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land, it is a part of the law of each State, and State officers whose duty it is to adjudicate or execute the laws are governed by it the same as by every other law in force. A Court of general original jurisdiction, ex-. ercising the usual powers of a common law Court, is fully competent to hear and determine all matters, and to issue all necessary writs for the arrest and transfer of a fugitive criminal to the authorized agent of the State from whence he fled. Where a right is established by law, such Courts can apply the appropriate remedy and issue the necessary writs without special legislation. It may be considered doubtful whether the transfer of this power from the Courts to the Governor of the State is an act of wisdom. Certainly Courts of justice are more competent to adjudicate the difficult and perplexing questions which often arise in such cases than the Governor.-Matter of Romaine, 23 Cal., p. 589. The Courts possess no power to control the executive discretion in surrendering fugitives from justice, nor can they compel a surrender in such case; yet, the Executive having acted, that discretion may be examined into in every case where the liberty of the subject is involved.-Matter of Manchester, 5 Cal., p. 23. The Governor of the State issuing the requisition for the fugitive is the only proper judge of the authenticity of the affidavit, and the Judge, on habeas corpus, cannot go behind his action to inquire whether the affidavit was a forgery.-Matter of Manchester, 5 Cal., p. 23.

AFFIDAVIT. It is not necessary that the affidavit upon which the requisition issued should set forth the crime charged, with all the legal exactness necessary to be observed in an indictment. If it distinctly charge the commission of an offense it is all that is necessary. In the Matter of Manchester on Habeas Corpus, 5 Cal., p. 23. It is not necessary that the affidavit should state that the prisoner is a "fugitive from justice." The allegation that he committed the crime, and then secretly fled, is sufficient to deduce the conclusion that he is a fugitive from justice.-Matter of Manchester, 5 Cal., p. 23. The Judiciary have power to investigate on habeas corpus cases where a party is arrested as a fugitive from justice from another State.-Matter of Manchester, 5 Cal., p. 237.

to issue

1549. (§ 666.) A magistrate may issue a warrant Magistrate for the apprehension of a person so charged, who flees warrant. from justice and is found in this State.

NOTE.-See note to Sec. 1548.

1550. (§ 667.) The proceedings for the arrest and commitment of a person charged are, in all respects, similar to those provided in this Code for the arrest and commitment of a person charged with a public offense committed in this State, except that an exemplified copy of an indictment found, or other judicial proceedings had against him in the State in which he is charged to have committed the offense, may be received as evidence before the magistrate.

1551. (§ 668.) If, from the examination, it appear that the accused has committed the crime alleged, the magistrate, by warrant reciting the accusation, must commit him to the proper custody in his county, . for such time, to be specified in the warrant, as the magistrate may deem reasonable, to enable the arrest of the fugitive under the warrant of the Executive of this State, on the requisition of the executive authority of the State in which he committed the offense, unless he gives bail as provided in the next section, or until he is legally discharged.

1552. (§ 669.) The magistrate may admit the person arrested to bail by an undertaking with sufficient securities, and in such sum as he deems proper, for his appearance before him at a time specified in the undertaking, and for his surrender to arrest upon the warrant of the Governor of this State.

1553. (§ 670.) Immediately upon the arrest of the person charged, the magistrate must give notice thereof to the District Attorney of the county.

Proceedarrest and ment of the

ings for the

commit

person charged.

When and

for what

time to be

committed

His

admission

to bail.

Magistrate
District

must notify

Attorney of the arrest.

Duty of the

District

1554. (§ 671.) The District Attorney must immediately thereafter give notice to the executive authority Attorney.

Person

of the State, or to the Prosecuting Attorney or presiding Judge of the Court of the city or county within the State having jurisdiction of the offense, to the end that a demand may be made for the arrest and surrender of the person charged.

1555. (§ 672.) The person arrested must be dis when to be charged from custody or bail, unless, before the expira

arrested,

discharged

Magistrate

to return his proceedings to the next County Court.

Proceedings

thereon.

Fugitives from this State.

tion of the time designated in the warrant or undertaking, he is arrested under the warrant of the Goernor of this State.

1556. (§ 673.) The magistrate must return his proceedings to the next County Court of the county, which must thereupon inquire into the cause of the arrest and detention of the person charged, and if he is in custody, or the time for his arrest has not elapsed, it may discharge him from detention, or may order his undertaking of bail to be canceled, or may continue his detention for a longer time, or readmit him to bail, to appear and surrender himself within a time to be specified in the undertaking.

1557. (§ 674.) When the Governor of this State, in the exercise of the authority conferred by Section 2, Article IV of the Constitution of the United States, or by the laws of this State, demands from the executive authority of any State of the United States, or of any foreign Government, the surrender to the authorities of Accounts of this State of a fugitive from justice, who has been found and arrested in such State or foreign Government, the accounts of the person employed by him to bring back such fugitive must be audited by the Board of Examiners, and paid out of the State Treasury.

persons employed in procuring surrender

to be paid
gut of the

State
Treasury.

NOTE.-Stats. 1854, p. 169; State Const., Art. IV, Sec. 2. The fact that a fugitive from justice had not been heard of for sixteen months, and that he was a passenger on a particular vessel, and the vessel and

crew had never been heard from, is not sufficient to raise
a legal presumption of his death.-Ashbury vs. San-
ders, 8 Cal., p. 62.

No fee or be paid to by any pub

reward to

or received

lic officer procuring

1558. No compensation, fee, or reward of any kind can be paid to or received by a public officer of this State, or other person, for a service rendered in procuring from the Governor the demand men- the tioned in the last section, or the surrender of the of fugitives, fugitive, or for conveying him to this State, or detaining him therein, except as provided for in such section.

NOTE.-N. Y. Cr. Pr., Sec. 907. This Chapter is designed to regulate a very important branch of criminal practice. The power to demand a fugitive from justice is one of the most delicate acts of sovereign authority, and should only be exercised in cases where the public welfare demands it. The cases in which its exercise is most frequently called for, though falling within the legal definition of public offenses, are rather of a private than a public character, such as false pretenses, and the like; and it is well known that the Executive has always been in the habit of scrutinizing them with great jealousy. And in these cases a large portion, if not a majority, of the applications for the exercise of this high prerogative on the part of the Governor are made, not directly by the public authorities, but by the private party on whose complaint the prosecution is instituted. They are informed, moreover, that it has been the practice of those who have filled the executive chair, in some, if not in all, instances of public prosecutions for this offense, to require that the party on whose application the requisition is granted bear the expense of its execution. This practice has no doubt proceeded upon the principle that these prosecutions are so far of a private character as to justify the Executive in imposing this condition, with a view to save the public treasury from an unnecessary burden. Whatever may be the reason for it, the Commissioners are constrained to believe that it should not exist. Its tendency is to convert the officer with whom the requisition is intrusted rather into a private than a public agent. It has frequently happened that the person to whom the requisition has been delivered has gone with it to a remote State on the strength of its possession, has negotiated for settlement of the debt out of the fraudulent contraction o

surrender

etc.

which it arose, and, holding it as a rod over the party, has wrung from his fears a compromise of the prosecution. Nor is this to be wondered at. Prosecutions of this nature seldom spring from the mere love of justice, but ordinarily are rather prompted by a spirit of revenge, or what is, perhaps, more frequently the case, of cupidity. The officer, therefore, who takes the requisition, at the expense of a private party, will naturally act for the promotion of the interests of his employer rather than from the mere desire to enforce, in his public relation, the process of the law. He will do this, from no motive corrupt in itself, perhaps, but because his own interests are equally involved in the success of a compromise with those of his employer. The Commissioners do not propose to restrict, in any degree, the discretion of the Executive, or the manner of its exercise, in this or any other criminal case. But, believing as they do, that the highest considerations of policy require the exclusion of every motive of private interest in the execution of this, more than in that of any other legal process, they propose by this Chapter that where a requisition is granted it shall be executed, as it is presumed to be issued, for the public good alone, and that the public treasury shall, therefore, answer for its execution; and that the officer to whom it is intrusted shall be prohibited, under the penalty of a misdemeanor (see Sec. 144), from receiving any compensation, fee, or reward for any act or service in respect to it, except as provided for in Sec. 1558.

Parties to special pro

CHAPTER V.

MISCELLANEOUS PROVISIONS RESPECTING SPECIAL PROCEED-
INGS OF A CRIMINAL NATURE.

SECTION 1562. Parties to special proceedings, how designated.

1563. Entitling affidavits.

1564. Subpoenas.

1562. The party prosecuting a special proceeding ceedings, of a criminal nature is designated in this Code as the designated complainant, and the adverse party as the defendant.

how

Entitling affidavits.

1563. The provisions of Section 1401, in respect to entitling affidavits, are applicable to such proceedings.

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