This is a petition for a writ of habeas corpus, wherein it is alleged that the petitioner is unlawfully deprived of his liberty on a warrant, issued by His Excellency the Governor of this Commonwealth upon a demand by the Governor of the State of Missouri on the ground that the petitioner is a fugitive from justice in that State, having been there accused of the crime of robbery committed on the thirtieth day of December, 1925. At the hearing before the single justice, the petitioner made offer of proof (1) that on the date of the alleged commission of the crime he was physically within this Commonwealth and not in the State of Missouri, and (2) that the affidavit attached to the demand or warrant of the Governor of the State of Missouri was false. Both these offers of proof were excluded, the petition denied, and the case reported for determination by the full court. King’s Case, 161 Mass. 46, 49. Chambers’s Case, 221 Mass. 178, 179.
It is provided by the Constitution of the United States, art. 4, § 2, 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 haying jurisdiction of the crime.” To effectuate this constitutional mandate the Congress has enacted (U. S. Rev. Sts. § 5278): “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 bim 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
No contention is made that there has not been compliance with every requirement of the statutes of the United States and of this Commonwealth.
In deciding a case of this character when the statutes of the United States and of this Commonwealth were in substance the same as now touching this particular point, it was said, with respect to the force and effect of the decision of the Governor to honor the requisition in Kingsbury’s Case, 106 Mass. 223,225, that the “provision [of our statute] makes his decision conclusive, unless there is some defect apparent on the record.” It was said by Chief Justice Gray in Davis’s Case, 122 Mass. 324, 328, “The warrant of the Governor of the Commonwealth is prima facie evidence, at
The precise nature and extent of judicial review of a decision of the Governor in a case of this nature may be thought to be not thoroughly settled. Uncertainty as to the extent of that power was expressed in Ex parte Reggel, 114 U. S. 642, 653. In Appleyard v. Massachusetts, 203 U. S. 222, 228, 229, it was said with respect to the force of § 5278 of U. S. Rev. Sts., quoting with approval words used in Roberts v. Reilly, 116 U. S. 80, at page 95: “It must appear, therefore, to the Governor of the State to whom such a demand is presented, before he can lawfully comply with it, first, that the person demanded is substantially charged with a crime against the laws of the State from whose justice he is alleged to have fled, by an indictment or an affidavit, certified as authentic by the Governor of the State making the demand; and, second, that the person demanded is a fugitive from the justice of the State, the executive authority of which makes the demand. The first of these prerequisites is a question of law, and is always open upon the face of the papers to judicial inquiry, on an application for a discharge under a writ of habeas corpus. The second 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. How far his decision may be reviewed judi
If it be the law that the decision of the Governor of this Commonwealth as to rendition, made as it is and must be in accordance with the careful requirements of G. L. c. 276, §§ 11-14, is not reviewable as to any matter of fact, that is the end of the petitioner’s case.
There are decisions of the Supreme Court of the United States holding that there may be judicial review of executive action in respect to granting interstate rendition on the ground that the demanded person is not a fugitive from justice. Hyatt v. Corkran, 188 U. S. 691, 711, 714. Munsey v. Clough, 196 U. S. 364. McNichols v. Pease, 207 U. S. 100. Bassing v. Cady, 208 U. S. 386. Strassheim v. Daily, 221 U. S. 280. Hogan v. O’Neill, 255 U. S. 52, 56. It is assumed for the purposes of this decision that the right to such judicial review exists. The precise question is, how far that judicial review extends. The question whether the person demanded is a fugitive from justice is a question of fact. Under U. S. Rev. Sts. § 5278, the chief executive of the State to which the demanded person is alleged to have fled is the one upon whom is cast the duty of remanding the fugitive. Whether in fact he is a fugitive must be decided by the Governor of the asylum State. Hogan v. O’Neill, supra. The decision, therefore, in the first instance must be before an executive officer acting by executive methods and procedure and not by a judge acting by judicial methods and procedure. "Strict common law evidence is not necessary. The statute does not provide for the particular kind of evidence to be produced before him, nor how it shall be authenticated, but it must at least be evidence which is satisfactory to the mind of the Governor. Roberts v. Reilly, 116 U. S. 80. 95.” Munsey v. Clough, supra, page 372. It seems to follow from these considerations that the court before whom review of executive decision is sought does not try the whole question anew according to strict rules of evidence and all other procedural limitations. It was said in McNichols v. Pease, supra, page 112: "When a person is held in custody as a fugitive from justice under an extra
The rule is stated in Munsey v. Clough, supra, pages 374, 375, in these words: "When it is conceded, or when it is so conclusively proved, that no question can be made that the person was not within the- demanding State when the crime is said to have been committed, and his arrest is sought on the ground only of a constructive presence at that time, in the demanding State, then the court will discharge the defendant. Hyatt v. Corkran, 188 U. S. 691, affirming the judgment of the New York Court of Appeals, [in People v. Hyatt,] 172 N. Y. 176. But the court will not discharge a defendant arrested under the Governor’s warrant where there
In the light of these decisions, the precise issue in the case at bar must be examined. It is to be noted that no question is raised as to the fact that the petitioner “stands charged” in the State of Missouri “with the crime of Robbery 1st degree,” a crime under the laws of that State, nor as to the fact that he is the identical person thus charged. The petitioner concedes by silence on these points that he is the person charged with crime in the State of Missouri. Recitals in the warrant issued by the Governor of this Commonwealth on which the petitioner was held are that the “representation and demand” for rendition made by the Governor of Missouri “are accompanied by certain documents whereby the said William Germain is shown to have been duly charged with the said crime and to be a fugitive from the justice of the State of Missouri, and to have taken refuge in this Commonwealth,” all duly certified and authenticated by the Governor of Missouri. The offer of proof made by the petitioner at the trial before the single justice was to show “that the affidavit attached to the warrant of the Governor of Missouri was false because the affiant had no personal knowledge as to the commission of the crime or of the presence of the petitioner in the town where the robbery was committed except that the affiant personally saw the petitioner there four days previous to the alleged commission of the offence; and that the entire affidavit was founded upon hearsay evidence.” It is to be observed that the crime here charged is one which by its essential characteristics must be and can only be committed by the offender when personally present at the time and place charged. No question as to
The affidavits which accompanied the demand of the Governor of Missouri are not set out in the record. In their absence it must be assumed at least that they showed on their face facts by those purporting to have knowledge thereof sufficient to warrant rendition. Affidavits of that nature constitute “sworn evidence” within the meaning of those words in G. L. c. 276, § 11. Duddy’s Case, 219 Mass. 548, 550, 551. Graves’s Case, 236 Mass. 493, 498. The evidence may be entirely documentary. Ex parte Reggel, supra, pages 644, 652, 653. No presumptions can be made as to the weakness of affidavits on their face in favor of the petitioner. He is bound to show that a ruling was positively wrong in a pertinent particular before he can prevail. Every presumption as to the sufficiency of the affidavits and the knowledge of the affiants as to pertinent facts must be made against the petitioner, who claims to be the aggrieved party, under these circumstances. Posell v. Herscovitz, 237 Mass. 513, 516, 517.
It is plain that, making the assumptions already stated, which we are bound to make respecting the affidavits, the offer of proof raised merely a question of fact as to the credibility of witnesses, which ought to be tried in the courts of Missouri and not on a petition for habeas corpus.
The offer of proof that the petitioner was “physically within this Commonwealth and not in the State of Missouri” “on December 30, 1925, the time of the alleged crime,” raised merely the defence of alibi. That appears clearly from the further statement of the offer of proof to the effect that the affiant, whose affidavit accompanied the demand for rendition, “personally saw the petitioner there [in the town where the robbery was committed] four days previous to the alleged commission of the offence.” It is enough if there is evidence that the person demanded was in the demanding State “in the neighborhood of the time alleged,” Strassheim v. Daily, 221 U. S. 280, 286, or “at or about that time,” Hogan v. O’Neill, 255 U. S. 52, 55. Confessedly the affidavit showed such presence of the demanded person.
Although the procedure respecting interstate rendition under the Constitution of the United States is not the same as international extradition, there is some analogy between the two. In Terlinden v. Ames, 184 U. S. 270, 278, it was said: “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 offence 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 . . . 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.” Confessedly the Governor of this Commonwealth had before him competent evidence to the effect that the petitioner was a fugitive from justice and gave credence to it.
The single justice was not required to try the question of alibi on this petition. He was not obliged to receive evidence which, at the most, in view of what it may be assumed was before him in the absence of a contrary showing, would raise a question of fact as to the whereabouts of the petitioner at about the time of the commission of the alleged crime in Missouri, and as to the credibility of those who might be witnesses against him on a trial in that State. The offer of proof in behalf of the petitioner was not of a nature in this state of the record to make it “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.” McNichols v. Pease, supra, page 112. It was not necessary to go through the idle form of receiving evidence which in the mind of the single justice, in view of other circumstances or evidence, could not produce the result desired by the petitioner and which could at most raise only a question of disputed fact.
Order denying petition affirmed.