In the common-law cases of Simmons v. Commonwealth, State v. Buzine, People v. Schenck, and Ex parte Smith,1 it was not suggested that there was a criminal charge pending against the prisoners in the States from which they fled. On the contrary it was either held or implied that the pendency of such a charge was not necessary to authorize their detention. It is true that the Constitution and the act of Congress only require the surrender of persons who have been charged. But the arrest of a person as a fugitive from justice in order that proceedings may be taken for his surrender, is a very different thing from delivering him up as a fugitive from justice charged with crime in the State or Territory from which he fled. It would seem to be unnecessary, in principle, that a person, in order to be considered as a fugitive from justice, should have fled to escape prosecution on a charge formally made. If a man commits a murder a few feet from the State boundary and immediately retreats into another State, before a charge could possibly have been made against him, he is as much a fugitive from justice and from prosecution as if he had waited for a charge to be formulated and then escaped. The object of the preliminary arrest is to prevent the evasion of prosecution, by detaining the fugitive until the authorities of the State or Territory from which he fled may take the formal proceedings upon which to ask for his surrender. In such a case the legal probability that proceedings to vindicate the law will be taken by the authorities of the State in which the offence was committed, may, together with proper sworn evidence of the crime, be thought to be sufficient to authorize the arrest and detention. On the theory that to justify arrest a charge must actually have been made in the State where the offence was committed, a witness to the murder above supposed, instead of going in hot pursuit of the fugitive and having him arrested and detained, would be required to turn aside and repair to a magistrate in the State where the offence was committed and there make a formal charge, the fugitive meanwhile escaping. It has already been observed that the Constitution and the act of Congress only require the surren

1 Supra, §§ 583, 584, 585.

der of persons who have been duly charged. It may also be observed that they require an executive demand to be made before surrender. Yet this is not held to preclude the detention of a fugitive before any such demand is made; and to require a demand as a condition precedent to any action would entirely defeat the purpose of preliminary arrest and detention. It is true that the recent drift of legislation, and of judicial decisions as the result of legislation, has been to exact as the basis of arrest proof that the person whose capture is sought is charged in criminal proceedings in the State from which he fled. But this requirement may in one aspect be regarded as excessive and as out of accord with the object for which the statutes on the subject are enacted. In Dows' case, Chief Justice Gibson refused to permit a prisoner to set up in Pennsylvania, as a ground of discharge, his arrest without warrant by agents of that State in the State of Michigan, and urged as a persuasive argument for his decision that unless such extraterritorial arrests were 66 winked at," the constitutional provision, owing to the delays attending even the obtainment of warrants from judicial officers (which he said had been the practice in Pennsylvania respecting offenders from other States) would become inefficient.1

§ 600. Decisions under Statutes. In the matter of Heyward, before the superior court of the city of New York in 1848, under the New York act of 1839,3 the relator Heyward was brought before Judge Sandford, at chambers, on a writ of habeas corpus. It appeared that he was committed by a police justice of New York City for examination, on an affidavit of one George P. Smith, that he was "a fugitive from justice from the State of Pennsylvania, where he stands charged on oath with felony, namely, with having, . . . by false and fraudulent pretences and representations, cheated and defrauded the firm of Hampton, Smith & Co., the said firm consisting of Wade Hampton and others. . . . The said Heyward being charged with felony in the said State of Pennsylvania as aforesaid upon the oath of Wade Hampton, and

1 18 Pa. St. 37.

8 Laws of 1839, ch. 350, p. 323.

2 1 Sandf. S. C. 701.

certain other persons," &c. The court said that in order to give a magistrate jurisdiction to issue a warrant under the act it must appear: 1. That a crime had been committed in the foreign State; 2. That the accused had been charged in the foreign State with the commission of such crime; 3. That he had fled from justice and was found in the State of New York. The affidavit, said the court, was fatally defective in respect of the first and third requirements. It said that the defendant "stands charged" with a felony in Pennsylvania, but not that he committed it there. As to the third requirement, there was no allegation in the affidavit that was not perfectly consistent with the theory that the prisoner was in New York at the time the offence was alleged to have becu committed. The prisoner was ordered to be discharged, and the court refused to detain him for examination de novo. In the matter of Leland,1 before the same court in 1869, an attempt was made to remedy a defective warrant of commitment by an affidavit. The court held the affidavit also to be defective in that, being made by a person residing in the city of New York, it merely embodied a hearsay statement that the prisoner was charged with crime in Pennsylvania and was a fugitive from justice, and did not show, by an authenticated copy of the charge or indictment, or otherwise, that the prisoner was duly charged in Pennsylvania. The court refused to hold the prisoner to await further papers from that State. In the State v. Hufford,2 before the supreme court of Iowa in 1869, it was set up as an answer in an action on a bail bond given in the case of an alleged fugitive from Illinois, that his arrest was illegal. It was held by the court to have been so, under the Iowa statute, which authorized the arrest of persons" found in this State charged with any crime committed in any other State or Territory," &c. The court said. the charge must be shown to have been made to some court, magistrate, or officer, in the State in which the offence was committed, in the form of an indictment, information, or other accusation known to the laws of that State; and that the jurisdiction of such magistrate must be averred or proved in 17 Abb. Pr. (N. s.) 64.

2 28 Iowa, 391.

the proceedings for the arrest. It should be observed, in reference to the question how the charge must be made, or what constitutes a charge, that in the record before the court there was the deposition of a witness who testified that he was, at the time the alleged crime was committed, the coroner of Knox county, Illinois, and that he held an inquest upon the body of a woman named L. L. Strayer, then deceased. He stated the facts of the impanelling of the jury, the examination of witnesses as to the cause of the death of the woman, and that the jury rendered a verdict that death was caused by an abortion produced by the accused. He set out in his deposition a copy of the verdict. This deposition, with that of another witness, was suppressed, because, as the court below held, the evidence contained therein was irrelevant, immaterial and secondary. No objection was made to this ruling by the plaintiff. The supreme court said:

"We cannot determine the sufficiency of this evidence, nor could we, should it be held sufficient, consider it, as it was excluded by the court without objection. These depositions answer no useful purpose in the record, further than forming the basis of a supposition that evidence may exist, not used upon the trial, that the accused was, in Illinois, legally charged by the verdict of a coroner's jury with the offence for which he was arrested.”

It was held by the supreme court of Nebraska, in Smith v. State,1 in 1887, that under section 330 of the criminal code of that State, it was necessary that the affidavit to procure the arrest of a fugitive in that State should allege that there was a charge pending against him before some court, magistrate, or officer of the State from which he fled, in the form of an indictment, complaint, or other accusation known to the laws of such State. It was not enough merely to say that he "stands charged" with the commission of a crime in such State. It has been held both in California and in Nevada, under the statutes of those States, that complaints were insufficient which contained no averment that the fugitive was charged in the State in which he was alleged to have committed the

1 21 Neb. 552.

offence. It is not necessary that a warrant of arrest should have been issued in the demanding State.2

§ 601. Bail. Nearly all the State and Territorial statutes provide for the taking of bail where the fugitive is arrested on the warrant of a magistrate before demand. The laws of Arizona, California, Colorado, Idaho, Nevada, New York, Oregon, Pennsylvania, and Texas simply provide that the magistrate may take bail. By the statutes of Connecticut, Delaware, Kansas, Maine, Minnesota, Mississippi, Missouri, and Rhode Island, the magistrate is authorized to take bail if the offence is bailable; the statutes of Illinois, South Carolina, Virginia, and West Virginia say, if the offence is bailable under the laws of those States. The statutes of Alabama, Massachusetts, New Hampshire, Washington, and Wisconsin provide that the fugitive shall be admitted to bail unless his offence is capital; the laws of New Mexico and Tennessee say, if capital where committed. The law of Iowa provides that bail shall be taken except in cases of murder;3 of Maine, that bail shall be taken except in capital cases, or murder in the first degree. A person arrested on a rendition warrant is not entitled to bail. In the case of Kilrain, who was arrested in the city of Baltimore, in the State of Maryland, on a warrant issued by the governor of that State, in compliance with a requisition of the governor of Mississippi for his surrender on a charge of prize-fighting in the latter State, the fugitive obtained a writ of habeas corpus. While this proceeding was pending before Judge Harlan, of Baltimore, the governor of Mississippi revoked the agency first given by him, and substituted, by a telegram to the governor of Maryland, the name of a new agent who had not arrived in BaltiOn this ground, and pending a further hearing of the writ, Kilrain was admitted to bail. At the final hearing, the

more.

1 Ex parte White, 49 Cal. 433; Ex parte Lorraine, 16 Nev. 63.

2 Tullis v. Fleming, 69 Ind. 15.

It was held in State v. Hufford, 23 Iowa, 579, that this exception, construed in connection with the State constitution and with other parts of the statute, meant in capital cases, and that bail was properly taken on a charge of murder in the second degree, which was not capital.

+ Ex parte Erwin (Texas), 21 Alb. L. J. 57.