In re Hooper

52 Wis. 699 | Wis. | 1881

Cole, C. J.

The question arising on the demurrer to the return is: Does the warrant of the governor, set up in the return, show a sufficient justification for holding the petitioner in custody? It is objected that the warrant fails to show upon its face that he is charged with the commission of a crime in the state of Kansas. The warrant of the governor of this state recites that it has been represented to him by the governor of the state of Kansas, that the petitioner “stands charged with the crime of obtaining illicit connection with a female of good repute under the age of twenty-one years, under a promise of marriage, committed in the county of Labette in said state, and that he has fled from justice in that state, and has taken refuge in the state of "Wisconsin; and the said governor of Kansas having, in pursuance of the constitution and laws of the United States, demanded,” etc., the petitioner. How it is objected that the rendition warrant is insufficient in law because it does not show that the petitioner is charged with the commission of a crime for which the executive is authorized to cause him to be arrested and delivered up to the agent of the state of Kansas.

The language of the constitution of the United States is, that the alleged fugitive from justice must be charged “ with treason, felony or other crime.” The weight of judicial opinion is, that these words embrace any act forbidden and made punishable by the laws of the state making the demand. Kentucky v. Dennison, 24 How., U. S., 66; Taylor v. Taintor, 16 Wall., 366; Cooley on Con. Lim., p. 16, note 1; Brown's Case, 112 Mass., 409; Clark's Case, 9 Wend., 212; People v. Brady, 56 N. Y., 182; People v. Pinkerton, 17 Hun, 199; Hurd on Habeas Corpus, *597. “Felonies and misdemeanors, offenses by statute and at common law, are alike within the constitutional provision; and the obligation to surrender the fugitive for an act which is made criminal by the law of the demanding state, but which is not criminal in the state upon which the demand is made, is the same as if the alleged act were a crime by the law of both.” People v. Brady, supra, 188. Prima, faeie the warrant shows that the act charged was a crime by the laws of Kansas. Besides, in the absence of proof to the contrary, the presumption is that the laws of that state are the same as our own. Our statute makes the seduction of an unmarried female of previous chaste character, under a promise of marriage, an offense punishable by imprisonment in the state prison (sec. 4581, R. S.); and that is substantially the offense charged in the warrant.

But again it is said there is no proper evidence that the petitioner is charged with the commission of a crime in the state of Kansas. The rendition warrant recites that the representation and demand of the governor of Kansas is accompanied by a copy of an information charging the petitioner with having committed the crime of, etc., which copy of said information is certified to be authentic. The law of congress in substance provides, that the requisition shall be accompanied by “ a copy of an indictment found or an affidavit made before a magistrate” of the state making the demand (sec. 5278, R. S. U. S.), “charging the person demanded with having committed ” the particular crime, etc. Now it is said that a copy of an information, certified by the governor of Kansas to be authentic, fails to comply with the law of congress on this subject; fails to show that the petitioner is chai’ged with the commission of a crime in that state. I think, however, the evidence of the charge by “ information ” is a sufficient compliance with the law of congress. The intent of that law obviously is, that the charge must be made in the regular course of judicial proceedings, in the form of an information filed by the proper law officer, an indictment, or other accusation known to the law of the state in which the offense is committed. Kentucky v. Dennison, supra; State v. Hufford, 28 Iowa, 391. Each state has an undoubted right to regulate the forms of pleadings and process in her own courts, in criminal as well as in civil cases, and is not bound to conform to those of any other state. Taney, C. J., in Kentucky v. Dennison. Presumably the state of Kansas has authorized its courts to hear, try and determine prosecutions for crimes by information, as this state has done. The constitution of the United States does not prescribe the form in which the charge must be made; and while the act of congress speaks of an “ indictment found or an affidavit made before a magistrate,” etc., yet I do not think it was intended to exclude a case where the charge is in the form of a criminal information. In this state all offenses are triable by information filed by the district attorney of the proper county; and I do not feel authorized in holding that where the offense is charged in that manner it does not conform to the law of congress nor afford sufficient evidence that a person is charged with the commission of a crime within the meaning of the act. I therefore think it appears from the face of the warrant that a legal accusation or criminal charge in a judicial proceeding is pending against the petitioner in the state of Kansas, which authorizes his arrest in this state and removal to that state for trial.

It follows, of course, from this view, that the return shows a just and legal cause for the detention of the petitioner. The demurrer to the return must be overruled, and the petitioner must be remanded to the custody of the sheriff of Polk county.

It is so ordered.