State v. Clough

• Citation: 53 A. 1086,71 N.H. 594
• Parties: STATE ex rel. MUNSEY v. CLOUGH.
• Decision Date: 27 December 1902
• Court: New Hampshire Supreme Court

53 A. 1086

71 N.H. 594

STATE ex rel. MUNSEY

v. CLOUGH.

Supreme Court of New Hampshire. Merrimack.

Dec. 27, 1902.

Transferred from superior court; Stone, Judge.

Habeas corpus proceedings by the state, on the relation of Martha S. Munsey, against M. Swain Clough. Relator's motion for discharge denied, and case transferred from the superior court on her exception. Exception overruled.

The defendant, who is the sheriff of the county, states in his return that he has the custody of the relator under a warrant from the governor of this state issued on the requisition of the governor of Massachusetts. The warrant recites that: "It has been represented to me by the acting governor of the commonwealth of Massachusetts that Martha S. Munsey stands charged with the crime of uttering forged wills, which he certifies to me to be a crime under the laws of said commonwealth, committed in the county of Middlesex, in said commonwealth, and has taken refuge in the state of New Hampshire; and the said governor of Massachusetts having, in pursuance of the constitution and laws of the United States, demanded of me that I shall cause the said Martha S. Munsey to be arrested and delivered to Jophanus H. Whitney, who is duly authorized to receive her into his custody, and convey her back to the said commonwealth of Massachusetts; and whereas, the said representation and demand is accompanied by certified copy of an indictment, whereby the said Martha S. Munsey is shown to have been duly charged with the said crime, and with having fled from said commonwealth, and taken refuge in the state of New Hampshire, which is duly certified by the acting governor of Massachusetts to be authentic and duly authenticated: Therefore, you are required to arrest and secure the said Martha S. Munsey wherever she may be found within this state, and afford her such opportunity to sue out a writ of habeas corpus as is prescribed by the laws of this state, and to thereafter deliver her into the custody of the said Jophanus H. Whitney to be taken back to the said commonwealth from which she fled, pursuant to the said requisition." From the copy of the indictment referred to it appears that the relator was indicted by the grand jury of the county of Middlesex, in Massachusetts, on the second Monday of February, 1892, in which it is charged that the relator, on February 28, 1895, "at Cambridge, in the county of Middlesex, aforesaid, with intent to injure and defraud, did utter and publish as true a certain forged instrument purporting to be a will, well knowing the same to be forged." In the second and third counts she is charged with similar offences committed, respectively, on May 17, 1895, and November 20, 1901. In each count the alleged forged will is set out in full. In the certificate of the clerk of the court in which the indictment is pending it was stated that the indictment was found and returned "on the second Monday of February, A. D. 1892." The requisition papers also contain the affidavit of Whitney, in which it is stated that the relator has "fled from the limits of said commonwealth, and is a fugitive from justice"; also that "at the time of the commission of said crime she was in the state of Massachusetts; * * * that she fled from said commonwealth of Massachusetts on or about the 4th day of November, A. D. 1901; that she is not now within the limits of the commonwealth, but, as I have reason to believe, is now in Pittsfield, in the state of New Hampshire." The affidavit of the district attorney was submitted to the governor, in which he refers to Martha S. Munsey as one "who stands charged by indictment with the crime of uttering forged wills, committed in the county of Middlesex on the 28th day of February, A. D. 1895, on the 17th day of May, A. D. 1895, and on the 20th day of November, A. D. 1901, and who, to avoid prosecution, fled from the jurisdiction of this commonwealth, and is now a fugitive from justice, and, as I am informed, is within the jurisdiction of said state of New Hampshire. And I further certify that the offense charged against the said fugitive is a felony, and that said offense and punishment therefor is defined in section 1 of chapter 204 of the Public Statutes. Application for the arrest and return of the said fugitive has not been made sooner because the indictment was not found by the grand jury until the February sitting of the superior court in the year 1902." The relator, claiming that on the face of the documents submitted to the governor he was not authorized to issue his warrant, and that the warrant is defective, made a motion for her discharge, which was denied, subject to exception.

Edward A. Lane and Sargent, Niles & Morrill, for relator.

Mitchell & Foster, for de fendant WALKER, J. One question presented by the ease is whether the record evidence submitted to the governor upon the proceeding before him for the extradition of the relator shows, as a matter of law, that he exceeded his authority in issuing the warrant for her arrest and removal to Massachusetts. How far his duty was discretionary, and to what extent he was obliged to comply with the demand for the surrender of the alleged fugitive from justice, are questions not necessarily material to the present inquiry. He has exercised whatever discretion he possesses, and has complied with the demand. He has issued his warrant for the arrest of the relator and for her return to Massachusetts. Has he thereby violated any of her rights of citizenship secured to her by the constitution and laws of the United States or of this state? The rendition of a fugitive from justice to the state from which he fled is authorized by the constitution of the United States (article 4, § 2), which 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 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." To make this provision effectual, and to afford means for its practical operation, congress has enacted that: "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." Rev. St. U. S. § 5278 [U. S. Comp. St. 1901, p. 3597]. As supplementary to these provisions, the legislature of this state has enacted the following statute: "If the governor is satisfied that the demand is conformable to law and ought to be complied with, he shall issue his warrant under the seal of the state, authorizing the agent who shall make the demand, either forthwith or at such time as shall be designated in the warrant, to take and transport such person to the line of the state, at the expense of such agent, and shall also, by the warrant, require the civil officers within this state to afford all needful assistance in the execution thereof." Pub. St c. 263, £ 8. If the governor has not substantially complied with these constitutional and statutory provisions, the relator must be discharged from arrest She cannot be forcibly removed from this jurisdiction, except by virtue of legal process and procedure. Unless she is one of the class of persons which the federal constitution makes liable to rendition, and unless the legal requirements in such cases have been substantially observed, the governor's warrant is void, and the court must order her discharge. It is the duty of the court to protect the rights of citizenship.

The question of the validity of the governor's warrant must be considered in connection with the demand, the copy of the indictment, and the affidavit submitted to him. It is not essential that the warrant should contain a formal statement of all the facts upon which it is issued. Kingsbury's Case, 106 Mass. 223; People v. Pinkerton, 17 Hun, 199; In re Romaine, 23 Cal. 585. If an examination of the record evidence presented to the governor legally authorizes the finding of the necessary facts, it will be presumed, in the absence of evidence to the contrary, that he made such findings. It is insisted that the warrant is fatally defective, because it contains no statement of a finding by the governor that the relator is a fugitive from justice. In Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Ed. 544, in which the warrant was similar to the one in this case, the court say (page 95, 116 U. S., and page 300, 6 Sup. Ct., 29 L. Ed. 544): "It is conceded that the determination of the fact by the executive of the state in issuing his warrant of arrest, upon a demand made on that ground, whether the writ contains a recital of an express finding to that effect or not, must be regarded as sufficient to justify the removal until the presumption in its favor is overthrown by contrary proof." In State v. Justus, 84 Minn. 237, 243, 87 N. W. 770, 55 L. R. A. 325, the court say upon this subject: "This is a matter upon which the chief magistrate granting the warrant should have evidence, although the law does not describe its character, nor the precise rules by which such fact shall be established. It would seem to follow that the issuance of the warrant...