State ex rel. Brown v. Stewart

• Decision Date: 15 May 1884
• Citation: 19 N.W. 429,60 Wis. 587
• Parties: STATE EX REL. BROWN v. STEWART, JUDGE, ETC.
• Court: Wisconsin Supreme Court

60 Wis. 587

19 N.W. 429

STATE EX REL. BROWN

v.STEWART, JUDGE, ETC.

Supreme Court of Wisconsin.

Filed May 15, 1884.

Certiorari.

The relator was arrested in Indiana upon a requisition issued by the governor of Wisconsin, upon a complaint in justice court, Columbia county, Wisconsin, charging him with embezzlement of property belonging to James Gowan, in that county, and brought into that county, where he was tried for that offense upon an information filed in the circuit court for that county, and acquitted upon the trial, and thereupon discharged by the court; that immediately thereafter, and before he had time to leave the court-room, he was arrested upon a warrant issued by a justice of the peace of that county, upon a complaint for obtaining property, to-wit, a horse, from Edward Lee by false pretenses, in that county, and was taken before a justice of the peace therein for examination, December 29, 1883, and thereupon the justice adjourned the hearing, and entered such adjournment in his docket as follows: “December 29, 1883, 9 A. M. The witnesses for the state not all being present, the court took a recess until one o'clock P. M.” At 1 o'clock P. M., the parties all being present, the justice proceeded with the examination, and afterwards committed the defendant to the county jail of said county to await his trial. That whatever representations were made by the relator, constituting the false pretenses alleged, were made at Portage, in that county, and that thereafter the relator went to the county of Sauk, but within 20 rods of the boundary line between that county and Columbia county, and obtained the horse. While the relator was being so held by the sheriff on the the last-mentioned charge, he was brought before Hon. ALVA STEWART, judge of the circuit court for that county, on habeas corpus, and, after hearing thereon, he was ordered by that judge into the custody of the sheriff of Columbia county. To review that order this certiorari is brought.Stroud, Armstrong & Stroud, for relator.

H. W. Chynoweth, Asst. Atty. Gen., for respondent.

CASSODAY, J.

1. It is claimed that the arrest for the last offense was illegal because it was made immediately after the relator had been tried, acquitted, and discharged on the offense upon which he had been brought to the state from Indiana on the requisition of the governor, and before he had time to return. Treaty stipulations between nations frequently guaranty to the fugitive the right to leave the demanding country after the trial for the offense for which the fugitive has been surrendered, in case of acquittal, or in case of conviction after his endurance of the punishment. When not so guarantied it is sometimes made the subject of executive pledge. Whart. Confl. Laws, §§ 835, 844, 846. It has been held that an extradited fugitive cannot be held in violation of such treaty or pledge to answer for any other offense than the one for which he had been surrendered. U. S. v. Watts, 14 Fed. Rep. 130;Com. v. Hawes, 13 Bush, 697. But in the absence of such treaty stipulation it has been held that there is no implied obligation to delay the arrest for such other offense. Adriance v. Lugrave, 59 N. Y. 110;U. S. v. Caldwell, 8 Blatchf. 131;U. S. v. Lawrence, 13 Blatchf. 295. So it has been held to be no ground for releasing a prisoner who had escaped from the state into Canada and forcibly brought back to the state, and there arrested without the assent of the authorities of Canada. State v. Brewster, 7 Vt. 118;People v. Rowe, 4 Parker, Crim. R. 253; Dow's Case, 18 Pa. St. 37. Here no treaty stipulation to guaranty return is involved, and hence cases of international extradition arising under such treaties are not applicable. Ham v. State, 4 Tex. App. 645.

This is a case of interstate extradition, and arises under the constitution and laws of the United States. “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.” Const. U. S. § 2, art. 4. The act of congress is of the same import, and provides that a copy of an affidavit made before a magistrate of the state from whence the person so charged has fled, properly certified, shall be sufficient to authorize such demand, arrest, and delivery. Chapter 198, Rev. St., and section 5278, U. S. Rev. St. The act, however, is wholly silent as to any delay in arresting the prisoner upon any different charge after he has been acquitted, or after he has endured the punishment for the offense for which he was extradited. It contains no provision securing to the fugitive any right of return. This distinction between international and interstate extradition seems to be very marked. True, the learned judge who wrote the opinion in Cannon's Case, (47 Mich. 487,S. C. 11 N. W. REP. 280,) cited by counsel, said: “We do not perceive any ground for the distinction.” But the difference between such treaty stipulations, and the constitution and laws of the United States, was not even mentioned, and no authority was cited, nor argument advanced, to prove that there was none. On the contrary, the learned judge said: “We do not deem it necessary to refer at large to the decided cases which were cited on the hearing. They cannot be reconciled in principle, although very few of them would conflict with our views on so plain a case as the present.” The learned judge and the court were evidently impressed with the features and circumstances of the arrest in that particular case which distinguished it from the cases there cited by counsel. It has frequently been held, in effect, however, by courts of equal ability, that a fugitive from justice extradited under the constitution and laws of the United States, on the charge of the commission of a specific crime, and discharged therefrom, can be held by the courts of the state to which he is surrendered for another and entirely different crime. In re Noyes, 17 Alb. Law. J. 407;In re Miles, 52 Vt. 609;Ham v. State, supra; Williams v. Bacon, 10 Wend. 636;Browning v. Abrams, 51 How. Pr. 172;Dow's Case, 18 Pa. St. 37.

The interstate extradition clause of the constitution was never intended for the benefit of fugitives, nor to enable them to escape just punishment for their offenses. On the contrary, it was to secure the apprehension of any who should escape the jurisdiction wherein his offense had been committed. It was, in effect, a compact between the states upon a subject purely local, and as to which each would otherwise have been an independent sovereignty, that in case any person charged with crime in one state fled into another, such other should, on demand of the executive of the former, cause him to be arrested and secured, if found therein, and delivered up to the agent of the former to be removed to the state from which he so fled. It was, in effect, a pledge from every state, to each of the others incorporated into the organic law of the nation, that it would become, to a certain extent, an agency in the administration of the laws of every other state against treason, felony, or other crime, as to all such criminals as should come within its borders. By it, each state agreed not to willingly become a refuge for the criminals of any other, and not to allow any guilty person to go unpunished by its aid or connivance. This duty each state voluntarily assumed. The crime being committed, the offense properly charged, and the demand being properly made, the act of congress referred to says “it shall be the duty of the executive authority of the state” to cause the fugitive to be arrested and secured, and to be delivered to the agent of the state from which he fled. “The performance of this duty, however,” said TANEY, C. J., “is left to depend on the fidelity of the state executive to the compact entered into with the other states when it adopted the constitution of the United States, and became a member of the Union. It was so left by the constitution, and necessarily so left by the act of 1793. * * * But if the governor of Ohio refuses to discharge this duty, there is no power delegated to the general government, either through the judicial department or any other department, to use any coercive means to compel him.” Kentucky v. Dennison, 24 How. 109. To the same effect, Taylor v. Taintor, 16 Wall. 370;Ex parte Virginia, 100 U. S. 347, 359;Ex parte Seibold, Id. 391. “But if he act,” said Mr. Justice SWAYNE in Taylor v. Taintor, supra, “and the fugitive is surrendered, the state whence he is removed can no longer require his appearance before her tribunals, and all obligations which she has taken to secure that result thereupon at once, ipso facto, lose their binding effect.” Thus it appears that the state demanding and the state delivering are each under a reciprocal duty to the other, the performance of which depends upon their respective fidelity to the mutual obligations resting upon them. But the state of Indiana is not here complaining of any violation of duty, nor that any of its sovereign rights have been outraged. It is the fugitive who makes complaint, and in the name of Indiana asks that he may be restored to that state from which he was extradited. He does this under an agreement or compact between the two states, not made to secure his escape from punishment, but to insure his trial, notwithstanding he has fled the state, in case he is charged with a crime. Here the relator was extradited because he was so charged. For that offense he was tried, acquitted, and discharged. The record discloses no executive pledge guarantying his return. After his discharge he was arrested for obtaining property under false pretenses. He now asked to be discharged because he was not allowed time to return to Indiana before being arrested for the second offense.

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