207 U.S.

Argument for Plaintiff in Error.

this court must determine by the record whether the state court erred and its decision cannot be controlled or affected by an apparent admission of defendant in error that certain affidavits annexed to the petition were used without objection as evidence.

This court takes judicial knowledge of facts known to every one as to the distance between two neighboring cities and the time necessary to travel from one to the other.

THE facts are stated in the opinion.

Mr. John F. Geeting for plaintiff in error:

The term "fugitive from justice," as used in § 5278, Rev. Stat., does not apply to one who constructively commits a crime in another State, but only to one physically present within a State at the time of the commission of a crime and subsequently fleeing therefrom. Hyatt v. Corkran, 188 U. S. 691; In re Tod, 12 S. D. 386; Ex parte Smith, 3 McLean, 121.

The fact that the person demanded is a fugitive from justice is a jurisdictional prerequisite to an extradition warrant. The governor upon whom the demand is made has no authority to issue his extradition warrant, unless competent proof has been made to him that the person demanded was within the jurisdiction of the demanding State at the time of the commission of the crime in question and subsequently fled therefrom. Ex parte Reggel, 114 U. S. 642, 651; Roberts v. Reilly, 116 U. S. 80; Hyatt v. Corkran, supra; In re Jackson, 2 Flippin, 182.

A warrant for the extradition of a person cannot be lawfully issued, unless the accused has been indicted in a court of competent jurisdiction in the demanding State, or charged by affidavit before a magistrate in such State. § 5278, Rev. Stat.

While each State has a right to create its own code of criminal procedure, the practice of the demanding State must come within the requirements of § 5278. The filing of an information, although consistent with the practice of the demanding State, is not a basis for extradition proceedings; the accused is not indicted, neither is he charged by affidavit before a magistrate. Ex parte Hart, 63 Fed. Rep. 249. In Wisconsin, where a

Argument for Plaintiff in Error.

207 U. S.

justice of the peace sits as an examining magistrate, to hold to bail or to commit for trial, an affidavit is not necessary. The warrant issues upon oral testimony taken by the justice. § 4776, Wis. Rev. Stat.; State v. Davies, 62 Wisconsin, 305.

A written statement under oath made in the positive form, if made under circumstances, or as to matters which indicate that it was made upon information and belief, will be so considered. M. & T. Bank v. Loucheims, 8 N. Y. Supp. 520; Tim v. Smith, 93 N. Y. 91; Hart v. Grant, 8 S. D. 248; S. C., 66 N. W. Rep. 622; Finely et al. v. De Castroverde, 22 N. Y. Supp. 716; Crowns v. Vail, 51 Hun, 204, 206; Bank of Pittsburg v. Murphy, 18 N. Y. Supp. 575; Van Egan v. Herold, 19 N. Y. Supp. 456; Talbert v. Strom, 21 N. Y. Supp. 719. See also Griel v. Backius, 114 Pa. St. 187, 190; Davis v. Mouat Lumber Co., 2 Colo. App. 381, 387; Shattuck v. Myers, 13 Indiana, 46, 48, 49; People v. Spaulding, 2 Paige, 336.

It is not to be presumed that the alleged larceny was committed in the presence of the chief of police and the culprit allowed to escape. A criminal complaint which does not set out facts sufficient to constitute a crime is void, and does not confer jurisdiction upon the magistrate taking it. Moore v. Watts, Breese, 18, B. B. 42; Housh v. People, 75 Illinois, 487; Sarah Way's Case, 41 Michigan, 299; United States v. Collins, 79 Fed. Rep. 65; The Shattuck Case, supra; Warenzak's Case (note, 11 Am. Crim. Rep. 376); Armstrong v. Van de Venter (extradition case), 21 Washington, 682; S. C., 12 Am. Crim. Rep. 327.

All of the elements of the crime must be stated. State v. Murray, 41 Iowa, 580; Cranor v. State, 39 Indiana, 64; Slusser v. State, 71 Indiana, 280; Barfield v. State, 39 Tex. Crim. Rep. 342; S. C., 11 Am. Crim. Rep. 384; State v. Cruikshank, 71 Vermont, 94; S. C., 11 Am. Crim. Rep. 385; State v. Fiske, 20 R. I. 416 (and see note, 11 Am. Crim. Rep. 375). A criminal complaint, being a statement of facts, should be at least as specific as an indictment. Lawrence v. Brady (extradition case), 56 N. Y. 182; Vandever v. State, 1 Marvel, 209.

The words "complaint" and "affidavit" are not synony

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Argument for Defendant in Error.

mous; and accordingly, the word "affidavit," instead of "complaint," should be used in extradition proceedings. State v. Richardson, 34 Minnesota, 115.

In the following extradition cases the affidavit or complaint was held insufficient. State v. Smith, 21 Nebraska, 552; Ex parte Spears, 88 California, 640; Ex parte McCabe, 46 Fed. Rep. 363; In re Heilbonn, 1 Parker Cr. R. 429; Ex parte Rowland, 35 Tex. Crim. Rep. 108; In re Coleman, 15 Blatchf. 406.

Mr. E. C. Lindley, Mr. John J. Healy and Mr. F. L. Barnett, for defendant in error, submitted:

A fugitive from justice is a person charged with a crime in the courts of one State and being there wanted to answer for said offense is found in another State. Church on Hab. Cor., §§ 478, 480; Roberts v. Reily, 116 U. S. 80; Ex parte Reggel, 114 U.S. 642.

Wherever the validity of a governor's warrant is made the subject of judicial inquiry, the recitals in said warrant are to be taken prima facie as true. Ex parte Stanley, 25 Tex. Civ. App. 372; Church on Hab. Cor., 626, § 486; Leary's Case, 10 Ben. 197; Hyatt v. Corkran, 188 U. S. 709, 715; Munsey v. Clough, 196 U. S. 372.

The technical sufficiency of the indictment or complaint charging a crime against a defendant, will not be considered on writ of habeas corpus in extradition procedure-that is a question for the courts of the demanding State. Davis' Case, 122 Massachusetts, 324; Brown's Case, 112 Massachusetts, 409; Ex parte Sheldon, 34 Ohio St. 319; State v. Schleman, 4 Harr. (Del.) 577; Ex parte Vorhees, 32 N. J. L. 141; Pea v. Brady, 56 N. Y. 182; Re Greenough, 31 Vermont, 279; Re Manchester, 5 California, 237; In re Leland, 7 Abb. Pr. N. S. 64; Re Briscoe, 51 How. Pr. 422; In re Clark, 9 Wendell, 212. Technical defect of indictment apparent upon its face will not make void governor's warrant. Church on Hab. Cor., 316, § 246.

Evidence of an alibi cannot defeat extradition warrant. It is not conclusive evidence. Hyatt v. Corkran, 188 U. S. 715.

The issue of a warrant of extradition is wholly a matter of executive discretion, which discretion is not subject to review by the courts. Only questions of law and fact arising upon the face of the record are subjects of judicial inquiry. 55 L. R. A. 325; 7 Colorado, 384; 21 Iowa, 467; 116 U. S. 80; In re Leary, Fed. Cas. No. 8,162; 2 Spellman Ex. Rem., § 1291.

Evidentiary facts need not be set out in the affidavit. It is sufficient to make the charge explicit and certain. Hurd on Habeas Corpus (2d Ed.), 611.

MR. JUSTICE HARLAN delivered the opinion of the court.

This writ of error brings up for review a final judgment of the Supreme Court of Illinois in a case of habeas corpus arising under that clause of the Constitution providing 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;" also, under section 5278 of the Revised. Statutes, which provides, among other things, 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 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 agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear."

It appears from the record that the Governor of Wisconsin

made his requisition upon the Governor of Illinois, stating that John McNichols (the present plaintiff in error) was charged by affidavit with the crime of larceny from the person of one Thomas Hansen-a crime under the laws of Wisconsin-committed in the county of Kenosha, Wisconsin, and that he had fled from the justice of that State and taken refuge in Illinois, and requiring that McNichols be apprehended and delivered to the appointed agent of Wisconsin, who was authorized to receive and convey the accused to Wisconsin, there to be dealt with according to law. Accompanying the requisition were duly certified copies of three documents: 1. An official application to the Governor of Wisconsin by the District Attorney for Kenosha County for a requisition upon the Governor of Illinois for McNichols as a fugitive from the justice of Wisconsin, it being stated in such application that McNichols was there charged by affidavit before a Justice of the Peace with the crime of larceny from the person committed in that county on the thirtieth day of September, 1905. 2. A verified complaint or affidavit before a Wisconsin Justice of the Peace, alleging that McNichols did, on the thirtieth day of September, A. D. 1905, at the city of Kenosha, feloniously steal, take and carry away from the person of Thomas Hansen, against his will, two hundred dollars, lawful money of the United States, etc. 3. A warrant of arrest issued by such Justice of the Peace, based on the above affidavit, for the apprehension of McNichols.

The Governor of Illinois, in conformity with the demand of the Governor of Wisconsin, issued his warrant for the arrest and delivery of McNichols to the agent designated by the Governor of the latter State. That warrant recited-and its recitals are important-: "The Executive authority of the State of Wisconsin demands of me the apprehension and delivery of John McNichols, represented to be a fugitive from justice and has moreover, produced and laid before me the copy of a complaint and affidavit made by and before a properly empowered officer in and of the said State in accordance with the laws thereof charging John McNichols, the person so de