any other county or counties as shall be in the ordinary route of travel, from the place where such prisoner shall have been arrested, to the place where he is to be conveyed, and delivered under the process by which such arrest shall have been made, and such conveyance is not deemed an escape.1

And while passing through such other county or counties, the officers having such prisoner in their charge, are not liable to arrest on civil process, and they have the like power to require any citizen to aid in securing such prisoner, and to retake him if he escape, as if they were in their own county; and a refusal or neglect to render such aid, is an offence in the same manner as if they were officers of the county, where such aid was required.2

(h) In regard to escapes by the prisoner, where it is without the assent of the officer, the prisoner may be retaken as often as he flies upon fresh suit, though he were out of view or had reached another county or district.3 In a case in this State where the escape was voluntary upon the part of the officer, Justice Cowen stated that it is said in some books, that in case of criminal process, the officer suffering the escape, cannot take the accused. The question is not settled, but I am inclined to think the law is otherwise, and so it is considered in those books which treat the subject with the greatest care. The people ought not to be deprived of any right, by an escape of whatever kind from custody, under criminal process, though the officer consent to the escape, he is bound to retake the prisoner.1

It has, however, been held in this State, that where a prisoner has been arrested in one county, upon an indorsed warrant issued by a justice of the peace in another county, and the prisoner is discharged from arrest by a justice of the peace of the county in which he is arrested, on entering into a recognizance before him, that although such justice may not have had the right to take such bail, and the prisoner should have been brought back to the county from which the warrant issued, yet the warrant has spent itself, and the officer has no right to arrest the prisoner again without new process.

5

1 Chit. Cr. L., 59; Dick. J., arrest, 111.

⚫ Clark v. Cleveland, 6 Hill, 349; 2 Hawk., ch. 19, § 12; 1 Esp. R., 218; Peak N. P. Cases, 234; Chit. Cr. L., 61., Ed. of 1841; 1 Gow. N. P. Cases, 99.

• Doyle v. Russell, 30 Barb., 300; disapproving 6 Hill, 349.

(i) Concerning the force which may be used to prevent and in pursuit of an escaped prisoner, it is laid down that where a felony has been actually committed, or a dangerous wound given, and the party flies from justice, he may be killed in the pursuit, if he cannot be otherwise overtaken, and the same rule holds if a felon, after arrest, break away as he is carrying to jail, and his pursuers cannot retake him without killing him; but if he may be taken in any case without such severity, it is at least manslaughter in him who kills him, and the jury ought to inquire whether it were done of necessity or not, and it is no defense to an officer in such a case, to show that he had reasonable ground to believe that the deceased had been guilty of a felony, and that he had also reasonable ground to believe that the deceased would otherwise accomplish an escape.1

But where the party is accused of a misdemeanor only, and flies from the arrest, the officer must not kill him, though there be a warrant to apprehend him, and though he cannot otherwise overtake him; and although the officer must not kill for an escape where the party is in custody for a misdemeanor, yet if the party assault the officer, with such violence that he has reasonable ground for believing his life to be in peril, he may justify killing the party.3

SECTION V.

OF FUGITIVES FROM JUSTICE, AND THE OBTAINING OF REQUISITIONS FOR THE ARREST THEREOF UPON THE GOVERNORS OF OTHER STATES.

A person charged in any State with treason, felony or other crime, who shall flee from justice and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State hav ing jurisdiction of the crime.+

In pursuance of the power vested in the executive authority of the State of New York, for the demand for arrest in other

1

Conroddy v Peo., 5 Park., 234; Whar. on Homicide, 50; 1 Hale, 481; Fost., 27; 1 Russ. on Cr., 533; 2 Dev., 58.

States of persons committing crimes within this State, and escaping therefrom before arrest, and the delivery up and removal thereof from another State to this State for trial, the Executive Department of the State of New York have issued printed regulations, calling the attention of district attorneys, sheriffs and county clerks to the requirements embraced therein.

The regulations state, that to avoid the frequent irregularities and defects in applications to the Governor for requisitions on the Governors of other States for the surrender of fugitives from justice, rules have been adopted by the Executive Department, and will be strictly enforced; and any application not complying with them in all respects, will be rejected without inquiry into its intrinsic merits.

The following is a synopsis of the rules and regulations above referred to:

Applications for requisitions must in all cases be made by the district attorney, or in his absence, by his deputy, who must certify that he approves of the application; that the party complained of is a fugitive from justice, and is, he believes, at the time in the State of; that he fled from this State before arrest could be made, and that the ends of justice require that he should be brought back to this State for trial.

If the application is upon an indictment, a certified copy thereof must be furnished by the clerk of the court in which it was found.

If upon affidavits, the magistrate taking them must certify that, in his opinion, the parties making them are to be believed, and that they present a proper case for a requisition; and the official character of the magistrate must be proved.

The district attorney must further certify that if the facts stated in the affidavits are true, they would, in his opinion, result in a conviction.

It must also be affirmatively stated whether any application for a requisition for the same person, for an offence arising out of the same transaction, has been previously made; and if a prior application has been made, any new facts appearing in the papers must be specially pointed out.

The district attorney must also name the State upon which the requisition is asked, and a proper person to whom the warrant

is to issue; and must certify that such person has no private interest in the arrest of the fugitive.

When any statements are made upon information and belief, the statements so made must be distinctly defined, and the sources of information and grounds of belief must be set forth in detail.

In all cases the greatest care will be exercised in the department to ascertain beyond a doubt that the object in seeking a requisition is not to collect a debt, or to afford some person an opportunity to travel at the public expense, or to answer some other private end. In all cases of false pretences, embezzlement, conspiracy and similar crimes, the strongest affirmative evidence will be required that the real objeet is not the collection of a private debt.

If a requisition shall have been improperly or unadvisedly granted, there will be no hesitation in revoking it.

If the offence is not of recent occurrence, sufficient reasons must be given why the application has been delayed.

If known, it should also be stated whether the accused has ever been a resident of this State, or has been only transiently here.

In all cases of rejected applications for requisitions, the papers will be retained in the Executive Department.

Requisitions will, as a general thing, be granted only upon the express condition inserted in the warrant, that no portion of the expense shall fall upon the State, but that the entire expense shall be borne by the county from which the application comes. District attorneys will therefore remember that in making an application for a requisition, they are sanctioning a county charge. This rule will be waived only in extraordinary cases, though the expense may sometimes be imposed on the complainant or applicant.

Duplicates of all papers necessary upon the application must be furnished, that one set may be retained in the Executive Department, and the other attached to the requisition, though only one set need be certified. This requirement is designed to embrace the formal application or letter of the district attorney. In no case can a requisition be granted at the same time for the same offender, upon the Governor of more than a single State. It must also be shown by affidavit, duly verified, that the party

complained of is a fugitive from justice, and that according to the best knowledge and belief of the affiant, the alleged fugitive is at the time of making the application in the State, upon which a requisition is asked, and the grounds for such belief must be specifically set forth in such affidavit.

It having been decided in the Third Judicial District that Notaries Public are not magistrates within the meaning of the federal law, no application for a requisition based upon affidavits before a notary public will be granted.

The Governor has no power to require the surrender of fugitives who have taken refuge in the British province.

When the Governor of this State, in the exercise of the authority conferred by the Constitution of the United States, or by the laws of this State, shall demand from the Governor of any State or territory in the United States, or from the executive authority of any foreign government, any fugitive from justice, the accounts of the persons employed by him for that purpose, for their services, shall be audited by the Comptroller and paid out of the treasury.1

The Legislature generally include in the act passed each year, making appropriations for the support of the State government, a stated sum for the apprehension of criminals.

The Governor, in estimating the expense of the arrest of fugitives from justice, generally has reference to this appropriation, and, except in extraordinary cases, inserts a clause in the body of the requisition, that no part of the expense thereof shall fall upon, or be borne by the State.

In such cases the officer performing the travel and executing the warrant, has to seek his recompense either from the party who employed him, or from the Supervisors of the county in which the District-Attorney resides, who signed the application for the requisition.

Upon an examination of the application for the requisition and papers thereto attached, if they present a proper case, the Governor of this State certifies to the Governor or Chief Magistrate of the State or territory where the fugitive may be, that the papers are authentic, and certified in accordance with the laws of this State, and requires therein that the fugitive be appre