IN BE BLOCH.
session. Reinheimer v. Hemingway, 35 Pa. St. 432,438; Mathias v. Sellers, 86 Pa. St. 486, 492. The judgment is reversed, and the cause is remanded to the circuit court, with direction to set aside the verdict and grant a new trial
In re BLOCH. (DIstrict Court, W. D. Arkansas.
March 18, 1898.)
HABEAS CORPus-ARREST FOR EXTRADITION-IDENTITY OF PRISONER.
In habeas corpus proceedings for the discharge of a prisoner held under an extradition warrant issued by the governor of a state, the question of the prIsoner's identity cannot be raised by demurrer to the return of the officer to the writ.
SAME-RECITALS IN EXTRADITION WARRANT-BuRDEN OF PROOF.
In habeas corpus proceedings for the discharge of a prisoner held under an extradition warrant issued by th,e governor of a state in conformity with the requirements of the act of congress, a recital in the warrant that the prisoner is a fugitive from jUstice will be taken as true until overcome by satisfactory proof. Where one has left the state In which he Is Indicted for a crime, he Is a fugitive from justice, in the sense of the act of congress relating to the extradition of criminals, whatever may have been his motive in leavhig the state. In habeas corpus proceedings for the discharge of a prisoner held under an extradition warrant issued by' the governor of a state, the federal court will not consider or pass upoll any matters of defense to the Indictment upon which the extradition Is 'based, nor a charge that the requisition proceedings are instigated by maBce, and intended to annoy and harass the petitioner.
EXTRADITION-FUGITIVE FROM JUSTICE.
SAME-HABEAS CORPUS PROCEEDINGS-MATTERS CONSIDERED.
Hill & Brizziliara, for petitioner. Haynie R. Pearson and Read & McDonough, for People of State of Illinois. ROGERS, District Judge. The petitioner sued out a writ of habeas corpus for his release from the arrest of T. W. Bugg, sheriff of Sebastian county, Ark., and his deputies, and one Frank Tyrrell. The said sheriff, having said Bloch in custody, filed his response to the writ, alleging, in substance, that he had arrested the defendant and beldhim in custody under a writ issued by the governor of Arkansas, commanding him to arrest the said Abe Bloch for a crime under the laws of the State of Illinois, known as "confidence game," the said warrant for the arrest of the said Abe Bloch being issued by the governor of the state of Arkansas upon demand by the governor of the state of Illinois, the said demand being accompanied by a copy of the indictment against the said Abe Bloch, which indictment was duly authenticated, all of which is shown in said warrant, which is thereto attached, and the said Abe Bloch being a fugitive from justice from the said state of Illinois, which is also shown by the said warrant thereto attached, and that he holds the said Abe Bloch in obedience to the said warrant, ready to be turned over and delivered to the agent of the state of Illinois,
87 FEDERAL REPORTER.
is ' present: to receive the said Abe Bloch,and niJ;ti to the state of Illinoi$;' to be dealt, with according to law and justice. The writ of the' governor attached to said response recites the following facts: That the governor of the state of Illinois had issued a writ or requisition, accompanied by a copy of the indictment in said state of Illinois, which is duly authenticated, demanding the body: of Abe Bloch, charged in said state with the crwe Of confidence game, Which il!!dqly certified to be a crime under'the lawl!! of sajd state; and that it having been shown by satHlfactory evidence that the said Abe Bloch fled'.irom the justice of.s.aJ,d,'state, and hl;u(probably takel1refuge in. the ,state of ArkanlJas, to. ,the eD,d, therefore, that jtil;ltice may be done in th,e premises, the sheriff of any countY,in the state 'of Arkansas, is, commanded to take the body of the said Abe Bloch, and him safely keep· and cause'him to ,be delivered to Frank Tyrrell, the agent of the state, of Illinqis, to be taken into said state, that he may be dealt, with". as Jaw aD,d, This response with the writ attached thereto is sufficient in form, and conforms in all substantial particulars to the requirement!! of the constitution and laws of ,of, fugitives from justice. The,allthorltY'fo,", the issuance by the' governor, and its execution by the sheriff, are fully made to appear, and it i,s not contended that the papers are not,)n,E:very respect, regular on their face. I hI,:, A demurrer was interposed to the 'resp0nse of the, sheriff. This demurrer'coJi,cedes the tl,')lth of aU the ,allegations set forth in the respouse,' It seeks to raise two ,First, that the Abe Bloch under arrest is not identified as the Abe Bloch under arrest; second, that the response is insufficient in law. The first question cannot be raised by demurrer. ,That ground ofoon;mvrer is in the nature of '1\ speakin'g demurrer; thatds to 11l!l,y"it-undertakes to raise a question of fact, whereas the office of a demurrer is to test the sulliciencyoUhe admitting them,to be true. The second ground of thet'M'nll'rrer, namelY,that the response is insufficient, I think, is wholly' without merit. Every fact 'required by the act of cangressfor"the fugitives from justice is made to appear by the" resp<;mse of the' sheriff; arid the exhibits attached thereto. The demurrer therefore' shdiIld be overruled. The petitioner also filed" a reply to the response. ','It is long, alld no good purpose'can be subserved by setting it out' at length. ,Suffice it to say" I regard the'm'atterset up therein as irrelevant and im,material. It' appears by ,the response, and I think conclusively in cOllllection}\fith the in evidence; that the petitioner is ,the Abe BlOch named in tHe 'writ. The chief point sought be the r.es:p?nse is!1s to '';hether or Abe, Bloch IS a fugItiVe fr?m, Justice.' PrIma' faCIe the of fact by theg,oV,ern,o,r, an,'d which is recited in the ,bOdY of the writ, to wit, "and it 'paving been shown by satisfactorY' evidence that the said Abe B19cl1'fl (t'fl'?m the justice of said state,and has probably state of ;must be as true. Has thIS prltllll facie case been oterturned by the response? I
:IN RE BI.OCR.
do noCthink it has; It is shown on the face of the response, and appears from a copy of the indictment filed with. the papers in the case, that the crime alleged against him was committed on the 1st day of November, 1897, in Cook county, TIL; and it also appears from the response tha:t the said Abe Bloch was in Cook county, Ill., on the 1st day of November, 1897, and remained there "many days after the first." . It alsoappe:;1fs froII\ the response that· after that time, and during the month of November, (iefendant absented himself from the state ofllUnois, and since that time has been in the state of Arkansas. Under the law, the court is of the opinion that this response, instead of removing the prima facie case made by the governor's writ, confirms the fact, recited in the governor's writ that the said Abe Bloch is a fugitivefrOJn justice. The supreme court of the United States, ,in Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291, in the question as to whether a person demanded was af).lgitive from justice, say:
"It Is conceded that the determination of the fact by the executive of a state, In Issuing his warrant of arrest upon a demand made on that ground, whether the writ contains the 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 overturned by contrary proof. Ex parte Reggel. 114 U. S. 642, 5 Sup. Ct. 1148. · · · To be a fugitive from justice, in the sense of the act of congress regulating the subject under consideration, it is not necessary' that the party charged should have left the state in which the crime is alleged to have been committed, after an inUictment 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 ans'¥er .for his offense, he has left Its jurisdiction, and Is found within the territory of another."
This decision is supported by innumerable authorities, and I thiNk is settled law in the federal and other courts. I need not take the time to collate them. See Ex parte Brown, 28 Fed. 653; In re Voor· hees, 32 N. J. Law, 141; People v. Pinkerton, 17 Hun, 199 i U. S. v. Smith, Bruner, Col. Cas. 87, Fed. Cas. No. 16,332; In re Keller, 36 Fed. 681;. In re White, 5,0. 0.1\.29,55 Fed. 54; State v. Richter, 37 ,:\finn. 436, 35 N. W. 9; Hibler v. State, 43 Tex. 197; In re Roberts, 24 132; In re Kingsbury's Case, 106 Ma&S. 223; Ex parte Swearingen, 13 ·S. C. 74; In re Greenough, 31 Vt. 279; In re Adams, 7 Law Rep. 386; Jackson's Oase, 12 Am. Law Rev: 602; Ex parte Smith, 3 McLean, 131, Fed. Cas No. 12,968. In Ex parte Dawson, 28 C. C. A. 681, 83 Fed. 306, the court of appeals of the Eighth circuit say:
"And where the requisition"and a copy of the Indictment accompanying it are not made a part of the return, and the warrant alone, as in this ,case, is th,at a demand by reqUisition has before the court, it must show: been made for the party In custody as a fugitiye from justice; second, that the requisition was accompanied by a copy of an indictment. or affidavit charging the commission of the offense; that the copy of such Indictment or affidavit was certified by the governor of the state making the demand, as authentic,"-citing Hoberts v. Reilly, 116 D. S. 80, 6. Sup. Ct. 291; Ex parte Heggel, 114 U. S. 642,5 Sup. at. 1148; In re Doo Woon, 18 Fed. 898; Ex parte Smith, 3 McLean, 121, Fed. Cas. No. 12,968; People v; Donohue, 8t N. Y. 438.
The papers in that case did not strictly conform to the requirements of thE' act of congress. In the case at bar they do. In that case the cour1 ,said:
87 FEJllERAL REPORTER.
courtwlll not"however. on habeas corpus, discharge a prisoner l:A8.rgM- Jl'!lt}:l a violation of the crbnlnilllaws of one state, and apprehended in an4tller, where it appears' by the rErcitalg contained in the warrant by virtue Of whiCh he was an'ested, and "the record of the extradition proceedings, that any right, privUege, or immunity secured him by the constitution and laws of·t\l.eUnlted States wlllbe 'Violated by remanding blm to the custody of th,e agent of the state demanding him." .
It will be seen from an examihation of the cases cited precisely what is l'equired under the acf'oflcongress in order, to secure the extraditioI). ala fugitive from justiee,:and it will appear that where the papers show on their face thattlte,petitioner is indicted for the in another state, and has left that state, in commission of a law he isa fugitive from jl1stice,whatever his motive in leaving the state where the offense was committed may have been. The response sets up the statute of limitations of former trial and acquittal foithe same offense. It is slifficient to say that matters of that kind, and all other matters 'Ofdeferise, must be referred to the courts in IJlinois. The response also contains matter tending to show that the papers ha;ve on foot and are instigated by malice, and not in good faith, and are intended to harass and annoy the petitioner. It is sufficient to say that these are matters which must either go. to the courts in Illin.0is, or. to the governor of the state of Arkansas, who issue<1: the warrant. It is not a question that this court has a r:ight to paflS upoll under habeas corpus. Nor do they, ,if true, constitute any predicate for affirmative relief by the court. ..' The court '-«ill overrule the ,motion' to strike, and let the answer stand, but finds the fact to be that the Ab.e Bloch under arrest is the designated in the writ of the governor, and is, in law, a Abe fugitive!from justice from the state of Illinois. l.'he court is therefore of opinion that the writ should be denied; that his petition be dismissed; and that he be remanded to the custody of the sheriff of Sebastian county, Ark., to bedea,it, with according to law, and in conformitywiththe writ under which he was held when the writ of habea,1;> corpus was sued out. ..
(Circuit Court, D. Washington. J . . ::
June 15, 1898.)
same court under the saIDe indIctment. Counsel for the government having objected thereto, the court tl'elited his objection as a demurrer to its sufficiency In law, and thereupon 'overruled the plea. ·The trial then went on,. withOut objection by <;lefendant to the subsequent proceedings. Held, that waS no error In thus proceeding with the cause without .first settlng'downtbe plea for trial, 'as the only question arising thereon was one of lll:w,which was finally disposed of by the former ruling.
2. SUFFICIENCY: oFilNiDlCTMENT-MoTIONS '!'OQUASH, Hev. st.·5 1-025, the court to quash an indictment for defect
A plea of former jeopardy set upcertillnprlor proceedings had in the
OF FORMElt JEOPARDY.
or form, makes it unnecessary, in criminal indictments, to repeat an