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The relator was arrested and held under a mandate or warrant of the governor of this state issued on the requisition of the governor of the state of Tennessee for the delivery of the relator as a fugitive from justice. The mandate of the governor recites that it has been represented to him that the relator stands charged in the state of Tennessee with having committed the crime of larceny and false pretenses in the county of Davidson, and that he had fled from said state and taken refuge in the state of New York. By stipulation between the parties it was conceded that the indictments attached to the requisition papers under which the governor issued his warrant were found on the 26th day of February, 1902, and that the alleged crimes charged in the indictments were committed on May 1st, 1901, May 8th, 1901, and June 24th, 1901, respectively. At the hearing had on the return of the writ of habeas corpus it was further stipulated between the parties that the relator was not in the state of Tennessee at the time of the commission of any of the offenses charged against him, but in the state of Maryland, which was his residence. It appeared by his testimony that he went to Nashville in Tennessee on the second day of July, 1901, to accept the resignation of one Albright, the president and treasurer of the American Hardwood Company, in which the relator was interested, and was then elected president of the company in said Albright's stead; that that evening he left Nashville and never was again in the state of Tennessee except passing through there on the 16th or 17th of July. It is not claimed that the offenses for which the extradition of the relator was sought were committed when he was in the state of Tennessee, but it is contended that though not corporeally present at the time of the commission of the offense he may nevertheless be properly surrendered as a fugitive from the justice of that state where it was committed.
It is to be premised that the power of a government to punish for extraterritorial crimes is a very different question from that of its right to require the surrender to it from foreign countries for trial and punishment persons alleged to
have committed such offenses. Some governments assume to impose the obligations of their penal laws either in whole or part on their citizens, no matter where they may be. We have a notable example of this rule in the recent punishment of a British peer for an alleged bigamy committed in the United States. Some governments assume to go even further and punish an alien for an offense committed against their citizens, though the offense is committed in a foreign jurisdiction. Publicists and writers on international law differ greatly as to the right of a government to punish for offenses committed without its territory. A full review of this subject is to be found in the work of Mr. John Bassett Moore, late assistant secretary of state of the United States, on "Extra Territorial Crime." The power of any government to punish for such an offense necessarily depends upon its ability to obtain possession of the defendant; and though each government assumes to define its own powers, still it may be restrained by the action of the government of which the offender is a citizen, invoked on his behalf, as was the case in the controversy between this country and Mexico in relation to which the report of Mr. Moore was written. Not so with extradition between the states of the Union; it is not governed by international law, but depends solely on the provisions of the Constitution of the United States and the act of Congress made from it. The power of a state to punish a fugitive from justice after obtaining custody of his person depends in no way on how that custody was obtained. Even if the offender has been kidnapped in another state and brought within the territory of the prosecuting state, that fact does not affect the jurisdiction of the latter to punish him for the offense. (Ker v.Illinois, 119 U.S. 436; Cook v. Hart, 146 U.S. 183.) Nor will a person be relieved from prosecution at the intervention of the state from which he was abducted by violence. (Mahon v.Justice, 127 U.S. 700.) In Lascelles v. Georgia
(148 U.S. 537) it was said: "If the fugitive be regarded as not lawfully within the limits of the State in respect to any other crime than the one on which his
surrender was effected, still that fact does not defeat the jurisdiction of its courts to try him for other offenses any more than if he had been brought within such jurisdiction forcibly and without any legal process whatever." It was there held that interstate rendition did not depend on comity or contract, but on the provisions of the Constitution of the United States. It will thus be seen that the condition of a citizen of one state surrendered to another for criminal prosecution has not the safeguards which exist in international extradition, for the surrendering state is without any standing to intervene in his behalf however much its process may be abused. Therefore, it necessarily follows that no person can or should be extradited from one state to another unless the case falls within the constitutional provision, and that the power which independent nations have to surrender criminals to other nations as a matter of favor or comity is not possessed by the states.
The provision of the Constitution of the United States (Art. 4, sec. 2, subdiv. 2) is: "A person charged in any state with treason, felony or other crime, who shall flee from 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 having jurisdiction of the crime." Under this Congress has enacted (Sec. 5278): "Whenever the executive authority of any State or territory demands any person as a fugitive from justice, of the executive authority of any State or territory to which such person has fled, and produces a copy of an indictment found or an affidavit * * * charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the Governor or chief magistrate of the State or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the State or territory to which such person has fled to cause him to be arrested * * * and to cause the fugitive to be delivered * * *." It will be seen that to authorize or require a state to surrender to another state an alleged offender it is necessary not
only that such person stand charged with crime, but that he has fled from justice. What constitutes a fugitive from justice has been the subject of much discussion by eminent text writers and of many decisions by the courts and by the governors of the several states. There seems to be substantial unanimity in all the authorities on one proposition, that to be a fugitive from justice a person must have been corporeally present in the demanding state at the time of the commission of the alleged crime. "The case, and the only case, for which the Constitution provides, is that of a person who is charged with crime in one State and who flees to and is found in another State. This is the whole of the case." (Spear on Extradition, 311.) "The question of constructive presence at the commission of a crime has frequently arisen in the case of obtaining money or goods by false pretenses, and it has been held that such presence in the demanding state is not sufficient as a basis for a requisition for the surrender of a person as a fugitive from justice, although, if the person charged were to come within the jurisdiction of that state, he might be arrested and punished for the false pretenses there committed while he was corporeally elsewhere." (Moore on Extradition, sec. 584.) In Matter ofReggel (114 U.S. 642) it was said by Mr. Justice HARLAN: "Undoubtedly, the act of Congress did not impose upon the executive authority of the Territory the duty of surrendering the appellant, unless it was made to appear, in some proper way, that he was a fugitive from justice. In other words, the appellant was entitled, under the act of Congress, to insist upon proof thathe was within the demanding State at the time he is alleged tohave committed the crime charged, and subsequently withdrew from her jurisdiction, so that he could not be reached by her criminal process." In Roberts v. Reilly (116 U.S. 80) it is said by Mr. Justice MATTHEWS: "To be a fugitive from justice, in the sense of the act of Congress regulating the subject under consideration, it is not necessary that the party charged should have left the State in which the crime is alleged to have been committed, after an indictment found,
or for the purpose of avoiding a 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 has left its jurisdiction and is found within the territory of another." In Matter of Voorhees (32 N.J.L. 141) a fugitive is designated as one "who commits a crime within a state and withdraws himself from such jurisdiction." In Wilcox v. Nolze
(34 Ohio State, 520) it is said, referring to the constitutional provision: "These words, taken as they must be in their natural and obvious sense, do not include a case of constructive presence in the demanding state and constructive flight therefrom, but relate only to a case where the accused is actually present in the demanding state at the time he commits the act of which complaint is made." The same principle has been held in Hartman
v. Aveline (63 Ind. 344); Jones v. Leonard (50 Iowa 106);Matter of Mohr (73 Ala. 503); In re Jackson (2 Flippin, 183);Ex parte Smith (3 McLean, 121). It is stated in a note found in Mr. Moore's work on Extradition (p. 948) that "the Interstate Extradition Conference held in New York City in August, 1887, refused to adopt a recommendation to the governors of the various States and Territories that no demand be complied with where the fleeing was constructive, on the ground that the decisions of the courts already covered the case."
Hibler v. State (43 Tex. 197) is not in conflict with these authorities, for there a fugitive from justice was defined to be "A person who commits a crime in one State for which he is indicted, and departs therefrom and is found in another State." The only case cited as authority for a contrary doctrine is Inre Cook (49 Fed. Rep. 833), reported in the Supreme Court asCook v. Hart (146 U.S. 183). In the opinion there delivered by the district judge it is said: "One may commit an offense against a state upon whose soil he has never set foot." I have already said this may be true, but it does not determine the question whether the offender is a fugitive from justice. In that case the petitioner was under
arrest in Wisconsin, having been extradited by the governor of the state of Illinois. He sought relief from imprisonment by writ of habeas corpus from the United States Circuit Court for Wisconsin. The question of the propriety of his extradition was, therefore, not properly before the court, and the decision of the Circuit Court remanding the relator was affirmed by the Supreme Court on the express ground that it was immaterial how the relator's presence in Wisconsin had been secured; that it was sufficient that at the time of the writ he was subject to its territorial jurisdiction. Nor did the case in fact require from the learned judge the statement cited. The relator was charged with having as a banker fraudulently received deposits. He had been in the state of Wisconsin a few days before, and knowing the bank to be insolvent, gave his clerks directions to receive deposits. His subsequent departure from the state, under all the authorities, made him a fugitive from justice.
The question discussed has never been passed upon by the courts in this state, but has been considered by several of our governors. In Matter of Mitchell (4 N.Y. Crim. Rep. 596) will be found an opinion by Governor Hill on an application for the extradition of Thomas Mitchell. Mitchell was charged with having committed manslaughter in Jersey City by reason of his ownership of an unsafe building in that place which fell and killed four persons. It appeared that Mitchell had not been in New Jersey for some weeks prior to the accident. The governor refused to extradite him, holding that "The actual presence of the accused party in the demanding State, at the time of the commission of the alleged offense, is a jurisdictional fact." This view has been accepted by the governors of Massachusetts, of Maryland, of Tennessee and of Illinois. (See Moore on Extradition, sec. 579et seq.) It is claimed that this court has held a contrary doctrine in Adams v. People (1 N.Y. 173). The defendant Adams was indicted and convicted for obtaining money under false pretenses under a fraudulent warehouse receipt which he transmitted from Chillicothe, in Ohio, to the prosecutors, merchants in
New York city. The case in no respect involved the question of the constitutional obligation of the governor of Ohio to surrender the defendant to the authorities of the state of New York, but only of the power of this state to punish him after having secured jurisdiction of his person. Under the authorities already cited from the Supreme Court of the United States it was of no importance how the jurisdiction of his person was obtained.
If the relator was not otherwise subject to extradition to the state of Tennessee, because he was not personally present in that state at the commission of the alleged offenses, his subsequent presence in the state for a single day, nearly a year before the institution of any prosecution against him, could give that state no right to require his surrender. The question is whether he is a fugitive from justice, not whether the courts of the state of Tennessee have jurisdiction of his alleged offenses. That jurisdiction they have at all times, if at all, provided they secure his person. I am at a loss to imagine how a man's voluntary visit to a state can constitute him a fugitive from the state when he was not such before. I consider it as having exactly the contrary effect. If there be any force in this occurrence it must be not in his going into the state but in his failing to remain there. It is not, however, suggested that he in any respect offended against the laws of Tennessee while present there. He went there for a specific purpose, and his business accomplished, immediately left. It is not pretended that his stay was curtailed or that he left the state on account of any suspicion of a prosecution. Would he have been liable to extradition because on a journey to New Orleans his route passed through the state of Tennessee? Such a result seems to me utterly unreasonable. No distinction can be drawn between the two cases. In the case of Adams, already referred to, the prisoner sought discharge from arrest by habeas corpus, and the opinion of Judge VANDERPOEL of the Superior Court of the city of New York denying the application is found in 7 Law Rep. (p. 386). Adams came voluntarily into the state, and after
making an engagement to meet one of the prosecutors, suddenly left the state and failed to keep his engagement. The decision proceeded on the ground that the evidence justified the inference that the prisoner prematurely departed from the state with the view of avoiding arrest and prosecution for his crime. The case has not escaped criticism, though its doctrine may be correct when limited to the facts of the case; that is to say, a departure from the state to avoid prosecution, of which there is no suggestion in the case before us. In truth, however, the questions discussed by the court were not properly before it at all. They could have been raised in the state of Ohio, but not in New York.
It is urged that this doctrine of the necessity of corporeal presence in the state where the offense is alleged to have been committed will render the several states asylums for criminals, the effect of whose offenses is injury to property or persons in other states. There is no practical danger of the kind. It may be safely stated that nearly every state, as well as our own, punishes crimes committed within the state, although the results of the crimes are effected without its territory. The relator would be properly surrendered to the state of Maryland, where he was at the time of his alleged offense, if that state made demand for him. On the other hand, there is great danger that citizens may be carried into other states to be punished for acts which are not criminal in the jurisdiction in which they were committed. The case of false pretenses is a notable example. By our Penal Code (Sec. 544) it is provided that "A purchase of property by means of a false pretense is not criminal, where the false pretense relates to the purchaser's means or ability to pay, unless the pretense is made in writing and signed by the party to be charged." This was doubtless dictated by the knowledge that criminal charges of false pretenses are often instituted in reality to compel the payment of debt, and are easily fabricated. It may be that this provision of the Code has no extraterritorial effect, and that a citizen of this state if found in another state may be punished there for alleged oral pretenses
made here. But neither the Constitution nor the Federal statute requires this state to surrender him for prosecution in another jurisdiction. These considerations equally apply to prosecutions for libels alleged to have been committed in newspapers published here and circulated throughout the country. The real evil of the day is not the insufficiency of the criminal laws, but the excessive multiplication of statutory crimes.
It is suggested (though not by counsel) that I have construed the stipulation of the counsel for the state of Tennessee too broadly and that it was intended to admit only that the defendant was not in Tennessee at the particular dates alleged in the indictment, not that he was absent from Tennessee at the commission of the offenses charged against him. The brief of the learned counsel entirely disposes of this suggestion. He makes but two points: 1. "A person charged with crime may be extradited although he was not within the demanding state at the time of the commission of the alleged offense;" 2. "The Supreme Court is limited on habeas corpus to review but one question, namely, the question of identity." I have, therefore, but followed the counsel's own construction of his admission.
We now reach the question whether the action of the governor can be reviewed on habeas corpus. It has been held by the Supreme Court of the United States in Robb v. Connolly (111 U.S. 624) that the governor of a state in the execution of the duty of surrendering fugitives imposed by the Constitution and the statute of Congress does not act as a United States officer and that a writ of habeas corpus may be issued by the state courts to test the validity of an arrest under his warrant. In Roberts v.Reilly (supra) it was said: "How far his (the governor's) 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." In Cook v. Hart
(supra) it was held: "We have no doubt that the governor upon whom the demand is made must determine for himself, in the first instance at least, whether the party charged is in fact
a fugitive from justice, but whether his decision thereon befinal is a question proper to be determined by the courts of thatstate." The Constitution and laws of the state of New York, therefore, control the decision of the question we are now considering. While doubtless to a certain extent the action of the governor is executive or ministerial, it is not so in the broad sense in which the general functions of the office are conferred upon him by our Constitution. In Matter of Guden
(171 N.Y. 529) we held that the power given to the governor to remove a sheriff upon charges and after a hearing was executive and the exercise of that power not subject to review by the courts. But the question here is of an entirely different character. It involves the liberty of the citizen. Speaking of the division of powers among the three great branches of the government, PARKER, Ch. J., in the Guden case said: "There resides in the people of this and every state an absolute power to prescribe rules of action, through legislation, to enforce rules of action and to transact generally the affairs of government, through executive acts, and to determine controversies between, enforce rights belonging to, and redress wrongs done to, citizens of the state, through the courts." The liability of the citizen to arrest and detention, and the grounds therefor, therefore, necessarily present a judicial question, though the arrest and detention are effected by an executive or ministerial officer. The act of Congress provides that a copy of the indictment or the affidavit before a magistrate shall be proof of the charge of crime against any person whose extradition is sought, but it does not prescribe what shall be evidence that he is a fugitive from justice. The fact that he is a fugitive is, therefore, a matter of proof. While the warrant of the governor is presumptive evidence of the fact, there is no reason on principle why it should be conclusive. It was said by Judge JENKINS in Matter of Cook
(supra), referring to the case of Roberts v. Reilly: "That decision by its very terms implies that the action of the governor is only presumptively regular, and can be reviewed by the courts. Surely it cannot be claimed that such action is conclusive
upon personal right, and may not be inquired of by judicial tribunals. Surely it cannot be that the right to personal liberty hangs upon so slender a thread as the arbitrary will of the authorities of the demanding and surrendering states. `No person shall be deprived of life, liberty or property without due process of law.' That is the fundamental law of the land, coming to us from Magna Charta. It is not due process of law which condemns without hearing, which convicts without trial. * * * It is essential to compliance with such executive demand that the person whose surrender is demanded should be adjudged a fugitive from the justice of the demanding state. The decision of the executive is not conclusive of that fact." The writ of habeas corpus is in this state available to every person imprisoned or deprived of his liberty, unless he is restrained under the authority of the Federal government, or unless he is committed by virtue of a final judgment or decree of a competent tribunal of jurisdiction, or the final order of such a tribunal punishing him for contempt. The warrant of the governor is not a final judgment nor a decree, and even were it such it would be the duty of the court to see whether the jurisdictional facts exist which are necessary to authorize the action of the governor. The provision of section 827 of the Code of Criminal Procedure, directing that any person arrested on the governor's mandate shall be brought before a judge of a court of record and informed of his right to a writ of habeas corpus to inquire into his identity with the person named in the warrant does not assume to limit the inquiry on a writ of habeas corpus to the question of identity. It was enacted for the benefit of any person arrested under such a warrant and solely as an additional safeguard against illegal removal from the state. As was held in People ex rel. Tweed v.Liscomb (60 N.Y. 560), "This writ cannot be abrogated, or its efficiency curtailed, by legislative action. * * * The remedy against illegal imprisonment by this writ, as it was known and used at common law, is placed beyond the pale of legislative discretion, except that it may be suspended when
public safety requires, in either of the two emergencies named in the Constitution." If, therefore, on the return to the writ it is clearly shown that the relator is not a fugitive from justice and there is no evidence from which a contrary view can be entertained, which is the fact in this case, as appears by the stipulation and concession of the parties, there is no reason why greater efficacy should be given to the warrant of extradition than to the warrant of any other magistrate by which a citizen is imprisoned or deprived of his liberty. In People ex rel.Lawrence v. Brady (56 N.Y. 182) this court discharged the relator, who was held under a warrant of extradition issued by the governor of the state, on the ground that the affidavit on which the surrender was asked did not state a crime. In Peopleex rel. Draper v. Pinkerton (77 N.Y. 245) the only question decided was whether the warrant of the governor recited the facts necessary to confer authority under the Constitution and laws of the United States and was sufficient justification for holding the prisoner to be brought up on habeas corpus without producing the papers or evidence upon which the governor acted. It was held that the recitals were to be taken as prima facie true, no proof to the contrary having been introduced by the prisoner. InPeople ex rel. Jourdan v. Donohue (84 N.Y. 438) again the only question was the sufficiency of the executive warrant on its face. Referring to criticisms that had been made on the decision in the Lawrence case the court said: "And hence we have held that where the preliminary papers upon which a warrant of extradition has been granted are produced, and are before us, it is our right and our duty to examine them, and judge and determine, when our process is invoked, whether they are sufficient, under the law, to justify the warrant of extradition. Our ruling in this respect has not escaped criticism; but an opposite conclusion, which would make the determination of the executive final, even though the papers produced clearly showed that the essential preliminaries of the law were unfulfilled, does not yet commend itself to our judgment." In all these cases the question related to the sufficiency of the charge
against the prisoner, not to his being a fugitive. But if the courts can review the action of the governor on one prerequisite for extradition, it is difficult to see why they cannot equally review his action on the other. The great weight of authority in other states is in favor of such a review. It was so held in the cases of Jones v. Leonard (supra), Wilcox v. Nolze
(supra), Hartman v. Aveline (supra) and Matter of Mohr
(supra). In the Wilcox case it is said: "Whether or not the accused committed the acts complained of while actually present in the demanding state is jurisdictional, and it is clearly competent, in such case, to show by parol evidence a defect in the executive power, however regular the extradition papers may be in matter of form." In the Jones case it is said: "The governor of this state is not clothed with judical powers, and there is no provision of the Constitution or laws of the United States or of this state which provides that his determination is final and conclusive in the case of the extradition of the citzen. In the absence of such a provision we hold that the decision of the governor only makes a prima facie case; that it is competent for the courts in a proceeding of this character to inquire into the correctness of his decision, and discharge the prisoner." In the Mohr case the learned court said: "We are of opinion that the probate judge did not err in discharging the petitioner, and that it was competent for him to hear oral evidence in order to establish the fact that the petitioner was not a fugitive from justice. Any other conclusion than this would establish a doctrine very dangerous to the liberty of the citizen. It would greatly impair the efficacy of the proceeding of habeas corpus, which has been often characterized as the great writ of liberty, and may be regarded, not less than the right of trial by jury, as one of the chief corner stones in the structure of our judiciary system. It might justly be considered as alarming to announce that a writ which has so frequently been used for centuries past to prevent the encroachment of kings upon popular liberty is inadequate for the just purposes for which it has been invoked in this case."
There is little to be added to what has been so well said by the jurists of other states. The further suggestion, however, may be made, that no law gives a person sought to be extradited the right to a hearing before the governor or to submit evidence in his behalf. Whatever in these respects may be accorded by the governor to the accused is a matter of favor, not of right. Therefore, unless he may review his extradition on habeas corpus, a citizen, on the fiat of an executive officer, without a hearing, may be transported a prisoner to the utmost confines of the country. It has been held by the Supreme Court of the United States that in the case of foreign extradition there must be some competent evidence before the magistrate to authorize the surrender of the accused. (Ornelas v. Ruiz, 161 U.S. 502.) But if the orders made below are upheld, in the case of interstate extradition, a citizen may be surrendered without the slightest evidence either of his guilt or that he is a fugitive.
The guilt or innocence of an alleged fugitive from justice is not to be determined on requisition proceedings, nor on the writ of habeas corpus. Therefore, if the charge is such as to necessarily require the presence of the accused within the state at the time of the commission of the offense, mere proof of an alibi would not in every case require or justify his discharge. But the question in the present case is not one of alibi, for the stipulation of the parties admits that the defendant was not personally present in the state of Tennessee at the commission of the alleged offenses.
For these reasons the orders of the Special Term and the Appellate Division should be reversed and the relator discharged from custody.