151 P. 1101 | Wyo. | 1915
In this case the plaintiffs were arrested and held in custody by the defendants upon two warrants issued by the Governor of this state on requisitions issued by the Governor of the State of Michigan. Seeking to avoid extradition, plaintiffs applied to the Chief Justice of this court for a writ of habeas corpus, which he issued and made returnable
In the case first mentioned, in addition to the complaint which is sworn to, other affidavits were taken by the justice before whom the complaint was made to the effect that the Acme Cloak and Suit House had been doing business from about August x, 19x4, up to about August 28, 1915, when the last of the members of the alleged Acme Cloak and Suit House absconded.
In the other case similar affidavits accompany the complaint, to the effect that the fraudulent conduct and acts, if such they were, of the alleged conspirators covered a period of about a year prior to August, 1915. On the hearing in this court the plaintiffs testified in their own behalf and other witnesses were also produced, and on the evidence before the court we think it fairly appears that Harry Zulch and Emily Zulch came to Cheyenne, Wyoming, January 20, 1915, registering at a hotel by the name of Zimmerman; that they were in Michigan from in June, 1914, to the latter part of December, 1914, and were there connected with the Acme Cloak and Suit Hbuse. Floyd Weddle was in Michigan from October, 1914, to the last of' February, 1915, with the Acme Cloak and Suit House, and came to Cheyenne in
It is the contention of counsel for the plaintiffs that as it conclusively appears from the evidence that plaintiffs were not in Michigan on August 14, 1915, they could not have committed the crime charged in either of the complaints. We cannot agree with that contention. We are of the opinion that the correct rule is, that the presence of the accused in the demanding state at the time of the commission of the crime, or the doing of some overt act therein which is and -is intended to be a material step toward the accomplishment of the crime is necessary to warrant their extradition; and whether they were so present may be inquired into on habeas corpus proceedings. In the absence of evidence to the contrary, the time of the commission of the crime as charged in the complaint or indictment is conclusive in habeas corpus proceedings instituted to prevent extradition ; but when there is evidence reasonably tending to show that the date so alleged is not the true or exact date of the commission of the criminal acts, the time alleged in the complaint or indictment is not conclusive. These propositions, we think, are supported by the authorities. In Hyatt v. Corkran, 188 U. S. 691-711, 23 Sup. Ct. 456, 459, 47 L. Ed. 657, it is said: “The indictments in this case named certain dates as the times when the crimes were committed, and where in a proceeding like this there is no proof or offer of proof to show that the crimes were in truth committed on some other day than those named in the indictments, and that the dates therein named were erroneously stated, it is sufficient for the party charged to show that he was not in the state at the times named in the indictments, and when those facts are proved so that there is no dispute in regard to them, and there is no claim of any error in the dates named in the indictments, the facts so proved are sufficient to show that the person was not in the