Fugitives From Justice.

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. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the state or territory making such demand, shall be paid by such state or territory. (10126, U. S. Compiled Statutes, 1918.)

Any agent so appointed who receives the fugitive into his custody shall be empowered to transport him to the state or territory from which he has fled. And every person who, by force, sets at liberty or rescues the fugitive from such agent while so transporting him, shall be fined not more than five hundred dollars or imprisoned not more than one year. (10127, U. S. Compiled Statutes, 1918.)

The governors of the different states in conference have agreed upon the following rules, which govern in all cases of inter-state extradition: 1. "The application for the requisition must be made by the county attorney for the county in which the offense was committed, and must be in duplicate original papers or certified copies thereof.

(a) "The following must appear by the certificate of the county attorney:

(b) "The full name of the person for whom extradition is asked, together with the name of the agent proposed, to be properly spelled, in capital letters; for example, JOHN DOE.

(c) "That in his opinion the ends of public justice require that the alleged criminal be brought to this state for trial at the public expense. (d) "That he believes he has sufficient evidence to secure the conviction of the fugitive.

(e) "That the person named as agent is a proper person, and that he has no private interest in the arrest of the fugitive.

(f) "If there has been any former application for a requisition for the same person, growing out of the same transaction, it must be so stated, with an explanation of the reasons for a second request, together with the date of such application, as near as may be.

(g) "If the fugitive is known to be under either civil or criminal arrest in the state or territory to which he is alleged to have fled, the fact of such arrest and the nature of the proceedings on which it is based must be stated.

(h) "That the application is not made for the purpose of enforcing the collection of a debt, or for any private purpose whatever, and that if the requisition applied for be granted, the criminal proceedings shall not be used for any of said objects.

(i)

"The nature of the crime charged, with a reference, when practicable, to the particular statute defining and punishing the same.

(j) "If the offense charged is not of recent occurrence, a satisfactory reason must be given for the delay in making the application.

2. "In all cases of fraud, false pretense, embezzlement, or forgery, when made a crime by the common law, or any penal code or statute, the affidavit of the principal complaining witness or informant, that the application is made in good faith, for the sole purpose of punishing the accused, and that he does not desire or expect to use the prosecution for the purpose of collecting a debt, or for any private purpose, and will not directly or indirectly use the same for any of said purposes, shall be required, or a sufficient reason be given for the absence of such affidavit.

3. "Proof by affidavit, of facts and circumstances satisfying the executive that the alleged criminal has fled from the justice of the state, and is in the state on whose executive the demand is requested to be made, must be given. The fact that the alleged criminal was in the state where the alleged crime was committed at the time of the commission thereof, and is found in the state upon which the requisition was made, shall be sufficient evidence, in the absence of other proof, that he is a fugitive from justice.

4. "If an indictment has been found, certified copies in duplicate must accompany the application.

5. "If an indictment has not been found by a grand jury, the facts and circumstances showing the commission of the crime charged, and that the accused perpetrated the same, must be shown by affidavits taken before a magistrate (a notary is not a magistrate within the meaning of the statutes), and that a warrant has been issued, and duplicate certified copies of the same, together with the returns thereto, if any, must be furnished upon an application.

6. "The official character of the officer taking the affidavits or depositions, and of the officer who issued the warrant, must be duly certified.

7. "Upon the renewal of an application, for example: On the ground that the fugitive has fled to another state, not having been found in the state on which the first was granted, new or certified copies of the papers in conformity with the above rules must be furnished.

8, "In the case of any person who has been convicted of any crime and escapes after conviction, or while serving his sentence, the ap plication may be made by the jailor, sheriff, or other officer having him in custody, and shall be accompanied by certified copies of the indictment or information, record of conviction and sentence, upon which the person is held, with the affidavit of such person having him in custody, showing such escape, with the circumstances attending the

same.

9. "No requisition will be made for the extradition of any fugitive, except in compliance with these rules."

"Resolution in relation to extradition for minor offenses.

"Resolved, that it is the sense of this conference that the governors of the demanding states discourage proceedings for the extradition of persons charged with petty offenses, and that, except in special cases, under aggravating circumstances, no demand should be made in such cases." (Wharton's Criminal Evidence, Vol. 2, 10th Ed., p. 1614.)

242. Title of Code-This chapter shall be known as the Code of Criminal Procedure of the State of Oklahoma. (5535 R. L. 1910)

243. Criminal Action-The proceedings by which a party charged with a public offense is accused and brought to trial and punishment, is known as a criminal action. (5544 R. L. 1910)

244. Criminal Action, How Entitled-A criminal action is prosecuted in the name of "The State of Oklahoma" as a party against the person charged with the offense. (5545 R. L. 1910)

245. Not Retroactive-No part of this Code is retroactive unless expressly so declared. (5537 R. L. 1910)

246. This Chapter Applies-This chapter applies to criminal actions and to all other proceedings in criminal cases which are herein provided for. (5542 R. L. 1910)

247. Indictment or Information, Except-Every public offense must be prosecuted by indictment or information, except: First. Where proceedings are had for the removal of civil officers of this State.

Second. Offenses arising in the militia, when in actual service, and in the land and naval forces in time of war, or which the State may keep, with the consent of Congress in time of peace.

Third. Offenses tried in justices' and police courts in cases concerning which lawful jurisdiction, without the interventon of grand jury, is or may be, conferred upon said courts. (5536 R. L. 1910)

248. How Prosecuted-Every felony must be prosecuted by indictment or information, in the district or superior court. Misdemeanors must be prosecuted by information, except as otherwise provided by law; Provided, however, that the district court or the judge thereof may, by order made, direct that any particular misdemeanor be presented to the grand jury, and when so ordered it may be prosecuted by indictment. (5693 R. L. 1910)

249. Rights of Defendant-In a criminal action the defendant is entitled:

First. To a speedy and public trial.

Second. To be allowed counsel, as in civil actions, or to appear and defend in person and with counsel; and,

Third. To produce witnesses on his behalf, and to be confronted with the witnesses against him in the presence of the court. (5547 R. L. 1910)

A prosecution under a municipal ordinance may be in the name of the city. In re Simmons, 4 Okla. Cr. 663.

Prosecution may be had in both state and municipal court where same act constitutes an offense against both laws. In re Simmons, 4 Okla. Cr. 663.

Felonies may be prosecuted by information, but not until defendant has had or waived preliminary examination. The state may prosecute by either method. Fields v. State, 5 Okla. Cr. 520, 115 P. 608.

Having had or waived preliminary, defendant may be prosecuted by information for substantially the same offense. Williams v. State, 6 Okla. Cr. 373, 118 P. 1006; Wines v. State, 7 Okla. Cr. 450; Weatherholt v. State, 9 Okla. Cr. 161. 131 P. 185; Tucker v. State, 9 Okla. Cr. 587, 132 P. 825; Sayers v. State, 10 Okla. Cr. 195, 135 P. 944.

Technical accuracy not required in felony complaints. Defendant should be held for any offense of which evidence shows him probably guilty. Adair v. State, 15 Okla. Cr. 619, 180 P. 253

Requirements of transcript. Idem.

Defendant charged with larceny of $10. Information charged larceny of $22. Information should have been quashed. Hensley v. State, 15 Okla. Cr. 576, 179 P. 788.

250. Counsel Assigned Defendant-In all criminal cases triable in the State of Oklahoma where it is satisfactorily shown to the court that the defendant has no means, and is unable to employ counsel, the court shall, in all such cases, where counsel is appointed and assigned for defense, allow and direct to be paid by the county in which such trial is had, a reasonable and just compensation to the attorney or attorneys so assigned for such services as they may render; Provided, however, that such attorney shall not be paid a sum to exceed $25 in any one case. (6112 R. L. 1910)

Counsel must be appointed, when, Sec. 610.

251. Jeopardy of Defendant-*

*

; nor shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense. (Sec. 21, art. 2, Const.)

252. Incrimination-Restraint-No person can be compelled in a criminal action to be a witness against himself; nor can a person charged with a public offense be subjected before conviction to any more restraint than is necessary for his detention to answer the charge. (5549 R. L. 1910)

253. Liable to Only One Prosecution-No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and duly convicted or acquitted, except as hereinafter provided for new trials. (5548 R. L. 1910)

The pendency of an indictment does not, within itself, jeopardize defendant; nor is it sufficient to prevent another indictment for same offense. Reed v. Terr., 1 Okla. Cr. 481, 98 P. 583.

Jeopardy does not begin until jury is sworn to try cause. v. State, 3 Okla. Cr. 73, 104 P. 493.

Caples

An act which is a violation of both the state law and a city ordinance also, may be prosecuted in either or both courts without jeopardy attaching against a second prosecution. Simmons v. State, 4 Okla. Cr. 662; Simmons v. State, 5 Okla. Cr. 399, 115 P. 380.

"Plea of Jeopardy," when put in. The test of former jeopardy is, whether the evidence necessary to support the second information would have been sufficient to procure a conviction upon the first information. Jackson v. State, 11 Okla. Cr. 523.

"Jeopardy" defined. Rupert v. State, 9 Okla. Cr. 226, 131 P. 713. "Same offense" defined. Estep v. State, II Okla. Cr. 103, 143 P. 64. Former conviction must be for same identical offense to sustain a plea of former jeopardy. Dunn v. State, 15 Okla. Cr. 246, 176 P. 86. In a plea of former acquittal, the burden of proof is on him who alleges it. Ex parte Stevenson. 1 Okla. Cr. 127, 94 P. 1071.

A plea of former jeopardy which shows a different offense, or is otherwise fatally defective, should be stricken from the records. Johnson v. State, 1 Okla. Cr. 323, 97 P. 1059; Morris v. Terr., 1 Okla. Cr. 618, 99 P. 760.

Plea of former jeopardy must be presented in the manner prescribed by statute. Sims v. State, 9 Okla. Cr. 561, 132 P. 508.

Where no evidence is given in support of plea of jeopardy, court should decline to give instruction on such plea. Hartgraves v. State, 5 Okla. Cr. 266, 114 P. 343.

A plea of former jeopardy in a felony case, in Justice court is bad and should be stricken. Hamlin v. State, 8 Okla. Cr. 187, 126 P. 704. A plea of former acquittal will not be considered in appellate court where it was not interposed on arraignment and incorporated in the case-made. Petitti v. State, 3 Okla. Cr. 587, 107 P. 1910.

Plea of former jeopardy is a question of law or fact, depending on the state of the record. Loyd v. State, 6 Okla. Cr. 77, 116 P. 959. Verdict must respond to each plea including plea of former jeopardy.