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 uр, 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 аgent when he shall appear.”
It appears from the record that the Governor of Wisconsin
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—аnd 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 empоwered officer in and of the said State in accordance with the laws thereof charging John McNichols, the person so de
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 thаt 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 Cоurt 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 ihe 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 apрly to' the Supreme Court of Illinois for a wrif of habeas corpus.
The present petition for
habeas corpus
presented to the Supreme Court of Illinois contained this paragraph: “Your petitioner further shows that he has heard Thomas Hansen testify- in a certain
habeas corpus
proceeding heretofore pending regarding this same matter [no doubt the above proceeding in the Criminal Court of Cook County]] the said Thomas Hansеn 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
two
p. m., about a block and a half from the Northwestern depot in Kenosha, Wisconsin; and your petitioner states that -he was not in the State of Wisconsin on September 30,-1905, and did not commit the said offense, and
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?
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 State, may, under the authority оf the Constitution 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) оf 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 fugitivе 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 fugitivе 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
4. Whether the alleged criminal is or is not such fugitive from justice may, so far as the Constitution and laws of thе 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 demanding State, that the accused is a fugitive 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 tо- 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 frоm 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 evidencе sufficient to
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 irf fact offered as evidence, or were used with the consent of the State as evidence, or were treated as evidеnce 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 crimе of larceny
Here, it is suggested, that the crime, if committed at all, ■ was committed at
two
o’clock of September 30, while the affidavits show that McNichols was at Chicago at
one
o’clock and during the entire afternoon of that day. So far as the record discloses this suggestion finds no support in anything said or done at the hearing by those who opposed the dischаrge of the accused. The requisition papers do not state, that the alleged ..crime was. committed at two 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 сrime was committed at two o’clock on the day named. But the record does not show that Hansen or any other person so testified in the present case. Indeéd, 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 cоmmitting the crime in question on the thirtieth day of September, and that he could have been at
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 stattory 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.”
No error appearing in the record, the judgment of the Supreme Court of Illinois must be affirmed.
It is so ordered.