69 N.Y.S. 475 | N.Y. Sup. Ct. | 1901
The relator, under the name of John Irwin, was on ¡November 15, 1900, convicted in this county of grand larceny in the second degree and sentenced to serve three years and six months in the State prison. He appealed from the judgment of conviction, applied for and procured a certificate of reasonable doubt from a justice of this court, and was admitted to bail pending the determination of his appeal. He had been previously indicted in the State of Hew Jersey for larceny under the name of John Hill, and on the 28th day of January, 1901, was arrested under a warrant issued by a magistrate of this city under section 828, Code of Criminal Procedure, to await the result of an appli
That the State need not surrender upon requisition of another State a prisoner held in actual custody either under civil process to secure the payment of a debt, or under criminal process to answer or suffer punishment for a crime seems to be well settled. Matter of Briscoe, 51 How. Pr. 422; Matter of Troutman, 4 Zab. 634; Taylor v. Taintor, 36 Conn. 242; 16 Wall. 366. As was said by the Supreme Court of the Hnited States in the last ease: “ Where a demand is properly made by the Governor of one State upon the Governor of another, the duty to surrender is not absolute and unqualified. It depends upon the circumstances of the case. H the laws of the latter State have been put in force against a fugitive, and he is imprisoned there, the demands of these laws may first be satisfied. The duty of obedience then arises and not before.”
The fact that in this particular case the relator, although under conviction, is actually at large on bail, does not, in my opinion, affect the application of the rule. He still owes to this State a debt of imprisonment as a punishment for the crime against the laws of this State of which he has been convicted. He is still theoretically in the grasp and custody of the law. Having given bail, he is merely regarded as delivered into the custody of his sureties and their dominion over him is but a continuance of his original imprisonment. Taylor v. Taintor, 16 Wall. 371. It is not the fact of actual physical incarceration, but the fact that the person sought to be extradited has been held to answer for a debt due to the law of the State in which he is found, that justifies the refusal of that State to surrender him until its demands upon him have been satisfied. I have no doubt, therefore, that the proper authorities of this State could have lawfully refused to
The writ must be dismis-sed.
Writ dismissed.