76 Wis. 308 | Wis. | 1890
Did the circuit court properly set aside the service of the summons and complaint in this action, and vacate the order of arrest therein? The defendant was brought into this state upon a requisition upon the governor of Illinois, having been charged with the crime of seducing the plaintilf under a promise of marriage, and alleging that he was a fugitive from justice. Upon an examination before a magistrate, he was bound over for trial. At the April term of the circuit court of Sheboygan county, 1889, an information was filed in that court charging the defendant with having committed the crime of seduction. At the October term of that court the defendant, was duly arraigned, and a plea in . abatement was interposed, setting up the statute of limitations as a defense- to the action. This plea was sustained by the court, and the defendant was discharged from custody. Within ten min
It appears that the defendant, at the time of the alleged seduction, was a resident of Sheboygan county. He left the state in January, 1888, and remained outside the state, except that he returned in the night-time in the same month, and transacted some business, and immediately left. He was brought back on a requisition as a defendant in a criminal action, and as a fugitive from justice. It is said by the counsel for appellant that the affidavit of the defendant upon which the order of the court setting aside the service and order of arrest is based, is insufficient, because it fails to show any fraud or abuse of the process of the court by the appellant, or by any person acting for her, in the procurement of the return of the defendant on the criminal prosecution, nor does it show that the defendant was, at the time he so returned on the requisition, a bona fide citizen of Illinois. But it appears from the affidavit of the plaintiff which was used to obtain the order of arrest that the defendant was not a resident of this state, but resided in the city of Chicago, and that he was about to return to that state; and, while the promise of marriage was made, and the alleged seduction was accomplished, in 1881, it does not appear that the plaintiff had anything to do in procuring the defendant’s return on the requisition of the governor, nor does it appear that there was any fraud used on the part of any one to get the defendant within the •state. In that respect the case is distinguishable from Townsend v. Smith, 47 Wis. 623, and cases where jurisdiction is obtained by fraudulent means.
It is assumed, in this case, as a fact, that the defendant had committed the crime of seduction, as alleged, and had withdrawn himself from the state to avoid a prosecution
The reason for the rule that a person is exempt from arrest under the circumstances disclosed in this case is that
We do not deem it necessary to comment in detail upon all the cases cited. We will observe, however, that, in cases of extradition by a foreign government under a treaty, the supreme court of the United States holds that a person who has been brought within the jurisdiction of a court by virtue of proceedings under an extradition treaty could only be tried for one of the offenses described in said treaty and for the offense with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity had been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings. U. S. v. Rauscher, 119 U. S. 407.
A distinction is made in some of the authorities between civil and criminal cases. In criminal cases, some courts hold
It follows from these views that the order of the circuit court must be affirmed.
By the Court.— Order affirmed.