| Ind. | Nov 15, 1867
This was an application before the judge of the Allen Circuit Court for a writ of habeas corpus. The petition stated that the appellee was held under a warrant issued by the governor of the State of Indiana. A copy of the warrant was filed, by which it appeared that it was issued upon a requisition duly made by the governor of the State of Pennsylvania, upon the executive of this State, for the delivery of J. O. Flanders, who, with certain other persons named, did, on the first day of March, 1866, at the county of Frie, in said State of Pennsylvania, unlawfully, wickedly, deceitfully and feloniously conspire, combine, and agree together to cheat and defraud the Second National Bank of Frie, and afterwards, in pursuance of said conspiracy, did, by virtue thereof, cheat and defraud said hank, at the county and state aforesaid, out of a large sum of money, to-wit, the sum of seven hundred dollars, the property and money of said bank, which said acts are made criminal and constituted felony by the laws of said last named state, and that said' J. O. Flanders, with the others named, have taken refuge in the State of Indiana.
The warrant further states that said requisition was accompanied by a copy of an indictment-against said J. O. Flanders and others, whereby they are charged with the commission of said crime at the time and place aforesaid, which. copy of the indictment is cei’tified to be authentic by the governor of the State of Pennsylvania, and is on file with the requisition in the office of the secretary of state of the State of Indiana. The warrant commanded the arrest of said J. O. Flanders, with the others charged
A writ of habeas corpus was issued, and the appellant made return that he held the appellee by virtue of the warrant, and that he was the identical person named therein. Exceptions were filed to this return, which were sustained by the court and the appellee .discharged from custody.
The exceptions made to the return are thus stated:
1. That the appellee is not the person who committed and is connected with the facts stated in said warrant. This would be a most excellent defense before a petit jury in the State of Pennsylvania, when the accused is arraigned to answer the indictment charging him with the felony, but was not a matter available before the circuit judge on the hearing of the return to the writ of habeas corpus. The identity of the appellee with the person named in the warrant was expressly alleged in the return.
2. That no copy of any charge, indictment or affidavit made before any officer of the State of Pennsylvania, or found by any court in said state, is attached to or accompanies said warrant.
In the case of Nichols v. Cornelius, 7 Ind. 611" court="Ind." date_filed="1856-06-13" href="https://app.midpage.ai/document/nichols-v-cornelius-7033146?utm_source=webapp" opinion_id="7033146">7 Ind. 611, the court disposed of such an objection in these words“The other objection that we notice is, that a copy of the indictment did not accompany the writ. It was not necessary. The writ was valid on its face, and authorized the arrest, and it was prima facie evidence that there was such an indictment. If the peti
The appellee could not, we must suppose, have been discharged upon this ground.
3. That he has been arrested and detained without probable cause. A requisition and warrant, founded on an indictment found by a grand jury, is sufficient cause for detention.
4. That the facts recited in said warrant do not, by the laws of Pennsylvania, constitute a crime or misdemeanor.
In the matter of Clark, 9 Wend. 212" court="N.Y. Sup. Ct." date_filed="1832-05-15" href="https://app.midpage.ai/document/in-re-clark-5513928?utm_source=webapp" opinion_id="5513928">9 Wend. 212, it was said: “It has been objected that no crime has been committed, and that the proceedings contemplated by the statute of Rhode 'Island are-of a civil nature merely. The first answer is that the statute of Rhode Island -is not properly before us. An offense of a highly immoral character is stated in the warrant, and is certified by the governor of Rhode Island to have been made criminal by the laws of that State. This is evidence enough in this stage of the proceedings of the nature of the offense.”
In the matter of William Fetter, 3 Zabr. 311, the court held, that “ admitting the position taken by counsel in argument, that the offense specified does not constitute larceny at the common law, it is nevertheless certified by the governor of California to be grand larceny under the laws of that state. It is, moreover, an offense of a highly immoral character, and, as appears by the bill of indictment, which must be regarded as prima fade evidence of the fact, is a crime by the law of the State of California.” The same rule was recognized in Johnston v. Riley, 13 Geo. 97. But there can be no pretense that the matters charged do not constitute a crime by the laws of Pennsylvania.
5. That the said warrant is general and not directed, as required by the law of congress, to any officer of the State of Indiana, and is therefore void. And that said warrant is also illegal in this, to-wit: in requiring the officer to whom the same is addressed to carry the person arrested
The act of congress simply declares that “it shall be the duty of the executive authority of the state or territory to which such person shall have fled, to cause him or her to be arrested and 'secured, and notice to be given to the executive authority,” &c.
As to what steps the governor shall take to secure the arrest of the person demanded, and how he shall satisfy himself of the identity of the person seized, the act of congress has not determined, but has left it for the states to provide such reasonable method as will best secure the discharge of the obligation imposed by the constitution of the United States.
In Ex Parte Smith, 3 McLean 121, the court, speaking of a law of Illinois on this subject, say: “It may be that the legislature of Illinois, appreciating the importance of the proper execution of those laws, and doubting whether the governor could be punished for refusing to carry them into effect, deemed it prudent to impose it as a duty, the neglect of which would expose him to impeachment.”
In Coffman v. Keightley, 24 Ind. 509" court="Ind." date_filed="1865-05-15" href="https://app.midpage.ai/document/coffman-v-keightley-7036915?utm_source=webapp" opinion_id="7036915">24 Ind. 509, it was expressly ruled that state legislation to supply an omission, or in aid of a law of congress, was valid and binding. In the case of Moore, Executor, v. The People, &c., 14 Howard 17, it was in express terms denied that the Supreme Court of the United States had ever held that state legislation, to aid in accomplishing the purpose intended by an act of congress, was void.
It seems too clear to question that the provision of the “ act to regulate the arrest and surrender of fugitives from justice from other states and territories,” requiring the officer making the arrest to take the prisoner before the nearest judge for identification, is clearly within the constitutional power and duty of the legislature. Every respectable court which has examined the question has declared this investigation to be the duty of every judge before
But if it were admitted that this provision of the law were of doubtful constitutionality, what then ? Should the judge discharge the prisoner? Under the plea that the legislature has invaded the prerogative of congress in attempting to confer upon him power to examine as to the identity of the person arrested, is he, in his official capacity, to set at naught the law of congress and discharge the person héld under the provisions of that act? If the warrant was void in so far as it required the officer to take the prisoner before the judge, it at least authorized the officer to hold him in custody. Under the act of congress the warrant would be good, if it required the officer simply to make the arrest, and the prisoner could be held under it until, upon notice given by the governor of this state to the governor of 'Pennsylvania, the person under arrest was surrendered by the executive authority.
The appellee should not have been discharged. He was before the judge, not under the act, but under the writ of habeas corpus, and no cause for his discharge was shown.' He should have been remanded to the custody of the officer, who should then have taken him before the nearest or most convenient circuit or common pleas judge, as provided by the act of 1867.
The judgment is reversed, with costs.