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the 17th day of April further evidence was submitted, and that on the 22d of April the grand jury found an indictment jointly charging William L. Vinal, Thomas W. Lawson, and Laselle J. Hayden, with circulating false rumors with the felonious intent above stated. The affidavit contained various other allegations, all tending to show the honest character, so far as the authorities of New York were concerned, of the prosecution there instituted and of the application for rendition.

But, in the end, the question of good faith ceased to play an apparent part in the case. The question chiefly debated and upon which the decision of the governor of Massachusetts finally turned, was as to whether the accused was a fugitive from justice.

§ 571. Vinal Case; Specific Evidence as to Flight. Accompanying the application to the governor of New York, and his requisition upon the governor of Massachusetts, there was an affidavit as to flight, made by Daniel W. Howland, which was as follows:

"That the said William L. Vinal was actually in the city and county of New York at the time. of the commission of said crime, and was seen in this city on March 1, 1890, by deponent, and remained in this city until the fifth day of March, as deponent is informed by the clerk of the Everett House, in said city of New York, and verily believes. That thereafter and on or about the 5th of March, 1890, for the purpose of avoiding prosecution for the same offence so committed by him, he fled from the jurisdiction of this State, and is now in Boston, Mass., a fugitive from justice, as deponent is informed and verily believes."

On the part of Vinal, several affidavits on the subject of flight were introduced. The principal one, that of Vinal himself, was as follows:

"I am thirty-five years old; my home is in Lexington, Mass., where I live with my mother-in-law and child. I was born in New Bedford, Mass.

"For about three years, I was employed constantly by the Rand Avery Company, and was its salesman and solicitor for business until the fall of the year 1888. After the Rand Avery Company

ceased to do business, which was about November, 1888, I had charge of the sales department, and was secretary of the Lawson Manufacturing Company until about the first of November, 1889, since which time I have been engaged in my own business, having my office at 209 Washington Street, Rogers Building, in Boston. That business has required my frequent presence in New York City, and I have been there frequently since November, 1889. And since the date of the alleged offence, which is referred to in the requisition papers in this matter, I have been in New York at various times, namely, on the 5th of March, 1890, at which time I stopped at the Everett House, and on which day I left New York for the purpose of coming to Boston to get my mother-in-law, Mrs. Marianna Caldwell, and my daughter, Marianna, to take them back to New York with me, which I did, and arrived in New York on the 7th of March, and went with them to the Ashland House, at the corner of Fourth Avenue and Twenty-Fourth Street, and remained there with them until the 12th of March, when I returned with them to Boston to attend to my business here. I was in New York again on the fifth day of April, and stayed at the Everett House, on Union Square. I was in New York again on the seventh day of April, and remained there constantly until the 9th day of April, stopping at the Everett House. I was in New York City again on April 12, and stopped at the Everett House. The last time that I left New York City, which I think was April 12, 1890, I did so because I had finished my business there, and for the purpose of returning to my home and business here. I did not then know, nor was I in any way informed until the proceedings upon this application, that there was any such offence in the State of New York as I am alleged to have committed in the indictment annexed to this requisition. I did not do the acts which I am alleged to have done. I did not know, however, that it was an offence to do them until I ascertained it in the course of the proceedings upon this requisition. I returned from New York as I went to New York, in the course of my business, and in the conduct of my own affairs, and not to escape from any prosecution, for I had done nothing which I knew was wrong, and I had no consciousness of ever having committed anything for which I could be prosecuted under the laws of New York."

Vinal's allegations as to his visits to the Ashland House and the Everett House were corroborated by the affidavits of

the clerks of those hotels, and also by an affidavit of Mrs. Caldwell.

§ 572. Vinal Case; Argument for the State of New York. There were two briefs on the part of the State of New York, which were signed by John R. Fellows, district attorney of the county of New York, and John D. Lindsay, assistant district attorney of the same county. On the part of the accused arguments were made by J. H. Benton, Jr., and Mr. Swasey, the attention of the latter, it is believed, being chiefly devoted to other questions than that of the flight from justice. The writer is indebted to Mr. Lindsay for copies of the briefs presented on the part of the State of New York, in type-written form; and to Mr. Benton for a copy of his printed brief entitled, "What is it to Flee from Justice.'" It is only just to say that the arguments on both sides were conducted with exceptional learning and ability.

In the first brief on the part of the State of New York, it was contended: (1) That the offence charged against Vinal, being a violation of the penal code of New York, formed a proper basis for a demand; (2) that the question to be determined was whether the accused was duly charged with an offence, and not whether he was guilty; (3) that the certification of the demanding governor as to the authenticity of the copy of the indictment is conclusive on that subject; *

1 The writer is also indebted to Mr. Benton for the privilege of seeing a stenographic report of his very cogent argument on the subject of the discretion of the governor under the Massachusetts statutes.

2 Citing 13 Am. L. Rev. 192; Hurd's Habeas Corpus, 2d ed., 601, 602; Kentucky v. Denison, 24 How. 86; 24 Law Mag. 226; Spear on the Law of Extradition, 2d ed., 351; Matter of Hayward, 1 Am. L. J. N. s. 271; People, ex rel. Lawrence, v. Brady, 56 N. Y. 182; Matter of Leary, 10 Ben. 197; Com. v. Green, 17 Mass. 515, 547; Matter of Fetter, 3 Zabr. 311; Matter of Voorhees, 3 Vroom, 141; Morton v. Skinner, 48 Ind. 123; Matter of Hughes, Phill. (N. C.) L. 57; In re Greenough, 31 Vt. 279; Opinion of judges of supreme court of Maine, 24 Am. Jur. 226; Ex parte Reggel, 114 U. S. 642; In re Keller, 36 Fed. Rep. 681; Brown's case, 112 Mass. 409.

Citing Judge Cooley, Princeton Review, January, 1879, p. 165; Matter of Clark, 9 Wend. 212; Opinion of Gov. Fairfield, 24 Am. Jur. 226; 2 Seward's Works, 528.

4 Citing Matter of Manchester, 5 Cal. 237; Kingsbury's case, 106 Mass. 223; Kentucky v. Denison, 24 How. 66.

(4) that the legal sufficiency of the indictment is a question for the tribunals of the State in which it was found;1 (5) that, where an indictment is presented, it is unnecessary to furnish evidence that the act charged is an offence against the laws of the demanding State;2 (6) that recent decisions broadly assert that the recitals in the warrant of the governor of the demanding State are conclusive that the accused stands charged with crime in that State; 3 (7) that a duly formulated demand, charging the person sought for with an offence, and with being a fugitive from justice, is a sufficient foundation for the issuance of a warrant of arrest by the governor on whom the demand is made; (8) that, in order to be a fugitive from justice, one need not have left the State for the purpose of avoiding prosecution, so long as he has in fact left the State; (9) that it is immaterial that the fugitive is a resident of the State in which he is found; (10) that evidence of flight may be supplied by affidavit;7 (11) that it is no cause for discharge that the proofs of flight are meagre, if a prima facie case is made out; 8 (12) that an affidavit on information and belief is sufficient as to flight;9 (13) that, a proper case being presented under the law, the governor is

5

1 Citing Matter of Voorhees, 3 Vroom, 141; Davis's case, 122 Mass. 324; State v. Schlemm, 4 Harr. (Del.) 577; People, ex rel. Lawrence, v. Brady, 56 N. Y. 182; Matter of Briscoe, 51 How. Pr. 422; Ex parte Roberts, 24 Fed. Rep. 132; People v. Byrnes, 33 Hun, 98; Ex parte Reggel, 114 U. S. 642; State v. O'Connor, 38 Minn. 243; Kentucky v. Denison, 24 How. 104.

2 Citing Roberts v. Reilly, 116 U. S. 80; In re Clark, 9 Wend. 212; Kingsbury's case, 100 Mass. 223; In re Greenough, 31 Vt. 279; Opinion of judges of Maine, 24 Am. Jur. 222–223; Kentucky v. Denison, 24 How. 66; Davis's case, 122 Mass. 324.

8 Citing Ex parte Swearingen, 13 S. C. 74; Leary's case, 6 Abb. N. C. 43; People v. Pinkerton, 17 Hun, 199; Hibler v. State, 43 Tex. 197; Johnston v. Riley, 13 Ga. 97.

Citing Ex parte Lewis, 21 Cal. 523 ; 7 N. Y. Crim. Rep. 411 et seq.

Citing State v. Richter, 37 Minn. 436; Roberts v. Reilly, 116 U. S. 80;

Ex parte Brown, 36 Fed. Rep. 653.

• Citing 36 Fed. Rep. 681; Kingsbury's case, 106 Mass. 223; In re Adams, 7 L. R. 386.

7 Citing Hurd's Habeas Corpus, 2d ed. 612; Spear on the Law of Extradition. 8 Citing Ex parte Reggel, 114 U. S. 642.

9 Citing In re Keller, 36 Fed. Rep. 681; State v. Richter, 37 Minn. 436; Roberts v. Reilly, 116 U. S. 80.

bound to comply with the demand, and that the application cannot be impeached for alleged collateral motives;1 (14) that, apart from the cases in which the question of fraud is involved, the only cases where a demand may be denied are, (a) where the fugitive is under civil or criminal process in the State in which he is found, and (b) where the fugitive's identity is not shown; 2 (15) that where the indictment substantially charges a crime on its face, neither the courts, nor the executive on which the demand is made, can go behind it and inquire into the circumstances.3

§ 573. Vinal Case; Argument for the Accused. In the brief of Mr. Benton, after some general observations on the importance of the constitutional provision as affecting personal liberty, the question is raised whether the indictment charged an offence under the penal code of New York. It alleged that the Lamson Consolidated Store Service Company was a corporation under the laws of the State of New Jersey, but did not allege that the stock was ever dealt in in New York or had a market price there. The stock was never listed at the New York Stock Exchange. Was it, said Mr. Benton, an offence under the penal code of New York to circulate

1 Citing Wharton's Cr. Pl. & Pr. § 34, and cases there cited; I. T. Hoague, Am. L. Rev., January, 1879; Opinion of Gov. Fairfield, 24 Am. Jur. 226; Spear on the Law of Extradition, second edition, in which he repudiates the views expressed in the first edition as to executive discretion; 13 Am. L. R. 241 et seq.; 6 Pa. L. J. 212; State v. Schlemm, 4 Harrington (Del.), 577; State v. Buzine, Id. 572; Dow's Case, 18 Pa. St. 37, 39; Cooley's Constit. Lim.; Walker's Am. Law, sec. 64, note (c), 7th ed.; Hurd on Freedom and Bondage, vol. ii.; In re Troutman, 4 Zabr. 634.

2 Citing Leary's case, 10 Ben. 197-198; s. c. Abb. N. C. 441; Kingsbury's case, 105 Mass. 223; Davis's case, 122 Id. 324; In re Clark, 9 Wend. 212; People v. Pinkerton, 77 N. Y. 245; s. c. 17 Hun, 199; Com. v. Daniel, 6 Pa. L. J. 418; State v. Buzine, 4 Harr. (Del.) 572; State v. Schlemm, Id. 577; Norris v. State, 24 Ohio St. 217; Work v. Carrington, 34 Id. 64, 319.

8 Kingsbury's case, 106 Mass. 223; Brown's case, 112 Mass. 409; Johnston v. Riley, 13 Ga. 97; Taylor v. Taintor, 16 Wall. 336; In re Clark, 9 Wend. 212; In re Voorhees, 3 Vroom, 141; In re Greenough, 31 Vt. 279; Kentucky v. Denison, 24 How. 66.

4 Citing Ex parte Joseph Smith, 3 McLean, 136, 137; opinion of Governor Cullom, case of Gaffigan and Merrick, 1878; report of the Special Committee of the Governor's Council on the subject of issuing requisitions on other States, made Feb. 25, 1841, vol. liv. p. 81, Council Records.

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