106 Neb. 45 | Neb. | 1921
Habeas corpus action in which it is sought to release appellant, who is held for extradition to the state of Iowa under • a warrant issued by the governor of this state. From an order denying the writ, this appeal is talien.
Appellant contends that it is proper for this court to pass upon the question of whether a crime has been committed, in order to determine whether or not he is a fugitive from justice from the state of Iowa, since it appears that all the material evidence that could be introduced in the criminal prosecution is before the court, and since from that evidence it is conclusively shown that the defendant could not have committed the crime.
Such, however, is not the condition of the testimony here. Whether the false representations were made; whether Bell had warranted the sheep and whether the
The question of the guilt or innocence of the accused, or the question of whether or not there is probable cause to believe that the accused is guilty of the crime charged, cannot, in a case of this kind, be passed upon by the courts in a habeas corpus proceeding. Those questions, in this instance, are for the courts of the state of Iowa to decide. In re Van Sciever, 42 Neb. 772; Drew v. Thaw, 235 U. S. 432; Ex parte Montgomery, 244 Fed. 967; People v. Gargan, 168 N. Y. Supp. 1027; Edmunds v. Griffin, 177 Ia. 389; note, 21 L. R. A. n. s. 939; 19 Cyc. 100; 21 Cyc. 328.
The defendant claims that if any crime has been committed it was consummated in the state of Nebraska and not in Iowa, since the sheep were shipped to Omaha, and since it is there that the drafts were dishonored and the sheep disposed of. It is only necessary to prove that some overt act, in furtherance of the crime charged, was committed in the foreign state, and when that is shown the locus of the crime will not be determined in the habeas corpus case. Strassheim v. Daily, 221 U. S. 280; People v. Gargan, supra; Zulch v. Roach, 23 Wyo. 335. In the Strassheim case the court said (p. 285):
“We think it plain that the criminal need not do within the state every act necessary to complete the crime. If he does there an overt act which is and is intended to be*48 a material step toward accomplishing the crime, and then absents himself from the state and does the rest elsewhere, hé becomes a fugitive from justice, when the crime is complete, if not before.”
Defendant further contends that he was not a fugitive from justice from the state of Iowa, since he left that state with the shipment of sheep and by and with the arrangement and consent of Bell, and not to avoid prosecution, nor to get beyond the jurisdiction of the Iowa courts. Upon that question the supreme court of the United States has recently said (Hogan v. O’Neill, 255 U. S. 52):
“To be regarded as a fugitive from justice it is not necessary that one shall have left the state in which the crime is alleged to have been committed for the very purpose of avoiding prosecution, but simply that, having committed there an act which, by the law of the state constitutes a crime, he afterwards has departed from its jurisdiction and when sought to' be prosecuted is found within the territory of another state.”
For the reasons given, it is our opinion that the judgment of the lower court should be affirmed.
Affirmed.