Ex parte Pfitzer

28 Ind. 450 | Ind. | 1867

Frazer, C. J.

— This was a writ of habeas corpus directed to John Umversaw and George W. Parker. By the return to the writ, and the evidence, it appeared that the petitioner was restrained of her liberty by virtue of a warrant from the governor of this átate, issued in pursuance of the act of March 9th, 1867 (Acts 1867, p. 126), upon a requisition from the governor of the State of Illinois. It appeared hy the requisition that the governor of Illi?iois certified that “the annexed papers, duly authenticated in accordance with the laws of Illinois, show that by affidavit, in the county of Montgomery, in said State, Caroline Miller, alias Caroline Pfizer stands charged with larceny,” &c. Among the papers annexed, and alluded to by Governor Oglesby of Illinois, there is nothing purporting to be an affidavit made in Monigomei'y county. There is a warrant issued by a justice of the peace of that county, wherein it is recited that such a complaint, on oath, had been made before him, charging the petitioner as recited in the requisition, and it was doubtless this wai’rant to which the governor of Illinois refers, as showing that “ hy affidavit in Montgomery county” she was charged with larceny. This does not satisfy the requirements of the act of Congress upon the subject of the rendition of fugitives. A copy of the affidavit must he produced, before the governor of a State is authorized, upon the requisition of the governor of another State, to issue his warrant for the arrest of the fugitive. 1 G. & II., § 1, p. 727. There is also a paper in the form of an affidavit, purporting to have been made in the county of Sangamon, charging the offense as having been committed in the county of Montgomery, and that the said Caroline had fled to this State; but two of the members of this court, as now advised, have serious doubts as to whether it purports upon its face to have been made before a magistrate, as the act of Congress requires. I cannot say that I shai’e these doubts. It is, however, sufficient that no copy of the affidavit in Montgomery county was produced to the executive of this State. If was to answer to that prosecution that the rendition was required by the governor of Illinois, and without an authentic copy of that document any warrant issued here was unauthorized.

The judgment is reversed, at the cost of Parker, and the cause remanded, with, directions to give leave to amend the return and proceed according to this opinion.

A. Seidensticker, F. Rand and R. H. Hall, for appellant. J. Hanna and F. Knefler, for appellee.