In re Roberts

• Citation: 24 F. 132
• Parties: In re ROBERTS, Habeas Corpus. [1]
• Decision Date: 05 May 1885
• Court: U.S. District Court — Southern District of Georgia

24 F. 132

In re ROBERTS, Habeas Corpus. ^[1]

United States District Court, S.D. Georgia, Eastern Division.

May 5, 1885

J. C C. Black, Hook & Montgomery, George A. Mercer, and H. D. D Twiggs, for petitioner.

Frank H. Miller, Chisolm & Erwin, and Boykin Wright, contra.

SPEER J.

The constitution of the United States, art. 4, Sec. 2, provides that 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 the 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. This provision of the organic law received the careful consideration of the federal convention. Certain changes were made in phraseology showing the settled purpose of its framers to make it the policy of the Union to surrender in one state the fugitives from justice in another. It is a settled rule of interstate comity, and imposes an absolute obligation on each state in a proper case made before its chief executive officer, to surrender and facilitate the extradition of parties charged with crime in the other states of the Union. By the act of congress of 1793, (section 5278 of the Revised Statutes,) appropriate legislation for the enforcement of this constitutional provision was had; and this legislation has itself received the lofty sanction afforded by the approval by the supreme court of the United States of its constitutionality and effectiveness to enforce the original compact between the states upon this subject, so important to the punishment of crime and the maintenance of social order. Prigg v Com. 16 Pet. 539. Nor have the several states been tardy in the enactment of auxiliary legislation to accomplish the object for which the national law is framed; and the state of Georgia is direct and explicit in its enactments to this end. See Code, Secs. 54-58.

While the duty of the executive is thus plainly marked out, it is also the province of the courts on inquiry, by means of habeas corpus, to determine the legality of the detention of the party whose extradition is sought; and since the federal legislation of necessity is invoked to extradite the prisoner, the courts of the United States have jurisdiction to determine the question of the legality of his arrest. Rev. St. 735. The courts of the state have also concurrent jurisdiction of the same question, but the resulting judgments of this jurisdiction are not necessarily decisive, and do not conclude the courts of the United States on this federal question, though they are entitled to great respect, and are strongly advisory.

In the case before the court, the duly-authenticated copy of the indictment of the defendant and one Walton for the offense of grand larceny, said indictment purporting to have been returned by the grand jury of the state and county of New York, together with the requisition of the governor of the state of New York, and the consequent order of the governor of Georgia, is presented as the warrant for the arrest and proposed extradition.

It is objected by the counsel for the relator that the indictment does not show a proper charge of crime. It is urged that the crime set out, to-wit, grand larceny, is a felony, and that the indictment is against several defendants, and that there are no...