3. Indictment. - § 549. Expediency of using. In an intelligent review of interstate rendition, published in the Pennsylvania Law Journal, in 1847, it is stated that though the act of Congress gave the election of supporting the requisition either by affidavit or indictment, there had been a growing jealousy of the former course, and an increased disposition to regard the latter as not only the safer, but the more certain method of accomplishing the objects. The courts have not gone so far in disregarding the indictment accompanying a requisition as in finding the affidavits to be defective and insufficient. Hence it is advisable, wherever possible, to furnish a copy of an indictment instead of an affidavit. § 550. Questions of Pleading. The indictment should substantially charge the commission of a crime.2 But whether the indictment is framed in accordance with the technical rules of pleading is a question for the courts of the demanding State or Territory,3 as well as the question whether it charges a crime against the laws of such State or Territory.4 Objection was made to an indictment found in New York on the ground: (1) That while it charged several defendants with grand larceny, a felony, it did not aver whether as principals in the first or second degree, or as accessories before or after the fact; (2) that while it charged larceny of the property of a corporation, it did not allege the corporate character of the company. It was held, on the first point, that an indictment under the New York statute against several defendants was good without averments showing the degrees of guilt; and, on the second point, that while it would seem that the corporate character of the company should have been alleged, the question of the sufficiency of the indictment in that regard should be left to the courts of the State in which it was found.5 1 Vol. vi. p. 413. 2 Roberts v. Reilly, 116 U. S. 80. 3 Ex parte Reggel, 114 U. S. 642; Matter of Voorhees, 32 N. J. L. 141. 4 In re Greenough, 31 Vt. 279; Matter of Briscoe, 51 How. Pr. 422; Matter of Fetter, 2 Zabr. 311; Op. of Supreme Court of Maine, 24 Amer. Jur. 226; People, ex rel. Lawrence, v. Brady, 56 N. Y. 182. 5 In re Roberts, 24 Fed. Rep. 132. In this case the court refused to consider This ruling was affirmed by the Supreme Court of the United States. It was objected to an indictment that it did not charge any crime, but, on the contrary, was void for repugnancy. It contained but a single count, which, after clearly and concisely charging the relator with acts which usually constitute the crime of embezzlement, averred by way of conclusion, "so" the defendant "did steal, take, and carry away," &c. The court said: "This form of indictment may be good under the statutes of Missouri; but be this as it may, it charges the crime of embezzlement, and the sufficiency of the form in which the charge is made must be left for the determination of the courts of that State." 2 § 551. Informations. Each State has the right, subject to the provisions of the Constitution of the United States, to establish its own forms of pleading and process in criminal as well as in civil cases. Hence, it has been held that where a requisition is accompanied with an information under the laws of the demanding State, charging the fugitive with a crime in that State and against its laws, it was a sufficient compliance with section 5278 of the Revised Statutes of the United States.4 certain affidavits offered by the relator in denial of his guilt. The court said it would have been different if the arrest were made on preliminary process, and before indictment. In that event investigation would be had, at least, to disclose whether there was a prosecution in good faith, and whether there was probable cause of the guilt of the person accused. 1 Roberts v. Reilly, 116 U. S. 80. In the course of its opinion, the Supreme Court said: "The objections taken in this proceeding to the sufficiency of the indictment, which were overruled both in the district and circuit courts, and which are still relied on here, are not well founded. The indictment itself is certified by the governor of New York to be authentic and to be duly authenticated, which is all that is required by the act of Congress. It charges a crime under and against the laws of that State. It is immaterial that it does not appear that a certified copy of such laws was furnished to the governor of Georgia. The statute does not require it, and the governor could have insisted, and it is to be presumed did insist, upon the production of whatever he deemed necessary or important properly to inform him on the subject. And the courts of the United States, to whose process the relator has appealed, take judicial notice of the laws of all the States." 2 Ex parte Sheldon, 34 Ohio St. 319. 8 Ex parte Reggel, 114 U. S. 642; Kentucky v. Denison, 24 How. 66; State v. Hufford, 28 Iowa, 391. 4 In re Hooper, 52 Wis. 699. 4. Affidavit. § 552. Technical Objections. In 1791, before the adoption of any legislation by Congress, the attorney-general of Virginia, in a manuscript opinion which was filed at Harrisburg, Pennsylvania, took the view that no offence less than felony was within the Constitution, and that an indictment was in all cases necessary to constitute a valid charge of crime. The act of 1793 made an affidavit competent and sufficient for that purpose. But while, under that act, the requisition may be accompanied either with a copy of an indictment or with an affidavit, the latter paper has constantly been the subject of criticism and objection, although at the same time executive and judicial officers uniformly refused to entertain technical objections to indictments. In 1847 it was said: "The records of the several States are full of instances where warrants have been refused in consequence of the informality of the accompanying affidavits; and whenever flaws can be picked in the stating of the offence, when thus set forth, both courts and governors have not hesitated to consider them as substantive and fatal defects." 2 § 553. What constitutes an Affidavit. - Under the act of 1793 it must appear that the affidavit was made before a magistrate, in the course of judicial proceedings, charging the fugitive with having committed a crime in the State from which he fled. A mere statement on oath, setting forth certain facts, such as may be made before a notary or a commissioner, is insufficient, and cannot be presumed to have been made before a magistrate and in the course of judicial proceedings against the person demanded. A statement on oath purporting to have been made before a notary is clearly incompetent. Complaint and affidavit are not convertible terms. But if the complaint sufficiently states the criminal charge and constitutes an examination so as to authorize the issuance of a warrant of arrest, and a jurat be attached, and it is properly certified by the magistrate, it will be essentially an 16 Pa. L. J. 415. Supra, § 531. 8 Ex parte Powell, 20 Fla. 806. 26 Pa. L. J. 413. The affidavit accom affidavit in the meaning of the law.1 panying the requisition may be either an original or a copy, provided it be certified by the governor of the demanding State as authentic.2 It has been held that a police magistrate of the city of New York is a magistrate within the meaning of section 5278 of the Revised Statutes of the United States.3 A fugitive, named Sigismund Keller, was arrested on a warrant issued by the governor of Minnesota upon a requisition of the governor of Wisconsin, accompanying which was an affidavit charging Keller with embezzlement in Wisconsin. It was objected that the affidavit was not sworn to before a "magistrate," as required by section 5278 of the Revised Statutes. The affidavit read: "State of Wisconsin, Municipal Court, City and County of Milwaukee. "Alexander J. Blade, being duly sworn, on oath complains to the Municipal Court of Milwaukee County, &c. Subscribed and sworn to before me, this 7th day of November, 1888. Alexander J. Blade. Julius Meizelwich, clerk of the Municipal Court." Judge Nelson said: "The oath was administered in the municipal court by the clerk. . . . The municipal court consists of a judge, who shall be elected as provided for in this act, and a clerk of the court. And upon the face of these papers it appears that this affidavit was taken in the municipal court, made before the court, made in presence of the presiding officer or magistrate. Before' means 'in presence of.' The oath being administered, as certified to by the clerk of the court, in criminal proceedings for embezzlement in the court by law having cognizance and jurisdiction of such offences, it seems to me that the attack made upon the affidavit must fail." 4 6 § 554. Statement of Offence. In a letter to Governor Schley, of Georgia, of August 16, 1837, in the case of two men who were charged with inveigling negroes away from that State, Governor Dunlap, of Maine, objected to the affi 1 State v. Richardson, 34 Minn. 115. 3 Kurtz v. State, 22 Fla. 36. 2 Kurtz v. State, 22 Fla. 36. davit accompanying the requisition on the ground that it did not charge the crime positively, but only on information and belief, and that the deponent, instead of setting forth the act committed, stated his belief as to its character. In his controversy with the governor of Georgia, Mr. Seward in a letter of June 15, 1841, took the ground that the affidavit must be at least so explicit and certain that if it were laid before a magistrate it would justify him in committing the accused to answer the charge.2 In the case of John McKeown, in 1845, charged with riot and assault and battery in Pennsylvania, and in the case of Myer Christeller in the same year, charged with obtaining goods by false pretences, and with forgery in the same State, Governor Wright, of New York, refused to grant the surrender on the ground that the affidavits which accompanied the requisitions did not contain sufficient evidence of the facts to put the fugitives on their trial in New York if the offence had there been committed. In 1847 the governor of Maryland demanded of the governor of Pennsylvania the surrender of one Isaac Brown, on a charge of murder. Accompanying the requisition was an affidavit, made eighteen months after the date of the alleged offence, in which the complainant deposed that he was fired upon and dangerously wounded on October 23, 1845, and that he had reason to believe and did believe that a certain negro man named Isaac Brown committed the assault. Mr. Champneys, the attorneygeneral of Pennsylvania, on May 15, 1847, advised the governor that this affidavit was insufficient to authorize the arrest and rendition of the alleged fugitive. § 555. Must charge Offence in demanding State. The affidavit must substantially charge the commission by the accused of a crime in the demanding State or Territory.5 The leading case on this subject is that of Joseph Smith, the Mormon prophet, in 1842. Smith was arrested on a warrant of the governor of Illinois, issued upon a requisition of the gov 1 Sen. Docs., vol. iv. 26th Cong. 1st Sess. [273]. For affidavit, see infra, § 563. 2 6 Pa. L. J. 414. See supra, § 553. 4 6 Pa. L. J. 414. 8 6 Pa. L. J. 419. 5 Roberts v. Reilly, 116 U. S. 80. |