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dismissed and the relator remanded. But Mr. Justice Davis, in delivering the opinion of the supreme court, took occasion to say that the general views expressed by the court of oyer and terminer were in conflict with People v. Brady, which, whether sound or not, controlled the inferior courts while it stood. Judge Choate, in Leary's case,1 disapproved the decision of the court in People v. Brady, and adopted the opinion of the court of oyer and terminer in People v. Reilley. In People v. Pinkerton,2 in 1879, the governor having again declined to produce the papers on which his warrant of rendition was issued, the supreme court considered the case on the warrant alone, and, holding it to be sufficient, remanded the prisoner into custody. This decision was affirmed by the court of appeals, the court saying that it was not needful to determine whether the warrant was conclusive, or whether it was competent for the prisoner to prove that the papers presented to the governor were defective, since there was no offer of any such proof. In People v. Donohue, in 1881, the court of appeals again affirmed the legality of the detention of the fugitive on the return of the rendition warrant alone, the executive declining to produce the papers on which he acted. The warrant recited that the requisition was accompanied with "affidavits, complaint, and warrant," &c. The court referred to the decision in People v. Brady, and said that, notwithstanding the criticisms made thereon in Leary's case, an opposite conclusion, which would make the determination of the executive final, even though the papers, if produced, clearly showed that the essential preliminaries of the law were unfulfilled, did not commend itself to its judgment.

§ 638. Distinction in decided cases between Indictment and Affidavit. — In People v. Brady the court drew a distinction between the examination of an indictment and of an affidavit to ascertain whether a crime was charged in the demanding State, and expressed the view that the former paper must be regarded as possessing higher validity as evidence of such a charge. This distinction was referred to by the court of

1 10 Ben. 197; 6 Abb. N. C. 44.

8 People v. Pinkerton, 77 N. Y. 245.

2 17 Hun, 199.

4 84 N. Y. 438.

appeals again in the case of People v. Pinkerton, where the warrant recited that the charge was made by indictment.

It

is believed that there is no case in which a court has on habeas corpus discharged a fugitive from custody on a rendition warrant on the ground that an indictment accompanying the requisition did not constitute or contain a sufficient charge of crime. 1

§ 639. New York Decisions followed in Texas and Minnesota. The view that the rendition warrant need not set out in full or be accompanied with the indictment or affidavit accompanying the requisition, has been maintained by the court of appeals of Texas, in Ex parte Stanley;2 and the court quoted from People v. Donohue,3 the syllabus, as containing the true rule, as follows: "Where the papers upon which a warrant of extradition is issued are withheld by the executive, the warrant itself can only be looked to for the evidence that the essential conditions of its issuance have been com

1 The substantial part of the rendition warrant in People v. Donohue was as follows:

'Whereas, it has been represented to me by the governor of the State of Connecticut that John Jourdan stands charged with the crime of theft, committed in the county of Middlesex, in said State, and that he has fled from the justice of that State, and has taken refuge in the State of New York; and the said governor of Connecticut having, in pursuance of the Constitution and laws of the United States, demanded of me that I shall cause the said John Jourdan to be arrested and delivered to Walter P. Chamberlin and Lyman Smith, who are duly authorized to receive him into their custody and convey him back to the said State of Connecticut.

"And whereas, the said representation and demand is accompanied by affidavits, complaint and warrant, whereby the said John Jourdan is charged with the said crime, and with having fled from the said State, and taken refuge in the State of New York, which are certified by the said governor of Connecticut to be duly authenticated.

"You are, therefore, required to arrest and secure the said John Jourdan wherever he may be found within the State, and to deliver him into the custody of the said Walter P. Chamberlin and Lyman Smith, to be taken back to the said State from which he fled, pursuant to the said requisition, &c."

The warrant in People v. Pinkerton, 77 N. Y. 245, was mutatis mutandis the same, except that it recited that a copy of the indictment accompanied the requisition, charging the crime of breaking and entering the Northampton National Bank in Massachusetts, and stealing the moneys thereof.

plied with, and it is sufficient if it recites what the law requires. In State v. O'Connor,1 in 1888, before the supreme court of Minnesota, return was made of a rendition warrant issued by the governor of that State, together with all the papers on which he acted. The court, citing the New York cases, held that the papers being before it it was called on to pass upon their sufficiency. But the requisition was accompanied with an indictment, charging larceny under the laws of the State of New York, and the court, refusing to consider the sufficiency of the indictment in point of pleading, remanded the prisoner into custody.

§ 640. How far the Court may look into Question of Flight. In Ex parte Smith,2 in 1842, the court discharged the prisoner on habeas corpus because the affidavit accompanying the requisition on which the rendition warrant was issued did not allege or show that the relator was in the demanding State at the time of the commission of the crime. By the statute of Iowa the requisition is required to be accompanied with 'sworn evidence that the party charged is a fugitive from justice." The supreme court of that State in Jones v. Leonard, in 1878, the affidavit accompanying the requisition being before it, and merely stating a legal conclusion, held that the action of the executive in issuing his rendition warrant was not conclusive nor justified. The same doctrine was laid down by the supreme court of Alabama in In re Mohr, in 1883. In Ex parte Reggel,5 the Supreme Court of the United States held that a fugitive was entitled under the act of Congress "to insist upon proof that he was within the demanding State at the time he is alleged to have committed the crime charged, and subsequently withdrew from her jurisdiction, so that he could not be reached by her criminal process. Whether, it was said, the decision of the governor on this question was subject to review on habeas corpus or not, the prisoner should not be discharged merely because, in the judgment of the court, the evidence as to his being a

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fugitive from justice was not as full as might properly have been required, or because it was so meagre as, perhaps, to admit of a conclusion different from that reached by the governor. In Roberts v. Reilly, the same court said that the question whether a person is a fugitive from justice "is one of fact, which the governor of the State upon whom the demand is made must decide, upon such evidence as he may deem satisfactory. How far his decision may be reviewed judicially in proceedings in habeas corpus, or whether it is not conclusive, are questions not settled by harmonious judicial decisions, nor by any authoritative judgment of this court. It is conceded that the determination of the fact by the executive of the State in issuing his warrant of arrest, upon a demand made on that ground, whether the writ contains a recital of an express finding to that effect or not, must be regarded as sufficient to justify the removal until the presumption in its favor is overthrown by contrary proof. Ex parte Reggel, 114 U. S. 642. Further than that it is not necessary to go in the present case." This overrules the decision of the court in In re Jackson,2 that a warrant of rendition was invalid because it recited that the person charged had been "represented" to be a fugitive from justice, instead of stating an express conclusion on the point. Whether a person may be discharged on habeas corpus after his rendition and return to the demanding State, on the ground that he was not a fugitive from justice, has not been determined. It is a general principle that irregularities in rendition cannot be set up, after the fugitive has been brought back, as an answer to the charge. But in State of Tennessee v. Jackson, Judge Key, of the United States district court, Eastern District of Tennessee, discharged a person who, though brought back to that State, was only a fugitive by construction, on the ground that the governors concerned were imposed upon, and that the whole !

1 116 U. S. 80. It was held in Ex parte Sheldon, 34 Ohio St. 319, that the court would not discharge a prisoner on the ground that he was not a fugitive from justice where there was evidence to that effect before the governor.

22 Flippin, 183. Supra, § 623.

36 Fed. Rep. 258. Rev. 136, 690.

See Matter of Adams, 7 L. Rep. 386. Also 18 Am. L.

transaction was a fraud. In this relation it may be noticed that good faith is always presumed in the case of public officers discharging their duty; and the good faith of rendition proceedings is not affected by the knowledge or expectation of reward of the sheriff who holds the prisoner in custody, the State being represented by the prosecuting attorney.1

§ 641. Rules of Practice. The writ of habeas corpus must

be heard on the facts shown in the return to have existed at the time of the service of the writ, and a new warrant filed after that time cannot be considered.2 But it was held that where the State was improperly permitted to read an affidavit which was not a part of the respondent's return, its admission in evidence was error, but not such error as would operate to discharge the relator. Counsel was refused permission to read in evidence as an affidavit of the prisoner the latter's petition for the writ of habeas corpus, the affiant being present and able to testify in person. In Ex parte Smith,5 the court declined to decide whether the relator could produce affidavits to show that he was not a fugitive from justice,

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1 Hackney v. Welsh, 107 Ind. 253. In the case of Ker v. Illinois, 119 U. S. 436, it was objected that the proceedings between the authorities of the State of Illinois and those of the State of California were not in accordance with the act of Congress, and especially that, at the time the papers and warrants were issued from the governors of California and Illinois, the defendant was not within the State of California, and was not there a fugitive from justice. On this point Mr. Justice Miller said: "It is sufficient to say, in regard to that part of this case, that when the governor of one State voluntarily surrenders a fugitive from the justice of another State to answer for his alleged offences, it is hardly a proper subject of inquiry on the trial of the case to examine into the details of the proceedings by which the demand was made by the one State and the manner in which it was responded to by the other. The case does not stand, when the party is in court and required to plead to an indictment, as it would have stood upon a writ of habeas corpus in California, or in any States through which he was carried in the progress of his extradition, to test the authority by which he was held ; and we can see in the mere fact that the papers under which he was taken into custody in California were prepared and ready for him on his arrivel from Peru, no sufficient reason for an abatement of the indictment against him in Cook County, or why he should be discharged from custody without trial.” (p. 441.) To the same effect is In re Noyes, 17 Alb. L. J. 407; U. S. Dis. Court, N. J., Nixon, J.

2 In re Farez, 7 Blatchf. 48; In re Doo Woon, 18 Fed. Rep. 898; Knowlton's case, 5 Crim. L. Mag. 250.

3 Ex parte Stanley, 25 Tex. App. 372.

Leary's Case, 10 Ben. 197.

53 McLean, 121.