EX PARTE BROWN.
rested on Sunday upon the charge of a criminal conspiracy. The Sunday act made void all arrests on Sunday, (2 Car. II. c. 7,) except for treason, felony, or breach of the peace. It was contended that the offense charged was neither treason nor felony, nor was it breach of the peace. The court held that all indictable offenses were included under the term "breach of the peace." So Lord HALE held that every offense against a statute should be laid contra pacem, (Bish. Crim. Proc. §"648;) and in 1 Atk. 157, an arrest for contempt was permitted on Sunday as a constructive breach of the peace. The motion is refused. In the future, when an application of this character is heard, tice of the motion and copies of the affidavit must be served upon the commissioner making the arrest, and upon the district attorney.
Ex parte BROWN.
(DiBtrlet Court, N. D. New York.
October 1, 1886.)
EXTRADITION-HABEAS CORPUS-PRESUMPTION IN FAVOR OF ACT OF THE Ex· ECUTIVE.
Although the courts have power, on habeas corpus, to review the decisions of the executive authority in extradition proceedings, they will not overrule such decisions unless they are clearly satisfied that an error has been com· mitted. The federal and state courts have concurrent jurisdiction in extradition proceedings.
SAME-CONCURRENT JURISDICTION OF STATE AND FEDERAL COURTS.
SAME-ARREST EFFECTED BY STRATAGEM.
A fugitive from justice charged with crime will not be released, onhabeqa corpus, because he was induced by a stratagem to come within territory where he could be properly arrested, provided the stratagem ustld was not itself an infraction of law.
SAME-FuGITIVES FROM JUSTICE.
A fugitive from justice is one who having, within a state, committed that which by its laws constitutes a crime, leaves its jurisdiction when it Is sought to subject him to its criminal process to answer for his offense, and is found in the jurisdiction of another state. It is not necessary that he should have left after indictment found, or for the purpose of avoiding a prosecution an. ticipated or begun.
On Habeas Corpus. John E. Pound, for petitioner. J. R. Thompson, for the State of Pennsylvania. COXE, J. The petitioner was, in February, 1886, indicted in Erie county, Pennsylvania, for perjury alleged to have been committed in that county in May, 1885. In August, 1885, he left his home in Pennsylvania, and went to Brantford, in the province of Ontario. On the twenty-fourth of July, 1886, he was induced by the false statements of parties employed by those interested in his conviction
to come into the state of New York. No force or violence was used, but he was informed and believed that Youngstown, New York, was in the dominion of Canada. On arriving at Youngstown he was immediately arrested. A requisition for his surrender was made by the governor of Pennsylvania upon the governor of this state, who issued a warrant for his delivery to the agent 'of the former state. The prisoner thereupon applied for a revocation of the warrant. A rehearing was granted, additional evidence was taken, and a full opportunity accorded counsel for the presentation of their views. After a careful consideration of all the issues involved the governor decided not to revoke the warrant previously issued. The petitioner now asks for a discharge, insisting that he is not a fugitive from justice, his presence here having been obtained by fraud. The sheriff makes return that he holds the petitioner by virtue of the warrant referred to. The case, as presented to the court, is in the same situation as when considered by the governor. No material fact has been added; no new proposition of law is advanced. That the court has jurisdiction is beyond all doubt. In re Doo Woon, 18 Fed. Rep. 898; Ex parte Morgan, 20 Fed. Rep. 298; Ex parte Smith, 3 McLean, 121; Ex prrrte McKean, 3 Hughes, 23. It was insisted in Re Robb, 19 Fed. Rep. 26, that. the federal courts have exclusive jurisdiction in extradition proceedings; but this view was overruled by the supreme conrt in RuM v. Connolly, 111 U. S. 624, S. C. 4 Sup. Ct. Rep. 544, where it was decided that jurisdiction is concurrent with the courts of the states. The decisions are by no means unanimous as to the power of the court, in these cases, to review upon habeas corpU$, and overrule the decisions of the executive authority; and the question has not, so far as I am able to ascertain, been decided by the supreme court. In Ex p8rte Reggel, 114U. S. 642, S. C. 5 Sup. Ct. Rep. 114R, the court held that the action of the governor, even though supported by slight evidence, was p"ima facie conclusive, and proof was required to overcome it. In Roberts v. Reilly, 116 U. S. 80, 95, S. C. 6 Sup. Ct. Rep. 291, it was held that the determination in the warrant that the party is· a fugitive from justice must be regarded as sufficient until the presumptionin its favor is overcome by contrary proof. In Leary's Case, 10 Ben. 197, the warrant of the executive was held conclusive in some particulars, and, after an elaborate examination of the authorities, it was strongly intimated that it would be so held for all purposes whenever a case should be presented rendering such a decision necessary. See, also, Kentucky v. Dennison, 24 How. 66; State v. 4 Har. 572. Assuming the power of the court to reverse the decision of tho governor, there can be little doubt as to the impropriety of such a course; especially where it appears that he unquestionably had jurisdiction, and reached a conclusion only upon mature deliberation; and after a hearing had been accordedto all parties interest:ed. The court should
be clearly satisfied that an error has been committed before setting aside the solemn act of the high official upon whom the execution of these important duties is devolved by law. I have, however, as requested at the argument, examined the questions presented as fully as opportunity will permit, and see no reason to differ with the governor in the conclusions reached by him. It was clearly his duty to grant the extradition when it appeared that the petitioner· was a fugitive from justice, and the demand by the executive authority of Pennsylvania was supported by an indictment, duly authenticated, charging the petitioner with having committed perjury in that state.
Ex parte Reggel, 8upra.
No question is raised as to the sufficiency of the indictment, or of any of the papers upon which the governor acted. It is admitted that the petitioner was in the state of Pennsylvania at the time charged in the indictment; that he was a witness at the trial when the perjury is alleged to have been committed; and that thereafter he removed to Canada, where he remained until he was induced to come into this state. In Roberts v. Reilly, 8upra,97, the supreme court thus interprets the law:
"To be a fugitive from justice, in the sense of the act of congress ing the sllbject under consideration, it is Dot necessary that the party charged should have left the state in which the crime is allege!l to have been committed, after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun; but simply that having, within a state, committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offense he has left its jurisdiction, and isfoundwithin the territory of another."
Thus defined, there can be no doubt that the petitioner was a fugitive from justice within the meaning of the law. . The question remains, was the duty of the executive to deliver up the petitioner at all affected by the fact that he was induced by the trickery and fraud of private parties to come within this jurisdiction? I am entirely clear that it was not. The contention that a plJ,rty charged with crime is entitled to be released on habeas corpus, because, bya stratagem,-which, though morally reprehensible,. is not criminal, in a legal sense,-he is induced to come within. territory where he may be properly arrested, is not supported by a single authority. The case of Hadden v. People, 25 N. Y. 873, falls far sustaining the proposition that the petitioner was brought here by the commission of a crime equivalent to kidnaping. In that case Wallace was overcome and stupefied by drink; his reason was dethroned; he was no longer a free agent. In this condition he was carried aboard a vessel about to depart for a foreign port. Rere there. was a false statement, but nothing more,-no physical restraint was used, no drugs were administered. The petitioner himself rowed the boat that conveyed him acr.oss the river.
The criminal law, administered, as it is, for the protection of the whole people, does not take cognizance of the means by which al· leged offenders are apprehended, so long as no act is done which in itself is an infraction of the law. But the whole subject is so carefully considered and reviewed in the opinion filed by the governor, and the reasons for his action are so clearly stated, that further comment is unnecessary. , The writ should be dismissed, and the prisoner remanded.
HUBEL V. DICK. t
(Oircuit Oourt, 8. D. New York. September 6,1886.)
PATENTS FOR INVENTIONS-REISSUE.
It is competent for a patentee to reissne and omit a claim which is too broad, or to restate the claim, coupled with such restrictions as will bring it within the limits of his original invention.
2. SAMEl-NEW CLAIM.
It is not competent for a patentee by reissue, after five years, to insert a claim for an invention which had never been the subject-matter of the original claims.
Frederic H. BettI, for the motion. Josiah P. Fitch, against the motion.
SHI;rMAN, J. This is a petition for the rehearing of the above-entitled cause. The court held that the sixth claim of the second reissue was void upon the ground that it was for a new combination, which, although it might have been applied for in the first reissue, was not applied for until afttlr the lapse of five years from the date of that reissue; and that, although it was said to be a limitation or narrowing of the corresponding cl.aim of the first reissue, it was really an enlargement of that patent, because it described and claimed a different and independent invention. Rubel v. Dick, 28 Fed. Rep. 132. The plaintiff now shows that the file-wrapper of the second reissue makes it apparent, and that-confessedly the fact was, that the sixth claim of the first reissue was declared void, upon the trial before Judge WALLACE, because a mould-plate and a series of capsule moulds, se· cured thereto at regular intervals, had been anticipated. The filewrapper was in evidence, but, having been offered after the testimony was printed, neither the fact that it was in evidence, nor the paper itself, was in the printed record; and the record, as printed, did not show why the sixth claim of the first reissue had been held to be void. The plaintiff says that Hubel ignorantly supposed himself to hav6
lEdited by Charles C. Linthicum, Esq., of the Chicago bar.