OF SURRENDER UNDER THE FEDERAL TION AND LAWS.
I. In art. iv. sec. 2, of the constitution, it isprovided 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 execu tive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime." The act of congress of Feb. 12, 1793, 1 U. S. Stat. at Large, 302, prescribes the mode of procedure, and requires, on demand of the executive authority of a state and production of a copy of an indictment found or an affidavit made before a magistrate charging tip person demanded with treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the state from whence the person so charged fled, that the executive authority of the state or terri tory to which such person shall have fled shall cause the person charged to be arrested and secured, and notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority ap pointed to receive the fugitive, and cause the fugitive to be delivered to such agent when he shall appear ; but if such agent do not ap pear within six months, the prisoner shall be discharged. It further provides that if any person shall by force set at liberty or rescue ' the fugitive from such agent while transport ing the fugitive to the state or territory from which he fled, the person so offending shall. on conviction, be fined not exceeding five hundred dollars and be imprisoned not ex ceeding one year, and that all costs or ex penses incurred in the apprehending, securing, and transmitting such fugitive shall he paid by the state or territory making the demand.
S. In the execution of the obligation im posed by the constitution, the following points deserve attention : The crime, other than treason or felony, for which a person may be surrendered. Some difference of opinion has prevailed on this subject, owing to some diversity of the cri minal laws of the several states ; but the better opinion appears to be that the terms of the constitution extend to all acts which by the laws of the state where committed are made criminal. 6 Penn. Law Jour. 412 ; 1
Kent, Comm. 9th ed. n.; 6 Am. Jur. 226 ; 9 Wend. N. Y. 212 ; 1 Am. Law Jour. N. s. 271 ; 13 Ga. 97 ; 3 Zabr. N. J. 311; Hurd, Hal). Corp. 597.
The accusation must be in the form of an affidavit or indictment found and duly au thenticated. If by affidavit, it should be suf ficiently full and explicit to justify arrest and commitment for hearing. 6 Penn. Law Jour. 412 ; 3 McLean, C. C. 121 ; 1 Sandf. N. Y. 701 ; 3 Zabr. N. J. 311; Hurd, Hab. Corp. 605.
9. The accused most have fled from the state in which the crime was committed ; and of this the executive authority of the state upon which the demand is made should reasonably satisfied. This is sometimes done by affidavit. In the absence of direct evi dence on the question of flight, if it appear from the indictment or affidavit produced that the crime charged is atrocious in its nature, was recently committed, and the prosecutiop promptly instituted, the unexplained presence of the accused in another state immediately after the commission of the crime ought per haps to be regarded as prima facie evidence of flight, sufficient, at least, to warrant an order of arrest. The order of surrender is not required, by the act of congress, to be made at the same time with the order of ar rest, and time, therefore, can be taken, in doubtful cases, after the accused is arrested and secured, to hoar proofs to establish or re but such prima facie evidence. 6 Am. Jur. 226 ; 7 Bust. Law Rep; 386.
10. The surrender of the accused must he made to an agent of the executive authority of the demanding state, duly appointed to receive the fugitive.
The proceedings of the executive authori ties are subject to be reviewed on habeas corpus by the judicial power, and if found void the prisoner may be discharged. 3 McLean, C. C. 121 ; 3 Zabr. N. J. 311 •, 9 Tex. 635 ; 4 Harr. N. J. 575 ; 2 Mo. 26 ; Hurd, Hab. Corp. 615.