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Argument for Plaintiff in Error.
by the governor on the question whether relator was a fugitive from justice.
If a foreign affidavit was admissible evidence it should have been produced, as it was the best evidence. Even then the original affidavit on file would not constitute such a judicial proceeding, or any part of such a judicial proceeding, nor such part of the record of the court as is contemplated by $1, Art. IV, of the Constitution. Baltimore &c. Ry. Co. v. Trustee &c., 91 U. S. 127, 130; Roanoke Land &c. Co. v. Hickson, 80 Virginia, 589; D'Arcy v. Ketchum, 11 How. 165; Gibson v. Tilton, 17 Am. Dec. 306.
The copy of the indictment was not competent evidence to show that the person indicted was within the State. Rev. Stat. § 5278; Ex parte Swearingen, 13 S. Car. 74, 79; Re John Leary, 10 Benedict, 197, distinguished, and see Re Jackson, 2 Flippen, 183; People v. Hyatt, 172 N. Y. 176, 189; Ex parte Reggel, 114 U. S. 651; Roberts v. Reilly, 116 U. S. 80, distinguished.
No citizen should be arrested and exiled from a State on evidence which does not carry with it in such State the penal consequences of false swearing.
The refusal of the governor to hear the relator at the time and under the circumstances in which she appeared before him, was not “due process of law” and deprived her of her legal rights. Spear on Extradition, 340; Anderson's Dictionary
of Law under“Habeas Corpus”; State v. Clough, 71 N. H. 594; In re Cook, 49 Fed. Rep. 833; Horey v. Elliott, 167 U. S. 409; Roller v. Holly, 176 U. S. 398, 409.
. Under the organic and statutory law of the United States the relator was illegally restrained of her liberty and the rendering of judgment against her violated her constitutional rights. § 1, ch. 263, Pub. Stat. N. H.
The constitutional principles applicable to the preservation of personal liberty should be at least as strenuously applied when there is occasion therefor, as in the case of right to property. East Kingston v. Darius Towle, 48 N. H. 57; Opinion
Argument for Defendant in Error.
of the Justices, 66 N. H. 629; Carter v. Colby, 71 N. H. 230; State v. Jackman, 69 N. H. 318, 330.
Mr. Edwin G. Eastman and Mr. George A. Sanderson for defendant in error, submitted:
At common law the time of the commission of an offense need not be proved as alleged. Ledbetter v. United States, 170 U. S. 606; Commonwealth v. Sego, 125 Massachusetts, 210; Commonwealth v. Brown, 167 Massachusetts, 144. This rule of law as to time should have the same application in requisition proceedings as in the trial of the case.
ase. Rev. Laws, Mass., ch. 218, $ 20. The evidence submitted to the governor of New Hampshire, taken as a whole, should be construed to mean that the defendant fled from Massachusetts after the commission of the last offense charged in the indictment.
It is sufficient to justify the extradition of the plaintiff in error if it appears that she is a fugitive from the State asking her return as to one crime committed in the State. Lascelles v. Georgia, 148 U. S. 537; Commonwealth v. Wright, 158 Massachusetts, 149. If the indictment upon which this proceeding is based had contained only the first count, but it appeared that another indictment containing the other counts was pending in the same court, that fact would not prevent the rendition of the prisoner. The governor was justified in finding that she was a fugitive with reference to the first two counts in the indictment. On that question the relator is entitled to submit evidence and be heard, and the justice before whom the habeas corpus proceedings were returned may review the action of the governor in this respect. The governor's finding that the relator is a fugitive is not conclusive upon the court on habeas corpus. Church, Habeas Corpus, $ 474a; 2 Moore Extradition, $ 640; Spear Extradition, 391; Hartman v. Aveline, 63 Indiana, 344; Jones v. Leonard, 50 Iowa, 106; In re Mohr, 73 Alabama, 503.
An indictment is sufficient for the purpose of extradition proceedings when it is framed in accordance with the technical
rules of pleading of the State within which it is found, and where the offense was committed. 8 Ency. of Pl. and Pr. 816; Commonwealth v. Hills, 10 Cush. 530; Commonwealth v. Costello, 120 Massachusetts, 358; Carlton v. Commonwealth, 5 Met. 532; Commonwealth v. Jacobs, 152 Massachusetts, 276; Benson v. Commonwealth, 158 Massachusetts, 164.
There is no prescribed form in which the evidence on rendition proceedings must be submitted and in this case it was sufficient. Rev. Stat. $ 5278; State v. Clough, 71 N. H. 594.
When a proper warrant has been issued the burden of showing that the prisoner has not fled or is not a fugitive from justice rests upon the prisoner in habeas corpus proceedings. State v. Justus, 24 Minnesota, 237. As to who is a fugitive, see Roberts v. Reilly, 116 U. S. 80; Matter of Voorhees, 32 N. J. L. 141; Ex parte Reggel, 114 U. S. 642.
The governor in determining the question as to whether the defendant is a fugitive from justice may receive evidence that fails to meet the requirements of legal proof if he deems it advisable. The policy of Congress and the legislature is to permit the chief magistrate to determine the question upon such proof as seems to him worthy of credit. State v. Clough, 71 N. H. 594; Roberts v. Reilly, 116 U. S. 80; In re Cook, 49 Fed. Rep. 833.
On the indictment, the statement of the district attorney and the request of the governor of Massachusetts, the governor of New Hampshire would have been justified in finding that the relator was a fugitive from justice and in ordering her return.
MR. JUSTICE PECKHAM delivered the opinion of the court.
This was a proceeding on habeas corpus in a state court of New Hampshire to obtain the discharge of the plaintiff in error from arrest under a warrant given by the governor of that State, directing the return of the plaintiff in error to the Commonwealth of Massachusetts, as a fugitive from justice.
Upon the hearing the state court refused to discharge the plaintiff in error, the order of refusal was affirmed by the Supreme Court, and she has brought the case here for review. (On a former proceeding in Supreme Court, see 71 N. H. 594.)
The proceedings before the governor of New Hampshire to obtain the warrant of arrest were taken under section 5278 of the Revised Statutes of the United States, reënacting the statute approved February 12, 1793, 1 Stat. 302; 3 U. S. Comp. Stat. 3597, relating to the arrest of persons as fugitives from justice, under clause 2 of section 2 of Article IV of the Constitution of the United States.
The papers before the governor of New Hampshire consisted of a copy of an indictment of the plaintiff in error, found in Massachusetts on the second Monday of February, 1902; it contained three counts, and charged the plaintiff in error with uttering and publishing as true a certain forged instrument, purporting to be a will, well knowing the same to be forged. The first count alleged that the crime was committed on the twenty-eighth of February, 1895, at Cambridge, in the county of Middlesex, in the Commonwealth of Massachusetts; and it also alleged that since the commission of the offense the plaintiff had not been usually or publicly a resident in that Commonwealth.
The second count averred the uttering, etc., to have been on the seventeenth day of May, in the year 1895, in the same place, and the indictment had the same averment as to the non-residence of the plaintiff in error as contained in the first count.
The third count averred the uttering at the same place as that named in the other two counts, but laid the date as the twentieth day of November, 1901. There was also before the governor of New Hampshire an application, dated the twentysixth of February, 1902, signed by George A. Sanderson, district attorney for the Northern District of Middlesex, to the governor of Massachusetts, requesting a requisition from him upon the governor of New Hampshire for the extradition of
the plaintiff in error, who, as stated in the application, stood charged by indictment with the crime of uttering forged wills, committed in the county of Middlesex (on the days stated in the indictment), and who, to avoid prosecution, had fled from the jurisdiction of the Commonwealth and was a fugitive from justice, and was within the jurisdiction of the State of New Hampshire. It was also stated in the application that the indictment was not found by the grand jury until the February sitting of the Superior Court in the year 1902. There was also before the governor of New Hampshire a copy of what purported to be an affidavit of one Whitney, the original of which was used before the governor of Massachusetts, to obtain the requisition. It is short, and is as follows: “Commonwealth of Massachusetts,
Middlesex. “I, Jophanus H. Whitney, of Medford, in the county of Middlesex and said Commonwealth, on oath depose and say that Martha S. Munsey, who stands charged by indictment with the crime of uttering forged wills, as is more fully set forth in the papers hereto annexed, has fled from the limits of said Commonwealth and is a fugitive from justice. And I further depose that at the time of the commission of said crime she was in the State of Massachusetts, in the county of Middlesex of said Commonwealth, and that at the same time and previous thereto she was a resident of Cambridge in the said county of Middlesex; that she fled from said Commonwealth of Massachusetts on or about the fourth day of November, A. D. 1901; that she is not now within the limits of the Commonwealth, but, as I have reason to believe, is now in Pittsfield, in the State of New Hampshire. The grounds of my knowledge are that I have interviewed her since the fourth of November last in Pittsfield, New Hampshire, where she was living with her husband during the last week January last.
“JOPHANUS H. WHITNEY."
There was also a certificate of the district attorney for the