which provides, among other things, that | consin, issued his warrant for the arrest "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." 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 demanded, with having committed against the laws of the said state of Wisconsin the crime of larceny from the person, which appears by the said copy of a complaint and affidavit certified as authentic by the governor of the said state, now on file in the office of the secretary of state of Illinois, and being satisfied that said John McNichols is a fugitive from justice and has fled from the state of Wisconsin." etc. Having been arrested under the authority of that warrant, and being in the custody of the sheriff of Cook county, Illinois, McNichols presented his petition to the supreme court of that state,-whose jurisdiction in the premises is not disputed,praying to be discharged from custody. That petition states that, prior to the issuing of the above extradition warrant, he was arrested upon a warrant issued by a justice of the peace in Chicago, based upon the supposed criminal offense, and that he presented his petition to the criminal court of Cook county for a writ of habeas corpus setting forth that he was not a fugitive from justice; that pending that proceeding the above extradition warrant was issued and brought to the attention of the criminal court, and thereupon that court, because of the gravity of the case, suspended proceedings in order to give the accused an opportunity to apply to the supreme court of Illinois for a writ of habeas corpus. 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 Wiscousin, 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, The present petition for habeas corpus committed in that county on the 30th day presented to the supreme court of Illinois of September, 1905. 2. A verified com- contained this paragraph: "Your petitionplaint or affidavit before a Wisconsin jus-er further shows that he has heard Thomas tice of the peace, alleging that McNichols did, on the 30th 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, $200, 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 Wis Hansen testify in a certain habeas corpus proceeding heretofore pending regarding this same matter [no doubt, the above proceeding in the Cook criminal court], the said Thomas Hansen stating in his testimony that he was the same person mentioned in said complaint, and the said Thomas Hansen then and there testifying that the said supposed crime occurred on September 30, 1905, at the hour of 2 P. M., about a block and a half from the North parte Reggel, 114 U. S. 642, 652, 653, 29 L. ed. 250, 253, 5 Sup. Ct. Rep. 1148; Roberts v. Reilly, 116 U. S. 80, 95, 29 L. ed. 544, 549, 6 Sup. Ct. Rep. 291; Hyatt v. New York, 188 U. S. 691, 719, 47 L. ed. 657, 664, 23 Sup. Ct. Rep. 456; Munsey v. Clough, 196 U. S. 364, 372, 49 L. ed. 515, 516, 25 Sup. Ct. Rep. 282; Pettibone v. Nichols, 203 U. S. 192, 51 L. ed. 148, 27 Sup. Ct. Rep. 111; and Appleyard v. Massachusetts, 203 U. S. 222, 51 L. ed. 161, 27 Sup. Ct. Rep. 122: 1. A person charged with crime against the laws of a state, and who flees from justice, that is, after committing the crime leaves the state, in whatever way or for whatever reason, and is found in another western depot in Kenosha, Wisconsin; and | Robb v. Connolly, 111 U. S. 624, 639, 28 your petitioner states that he was not in L. ed. 542, 547, 4 Sup. Ct. Rep. 544; Ex the state of Wisconsin on September 30, 1905, and did not commit the said offense, and in further proof thereof your petitioner herewith presents and attaches to this petition the affidavits of John F. Graff, William Oakley, Simon F. Bower, John A. Dennison, and Hugh Campbell, the same be ing marked respectively exhibits C, D, E, F, and G." In one of the affidavits here referred to the affiant stated "that upon the 30th day of September, A. D. 1905, the said John McNichols, to this affiant's personal knowledge, was in the city of Chicago at about the hour of 1 o'clock P. M., and that this affiant remained in the company of the said McNichols until 2: 15 P. M., and again met the said McNichols about 3 o'clock, P. M., said day; this affiant fur-state, may, under the authority of the Conther says that it would have been impossible for the said McNichols to have been in the city of Kenosha, state of Wisconsin, on the said 30th day of September, A. D. 1905. In the remaining five affidavits the respective affiants, using precisely the same words, stated "that upon the 30th day of September, A. D. 1905, said John McNichols, to this affiant's personal knowledge, was in the city of Chicago, the whole of the afternoon of the said day, this affiant and the said John McNichols during the said afternoon being in attendance at a baseball game in the said city of Chicago, between the Chicago and Boston teams, which said game was played at the West Side Ball Park." The record shows that the case was heard in the supreme court of Illinois upon "the allegations and proofs" of the parties, and it was adjudged that the custody of the sheriff who held the accused should not be disturbed. But no bill of exceptions was taken embodying any evidence before the supreme court of Illinois. So that we do not know what were the "proofs" adduced by the parties. The sheriff stood upon his answer to the petition for the writ of habeas corpus. That answer, it will be recalled, embodied the extradition warrant issued by the governor of Illinois. Did the supreme court of Illinois err when adjudging, as in effect it did, that the accused did not appear to be held in custody in violation of the Constitution and laws of the United States? Some of the questions discussed at the bar have been concluded by decisions in former cases involving the meaning and scope of the above constitutional and statutory provisions. We will not extend this opinion by giving a full analysis of those cases. It is sufficient to say that the following principles are to be deduced from stitution and laws of the United States, be brought back to the state in which he stands charged with the crime, to be there dealt with according to law. 2. When the executive authority of the state whose laws have been thus violated makes such a demand upon the executive of the state in which the alleged fugitive is found as is indicated by the above section (5278) of the Revised Statutes,-producing at the time of such demand a copy of the indictment, or an affidavit certified as authentic and made before a magistrate, charging the person demanded with a crime against the laws of the demanding state, -it becomes, under the Constitution and laws of the United States, the duty of the executive of the state where the fugitive is found to cause him to be arrested, surrendered, and delivered to the appointed agent of the demanding state, to be taken to that state. 3. Nevertheless, the executive upon whom such demand is made, not being authorized by the Constitution and laws of the United States to cause the arrest of one charged with crime in another state unless he is a fugitive from justice, may decline to issue an extradition warrant, unless it is made to appear to him, by competent proof, that the accused is substantially charged with crime against the laws of the demanding*state, and is, in fact, a fugitive from? the justice of that state. 4. Whether the alleged criminal is or not such fugitive from justice may, so far as the Constitution and laws of the United States are concerned, be determined by the executive upon whom the demand is made in such way as he deems satisfactory, and he is not obliged to demand proof apart from proper requisition papers from the de 108 •110 manding state, that the accused is a fu- bill of exceptions embracing the evidence gitive from justice. 5. If it be determined that the alleged criminal is a fugitive from justice,-whether such determination be based upon the requisition and accompanying papers in proper form, or after an original, independent inquiry into the facts, and if a warrant of arrest is issued after such determination, the warrant will be regarded as making a prima facie case in favor of the demanding state, and as requiring the removal of the alleged criminal to the state in which he stands charged with crime, unless, in some appropriate proceeding, it is made to appear that he is not a fugitive from the justice of the demanding state. 6. A proceeding by habeas corpus in a court of competent jurisdiction is appropriate for determining whether the accused is subject, in virtue of the warrant of arrest, to be taken as a fugitive from the justice of the state in which he is found to the state whose laws he is charged with violating. 7. One arrested and held as a fugitive from justice is entitled, of right, upon habeas corpus, to question the lawfulness of his arrest and imprisonment, showing by competent evidence, as a ground for his release, that he was not, within the meaning of the Constitution and laws of the United States, a fugitive from the justice of the demanding state, and thereby overcoming the presumption to the contrary arising from the face of an extradition warrant. Turning now to the record of this case, we find that the accused is in custody under an extradition warrant which appears upon its face to be warranted by the Constitution and laws of the United States. But we fail to find evidence sufficient to overcome the prima facie case thus made by that warrant. It is said that the plaintiff in error was not in the state of Wisconsin on the day when the alleged larceny from the person of Hansen was committed; therefore, it is contended, he could not have committed the crime charged, and thereafter become a fugitive from the justice of that state. If the authorities of Wisconsin were bound by the date named in the requisition papers, which we do not concede (1 Pomeroy's Archbold, Crim. Pr. & Pl. 363), | still the record presents no such case as is contended for by the accused. It was incumbent upon him, by competent proof, to rebut the presumption arising on the face of the extradition warrant and requisition papers that he was a fugitive from justice for a crime committed in Wisconsin on September 30th, 1905. As already stated, no was taken and we cannot, therefore, say that the proofs established the fact that the accused was not a fugitive as charged, as stated in the warrant of arrest. It is argued, however, that the affidavits accompanying the petition for habeas corpus show that the accused was not in Wisconsin when the crime in question was alleged to have been committed. The record does not justify us in assuming that those affidavits were in fact offered as evidence, or were used with the consent of the state as evidence, or were treated as evidence by the supreme court of Illinois. It is true that the counsel for the sheriff uses some language in his brief which is construed as admitting that the affidavits were used, without objection, as evidence. But such an apparent admission cannot control or affect our decision; for whether the supreme court of Illinois erred in its final judgment must be determined by the record before us. But if it be assumed that the affidavits were accepted in the court below as evidence, the result must still be the same; for the affidavits do not satisfactorily establish the fact that the accused was absent from Wisconsin when the alleged crime in question was committed. The charge, as set forth in the requisition papers, was that he committed the crime of larceny * from the person of Hansen on the 30th day of September, 1905,-no particular hour of that day being mentioned,-while the affidavits import nothing more than that McNichols was at Chicago at 1 o'clock and during the whole of the afternoon of that day. The affidavits give no account of the wherabouts of McNichols during the forenoon of the day specified in the papers accompanying the requisition by the governor of Wisconsin. We know, because everyone knows, without the testimony of witnesses, that Kenosha, the place of the alleged crime, is only a short distance-within not more than one hour and a half's travel, by rail-from Chicago. It was entirely possible for the accused to have passed the whole or a larger part of the forenoon of September 30th in that city, and yet have been in Chicago at 1 o'clock and during the whole afternoon of the same day. So that the affidavits relied on by no means prove the absence of the accused from Wisconsin during the whole of the 30th day of September. Here, it is suggested that the crime, if committed at all, was committed at 2 o'clock of September 30th, while the affidavits show that McNichols was at Chicago at 1 o'clock and during the entire after When a person is held in custody as a fugitive from justice under an extradition warrant, in proper form, and showing upon its face all that is required by law to be shown as a prerequisite to its being issued, he should not be discharged from custody unless it is made clearly and satisfactorily to appear that he is not a fugitive from justice within the meaning of the Constitution and laws of the United States. We may repeat the thought expressed in Appleyard's Case, above cited, that a faithful, vigorous enforcement of the constitutional and statutory provisions relating to fugitives from justice is vital to the harmony and welfare of the states, and that "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." noon of that day. So far as the record a crime against its laws on the 30th day of discloses this suggestion finds no support September, 1905. in anything said or done at the hearing by those who opposed the discharge of the accused. The requisition papers do not state that the alleged crime was committed at 2 o'clock or at any other specified hour of the day named. The whole foundation for the suggestion was an allegation in the petition for the writ, in this case, to the effect that the accused had heard Thomas Hansen testify in another habeas corpus proceeding that the crime was committed at 2 o'clock on the day named. But the record does not show that Hansen or any other person so testified in the present case. In deed, it does not appear that anyone testified orally before the court,-not even McNichols. Upon the record before us it must be taken that McNichols was charged with committing the crime in question on the 30th day of September, and that he could have been at Kenosha during the forenoon of that day, although he may have been, as stated in the affidavits, in Chicago during the whole of the afternoon of the same day. So that the accused entirely failed to overcome the prima facie case made by the official documents before the court of his having become a fugitive from the justice of Wisconsin, after committing No error appearing in the record, the judgment of the Supreme Court of Illinois must be affirmed. It is so ordered. *304 (207 U. S. 302) SARAH CHUNN, Plff. in Err., V. CITY & SUBURBAN RAILWAY OF WASHINGTON. Appeal and error review - discretionary order. 1. An exception to the refusal of the trial court to reconsider its order, made on defendant's motion, permitting the withdrawal of a plea in abatement and the filing of a plea in bar, and to allow the trial of the issue joined on the plea in abatement, is not available in the Federal Supreme Court. Trial question for jury negligence. 2. Whether it is negligence to run a street car at full speed past a usual stopping place when persons can plainly be seen standing upon the platform between the inner rails, awaiting a car approaching from the opposite direction, is a question for the jury, where the street car company had sanctioned such a practice on the part of intending passengers, and the space between the rails, while wide enough to enable a person standing in the center to escape injury, left but a narrow margin of safety. Street railways - contributory negligence of intending passenger. 3. A person is not, as a matter of law, guilty of such contributory negligence in following the customary practice sanctioned by a street car company of standing upon the platform between the two inner rails at a usual stopping place, awaiting an approaching car, as precludes a recovery for injuries sustained from being struck by a car which ran by this stopping place on the other track at full speed, where the space between the rails, though leaving but a narrow margin of safety, was wide enough to permit a person standing directly in the center to escape injury.* Proximate cause- - contributory negli gence. 4. The negligence of one who carelessly places herself in a position exposed to danger cannot, as matter of law, be said to be the proximate cause of an injury, if her negligence was discovered in time to avoid the injury by the use of reasonable care, and such care was not exercised.t [No. 43.] rection to set aside the verdict and award a new trial. See same case below, 23 App. D. C. 551. The facts are stated in the opinion. Messrs. Percy Metzger and Victor H. Wallace for plaintiff in error. Messrs. George P. Hoover and Charles A. Douglas for defendant in error. *Mr. Justice Moody delivered the opinion of the court: This is a writ of error to the court of appeals of the District of Columbia. The plaintiff in error brought an action to recover damages for personal injuries which she alleged were suffered by her through the negligence of the defendant in error, a corporation operating an electric street railway. The defendant pleaded in abatement that the plaintiff was, at the time of bring. ing action, an infant under the age of, twenty-one years. Issue was joined on the plea. Thereafter the defendant, on motion and payment of the costs, was permitted to withdraw this plea and file a plea in bar. When the case came for trial at a later term the plaintiff tendered back the costs and moved the court to reconsider its order that the plea in abatement might be withdrawn and the plea in bar filed, and that the trial proceed upon the issue joined on the plea in abatement. To the refusal to grant these motions the plaintiff excepted. This exception requires no further consideration than that given to it in the court below, and is overruled. The plaintiff then introduced testimony in support of her declaration, and at the close of this testimony the judge presiding at the trial directed a verdict for the defendant. The plaintiff excepted to the order of the court and her exception was overruled by the court of appeals, and is now here for our consideration. The question is whether there was evidence which, with the inferences reasonably to be drawn from it, tended to prove all the essential elements of the plaintiff's cause of action. Without reciting all the testimony, which is set forth in full in the opinion of the court of appeals, the facts disclosed by it may be stated in narrative form. The Argued November 8, 1907. Decided Decem- plaintiff, a young woman, had lived and ber 2, 1907. worked in Riverdale, Maryland, for about a year before the accident. During that time N ERROR to the Court of Appeals of the she had frequently traveled to Washington IN District of Columbia to review a judge on the defendant's cars. It was the custom ment which affirmed a judgment of the Supreme Court of the District, directing a verdict for defendant in an action to recover damages for a personal injury. Reversed and remanded, with directions to reverse the judgment of the trial court and remand the cause to that court with a di of persons who traveled from Riverdale to •Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 1364. |