People ex rel. Post v. Cross

• Decision Date: 18 October 1892
• Citation: 32 N.E. 246,135 N.Y. 536
• Parties: PEOPLE ex rel. POST v. CROSS, Sheriff.
• Court: New York Court of Appeals Court of Appeals

135 N.Y. 536

32 N.E. 246

PEOPLE ex rel. POST

v.CROSS, Sheriff.

Court of Appeals of New York.

Oct. 18, 1892.

Appeal from supreme court, general term, third department.

Petition by George W. Post, against Isaac B. Cross, sheriff of Albany county, for a writ of habeas corpus to procure relator's release from custody. The special term denied the petition, and remanded relator to custody. From an order of the general term (19 N. Y. Supp. 271) affirming the order of the special term, relator appeals. Affirmed.

John H. Gleason, for appellant.

James W. Eaton, Dist. Atty., for respondent.

O'BRIEN, J.

The relator, George W. Post, in his petition alleges that he is unlawfully restrained of his liberty, and imprisoned in the county jail of the county of Albany, by the sheriff. Upon his application, a writ of habeas corpus was issued to inquire into the cause of the imprisonment, and having been served upon the sheriff, in whose custody the relator was, a return was made thereto, in substance, that the relator was held by him in custody, as such sheriff, by virtue of a bench warrant issued and delivered to him by the district attorney of the county of Albany upon an indictment duly found in the court of oyer and terminer whereby the relator was charged with the crime of robbery in the first degree. To this return the relator answered, denying that the imprisonment was legal, as alleged by the sheriff, and also set forth the following facts as constituting the true cause of the detention: That in February, 1889, the relator was indicted in the court of sessions of Albany county for the crime of grand larceny in the first degree; that afterwards, and in October, 1891, when the relator was a resident and inhabitant of the state of Wisconsin, and sojourning therein, he was arrested upon a warrant issued by the governor of that state upon the requisition of the governor of New York, in which requisition it was stated that the relator stood charged upon an indictment in the state of New York with the crime of grand larceny in the first degree, committed in the county of Albany, and that the relator had fied from the state having jurisdiction of the crime charged, and had taken refuge in the state of Wisconsin, and demanding the return of the relator pursuant to the constitution and laws of the United States; that after such arrest, upon the warrant of the governor of Wisconsin, the relator was delivered to an agent appointed by the governor of New York for that purpose, and conveyed to Albany for trial upon the indictment; that afterwards he was arraigned upon the indictment, and pleaded not guilty, and committed to the custody of the sheriff, by whom he was held and imprisoned till about the 21st of April, 1892, when the indictment for grand larceny in the first degree, upon which the relator was arrested in Wisconsin, was set aside and quashed; that, on the same day, the district attorney issued a bench warrant to the sheriff upon the indictment for robbery, which was found subsequent to his extradition from Wisconsin, and that by virtue of that warrant alone the relator was detained in custody at the time of his application for the writ of habeas corpus. The district attorney admitted the facts stated in the answer or traverse of the relator to the return, except some immaterial allegations with reference to the first indictment; and, upon what was virtually a demurrer to the relator's traverse, the question was submitted to the judge before whom the writ was made returnable, who dismissed it, and denied the prayer of the petitioner, and remanded him to the custody of the sheriff. This order has been affirmed at the general term.

It was admitted in the courts below, and is here, that the relator is held in custody for the same criminal act which constituted the ground of the requisition by the governor of this state upon the governor of Wisconsin, and of his extradition from that state. In the warrant of the governor of Wisconsin, and in the requisition of the governor of this state, that act was designated as ‘grand larceny in the first degree,’ while in the indictment and warrant under which the relator was held when he applied for the writ of habeas corpus it was designated as the ‘crime of robbery in the first degree;’ and the question is whether a fugitive from justice, surrendered to the authorities of the state upon their demand, pursuant to the constitution and laws of the United States, by the governor of another state, can be held or tried here for any other crime than that charged in the warrant by virtue of which he was arrested and surrendered in the state to which he had fled, although the act for which he was extradited, and that for which he is now indicted and held in this state, are the same. The obligation of independent nations to surrender fugitives from justice to each other, when demanded, rests either upon international comity or the stipulations of express treaty. When upon the former, there is, and can be, no general rule as to the duty of the government upon which the demand is made, save its own sense of justice, and regard for what is due to its neighbors. When upon the latter, the obligation is discharged by the surrender of persons properly charged with the specific offenses provided for in the treaty. Whether fugitives from justice extradited from foreign conntries for offenses against the United States or any of the states could be tried, when brought within the proper jurisdiction, for any offense except that charged in the papers upon which the accused was surrendered...