In re Bruchman

148 N.W. 1052 | N.D. | 1914

Bruce, J.

(after stating the facts as above). Counsel for petitioner insists that no crime is charged in the affidavit of Mathilda T. Bruchman, which was presented to the governor of North Dakota on the demand for the extradition. He also insists that the petitioner is not a fugitive from justice. He alleges: (1) That the affidavit does not state that the petitioner is a married man, and does not name or designate the party or parties alleged to have been neglected and for whom support was not provided; (2) that the affidavit does not purport to be made by anyone knowing the facts; (3) the affidavit does not allege as a positive fact that the petitioner is the father of the children alleged to have been neglected; (4) that the affidavit does not allege in particular that the parties neglected were left in destitute and necessitous circumstances; (5) that the affidavit does not state in what particular, or with any degree of precision at all, the specific facts with which the petitioner stands charged constituting the crime attempted to be alleged. He admits that to be a fugitive from justice in the sense of the act of Congress regulating the subject under consideration, it is not essential that the party charged should have left the state in which the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding prosecution anticipated or begun, but simply that “having within a state committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for its offense, he has left its jurisdiction, and is found within the territory of another. See Roberts v. Reilly, 116 U. S. 97, 29 L. ed. 549, 6 Sup. Ct. Rep. 291; Re Galbreath, 24 N. D. 582, 139 N. W. 1050. He insists, however, that the application must actually charge au offense, and that it must be shown that the offense had actually been committed, even though such proof would involve the question of the guilt or innocence of the party charged. He maintains, in short, in the case at bar, that unless the defendant and petitioner had deserted his wife and children, no offense could possibly have existed and that this fact can be shown upon these proceedings. This court allowed evidence to be taken upon this matter, though of course, it did not commit itself on the proposition as to whether it would consider the same. Petitioner also alleges that after his coming to North Dakota, divorce proceedings were started by his wife, and that the only purpose of the requisition was to get him back into the state so that a personal service could he had upon him and a personal judgment for alimony could be obtained.

We do not think that there is any merit in the objection to the affidavit and complaint. The affidavit charges the defendant with refusing to provide for the support and maintenance of his wife and their two minor children, aged five and seven, leaving them in distitute and necessitous circumstances, committed at the city of La Crosse, county of La Crosse, and state of Wisconsin, on the 19th day of August, 1913, and thence continuously to the date of the complaint as appears more fully from said complaint, and which complaint it makes a part of the affidavit, and alleges that the application is not made to secure his return to the state of Wisconsin to afford an opportunity to serve him with civil process, nor for any other similar purpose, and that she does not desire to use the said prosecution for the purpose of collecting a debt, or for any other purpose, and will not, directly or indirectly, use the same for any such purpose. The criminal complaint that is attached is in the language of the Wisconsin statute, and charges the dedefendant with having “unlawfully and feloniously, and without just cause and without lawful excuse, wilfully neglected and refused to provide for the support and maintenance of his wife and their two minor children, aged seven and five, they being left in destitute and necessitous circumstances.”

We believe that all the essentials of a criminal complaint are complied with. It would be a mere technicality to complain that when one is charged with deserting his wife and two minor children, aged seven and five respectively, he is not informed of the crime which is alleged against him, and that it is necessary to his protection and to the proper administration of the criminal law that the names of the wife and .•children shall be alleged, and that the fact that he is a married man should also have been alleged. The time, indeed, has long gone by for any such kind of hair splitting. These matters are matters of proof, and we believe that the crime is sufficiently alleged in the complaint and in the affidavit. The rule, indeed, seems to be well established that as long as a crime is substantially charged and the papers are otherwise regular, the technical sufficiency of the complaint or information is not material. 21 Cyc. 329; State ex rel. O’Malley v. O’Connor, 38 Minn. 243, 36 N. W. 462; State ex rel. Smith v. Goss, 66 Minn. 291, 68 N. W. 1089. We have, in fact, no right to go behind the determination of the governor of North Dakota, and to interfere with his discretion in the premises generally.

The law on this subject has been well stated in 21 Cyc. 328, and is as follows: “Upon habeas corpus to review a proceeding to extradite a fugitive from justice at the instance of another state, the question of the identity of the party may be investigated, and it is also proper to inquire whether he is a fugitive from justice, as, for instance, whether he was in the demanding state at the time the offense was committed; and if it appears conclusively that he was not, he may be discharged; but generally if this does not appear, or if there is any evidence to the contrary, the decision of the executive cannot be reviewed. The question whether the act is a crime against the law of the demanding state is a proper subject of inquiry; but the court cannot try the question of the guilt or innocence of the accused. The motive behind the proceeding will not as a rule be inquired into, but the proceedings may be reviewed to see that no extradition is consummated upon a mere pretext or to subserve private malice. If the preliminary papers upon which the •executive acted are presented to the court, they may be investigated to determine whether they are sufficient under the law to justify the warrant of extradition; but if they are not presented, the court, it has been held, can look only to the warrant itself. The technical sufficiency of the indictment or information in the demanding state is not material; and in the absence of proof to the contrary it will be assumed in the case of an indictment that it charges an offense against the law of the demanding state. Where the requisition is based upon an affidavit, tbe validity of tbe affidavit cannot be impeached, if it distinctly charges a crime; and the court must be clearly satisfied that error has been committed before it will interfere.” 15 Am. & Eng. Enc. Law, 205, 206.

Nor do we believe that evidence should be admitted as to the commission of the crime in this case. The only reason why the courts have refused to allow evidence to be introduced as to the guilt or innocence of the party is that such facts should be properly tried in the demanding state, and in fact can be only properly tried in such jurisdiction, and the same considerations apply in full where the proof of the guilt or innocence and of the existence of the crime must be identically the same. Re White, 5 C. C. A. 29, 14 U. S. App. 87, 55 Fed. 54. The only thing, indeed, which we should consider is whether the extradition proceedings are fairly brought, that is to say, whether some ulterior purpose is intended to be effected thereby. The wife in her affidavit has absolutely repudiated any desire to obtain personal service upon the defendant and petitioner in any other action or proceeding, and we are quite sure that any such service, if had, would be nullified and set aside by the Wisconsin .courts.

The writ is quashed.

Spalding, Ch. J. did not participate.