People ex rel. Kopel v. Bingham

• Citation: 189 N.Y. 124,81 N.E. 773
• Parties: PEOPLE ex rel. KOPEL v. BINGHAM, Police Com'r of the City of New York.
• Decision Date: 14 June 1907
• Court: New York Court of Appeals

189 N.Y. 124

81 N.E. 773

PEOPLE ex rel. KOPEL

v.BINGHAM, Police Com'r of the City of New York.

Court of Appeals of New York.

June 14, 1907.

Appeal from Supreme Court, Appellate Division, First Department.

Habeas corpus by the people, on the relation of Abraham Kopel, to obtain relator's release from the custody of Theodore A. Bingham, as police commissioner. From an order of the Appellate Division (102 N. Y. Supp. 878,117 App. Div. 411), affirming an order of the Special Term dismissing the writ, relator appeals. Affirmed.

Alfred R. Page, for appellant.

William Travers Jerome, Dist. Atty. (Robert S. Johnstone, of counsel), for respondent.

WILLARD BARTLETT, J.

The relator, Abraham Kopel, is restrained of his liberty by Theodore A. Bingham, police commissioner of the city of New York, under an executive warrant issued by the Governor of this state pursuant to the provisions of section 827 of the Code of Criminal Procedure relative to the apprehension and rendition of fugitives from justice. That warrant recites that it has been represented to the Governor of the state of New York by the Governor of Porto Rico that Abraham Kopel stands charged in that island with having committed therein in the district of Aquadilla the crime of embezzlement which the said Governor certifies to be a crime under the laws of Porto Rico, and that the said Abraham Kopel has fled therefrom and taken refuge in the state of New York. It further recites that the Governor of Porto Rico, pursuant to the Constitution and laws of the United States, has demanded of the Governor of the state of New York that he cause the said Abraham Kopel to be arrested and delivered to Samuel C. Bothwell, a person duly authorized to receive him into his custody and to convey him back to Porto Rico. The warrant thereupon requires the police commissioner to arrest and secure the said Abraham Kopel and after compliance with the requirements of section 827 of the Code of Criminal Procedure to deliver him into the custody of said Samuel C. Bothwell to be taken back to Porto Rico, whence he fled.

The present habeas corpus proceeding was instituted in behalf of the relator to procure his release from custody under this warrant on the ground that the governor of Porto Rico, under the Constitution and laws of the United States, possesses no authority to demand the rendition of a fugitive from justice who is charged with an offense against the laws of that island and has fled into one of the states of the Union. The writ was dismissed at Special Term, where the relator's demurrer to the respondent's return was overruled; and the order made at Special Term has been affirmed by the Appellate Division, where it was held that Porto Rico is a territory within the meaning of section 5278 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 3597] relative to interstate extradition, and also that, whether Porto Rico be a territory or not, the Governor of that island is legally authorized to make a demand for the rendition of a fugitive from justice who has fled into one of the states with which demand it is the duty of the state executive to comply.

Whatever authority belongs to the Governor of the state of New York to issue a warrant for the apprehension of a fugitive from justice must be found in the provisions of the Constitution of the United States relative to such fugitives and in the statutes enacted in pursuance of those provisions. People ex rel. Corkran v. Hyatt, 172 N. Y. 176, 64 N. E. 825, 60 L. R. A. 774, 92 Am. St. Rep. 706; affirmed, sub nominee Hyatt v. Corkran, 188 U. S. 691, 23 Sup. Ct. 456, 47 L. Ed. 657. The Constitution of the United States (article iv, § 2, cl. 2) provides as follows: ‘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.’ In 1793 Congress gave effect to this provision by an act, the substance of which is still in force as section 5278 of the Revised Statutes of the United States, the material portion of which, so far as this proceeding is concerned, reads as follows: ‘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 made before a magistrate of any state or territory, 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 secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear.’ Although the constitutional provision which has been quoted applies in terms only to fugitives from one state to another state, it has been deemed when considered in connection with the power of Congress over the territories (Const. U. S. art. iv, § 3, subd. 2) to authorize the imposition of like duties upon the executive of a territory. Ex parte Reggel, 114 U. S. 642, 5 Sup. Ct. 1148, 29 L. Ed. 250. The provisions of the federal...