204 P. 175 | Mont. | 1922
At Chambers.
delivered the opinion.
On December 30, 1921, Elmer James Mo, the petitioner, was arrested by G. B. Long, the sheriff of Sweet Grass county, Montana, under the authority of an executive warrant issued by Governor Dixon under date of November 22, 1921. The warrant was issued by the governor pursuant to a requisition made upon him by the governor of the state of Minnesota for the surrender of Mo to the authorities of the state of Minnesota for trial in that state Upon a charge of child abandonment. Upon application to me the petitioner was granted a writ of habeas corpus on the ground, as he alleged, that he is wrongfully and unlawfully detained by the sheriff, for the reason that the indictment which constitutes the charge of crime upon which the requisition is based does not charge a crime under the laws of the state of Minnesota at the time alleged, nor at any other time prior to petitioner’s departure therefrom, and that, consequently, not being "a fugitive from justice, he is entitled to his discharge.
No question is made as to the regularity of the papers or the proceedings upon which the warrant was issued, nor as to the warrant itself, as shown by the sheriff’s return to the writ. The only question submitted to me for decision is
While I recognize the rule that the authorities of the asylum
In the ease of State v. Clark (Minn.), 182 N. W. 452, construing this provision, the supreme court of Minnesota seems to intimate that it denounces the same act as a crime as that denounced by the provision in force in 1911. It held further that the offense of child abandonment is a continuing one, and hence that no statute of limitation runs in favor of the offender so long as the abandonment continues. Upon examination of the statute in force in 1911 and a comparison of it with the enactment of 1917, I conclude that the two are radically differ
For this reason I think the petitioner is entitled to his discharge, and so order.