IN BE eMit.'
833
which this importer was riot concerned was taken by or before them, the motion to strike it out is denied. The' importer has abundant oppor.. tunny to controvert any such eVidence, tlpon the reference to which he is entitled under the fifteenth seciion of the act. .
In re COOx.· (Cftrcuit Court.:E. D.Wisconsin.
Aprll., 1899.)
1.
J!ABB,U COBl'l1e-INTlIlBs'UTB. ExTlU,DITION·.
I.
SA.MlIl.
The executive warrant II, however, prima ftJcle evidence of' flight, and, being delivery 9Uhe prisoner to .the .demandiulr statll. the surrendljr lslawful. The executive warrant has, npon surrender of the prisoner, spent its foree. He is then held in lawful custody, under process of the state, and cannot .thereafter assert that he was not a fugitive from.Justice. One who personally, within a state, has sE!t in motion the machinery for crime, and departs the jurisdiction, after the cominlssion of an act in furtherance of, but the oonsummation of, the offense,.11 a "fu£itive from justice, n within the meauiXli: of the law. . .'
.. SA.MlIl-F'UGlTIVlI FROM JUSTJClI.
'" SAME-TRIAL I'OR OTHlIlR Ob'lIlNSES.
Wbether.one surrendered by one state to another can be VIed for 8D7 other offense for which he was surrendered, qUQ1rs1 . (81/ZU1bua bil the Oourt.) . .
W tit
Or Habeas GJryus. ST,ATEMENT BY DISTRICT JUDGE·
. On the '18th of February, 1892, upon the petition of Charles E. Cook, claiming; to be restrained of. his liberty by one Colden A. Hart, sheriff of the county of Dodge, state of Wisconsin, a writ of habeas corpus was . issued out of this court, to which the sheriff made due return, which the petitioner duly traversed. The facts disclosed by the record, so far as essential to the determination of the. matter, are substantially these: On the5th'day of March, 1891, one George W. Morse complained to a justice of the peace of the county ofDodge that the petitioner, Charles E. Cook, and one Frank Leek, on the 7th of May, 1889,opened a bank at Juneau, 'in the county of Dodge, styled the "Bank of Juneau," and enterednpon and engaged tin a general banking business, having a pretended: capital of $10,000; and continued in such business, soliciting and receiving deposits up to and including the 20th day of June, 1890, upon which day the bank closed its doors and failed. That Cook was the principal owner of such bank, owning nine-tenths interest therein, Leek owning one-tenth interest therein. That Cook was an officer of the bank,and.hadtbe general supervision of the business,which was transacted either by him personally, or, under his order and direction, by one Riohardson, acting as his agent. That from January 6, 1890, to v.49F.no.l0-53
ll1M:2QjllB:OO r
bf,the
,l!eld'out:bYr money
,q'llh.$,Ubltl,'l!.8li< ,done, and direction of Cook, h\StkWl,Jwpwledgej:,4Qdjtl)p.t,l},o,pa.rkof; said amount has been paid or returned to the depositors. That on the 6th day of January, 1890, Cook and Leek and the bank were severally insolvent, and have since socontihtied,' and that such insolvency of the parties and of the bank was well known to Cook on and ever since the 6th of January, 1890; and that.p.ttthE} ofreceiving all the deposits stated, Cook knew, and had good reason to know, that he and Leek and the said bank W'ereeach,t.LBdall,of themunsafe"and ins.ol:vent. That on the 20th of June, 1890, at Juneau, in the county of Dodge, Cook, as didaqGept, 6fJnnear{ from'one:Herman,.Beaker, a,resident ,of thecounty'0J<"lJOdge,of8J.75, wlii'tlli'has'nevet'bMii"paid retumedj and that,a:ftM'time of reeeiv-, lng"v,c.hlleposit, g()od he ahd Frank Leek' atnl' the' 'said Bank of and aU of and.. i1iat aU the other deposits menti'6hed, were received by Cookwitlh intent to cheat tq, t1:le of . TbEli'etipori the j usto whomthe.a.ffidavit and complaint bad,been presented issu'ea tl1:e for the arrest of Cook','up0Q-;wh,ich, accompanied with several affidavits in support of the principafcharge;' and alsQ iiffid:!tvit 0.1 certam meftectual attemptS 'to find Cook m the Clty <!f OhlMgo, !!-pd wh,o states "that he knows that said Charles E. Cook WRs at said times, and now is, a fugitive from justicej" and also upon,.th,e.,app,lic1,ltiQuQfJhe district attorney for the county of Dodge, who states that" said Charles E. Cook is a fugitive' from'juMide; 'ftTidhas fled from the justice of the etated,Wisconsin, Ll.ndi.Btvpided.: . "......the, governor of the state· of WiscOnsin" ,on the 9U)/day issued bis reqUisition upon . the governo.r<of the statefof Ulinois,.'req.uiring theapPfElhension of the said Cook. and· his an deputed: I to ,re¢ei've and convey bim40 tbestate of:WiscQnsin. ,That ,requisitiou:'was honored by the exeebtive of th&etateof ;£lliuois, ,who..issued his wat,tant <>n:the 10th day of March ,1891, to the ptQperpeace-oijioers of thatstate, reciting that the exectitiv,e authority of the state of Wisconsin had demanded theapprehension, and;<lelivery oC,Cha.rles E. Quok l .'1 represented, to :be a fugitive from justice,?? and· had prQduoed and laid ,before him copies of the charge reciteddlnd l'equiring the. officers ;to w.hom the warrant w,as,addJlesseditoarrest .and seeure'theaaid ,fugitive; Charles E. Cook,iftGtbe foun'd'w,itbinthe}im5.ts of thestaUl, and to deliver him into the custody· of the agent'Of the,executiveauth9rity of the state,·of ;Wisconsin, appointed ,to,·rooeive the said fugitive., Under such warrant .cook was arrested by the ,sheriff of. tbe county ;()f Cook, in theetate· of Illinois, and delivered ,to the agent;of.the. $.uthol'ily ofWia-consin, who cQuyeyed ,him to the county. ()f oi11the state of Wi$<:on$io, wperl:l: he. was tUliamined: before the issuing tbe warrant.
or
:rN
RE cooi:.' r "
835
and, held tQ'ati,swer'.,tothtlcharge. November, 1891, thE, the, petitioner, Cook, settingfor,tldhe offense'cllarged' otlginal domplaint'before the magistrate, upon which he was arraigned, and to' which he was compelled to plead, and held to, bail in the sum of $5,000. , ,Afterwards, and prior to tl;le writ of liabe<UI Corpus, surrendered by his baIl, and was held'i>y' the sheriff oftbe countrof Dodge, under process issued out ofthe sail:l:conrt, to answerthe At'the:February term, 1891, of the court of Dodge county, grand the county, preagainBt the petitioner, Cook, charging him with different lfiohifions of the criminal' laws of tbe state QfWisconsin, some for larceny, some for embezzlement, and some for deposits in the bank, knowing the bank to be uDl:lMtdmd insolvent. All renses are to have been, committed 'in cOl1nection with this busi- ' ness of bankirig;the times oftheailegedotfenses varying,btit all charged to have beEm committed between the 3d' and 20th days of June, 1890. To the several indictments Cook was' required to' plead, and under them he was held' to bail, arid subsequeritly, and before this writ of' habeas corpus, by bis bail surrendered to the sheriff, ithvhose custody he was at the time of the issuance of the writ. , The sheriff justified his detentionof Cook under the wnts issued upon the information and the several indictments stated. , , It was established upon the hearing; to the satisfaction of the court, that Cook, for some years prior to the 20th of June, 1890j'and for some years prior to his arrest ppon the df the executive of Illinois, had been, and still is, a resident of the city of Chicago, in the sbite of Dlinois; that he had made visits to the state of Wisconsin in connection with his banking bnsipess at Juneau and elsewhere; that he' left Chicago on the 17th ofJune, and went to Hartford, in the county ofWashington,l\ltate of Wisconsin, where he spent the,whole of the 18th' day of June, thence proceeding,to Beaver Dam, in the county of Dodge, where he waS engaged during the whole of the 19th of June in business not connected with the Bank (If Juneau; that early 'on the monling of the 20th of June, he left Beaver pam, and made a continuous journey too Chicago, arriving there at 2 P· .M., of the 20th, and did not, on the occasion of that visit to Wisconsin, visit or through the vilhtge of Juneau, and had not been at Juneau for some three weeks prior to the closing of the doors of the bank on the 20th of June. It was also conceded at the hearinp; that the particular deposit by Herman' Becker, charged in the 'complaint upon which the requisition proceedings were had, wasacttially:made at 4 o'clock in theafternoonof the 20th of June, and after the petitioner's' arrival in Chicago. It is also proper to state; that the petitioner testified at the hearh1g that he was a large stockholder in the Park National Bank 01 Chicago, which was closed by the comptroller ortlle currency on the 20th day of June, 1890; that he left Beaver ))am for Chicago upon a telegram stating that trouble existed with reference to that bank; that that bank was in fadt solvent, and has paid all its debts, and' that'it should not have been closed by the comptroller;
that the closing of that bank com.pelled the closiqg of the doors of the thatupto he only the Bank of aJ;1dMr. solveqhl¥l4 that their subsequent; insolvency ab<;>ui by the hn,pmper closing of the Park :National Bank. . '. r. .' .. , J . Ohaa. H. AlrJ.riph · .V. Qu.arle8, for petiti<w,er. ,. W.O. William8 and Lewi8, l)ist, 4.tty. , for. res,pondent. Circuit ,and',TENKINs, District Judge. ,> " ( ."., · ,.";,., ,.', ',!
JENKINS,' District the facts as, The reQord for and, irwilortant questions: F'i,rBf,:W.hether it be competent, for tIle judicialtrip'p.nals to review the or the executive qf J.o, his wlj.rrap,t. Second. ' If his \ subject to action caP be inquired into of the aUegeu fugitive, from when is held pU,der state proces8.,'l'hird. W:h,et,her the peti,tlOuer was a fugihve ... Fourth. Whether, the of the proceediqg .:COl; lris rendition, he can be'4eld or trieduppn any other charge than forwhich . '. Up,4,ou1:>tedly, as between indepemlent sovereIgntIes,. the surrender of rested merely iJ\l ,cOlnity, and was .conq,ned to those whose crimes "touched the state," or were so enormous as to n:J.ake them.ho8te8 Vllttel" book 1, c.19; Vattel, h;oo(2, c. 6. 'If tbflre existed anY.JD.oral obligation, it was quite was notr,eoognizeq of I The surrender equId not be demanded al?,ofiightj but as observesjn his :may sometiOJesyield,wnatXight :withllolds." 80'.8.1so, before the Revolu... tion, ooec010ny found :n<;>prqtection in He was fortpla1(to the place of his this formltlcompact, H"citty, ,or agreement. between thecolol1ies. Oem. v., 1O,Se;rg. In cases Rianoer in ,'WlllCh qe was brol,lgbt could not to with \vhich he charged, or. asgroW'td for witqqut, trial. Eachsoverhad thEpight itself fro.m .the Justice ulld refuge its JunsdlCtlOnj and, if it BO" to. the fugitive to thesovereignty,W):lOse justice he ha(i Elverylridependent na,tion, possesses, in,al>sl;lnce of'poBitive of' 'treaty obligation. the inherel1t right of eXJ?ulsion of undesirable, inhabitants. 80, also, the prisone;r could not rightly urge, by way Qfdefe,n!;le ,or in abatement, thathe WI.l,B forcibly and by abduction wUhin the jurlediction froJ,ll a foreign coUntry. The the I?oyereignty of an indeJ?eudent pation is matter which touchEls relations pf the two countries, and is Qf no c,oncern to hini. He Uiayhavll, it is true, recourse, in the law for forcible .Qut:the manner of his subjection to the jurisdiction ?oes not jarisdiction, nor the prisouEfr, against responq-, Ingfol his oft'eQse. 1pxparte Scott, & C. 446; State v. Brew""
INRE COOK.
837
7 Vt. 118; Dowa" Case, 18 Pa. St. 37; Ker v. IUin0i8, 119 U. S. 436, '1. Sup. G't. Rep. 22$. It is,however,more. than whether in those countries where the common law prevails, and where personal liberty is the chief concern of the state, and is protected by eonstitutionalsMe.. guards, there exists any power, in the absence oftreaty,-which is a law of the land, (U.S. v. Rauscher,119 U. S.407, 7Sup. Ct. Rep. 234,) -to make',surrender of a fugitive. It is true that.such surrender was made by this government in 1864, in the case of Arguelles. In that case no was permitted by writ of habeaa corpus to test the seizure. The action of the executive was severely critilegality of cised, and was.sought to bejustified .upon the ground that "a'nation is never bound to furnish asylum to dangerous criminals, who ate offenders against the human race." Possibly the nature of the offense-selling human beings intq slavery-may have induced the al;:tion of the executive, and may extentlate an act. which is opposed to the holding of the state department from an early date to the present time, and to the declared opinions. of such eminent statesmen as Albert Gallatin, JOhn Quincy Adams, Mr. Livingston', Mr. Fo)."Syth, Mr. Calhoun, Mr.Cass, Mr. MarcY,Mr. Hamilton Fish, Mr. Evarts, Mr. Frelinghuysen, and Mr. Bayard,fl.nd would seem a violation of the fundallll'lntallaw that np man "shall be deprived of life, liberty, or property without due process of law." In most civilized ,countries the imperfect to Sur. render fugitives from justice has, by force of treaties,ripened into abso.lute duty. It cannot now be doubted that in those countries dominated by the commonlaw extradition can only be as provided by treaty; offenses only denominated I'n the treaty.. . . ' ,: and for The question of interstate rendition rests, however, upon differ.ent ground. The states are not, in respect to the surrender of fugitives, inThey cannot contract with each other for dependent such surrender. By the compact of union they have yielded their sovereignty in that regard to the federal government. Such rendition of fugitives can only. be rightfully effected under the provisions of the federal constitution, and the laws passed in pursuance thereof. That constitution provides (subsection 2, § 2, art. 4) that "a person charged in any state with treason, felony, or other crime, who shall fleefroIll justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state jurisdiction of the crime;" Whether, since the constitution, a fugitive forcibly abducted from one ·state and ered into thejurisdiction of another can be held for trial in the latter; may perhaps be an open question. In Mahon v. Justice, 127 U. S. 700, 8 Sup. Ct. Rep. 1204, such a case was presented to the supreme court. It was held by the court, Justice BRADLEY and Justice ing, that no right secured under the constitution of the United States had been violated by such abduction, and the federal court could not interfere, "whatever effect may be given by the state court to the illegal mode in which the defendant was brought from another state." Notwithstanding some expressions in the opinion of the court which 'Would
FEDERAL&EPORTEB,
vol. 49.
ieem!to asserttbe lawful jurisdictiOn of: the state courts under is thntnofedE'ral question was involved. UpaD,CI1le main authGrities &l'e not in accord. It is happily 'for USJb ()oilsider "that question here. This constitutional '68 one authori has expressed the thought, thtlt and iti all cases ·be vindicated." The duty imp08edis imperative,' takillg away. all ,discretion, in caSe of an execudemand, "andmakes'thata matter of duty which else had heena matter of grace." Chief Justice GIBSON, Dows' Caae, 18 Pa. St. 37. SOOt' a,Jeo, In re Voorhees. 32> N. J. Law; 145. The constitutional proviscongress provided for its enforcement by ion UlJt: being actofl2th February, 1793, preserVed as section 5278 of the present Revision. dtwas :thtlrebyenacted tbatauthority ofliny state or territory demands any person M" a fugiti've froin justice of tbe'iexecutive authority of any state or territory,to which said parson has fled, and produces a copy of an indictment found OAlanaftldavitmade before a magistrate of any state or territory, charging demand,ed witb haVing committed treason, felony, ol'olher crime,certUied the governor or chief magistrate of the state or teh'\tpry from whelice tile person so charged has tied. it shall be the duty of the eiecuti.ve authoritt.of the stateottemtory to Which such person has fled toci!.'use him to be arrested and 'sechred, and to cause notice of the atrest to begc1ven to the executive authority making sllch demand, or to the agent of Bucb ....thority appointed to receive the fugitive, and to cause the fugitive to such agent when hllSl;lllllllppear. If no such agent appears to withinsi,ll:,months from thatime of,tbe anest, th.· prisoner may be discharged. All costsar eXpenses incurre,d in the 'apprehending, securing, and transmittingsuqh fugitive to the state or territory making such demand shall be paid bysucbielate or territory;" ' ,. It.ie apparent that the act provides no means to compel the performoUhe obligation enjoined, and that the duty of the executive upon whom ,d'mand is made is imperative. Whenever the executive of a state shall demand any person 88a fugitive from justice of the exeCUtive of.the state to which such person has fled, and shall produce a copy of the charge, certified by the executive of the state from whence thepersQnieo:chal'gedhasfled, it shall be the duty of the executive of the state to whioh Buch per$on shall have fled to cause his arrest and surrender to the demanding .state. The certificate of the executive authority of tbEfdemandingstate is conolusive as to the charge of crime. The executive·ofthestate where the fligitive is·found has no right to look behind it, or to question it, or to inquire into the character of the crime charged·. Com. v. Dennison, 24 How. 66. Whether the person demanded be a fugitive from justice is a question of fact to be determined in the/first instance hy the executive of the state upon whom demand .iB wllide,upon sueh evidence as he may deem satisfactory. Roberts v. lWiUy, 116 U. 8.80, 95, 6 Sup. Ct. Rep. 291. But this investigation is purely parte" the demanded person having no right of opportunity to, he. heard. Here there was no finding by the executive in b!lrm$ that Cook was ll. fugitiv.e from justice. The recital in tbe writ is:
IN
. COOle.
839
"Thaexooutive authority of the state QfWieconsin<hlmands q( tIfe,.the apptehensionand delixery:of Charles'E. Cook, represented to bea fugi.. tive from justice." It is,howeter,l'llled· that the' illS,uance of, the warrant ofr.endition is oLitaelfpri'1/l.(l, facie finding of the fact of and tblt removal until the ;·presumption in iUl fav.or is oV'el'liJarownby. contrary proof. Roberl8 V.i &W1I, 81l!fn'a. That ilecision by Hsvery terms implies tJaat the action of the governor is only presllmptively regular, and can be.reviewed by. the courts. Surely it Qannot be claimed that such action .is conclusive ,upoopersona! right, and may not be inquired of by judicial tribunals. Surely:iLcannot be that right to persooallibertyhangs upon.so slender &; tllread as the a.rbitrlll'y will of the authorities of the demanding. and surrendering I"No person shall .be deprived ,of life, 'liberty, or property without due process of » That is the fundamental law: oftbe mnd,coming ..tQ .' us from Magna Oharta. It is. ,not due pro.cess. dOawwhich condemns out hearing, .which convicts without, trial. . The phrase "due process law, its synonym, "law Qf the land,» cannot ,r have better definition than that given by Mr. Webster in the Dartmouth OoUege (JaBe,: the Jand"'ls:most clearly huended·thegeneraJ: law whichheR1'8before it condemns, which.proceedsupotJ inquitY" Rnd rendllrB judgment QnIy after trial. mellningi,s life, under the protect/onoi' the g.. neral rules Which, govern Dartnj,orith (JoUegev.:Woodwa'rd. 4 Wheat. 51B. .. ., '.' ,
It is essential to compliance with .SU9h/ ·executive demand that the persoDwhose surrender is should be adjudged a fugitive from the justice of the demanding state.Thfil Qf the executive is not conclusive of that fact... And, so we are of that the action of the executive is. reviewa\>le;by federal and that it is.com. patent for the. courts to determine whether in fact the demanded person is a fugitive from justice.J» re Manclu.l8ter, 6 Cal. 237; Ex parte J08tfjJh SmiJh,8 McLean, 121; v. Leonar.d,50 Iowa, 106; InreMohr, 13 Ala. 603; ,Hartman v. Aveline, 68lnd.853; Wilco:c,v. Nolze,34 Ohio f;lt. 520,521; . But it is said that here the. petitioner has been rendered to the iemanding state, and is now held, not under the constitutional provision, but by virtue of state process., In other, words, that the act of rendition has been consummated; that"theJederal process has spent its force,and is jv,nctUB oJficioj that the writs of the state control the of the peti. ' tioner, and no federal question is here involved. In rel'pect of this question we !;\re without the decisive guidance of the ultimate judicial authority. We ate referred to but two cases in the courts,and in these cases the judges seem to have arrivj:ld at oPpositfil copclusions., In the Chse of l!VCYlJe8, 17 Alb. Law J. 407, before Judge NIXON, of the district of Ne.wJersey, it was held that a fugitive from justice, extradited from one sUite'in the Union to another, for prosecution, notwit4standing it may appear that the arrest under the rendition pro-ceedings was without legal.authority. In TenneBBee v. JackIJon,36 Fed.
840 Rep;2a8,,> Judge
FEDERAl, REPORtER',
l'eached an opposite conclusion, and held that. as the:petittonet had never been in the demanding state, he could not be a fugithr$'fi'om the justice ofthat state, ahd that the jurisdictional question could be assetted' after his rendition had been accomplished, and he was held under 'process of the demanding state. The proceedingshhe'were instituted by the state now claiming jurisdiction of the petitioner. The custody of him has been obtained solely by virtue of that detnand. He is subjected to the custody of the state of Wisconsin by thelj!>Ower of the United States, acting through the executive of Illinois at the instance and upon the demand :of the state of Wisconsin. It isiIil!iistedfbr the petitioner that, if he was not in fact a fugitive from jU$tice, the executive of Illinois was .without jurisdiction to yield him to the state of Wisconsin; that the latter state cannot claim any benefit'oHts.unauthorized act, and hold him under its process,because such e\1Stody'WaS obtained :by the wrongful act of the state, in violation of the sl1preme law of the' land. It is said that in such case, when the by' which one is broukht within the jurisdiction is law, the detention is.improper, although sought to be justified',under process'\1ilid, within the jurisdiction to which the party has been unlawfully brought; that,wanting the jurisdictional fact of flighk!tlie proceeding was" coram llDn judicej that the question of flight, being jQris,d,iciioual, is open to inquiry as well ,after as before the surrender; that the petitioIieris physically within the state because coQ.'lpelled by the supreme law unlawfully put in but that he is not here tol''thepurpose of jurisdiction by the .state so unlawfully, under guise of the'law, the possession of his body· Upon the other hand, it Is nrgedth'at the executive had the right, in the first instance, to' determine the question of flight upon such evidence as to him was persuaSive of the fact; that his warrant, unassailed, is sufficient to and surrender of one charged with crime, and is a for. the arrest oustod.y offender; that the the:odemandmg state by vutue of such warrantwaslawful;"that upon sUl'I'enderthewarrant had spent its force, and thereafter the prisoner is in custody rightfully, not by virtue of the wattant, but process 'of thestatej and that, therefore, no federal 'question 'isinv01tted. } We are of opinion that the contention in behalf of the petitioner cannot be sustainedtThe\'ice of this position is in the assumption that the faet 'offl.ightris jurisdictional in the sense that executive action is void if, in point of fact, the demanded person be not a fugitive fromjustice.The pow.erto act updna given state of facts, and to decide whether 'that state offuets exists,' COnstitutes jurisdiction. The decision therein :is .conclusive"ltihtil properly' set aside. The constitution and the act of congress haw' lodged with the executive of the state uponwholU proper ;demand'is made for one alleged to be a fugitive from justice the jurisdiction to determine whether :th& person so charged be such fugitive, and ,his determination. is sufficient to justify the surrender. lIe has, by virtue ot'the law and of the action of,the executive of the demanding state,
IN RJl:,cDOK.
841'
jurisdiction of the subject-matter. He has Jurisdiction of the person of the petitioner by virtue of his presence within the state. His determinationpartakes of the nature of a judicial proceeding. It is true, his action is Therefore it is that the courts will review his determination. But that fact is not avsiling to destroy jurisdiction. He may err, but-to use the expression of Chief Justice RYAN-he had "jurisdiction to commit the error." His determination oBhe fact of flight, evidenced by the issuing of his warrant, suffices to justify the removal until the presumption in its favor is overthrown by contrary proof in a proper proceeding, Roberta v. Reilly, 116 U. S. 80-95,6 Sup. Ct. Rep, 291. His warrant, unassailed by competent authority, is complete justification for the arrest and surrender of the alleged fugitive. When so delivered by virtue of such warrant, his surrender is lawful, and the demandingl!ltateobtainsrightful possession of his person, and may lawfully subject him to its criminal process for the offense charged. The warrant has then spent its force. It is no longer operative. The alleged offender is no longer subjected to deprivation of liberty 'by virtue thereof, but is rightfully held under the process of the state. When that has happened, no fed eral question remains. If the fact of flightbej u.. risdictionalin the sense that it must exist as essential to the validity of any action by, the executive, then it must always remain open to inquiry,-as well after surrender as before; as well after trial and conviction as before; as well after sentence as before; as well during onment upon conviction and sentence as before surrender or tria:l,-for the reason that upon such postulate the executive would not have juris.. diction because he so determined; and any inquiry by habeas corpUs-, the onlymeims of review of his decision-would not bar another writ,! In such case, also, the officer executing the warrant of the executive would not be justified by the writ, but by the jurisdictional fact of flight upon which the writ is predicated,and which, if· the jurisdictionaUact did not exist, would be mere waste paper. Such confusion, necessarily resulting from such holding, is not to be lightly entertained. It cannot be assumed that any such meaning of the constitutional provision or the act of congress was possible to the minds of the framers. The fact of flight may be in a sense jurisdictional to removal, as one says a criminal couit hasjurisdiction only of crime. But such court has jurisdiction to, determine whether a certain act charged to have been committed is or is not a crime. Its decision therein, although erroneous, is not void. So here, the jurisdiction to determine the fact of flight is lodged with the executive. He has jurisctietion of the subject-matter. His warrant is valid until his determination of the fact of flight is properly reversed. When, therefore, such valid warrant has been executed, the surrenderthereunder is lawful, and the party lawfully subjected to the state jurisdiction. It was urged in argument that under such ruling there will exist opportunityfor oppression; that the executive may be imposed upon by e:cparte and false evidence, anu the warrant be improvidently issued t and that so it may happen, as was case in Tenneasee v. Jackson, supra,
843
vol 49.
that,one ,be aurrendered:who was nevedn the derna:uding·state, and could not,therefore, be a fugitivefrom itsj;ustice. This is possible, but the remed.yi.w.ould seem to rest with the ei:ecutive to take:aption to allow the pl'isobctlfdproper·QPporttlnity to apPeal' to the lawt the case stated,.\'RQ'wd,!le,deernedsuch a-fraud,:upQn the lawll¥Itobring within cogniiance of the CQUftJ·· ) i. If; ·however, we shou:Id prove to be in in our conclusion, and open {orconsideratiQn notwithstanding the the question of flight sunren.der .under thewarWlnt, we are persuaded that b,ere the executive wartllnt: Was: providently. issu.ed, and· the surrender juetified by the facts and the"law.. W6[Wmenow:to the considerationoithe questio,Q.whether the peti. tionenvas-afugitive from justice wHhinthe intendm@tQf the constitutioIL ,:In this connection: :itis insisted for the petition.er that it was impossible ,f()r bim to have,C(inumitted tJae,.orime charged against him, because it is conceded .thatbe was not'within the state of Wisconsin at the time of, or voluntarily after, the receipt of the deposit charged, and could ,ThelawofWisconsin (Rev. St. not therefore be a Wis. §4541).'rendere it criminal for any officer, director, stookholder, cashier, teller, U14nllger, messenger, clerk, or agent of a\lY bank to accept or receive: :on, deposit or for safe-keeping any deposit of, money when he knows, or has good rease>n to know, that such bank is unsafe or insolvent. In construing ithe must had to the. mischief sought to be was designed to prevented; ,'. ,Th&purposeofthe law prevent fraudulent banking, and to protect the pu.blic from dealing with such unsafe or.insolventconcerns.Tbemanual reoeipt of the deposit is but one :step, -and the: final step, intM consummation of the offense. There must precede the unsafe and insolvent condition the representation ofsafety and solvency, and the.knowledgeof the unsafe and insolvent condition. These-are the essentillis of The reoeipt of the deposit may be by.an innocent instrument of a guilty officer of the bank. It is a criminal act to hold out an.,insolvent bank as safe·or solvent, effective to the cOl1summationofcrhnei,upon the receipt of the deposit. The open door of abank.is an invitation todepolJitors. The open door of a bank is a representation to. the publio that the bank is safe and solvent. The keeping open :of'a bank by the superil)tending officer or proprietor is an authority to his clerks to receive depQsits. If the .doQrsareopened fQr tbe witbguilty kn.owledge by him of the unsafe or insolvent condition of the .bank, and a. deposit is recelved by his agents, it is received ,by him. It was his act j for which be mUllt respond to the thuds unessential.. In oontemplation law. His by,his agent deputed to perform the wrongful act of law, he he has planned., It wllshis·act as certainly as thQugh be personally received the deposit. state v.' Oaldwell, (Sup. Ct. Iowa,) 44 N. W. Rep. 700. His will contributed. to .the wrong-doing, and he. is responsible for tlie act donehy .his-agent ;byhis authority, the same as tb<lUgh performed by himself -alone. It is: because his, will, set thefm:ce in motion that waa,operative.. to crime" Thus, Mr.. commit I .
,IN BE COOX:.
843;
agj\.inst a state upon whose soil he has never set, his foot, as iqputtingJQJ:'th a libel, (Com. y. Blanding, 3 Pick. 304,) or a threatening letter, (E88er's Case, 2 East,P. C. 1125,) or a letter inclosing a forged strumentto,<1efraud the one to whom it iSlldd.ressed,(Peoplt v. Rafhhun, 21 Wend. 509,) Qr a letter making a false pretense to one who parts with his goods in the place of the receipt of the letter, (Reg. v. JfYne8, 1 Eqg. Law & Eq. 533; Reg. v. Leech, 36 Eng. Law & Eq. 589; Norrisv. State, 25 Ohio St. 217.) But it is' objected that the charge, is that the petitioner received the deposit, and therefore his personal PreRence was essential to the commission of the act charged. The objection is unten"The act may be charged directly lI,S his act, and proof that he did the' act through the agency of another will sustain a conviction. , State v. ClddweU, supra. : In Roberts v. ReiJl,y,116U. S. 80-97,6 Sup. Ct. Rep. 291, the supreme court defines,the phrase" fugitive from justice," and declares that, to be a fugitive from justice in the sense of the act of congress regulating the subject, "it is not nCCeS!lluy that the party should have left the state in which the crime is alleged to have,been committed, after an indictment fO'.1nd, or for the purpose of avoiding 8. prosecution, anticipated or begun, but simply that, having within a state committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offense he had left its jurisdiction, and is found in the territory of another." In other words, there need be in flight. It suffices his departure from the sta,te no element of that after the cQmmission of the offense he has merely the judsdiction of the state. The question then recurs: Was the petitioner within the state of Wisconsin, within the intendmellt of the la'{l, at the time of the co.mmission of the alleged offense? In Ex,parte Reggel, U. S. 642-653, 5 Sup. Ct. Rep. 1148, itwas ruled that the proof tendered the executive made a pri?naf(lci£ case offlight. There, as here, the statement was only that the person demanded '.'was a fugitive from justice," without statement of probative facts. In Roberts v. Reilly, supra, the supreme court-referring to the of flight-also declared that "the determination of the fact by .the, execptive of the state in iflsuing his warrant of arrest upon the d.emanrl made 011 that ground, whetheJ:' the writ contains a recital of an express ,i;i.ndiQg to that effe9t or not,'.must be regarded as 8uffident to justify the removal until the presumption in its favor· is oVEjrthrown by contrary PIroof." Presumably, therelore, this petitioner was a fugitive from just\ce. onus is cast upon him to satisfy the court that he was not. He <::laimsthat it is conclusi\'ely established that he was not such fugiti\Ye, because he. was not within the demandiilg state at the time deposit was made. . lie has certainly established tl)at fact; but is that cQllclusive that he was not a. fugitive ftQID justice? Or, to express the pJ:'()position differently, is one who within the jurisdiction hath Set in ,Q:lotjon. the maehinli»'Y for crime, and departs the Ju., tisdiction brfore .the con/!lummation of the .crime. a fugitive ftom jlJstice? isol)e as to which it is essential-thatsev'¥p.en the qrhpinal act