the 24th of June as the true date of the commission of the offense. The relator is claiming the benefit and protection of the laws of this state, which guaranty to him his liberty against all unlawful restraint. If he has actually fled from the justice of the demanding state, of course he ought to be surrendered; but it is admitted that he did not, and it is safe to say that no one believes for a moment that he did, except, possibly, in the same way and in the same sense that Jackson fled from the same state in the case cited. Personal liberty must rest in this state upon a very frail and unsafe basis if this court can be induced to send the relator to Tennessee upon such a vague and fanciful conjecture as that which is at the foundation of the fiction that he may in fact have committed the crime on the 2d of July, and that the prior dates stated by the prosecuting officer of that state are the result of some error or mistake. When the state of Tennessee, or some one authorized to speak for it, is willing to assure us that the suggestion is based upon fact, and not upon fiction, it will be timely then to entertain it; but until then the courts of this state should treat its solemn admission upon the record according to its fair scope and meaning, which obviously. is that the relator was not in the state when the crimes charged were committed. I am in favor of reversing the order.

HAIGHT, J. (dissenting). The relator was arrested by the respondent and held in custody by virtue of a warrant issued by the governor of the state of New York, in which the respondent was required to arrest the relator, and deliver him into the custody of one Vernon Sharp, to be taken back to the state of Tennessee, from which he had fled, pursuant to a requisition of the governor of that state. The warrant recites the following facts as having been established before the governor of this state: "It having been represented to me by the governor of the state of Tennessee that Charles E. Corkran stands charged in that state with having committed therein, in the county of Davidson, the crimes of larceny and false pretenses, which the said governor certifies to be crimes under the laws of the said state, and that the said Chas. E. Corkran has fled therefrom and taken refuge in the state of New York; and the said governor of the state of Tennessee having, pursuant to the constitution and laws of the United States, demanded of me that I cause the said Chas. E. Corkran to be arrested and delivered to Vernon Sharp, who is duly authorized to receive him into his custody and convey him back to the said state of Tennessee, which said demand is accompanied by copies of indictments and other documents, duly certified by the said governor of the state of Tennessee to be authentic and duly authenticated, and charging the said Chas. E. Corkran with having committed said crimes, and fled from the said state and taken refuge in the state

of New York." Corkran procured a writ of habeas corpus to issue for the purpose of obtaining his discharge. On the return of the writ the attorneys for the parties stipulated "that three indictments were attached to the requisition papers, sent by the governor of the state of Tennessee to the governor of the state of New York for the extradition of Chas. E. Corkran; that each of said indictments was found on the 26th day of February, 1902; and that the alleged crimes were charged in said indictments to have been committed on the 1st day of May, 1901, on the 8th day of May, 1901, and on the 24th day of June, 1901, respectively." It was further conceded by counsel of the respective parties "that the relator was not within the state of Tennessee between the 1st day of May, 1899, and the 1st day of July, 1901." It was also conceded that the relator "was in the state of Tennessee on the 2d day of July, 1901." Taking the two stipulations together, it appears that the relator was not in the state of Tennessee on the dates charged in the indictment, but that he was in that state eight days after the date charged in the last indictment. In no place is it stipulated that he was not in the state at the time the offenses charged were committed. If this was an accidental omission, it has not been supplied by any of the evidence before us. The relator subscribed and verified the petition upon which the writ of habeas corpus was issued. In it he alleges "that it did not appear that there was any evidence before the governor of the state of Tennessee at the time he issued his demand that your petitioner was personally or constructively within the limits of the state of Tennessee when the crimes are alleged to have been committed." In his affidavit traversing the return to the writ he states that he had read the indictments before the governor of the state of New York upon which his warrant of arrest was issued and that those indictments charged him with the commission of the crimes of larceny and false pretenses, specifying the dates named in the indictments. He then states that he was not in the state of Tennessee at any time during the months of March, April, May, or June, 1901. He also was sworn upon the hearing and gave oral testimony, in which he reiterates that he was not in the state of Tennessee during the dates mentioned in the indictments, but concedes that he was there on the 2d day of July, 1901. In neither the petition, affidavit, nor testimony does he swear that he was not in the state when the offenses charged were committed, but has refrained from so testifying.

There are cases in which time is a necessary ingredient of the offense,-as, for instance, the violation of the Sunday laws; but, barring these exceptions, I do not understand that the precise time is a necessary ingredient of crimes, either under our Code or the common law. Section 280 of our Code of Criminal Procedure provides that "the precise time at which the crime was com

mitted need not be stated in the indictment; but it may be alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient in the crime." This provision of the Code is a substantial enactment of the common law upon the subject. 2 Hawk. P. C. 334; 1 Hale, P. C. 361; 1 Archb. Cr. Prac. 85; Com. v. Harrington, 3 Pick. 26; People v. Stocking, 50 Barb. 573; Reg. v. Firth, 11 Cox, Cr. Cas. 234; People v. Emerson (Sup.) 6 N. Y. Supp. 274; People v. Jackson, 111 N. Y. 362-369, 19 N. E. 54. As we have seen, the last indictment charged the crime as having been committed on the 24th day of June. Time is not a material ingredient of the crimes of larceny or false pretenses. It would, therefore, have been competent upon the trial to show that the offenses charged were actually committed on the 2d day of July, when the relator was in the state, instead of the 24th day of June. The indictments were before the governor. They charged the commission of the crime of larceny. The usual allegation is that he did then and there take, steal, and carry away, which imports the presence of the person charged. Under the statute a charge may be established before the governor by the production of a copy of the indictment. It therefore furnishes some evidence upon which the governor may act. As we have seen, the relator has neglected to show, either by stipulation or by his own testimony, that he was not actually present at the time the offenses charged were committed. He has confined his testimony to showing that he was not there on the particular dates specified in the indictment. This is not sufficient. It consequently follows that the contention of the relator to the effect that the governor had no power to issue the warrant for his arrest and his return to the state of Tennessee for the reason that he was not personally present in that state when the offense was committed is not raised by the record in these proceedings.

The warrant upon which the relator is detained recites all the facts necessary to give the governor jurisdiction to issue it. It is not contended that it is informal or defective in any particular. It recites that the governor of Tennessee presented papers to the governor of this state, duly authenticated, including copies of the indictments found, charging the relator with having committed the crimes of larceny and false pretenses in that state, and that he "has fled therefrom, and taken refuge in the state of New York." This, if true, is sufficient to authorize the governor of this state to issue the warrant for his arrest and return to the state of Tennessee. The papers-presented to the governor, upon which he made his determination to issue the warrant, have not been returned, or their contents made to appear by the relator, either in his petition or traverse. They consequently are not before us,

and we are unable to determine whether the conclusion of the governor was proper, or without support of evidence. In the case of People v. Pinkerton, 77 N. Y. 245, the question under consideration appears to have been squarely decided. It is stated in the opinion that: "The only material question which seems to be presented in this case is whether a warrant of the governor of this state for the arrest of a fugitive from justice of another state, containing the recitals of facts necessary to confer authority under the constitution and laws of the United States, is a sufficient justification for holding the prisoner when up on habeas corpus, without producing the papers or evidence upon which the governor acted. We have no doubt but that the recitals are to be taken as prima facie, at least, true, and that the return setting forth the warrant containing such recital is sufficient." In the case of People v. Donohue, 84 N. Y. 438, Finch, J., in delivering the opinion of the court, says: "The sufficiency of the executive warrant to justify the detention of the prisoner is the sole question raised by the writ of habeas corpus and presented on this appeal. Where, however, the papers upon which the warrant is founded are not produced, but are withheld by the executive in the exercise of his official discretion and authority, we can look only to the warrant itself and its recitals for the evidence that the essential conditions of its issue have been fulfilled." He then proceeds to state that all the essential requirements of the constitution and statute are contained in the recitals of the warrant, and concludes by affirming the order dismissing the writ of habeas corpus. In the very recent case of Terlinden v. Ames, 184 U. S. 270-278, 22 Sup. Ct. 484, 46 L. Ed. 534, Chief Justice Fuller says: "The settled rule is that the writ of habeas corpus cannot perform the office of a writ of error, and that, in extradition proceedings, if the committing magistrate has jurisdiction of the subject-matter and of the accused, and the offense charged is within the terms of the treaty of extradition, and the magistrate, in arriving at a decision to hold the accused, has before him competent legal evidence on which to exercise his judgment as to whether the facts are sufficient to establish the criminality of the accused for the purposes of extradition, such decision cannot be reviewed on habeas corpus. Ornelas v. Ruiz, 161 U. S. 502-508, 16 Sup. Ct. 689, 40 L. Ed. 787, and cases cited; Bryant v. U. S., 167 U. S. 104, 17 Sup. Ct. 744, 42 L. Ed. 94." And again, he concludes by saying: "The decisions of the executive department in matters of extradition within its own sphere, and in accordance with the constitution, are not open to judicial revision; and it results that, where proceedings for extradition, regularly and constitutionally taken under the acts of congress, are pending, they cannot be put an end to by writs of habeas corpus." See,

also, In re Clark, 9 Wend. 212. In the case of Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Ed. 544, we have a case in many respects very similar to the one under consideration. In that case the relator had been indicted in the state of New York for grand larceny. A requisition was made by the governor for his extradition from the state of Georgia. The governor of that state issued his warrant, upon which he was arrested and held in custody. Habeas corpus was then issued by the district court of the Southern district of Georgia. The accused made an affidavit denying his guilt, and also denying that he was in the state of New York on the day laid in the indictment as the date of the offense; but he did not deny that he was in the state at about that date. Mr. Justice Matthews, in delivering the opinion of the court, says, with reference to the claim that the relator was not a fugitive from justice, "that it is a question of fact which the governor of the state upon whom the demand is made must decide upon such evidence as he may deem satisfactory. * * The determination of the fact by the executive of the state in issuing his warrant of arrest upon a demand made 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." The judgment of the circuit court, remanding the prisoner to the custody of the agent of the state of New York, was affirmed. It will be observed that in that case the relator showed that he was not in the state at the date laid in the indictment; but this did not overcome the presumption of fact found by the governor that he was a fugitive from justice. Article 4, § 2, subd. 2, Const. U. S., provides that "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." The Revised Statutes of the United States (section 5278) provide that: "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 of an affidavit made before a magistrate of any state or territory, charging the person demanded of having committed treason, felony, or other crime, certified as authentic by the governor or chief of police 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 a 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 him to be delivered to such agent when he shall appear."

It will be observed that under the constitution and statute to which we have referred the application must be made to the "executive authority" of the state or territory to which the person charged with the crime has fled. The duty, therefore, devolves upon such executive authority to determine all the questions of fact which arise under the constitution and statute. In this state the executive authority is vested in the governor. When the application was made for the arrest of the relator by the governor of Tennessee, it became the duty of the governor of this state to determine: (1) Whether a crime under the laws of Tennessee was charged as having been committed by the relator; (2) whether he was a fugitive from justice of that state. It appears that the governor has determined these questions from his recitals in the warrant. The first question was established by the production before him of the indictments found, duly certified and authenticated, and the second by the indictments and other documents duly certified by the governor of the state of Tennessee to be authentic. Neither the constitution nor the statutes make any provision for a review of the determination of the governor, but our own statutes give to every person deprived of his liberty the right to apply for a writ of habeas corpus; and in case he is imprisoned by virtue of a warrant of the executive, under a demand for extradition, section 827 of the Code of Criminal Procedure gives him the right to a review for the purpose of determining his identity,-whether he is the person charged with crime under the demand for extradition. Under this writ the courts doubtless have the power to determine whether the executive has acted within the powers given him by the constitution and statutes of the United States. When the papers upon which he has acted have been returned and become a part of the record in the proceedings upon habeas corpus, and it appears from such papers that no crime is charged as having been committed in the state demanding the return of the person, it has been held, though not without criticism, that the court may discharge him (People ex rel. Lawrence v. Brady, 56 N. Y. 182); but where the papers upon which the governor has acted in making his determination to issue the warrant are not before the court, and the contents of such papers do not appear, the recitals of facts found by him, contained in the warrant, must be taken as true, so far as the review by habeas corpus is concerned.

The prevalence of crimes committed in one state by persons actually in another state, through innocent agents employed by them, such as the forwarding of forged drafts, checks, and other instruments through the mails, express agencies, or otherwise, for the purpose of procuring money or other property thereon, makes it desirable that the question

should be determined as to whether, under the constitution and statutes of the United States, a person found in one state can be surrendered up, to be taken to another state for trial, for a crime committed therein, through some innocent agency of his, when he was only constructively present in the person of his agent. That question, however, ought to be determined by the supreme court of the United States. The conclusions reached upon the points above discussed render it unnecessary for this court to determine it in this

case.

The order appealed from should be affirmed.

PARKER, C. J., and GRAY and VANN, JJ., concur with CULLEN and O'BRIEN, JJ. WERNER, J., concurs with HAIGHT, J.

Ordered accordingly.

(172 N. Y. 146)

PEOPLE v. ELLIOTT.

(Court of Appeals of New York. Oct. 7, 1902.) CRIMINAL LAW-SECOND TRIAL EVIDENCE OF DECEASED WITNESS-CONFRONT

ING WITNESSES.

1. Though the Code of Criminal Procedure has no express provision authorizing the reading on a second trial of the evidence of a witness since deceased, Code Civ. Proc. § 830, authorizing the reading of such testimony taken at an action, is applicable, since the word "action," as defined in Id. § 3333, declaring that such word, as used, signifies an ordinary prosecution in a court of justice for the enforcement of a right, the redress of a wrong, or the punishment of a public offense, includes a criminal prosecution.

2. Code Cr. Proc. § 8, subd. 3, providing that an accused shall have the right to be confronted with the witnesses against him, in the presence of the court, which is a re-enactment of the bill of rights (section 14), is not violated by reading the testimony of a witness since deceased, taken at the first trial for a criminal offense, where only such testimony is read as was so taken in the presence of the accused, and he, therefore, has once been confronted by the witness against him in the presence of the court. Appeal from supreme court, appellate division, Third department.

Frank P. Elliott was convicted of crime, and from a judgment of the appellate division (73 N. Y. Supp. 279) affirming the conviction he appeals. Affirmed.

John P. Wheeler, for appellant. Wordsworth B. Matterson, for respondent.

judgment: Error in challenging the jury; failure of the trial judge to follow the decision of this court on the first appeal, in charging the jury; the admission of the testimony of Dr. Brooks, who was dead at the time of the second trial. The appellate division decided that none of these grounds presented reversible error, and we are of the same opinion, but deem it proper to further consider the question whether Dr. Brooks' testimony was properly read on the second trial.

The Code of Criminal Procedure (section 8. subd. 3) provides that in a criminal action the defendant is entitled "to produce witnesses in his behalf, and to be confronted with the witnesses against him in the presence of the court, except that where the charge has been preliminarily examined before a magistrate, and the testimony reduced by him to the form of a deposition in the presence of the defendant, who has, either in person or by counsel, cross-examined, or had an opportunity to cross-examine, the witness, * * the deposition of the witness may be read upon its being satisfactorily shown to the court that he is dead or insane, or cannot with due diligence be found in the state." There seems to be no provision of the Code of Criminal Procedure authorizing, in terms, the reading on a second trial of the testimony of a deceased witness sworn at the first trial. The Code of Civil Procedure (section 830) provides as follows: party or a witness has died the trial of the action, timony of the decedent, * * * read in evidence at the former trial or hearing, may be given or read in evidence at a new trial or hearing, or upon any subsequent trial or hearing, of the same subjectmatter in an action * * * between the

* *

*

"Where a

since the testaken or

same parties who were parties to such former trial or hearing or their legal representatives, by either party to such new trial or hearing or to such subsequent action, subject to any other legal objection to the competency of the witness, or to any other legal objection to his testimony or any question put to him. The original stenographic notes of such testimony taken by a stenographer, who has since died or become incompetent, may be so read in evidence by any person whose competency to read the same accurately is established to the satisfaction of the court, presiding at

the trial of such action. * * *"" The section quoted refers to the death of a witness after the trial of an "action." Section 3333 of the Code of Civil Procedure defines "action" as follows: "The word 'action,' as used in the New Revision of the Statutes, when applied to judicial proceedings, signifies an ordinary prosecution, in a court of justice, by a party against another party, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." This definition renders it clear that section 830 of the Code

of Civil Procedure, above quoted, refers to both civil and criminal actions. Section 8 of the Code of Criminal Procedure provides that the defendant shall be confronted with the witnesses against him in the presence of the court. This is merely a re-enactment of the bill of rights, which provides, in section 14, that the accused shall be confronted with the witnesses against him. 2 Rev. St. (Banks' Ed.) 1651. The constitution of this state, unlike the federal constitution, has no similar provision.

The question has been much discussed whether the reading of testimony, reduced to a deposition in a preliminary examination, where the accused was represented by counsel and exercised the right of cross-examination, or testimony taken at a former trial, where the deponent or witness was dead at the time of the subsequent trial, could be read in evidence. It has also been matter of discussion whether the precise testimony taken at a former trial should be read in evidence from the minutes, or, in case of their destruction, the substance thereof given by a witness who heard the testimony delivered at the first trial. In the case of People v. Williams, 35 Hun, 516, the question of the constitutionality of section 8, subd. 3, of the Code of Criminal Procedure, was under consideration. Judge Daniels said (page 518): "It is manifest from the authorities permitting the deposition or evidence of a deceased witness to be read upon a trial of the accused that it has not been deemed essential that he should be confronted by the witness against him upon the trial itself; but if the evidence be taken in the course of the proceeding in his presence, and with the right or privilege of cross-examination secured to him, that will be sufficient to allow the deposition to be read, in case of the decease of the witness making it, between the time when it may be taken and the time of the trial. And if this article of the constitution should be held to be applicable to the case, it would not, therefore, exclude the deposition received in evidence on trial of the defendant." The constitution here referred to is the federal constitution, for, as already observed, the state constitution has no provision for the right of confrontment. In People v. Penhollow, 42 Hun, 103, it appeared that a witness on the part of the people at the first trial of this indictment was dead at the time of the second trial, and the district attorney offered to read in evidence her testimony as previously giv

cured to the accused is limited in its application to citizens of the United States on trial in the federal courts, charged with a violation of the constitution of the United States or of the laws of congress.

Our own state constitution does not contain any provision securing to the accused the right and privilege of being confronted by the witnesses against him. In the bill of rights, adopted by the legislature, there is a provision similar to the one embraced in the constitution of the United States, and expressed in the identical words." The learned judge here quotes section 14 of the bill of rights, and proceeds as follows: "The accused was confronted by the witness on the former trial, and he had an opportunity of making a cross-examination, and that satisfies the requirements of the statutes. The right secured to the accused, it is to be observed, is 'to be confronted with the witnesses against him.' This language does not require that the accused shall in all cases be confronted with the witnesses against him upon a pending trial of the indictment. The courts have held that the statute is satisfied, in cases of necessity, if the accused has been once confronted by the witness against him in any stage of the proceedings upon the same accusation, and has had an opportunity of a cross-examination, by himself or by counsel, in his behalf.” In Brown v. Com., 73 Pa. 321, 13 Am. Rep. 740, the question was considered whether the testimony taken by the commonwealth, on a hearing before a justice of the peace, of a person charged with murder, was admissible on the trial. Chief Justice Read, in a very careful and able opinion, considered the question at some length, citing many authorities, and reached the conclusion that the testimony was admissible. A like question was before the court in Com. v. Richards, 18 Pick. 434, 29 Am. Dec. 608. The learned court said: "It has been contended for the defendant that the admission of such evidence is directly against the twelfth article of the bill of rights, which provides that in criminal cases the subject shall have a right 'to meet the witness against him, face to face. Now, the defendant did meet the witness who has deceased, face to face, and might have crossexamined him before the magistrate touching this accusation. We think it

to be very clear that testimony of what a deceased witness did testify on a former trial, between the same parties on the same issue, is competent evidence. The rule is thus well stated in 2 Lil. Abr. 745: 'If one who gave evidence on a former trial be dead, then, upon proof of his death, any person who heard him give evidence and observed it shall be admitted to give the same evidence as the deceased witness gave, provided it were between the same parties.' I cite the passage for the expression 'shall be permitted to give the same evidence' which the deceased gave. It is to be the same, not a part, not the effect or substance, but the