme court of Idaho, but the writ was dismissed by that court (Ex parte Moyer, 85 Pac. 897), and a writ of That is case No. 266 on our present docket. error has been prosecuted to this court. He then sued out a writ of habeas corpus from the circuit court of the United States, and his discharge being refused by the court, he prosecuted the present appeal.
For the reason stated in Pettibone's Case, the final order is affirmed.
The final order of the circuit court of the
United States for Idaho, in Haywood v. Nichols, No. 251, on appeal, is affirmed on the authority of Pettibone v. Nichols, 203 U. S. 192, 51 L. ed. 148, 27 Sup. Ct. Rep. 111, from which, as to the facts or the questions involved, it does not differ. The orders in Pettibone v. Whitney, No. 265, Morey v. Whitney, No. 266, and Haywood v. Whitney, No. 267,-each of which cases is here upon writ of error to the supreme court of Idaho, involves the same question as those determined in Pettibone v. Nichols, and by agreement 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.,
COMMONWEALTH OF MASSACHU-
Extradition-fugitives from justice.
1. The belief of the accused, when leaving the demanding state, that he had not committed any crime against the laws of that state, does not prevent his being a fugitive from justice within the meaning of the provision of U. S. Const. art. 4, § 2, and U. S. Rev. Stat. § 5278 (U. S. Comp. Stat. 1901, p. 3597),) relating to extradition proceedings.
Extradition-fugitives from justice.
2. To be a fugitive from justice within the meaning of the provisions of U. S. Const. art. 4, § 2, and U. S. Rev. Stat. § 5278, relating to extradition proceedings, it is only necessary that the accused, having been in the demanding state when the crime was committed, thereafter leave that state and be found within the territory of another.*
latter state, to be there dealt with according to law. With that requisition went properly authenticated copies of all the papers which had been submitted to the governor of New York by the district attorney of Erie county.
The governor of Massachusetts received the requisition, and, pursuant to the statutes of that commonwealth, referred it to the attorney general for examination and report. Giving the accused full opportunity to be heard and to introduce evidence, of which he availed himself, that officer examined the case and reported that the requisition was in regular and proper form and that there was no sufficient reason why it should not be honored. The governor thereupon issued a warrant for the arrest of Appleyard and his delivery to the agent of New York, to be taken to that state, the officer who should execute the warrant being required to give the accused such opportunity to sue out a writ of habeas corpus as was prescribed by the laws of Massachusetts in such cases. Appleyard, having been arrested
Submitted November 16, 1906. Decided De- applied for a writ of habeas corpus to the
cember 3, 1906.
APPEAL from the Circuit Court of the United States for the District of Massachusetts to review a judgment discharging a writ of habeas corpus to inquire into a detention under an order of arrest in extradition proceedings. Affirmed.
The facts are stated in the opinion. Messrs. Benjamin S. Minor and Fred H. Williams for appellant.
supreme judicial court of Massachusetts. This fact is stated in the return of the offi
cer holding the accused, and is not denied.
That court, after hearing an argument, denied the application, and remanded the petitioner to the custody of the agent of New York, to be held in accordance with the warrant issued by the governor of Massachu
The accused then applied to the circuit. 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.
Mr. Justice Harlan delivered the opinion
of the court:
The appellant was indicted in the supreme court of New York, county of Erie, for the crime of grand larceny, first degree, alleged to have been committed in that county on the 18th day of May, 1904.
Upon that indictment a warrant of arrest was issued, but the accused was not arrested, for the reason that he was not found within the state.
Then the district attorney of Erie county applied to the governor of New York for a requisition upon the governor of Massachusetts for Appleyard as a fugitive from justice. The application was based upon the above indictment and numerous accompanying affidavits, stating, among other things, that the accused was then in Massachusetts. A requisition was accordingly made upon the governor of that commonwealth for the apprehension of Appleyard, and his delivery to a named agent of New York, who was authorized to receive and convey him to the
the governor of Massachusetts and the order for his delivery to the agent of New York were issued without authority of law, and contrary to the Constitution and laws, as well of the United States as of Massachusetts, and "especially contrary to § 2, article 4, of the Constitution of the United States, and of § 5278 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 3597), in that your petitioner is not a fugitive from justice." The writ was issued and a return was made of the above facts.
At the hearing in the circuit court the accused requested a ruling that, on the evidence, it did not appear that, within the meaning of the Constitution and laws of the United States, he was a fugitive from justice, and, also, that he should be discharged. from custody unless it appeared positively, by a preponderance of proof, that he "consciously fled from justice when he left the state of New York." Those requests were denied. But the court granted a request that the finding by the governor of Massachusetts 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 of that commonwealth, there was in that affidavit no statement directly denying that he was in New York at the time and place indicated in the indictment.
It cannot be said that the appellant has not had ample opportunity to test the question whether his detention was in violation of the Constitution and laws of the United States. He has had three hearings upon that question; first, before the executive authorities of Massachusetts, then before the supreme judicial court of that commonwealth, and finally before the circuit court of the United States. Upon each occasion he insisted that, within the meaning of the Constitution and laws of the United States, he could not be regarded as a fugitive from justice. The decision at each hearing was adverse to that contention, and, unless this court reverses the judgment of the circuit court, he must stand his trial upon the charge that he committed a crime against the laws of New York. In view of the history of this case from the time of the demand upon the governor of Massachusetts for the surrender of the appellant, this court should hesitate, by disturbing the ruling below, to further delay the administration by New York of its criminal laws through its own judicial tribunals. Regularly, the accused should have prosecuted a writ of error to the supreme judicial court of Massachusetts before invoking the jurisdiction of the circuit court of the United States upon habeas corpus. Ex parte Royall, 117 U. S. 241, 251-253, 29 L. ed. 868, 871, 872, 6 Sup. Ct. Rep. 734; Markuson v. Boucher, 175 U. S. 184, 44 L. ed. 124, 20 Sup. Ct. Rep. 76; Minnesota v. Brundage, 180 U. S. 499, 502, 45 L. ed. 639, 640, 21 Sup. Ct. Rep. 455; Reid v. Jones, 187 U. S. 153, 47 L. ed. 116, 23 Sup. Ct. Rep. 89. But, in view of the long time which has elapsed since the governor of New York made his requisition for the surrender of the accused, and as the case is one which the public interests demand should be speedily determined, we think the ends of justice will be promoted if we proceed to a final judgment on this appeal.
But the appellant contended below, as he does here, that he had no belief when leaving New York at any time that he had violated its criminal laws, and therefore, within the meaning of the Constitution and laws of the United States, he could not be deemed a fugitive from its justice. This contention cannot be sustained; indeed, it could not be sustained without materially impairing the efficacy of the constitutional and statutory provisions relating to fugitives from justice. An alleged fugitive may believe that he has not committed any crime against the laws of the state in which he is indicted, and yet, according to the laws of such state, as adminstered by its judicial tribunals, he may have done so, and his belief or want of belief may be without foundation in law. It is the province of the courts of New York to declare what its laws are, and to determine whether particular acts on the part of an alleged offender constitute a crime under such laws. The constitutional provision that a person charged with crime against the laws of a state, and who flees from its justice, must be delivered up on proper demand, is sufficiently comprehensive to embrace any offense, whatever its nature, which the state, consistently with the Constitution and laws of the United States, may have made a crime against its laws. Kentucky v. Dennison, 24 How. 66, 69, 16 L. ed. 717; Ex parte Reggel, 114 U. S. 642, 650, 29 L. ed 250, 252, 5 Sup. Ct. Rep. 1148. So that the simple inquiry must be whether the person whose surrender is demanded is in fact a fugitive from justice, not whether he consciously fled from justice in order to avoid prosecution for the crime with which he is charged by the demanding state. 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
which the governor of the state upon whom the demand is made must decide, upon such evidence as he may deem satisfactory. How far his decision may be reviewed judicially in proceedings in habeas corpus, or whether it is not conclusive, are questions not settled by harmonious judicial decisions, nor by any authoritative judgment of this court. It is conceded that the determination of the fact by the executive of the state in issuing
on that ground, whether the writ contains a recital of an express finding to that effect or not, must be regarded as sufficient to justify the removal until the presumption in its favor is overthrown by contrary proof. Ex parte Reggel, 114 U. S. 642, 29 L. ed. 250, 5 Sup. Ct. Rep. 1148."
in another state must be delivered up by the governor of such state to the state whose laws are alleged to have been violated, on the production of such indictment or affidavit, certified as authentic by the governor of the state from which the accused departed. Such is the command of the supreme law of the land, which may not be disregarded by any state. The constitutional provision relating to fugitives from justice, as the history of its adoption will show, is in the na-his warrant of arrest, upon a demand made ture of a treaty stipulation entered into for the purpose of securing a prompt and efficient administration of the criminal laws of the several states,-an object of the first concern to the people of the entire country, and which each state is bound, in fidelity to the Constitution, to recognize. A faithful, vigorous enforcement of that stipulation is vital to the harmony and welfare of the states. And while a state should take care, within the limits of the law, that the rights of its people are protected against illegal action, the judicial authorities of the Union should equally take care that the provisions of the Constitution be not so narrowly interpreted as to enable offenders against the laws of a state to find a permanent asylum in the territory of another state.
In Roberts v. Reilly, 116 U. S. 80, 95, 97, 29 L. ed. 544, 549, 6 Sup. Ct. Rep. 291, this court said that the act of Congress, § 5278 of the Revised Statutes, made it the duty of the executive authority of the state in which is found a person charged with crime against the laws of another state, and who has fled from its justice, "to cause the arrest of the alleged fugitive from justice whenever the executive authority of any state demands such person as a fugitive from justice, and produces a copy of an indictment found, or affidavit made before a magistrate of any state, charging the person demanded with having committed a crime therein, certified as authentic by the governor or chief magistrate of the state from whence the person so charged has fled. It must appear, therefore, to the governor of the state to whom such a demand is presented, before he can lawfully comply with it, first, that the person demanded is substantially charged with a crime against the laws of the state from whose justice he is alleged to have fled, by an indictment or an affidavit, certified as authentic by the governor of the state making the demand; and, second, that the person demanded is a fugitive from the justice of the state the executive authority of which makes the demand. The first of these prerequisites is a question of law, and is always open upon the face of the papers to judicial inquiry, on an application for a discharge under a writ of habeas corpus. The second is a question of fact, I
Replying to the suggestion, in that case, that the fugitive was not within the demanding state subsequent to the finding of the indictment, the court further said: "The appellant in his affidavit does not deny that he was in the state of New York about the date of the day laid in the indictment when the offense is alleged to have been committed, and states, by way of inference only, that he was not in that state on that very day; and the fact that he has not been within the state since the finding of the indictment is irrelevant and immaterial. To be a fugitive from justice, in the sense of the act of Congress regulating the subject under consideration, it is not necessary that the party charged should have left the state in which the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun, but simply that having within a state committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offense, he has left its jurisdiction and is found within the territory of another." To the same effect are Ex parte Brown, 28 Fed. 653, 655; Re White, 5 C. C. A. 29, 14 U. S. App. 87, 55 Fed. 54, 57; Re Bloch, 87 Fed. 981, 983. It is suggested that Roberts v. Reilly was substantially modified in Streep v. United States, 160 U. S. 128, 134, 40 L. ed. 365, 369, 16 Sup. Ct. Rep. 244, in which the court had occasion to construe § 1045 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 726). But this is an error. Interpreting the words "fleeing from justice" as found in that section, the court expressly held that these words must receive the same construction as was given in Roberts v. Reilly to like words in § 5278 of the Revised Statutes, the inquiry in that case being whether the accused was a fugitivə from justice.
In support of his contention, the appellant refers to Hyatt v. New York, 188 U. S. 691,