Between the several states. By art. iv. sec. ii..of the constitution of the United. States, it is provided that "a person charged in any state with treason, felony, or other. who shall. flee from justice and be found in another state; shall, on demand of the exec-" utiy.e authority of the state from which he fled, be delivered up to be removed to the state having the jurisdiction of the crime.", The act of congress of, Feb. 12; 1793, U. S. R. S. § 5278, 5279, prescribed the mode of procedure in such cases. It requires, on de mand of 'the executive authority of a state and production of a copy of an indictment found or an affidavit made before a magistrate Charging the person demanded with treason,' felony,' or other crime, certified as authentic by the governor or chief magistrate of the state' froth 'whence the person so charged fled, that 'the 'executive authority' of the state or territory to which such person shall have fled shall cause the person charged to be arrested and secured, and notice of the' arrest to 'be glYen to the executive authority making such demand, or to the agent of such; authority appointed to receive' the fugitive,. and cause the fugitive to be delivered to agent when he ' shall appear ;- if such agent do not appear within six months, the prisoner shall be discharged. It further pro-; vides that if any person shall by force set at libertYr or rescue the fugitive from- such agent while transporting the ,fugithe to the state or territory from Which he fled, the person so offending shall, on conviction, be fined not exceeding live htindred dollars and be inapriSoned not. exceeding one year, and that, all costs or expenses incurred in the apprehending,' securing, and transmitting such fugitive shall 'be paid' by the' state or territory making the demand. U. S. Rev Stat. § 5278-9.
• In the execution of the obligation imposed by the constitution, the following points de serve attention:— The crime, other than treason or felony, for. 'which.' a person may be surrendered: Some difference of opinion has preialled on this subject, owing to some diversity of the criminal 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; 1 Kent 42 ; Johnston v. Riley, 13 Ga. 97; In re Fetter, 23 N. J. L. 311, 57 Am. Dec. 382 ; Kentucky v. Dennison, 24 How. (U. S.) 107, 16 L. Ed. 717; People v. Brady, 56 N. Y. 187. The word "crime" embraces every species of indictable offence; Kentucky v. Dennison, 24. How. (U. S.) 99, 16 L. Ed. 717; including an act not criminal at the time the constitution was adopted but made so afterwards; Howe v. Treasurer, 37 N. J. L. 147; People v. Brady, 56 N. Y. 182 ; and an act which is criminal under the law of the state from which the accused has fled, but is not so under the law of the state into which he has fled; Kentucky v. Dennison, 24 How. (U. S.) 103;16 L. Ed. 1717.
That the courts of the asylum state have jurisdiction to pass upon .the sufficiency of the requisition papers has been held ; Jones v. Leonard, 50 Ia. 110, 32 Am. Rep. 116 ; Peo ple v. Hyatt, 172 N. Y. 176, 64 N. E. 825, 60 L. R. A. 774, 92 Am St. Rep. 706, affirmed Hyatt v. New York, 188 U. S. 691, 23 Sup. Ct. 456, 47 L. Ed. 657 ; In re Waterman, 29 Nev. 288, 89 Pac. 291, 11 L. R. A. (N. S.) 424, 13 Ann. Cas. 926 ; that the accused should be permitted to show that the indictment or af fidavit accompanying the requisition charged no crime under the laws of the demanding state, see Barriere v. State, 142 Ala. 72, 39 South. 55 ; .Ex parte Slauson, .73 Fed. 666.
In Hyatt v. New York, 188 U. S. 691, 23 Sup. Ct. 456, 47 L. Ed. 657, it is said: Upon the executive of the state in which the ac cused is found rests the responsibility of de termining whether he is a fugitive from the demanding state. He does not fail in duty if he makes it a condition precedent to• the sur render of the accused that it be shown to him by competent proof that the accused is in fact a fugitive from the justice of the de manding state ; and in People v. Brady, .56 N. Y. 182, that the courts have jurisdiction to interfere by habeas corpus, and to examine the grounds upon which an executive war rant for the apprehension of an alleged fugi tive from justice from another state is is sue•, and in, case the papers are defective and insufficient, to discharge the prisoner.
It must appear to the governor of the asy lum state, before he can lawfully comply with it: First, that the person demanded is substantially charged with a crime against the laws of the demanding state, by an indict ment or an affidavit certified as authentic by the governor of the demanding state ; and, second, that the person demanded is a fugi tive from the justice of the demanding state ; Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Ed. 544. The first of these prerequisites Is a question of law and is alwaya open on the face of the papers to judicial inquiry un der an application for a discharge under a writ of habeas corpus. The second is a ques tion of fact, which the governor of the asy lum state must decide. How far his decision may be reviewed judicially by habeas corpus, or whether it is not conclusive, are said to be questions not settled by harmonious judicial decisions, nor by any authoritative judgment by the Supreme Court ; Appleyard Massa chusetts, 203 U. S. 222, 27 Sup. Ct. 122, 51 L. Ed. 161; but it is conceded that the de termination of the fact by the executive of the state in issuing his warrant of arrest, upon a demand made on that ground, wheth er the writ contains a recital of an express finding to that effect or not, must be regard ed as sufficient to justify the removal, until the presumption in its favor is overthrown ; In re Reggel, 114 U. S. 642, 5 Sup. Ct. 1148, 29 L. Ed. 250 ; Appleyard v.• Massachusetts, 203 U. S. 222, 27 Sup. Ct. 122, 51 L. Ed. 161.