State ex rel. O'Malley v. O'Connor

• Decision Date: 23 February 1888
• Citation: 36 N.W. 462,38 Minn. 243
• Parties: State of Minnesota ex rel. Edward O'Malley v. John J. O'Connor
• Court: Minnesota Supreme Court

36 N.W. 462

38 Minn. 243

State of Minnesota ex rel. Edward O'Malley v. John J. O'Connor

Supreme Court of Minnesota

February 23, 1888

Writ quashed.

Davis Kellogg & Severance, for relator.

J. B. & W. H. Sanborn and R. J. Knox, for respondent.

OPINION

Gilfillan C. J.

Habeas corpus.

This was a habeas corpus sued out by Edward O'Malley who was detained under a warrant from the governor for his return to the state of New York, upon a requisition from the governor of that state claiming him as a fugitive from justice. The papers on which the governor's warrant of extradition issued are before us, so that we are called on to pass upon their sufficiency. To justify the issuing of the warrant, these things are necessary: There must be a demand from the governor of the state where the crime was committed for the surrender of the fugitive who has fled from its jurisdiction; the requisition must be accompanied by an indictment or affidavit charging the commission of the offence; and this must be authenticated by the certificate of the governor making the requisition. People v. Donohue, 84 N.Y. 438.

It is of course that the indictment or affidavit must state facts which constitute an offence in the state from which the requisition comes. The offence charged in the indictment upon which the requisition was made was that he fraudulently, by means of a check upon a certain bank in which he knew he had no funds to meet the check, procured from the firm of Wright & Scott the delivery to him of certain property, described as "certain contracts for the delivery of twenty thousand barrels of oil, theretofore made by said Edward O'Malley with said Wright & Scott," and "certain evidences of debt against said Edward O'Malley then and there held and owned by said Wright & Scott, and by which said Edward O'Malley was bound and obligated to pay to said Wright & Scott the sum of two thousand sixty-two 50-100 dollars, and which said contracts and evidences were then and there of the value of two thousand sixty-two 50-100 dollars." The indictment designates the offence as larceny. It appears that in New York, as in this state, the obtaining, with intent to defraud, of money or property by means of a check, when the person so obtaining the money or property knows that the drawer is not entitled to draw on the drawee for the sum specified therein, is larceny.

The objection made to the indictment is that it does not...