People v. Brady, 56 N. Y. 183, distinguished. An indictment is not necessarily inoperative or void, even at common law, because of its omission to designate the person charged by the full Christian name. He may be indicted by the initials of his Christian name, and legally convicted if he fail to raise the objection by plea in abatement, and it may be shown in answer to such plea that the accused was usually known by the name under which he was indicted.

APPEAL taken by the relator, Otto A. Nubell, from a final order dismissing writs of habeas corpus and certiorari issued to inquire into the cause of his imprisonment, and remanding him to the custody of the respondents.

It was taken pursuant to Code of Civil Procedure, § 2058. The petition recited that he was imprisoned by the respondents at police headquarters in New York city, and that the cause or pretense of his imprisonment, according to his best knowledge, was a telegraphic request from "some person in Chicago, Illinois," to the police officials of this city "to arrest and detain your petitioner until a requisition from the governor of Illinois can be obtained for his delivery and extradition for some alleged offense committed in said state."

The return in answer to the writ of habeas corpus set out and annexed as a part thereof, as the warrant for relator's detention, a mandate or warrant of the governor of this state, as follows:

"State of New York, Executive Chamber, Grover Cleveland, Governor of the State of New York. "To THOMAS BYRNES, Inspector of Police, and the Sheriffs, Constables and other peace officers of the several counties in the said state:

"Whereas, it has been represented to me by the governor of the state of Illinois, that O. A. Nubell stands charged with the crime of conspiracy committed in the county of Cook in said state, and that he has fled from justice in that state, and has taken refuge in the state of New York, and the said governor of Illinois having, in pursuance of the Constitution and laws of the United States, demanded of me that I shall cause the said O. A. Nubell to be arrested and delivered to Hum

phrey J. Moynihan, who is duly authorized to receive him into his custody and convey him back to the said state of Illinois.

"And whereas the said representation and demand is accompanied by indictment and affidavit whereby the said O. A. Nubell is charged with the said crime, and with having fled from said state, and taken refuge in the state of New York, which are certified by the said governor of Illinois to be duly authenticated.

"You are therefore required to arrest and secure the said O. A. Nubell wherever he may be found within the state, and to deliver him into the custody of the said Humphrey J. Moynihan, to be taken back to the said state from which he fled, pursuant to the said requisition; and also to make return to this department, within thirty days from date hereof, of all your proceedings under this writ and of any facts or circumstances relating thereto.

"Given under my hand, and the privy seal of the State at the city of Albany, this twenty-fourth day of April in the year of our Lord one thousand eight hundred and eighty-four.

'By the Governor.

DANIEL S. LAMONT,

[L. S.]

(Sgd.)

Private Secretary.

GROVER CLEVELAND."

The relator filed a verified demurrer and traverse to the return made by the defendants to the writs of habeas corpus and certiorari herein, as follows:

"1. That said return is insufficient in law upon the face thereof to justify the detention of this petitioner, forasmuch as (a) It fails to set forth any warrant for the detention of this petitioner, but sets forth a warrant against one' O. A. Nubell.' (b) It fails to make any return whatever to the writ of certiorari herein, and fails to show what evidence, if any, the petitioner is detained under, or upon what evidence, if any, the warrant if any, for his detention was issued. (c) It fails to set forth or allege the commission by this petitioner of any crime whatever against the laws either of this state or of the state of Illinois.

"And further, your petitioner traverses said return, avers

that his name is not 'O. A. Nubell,' but is and ever has been Otto A. Nubell, and that he is not guilty of the crime of 'conspiracy,' if there be such a crime, nor of any other crime against the laws of the state of Illinois."

After hearing counsel, the court dismissed both writs, and remanded the prisoner.

E. P. Wilder, for the relator, appellant.-I. The governor's mandate is void on its face. It fails to set forth any warrant for the detention of this petitioner, but sets forth a warrant against one "O. A. Nubell." A warrant is no protection to the officer unless it correctly names the defendant. "The name of the person to be apprehended should be accurately stated, if known, and must not be left in blank to be filled up afterwards; and a description thus:-'A. and his associate,' is void as to the latter." 1 Colby's Crim. Law, 179; 1 Chit. Cr. L. 39; 2 Hale's P. C. 114; Fost. 312; Wells v. Jackson, 3 Mumf. 458; Rex v. Hood, 1 M. & W. 281. "If, however, the name of the party be unknown, the warrant may be issued against him by the best description the nature of the case will allow; as, 'the body of a man whose name is unknown, but whose person is well known and who is employed as the driver of cattle, wears a white hat, and has lost his right eye.'" 1 Colby's Crim. Law, 179; 1 Hale P. C. 577; Chit. Cr. L. 39-40. "The arrest of a person by a wrong name cannot be justified, though he was the person intended, unless it be shown that he was as well known by one name as the other." Mead v. Haws, 7 Cow. 332; Griswold v. Sedgwick, 6 Cow. 456; Scott v. Ely, 4 Wend. 555. Such was the law in this State prior to 1830, when the act was passed. Laws of 1830, p. 395, 262, providing for the description of a defendant, whose real name is unknown, by a fictitious name, &c., and providing for a plea in abatement and amendment, &c., on that ground. Gurnsey v. Lovell, 9 Wend. 319. The law as laid down in the above decisions and amendatory statute, is still preserved as the law of this state. Code Crim. Pro. § 152; Miller v. Foley, 28 Barb. 630.

It thus appears that initial letters do not constitute a name.
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Frank v. Levie, 5 Robt. 600; Gardner v. Kraft, 52 How. 499; Gatty v. Field, 9 Q. B. 431. The severity of this rule has not been impaired in its application to criminal proceedings. The law presumes every man to have two names, a Christian name and a surname, and insists that an indictment against him shall embrace both. 1 Archbold's Crim. Pl. 241; Wharton's Crim. Pro. § 96; Bishop's Crim. Pro. § 676; Thompson v. Lee, 21 Ill. 242; Crawford v. Slye, 4 Cranch C. Ct. 457.

In some of the English cases a distinction is made in favor of vowels, as distinguished from consonants, and they are held to be good as names, being, as the courts have sometimes said, words in themselves. Lomax v. Landells, 6 C. B. 577. Tweedy v. Jarvis, 27 Conn. 62. But these cases furnish no authority for the contention that initials as such are a sufficient designation of a defendant either in a warrant or an indictment. They prove rather that a warrant against O. A. Nubell it not a warrant against Otto A. Nubell, but is against some other person whose name is really O. A. Nubell. See Farnham v. Hildreth, 32 Barb. 277; also Kennedy v. Merriam, 70 Ill. 228; Curtis v. Marrs, 29 Ill. 508. In this state "initials or middle names are not recognized." Re John Snook, 2 Hilt. 566; People v. Cook, 14 Barb. 259; 8 N. Y. 67; Van Voorhies v. Budd, 39 Barb. 479; Eagleston v. Son, 5 Robt. 640; Stuber v. Schwartz, 1 Robt. City Ct. Rep. note. See also Gerrish v. State, 53 Ala. 476; Report of Star Route Trials, pp. 185–200; U. S. v. Winter, 13 Blatch. 278.

II. If however, O. A. Nubell is a sufficient designation, upon the theory that the vowel O is an actual name, then the traverse and the petition, being uncontradicted, must be taken as true; and it follows that Otto A. Nubell is not the person sought by the authorities of Illinois.

III. It was at least the duty of the court to try the question of identity, if the return be held prima facie sufficient to hold the relator, and the dismissal of the writs without according such trial was error. Code Civ. Pro. §§ 2031, 2039.

IV. The warrant is equally defective in its failure to set forth the commission of a crime. "Conspiracy," naked and simple, is no crime. No overt act is alleged; no unlawful pur

pose is assigned; no unlawful means are set forth as having been used. The warrant "must also state an offense in respect to which the magistrate has authority to issue the warrant." Code Crim. Pro. § 152. The evidence before the magistrate must show that a "crime" has been committed. Ib. § 150. And the warrant must "designate" the crime. Ib. § 151. And this is as necessary in a governor's warrant, issued for purposes of extradition, as in a police justice's warrant issued for purposes of trial, etc., within the state. Code Crim. Pro. § 829. And both the act of Congress and our own law, with respect to extradition, is limited in its application to persons "charged with treason, felony or other crime." Code Crim. Pro. 827; U. S. R. S. § 5278. The evidence on which the governor's warrant was issued may be examined on habeas corpus, and if found insufficient to charge the commission of a "crime," the warrant may be set aside. People ex rel. Lawrence v. Brady, 56 N. Y. 182. A fortiori must this rule apply where the governor withholds the evidence, and we must look to the warrant alone for a statement of it. The warrant itself must with reasonable certainty import acts which are known to the law as criminal. Comfort v. Fulton, 39 Barb. 56; Blythe v. Tompkins, 2 Abb. 468; People v. Hart, 24 How. 289. The definition of conspiracy, as laid down in our laws, involves and requires something more than the mere act of conspiring, as for example: "to commit a crime," or "to falsely and maliciously indict another for a crime," or "to cheat and defraud another out of property by any means which are in themselves criminal," etc. Pen. Code, § 168; People v. Lambert, 9 Cow. 579; People v. Chase, 16 Barb. 495. The distinction between those recitals in the warrant, which are necessary to designate and import a crime, and those which consist merely of the facts and acts constituting the crime is very important and should not be lost sight of. The latter class of recitals need not be set forth in the warrant of extradition. People v. Donohue, 84 N. Y. 444. But the former class are required, both by the act of Congress and by our own Code; they are essential to the jurisdiction of the magistrate, be he governor or justice of the peace. To dispense with this class of recitals, especially in cases where the executive declines to submit the proofs upon