Misc.]

Supreme Court, December, 1921.

North Carolina on January 6, 1921, the date on which the crime is alleged to have been committed, and that he subsequently left the state of North Carolina and came to the state of New York. This being so the state of New York is under the duty of surrendering the relator to the agent of the state of North Carolina.

In this proceeding the court can only inquire into the questions of whether there is a sufficient charge of a crime, whether the relator is the person named in the indictment and whether the relator was in the demanding state on the day that the crime is alleged to have been committed. No other questions can be raised or considered. Even if it be true, as asserted by relator in his traverse, that colored persons were excluded from the grand jury which found the indictment, that the relator left the state of North Carolina to escape mob violence and that there is danger that he will not have a fair trial if he is surrendered to the North Carolina authorities, those facts do not entitle him to relief on habeas corpus. The state of New York is under the duty of surrendering the fugitive to the agent of the state of North Carolina and the rendition warrant of the governor of New York must be executed for that purpose. U. S. Const. art. IV, § 2; U. S R. St. § 5278; Code Crim. Pro. § 827; Biddinger v. Commissioner of Police of the City of New York, 245 U. S. 128; Appleyard v. Mass., 203 id. 222, 227, 228.

When the papers are regular and contain a sufficient charge of crime and it sufficiently appears that the relator is the person named in the indictment and that he was within the demanding state on the day which the indictment alleges as the date of the crime, the governor of the state in which the fugitive is found is under the duty of surrendering the fugitive into the custody of the demanding state. This duty,

Supreme Court, December, 1921.

[Vol. 117.

which is imposed by the Constitution of the United States, is imperative.

The only questions before the court are whether the relator is unlawfully deprived of his liberty, and whether the governor of this state in honoring the demand of the foreign state has acted without authority of law. It is not enough for the relator to show that the indictment is defective under the laws of this state; he is bound to overcome the presumption that the governors of the two states have performed their duties under the laws of the United States. People ex rel. Marshall v. Moore, 167 App. Div. 478.

Upon petition by a person charged with being a fugitive from justice for a writ of habeas corpus, the identity of the name of such person with the name of the person named in the rendition warrant raises a presumption that the persons are the same. People ex rel. Teitelbaum v. Ryan, 181 App. Div. 404.

The proceeding is a summary one, to be kept within narrow bounds. When the the extradition papers required by statute are in the proper form, the only evidence sanctioned by the United States Supreme Court as admissible is such as tends to prove that the accused was not in the demanding state at the time. the crime is alleged to have been committed. Biddinger v. Commissioner of Police of the City of New York, 245 U. S. 128, 135.

The relator contends that he is not a fugitive from justice and, therefore, is not subject to extradition because he left the state for the purpose of avoiding mob violence. Even if it be assumed to be true that the relator did leave the state because he was threatened with mob violence and that that was his only reason for leaving, he is none the less a fugitive from justice within the meaning of the constitutional and statutory provisions concerning extradition.

Misc.]

Supreme Court, December, 1921.

In Biddinger v. Police Commissioner, supra, it was held "That a person indicted in due form for an offense against the laws of a State, who was present in that State at the time when the offense is so alleged to have been committed and subsequently leaves it, becomes, within the meaning of the Federal Constitution and laws, a fugitive from justice."

And it is wholly immaterial what motive induced the departure. Drew v. Thaw, 235 U. S. 432, 439. See, also, Appleyard v. Mass., 203 U. S. 222.

The relator in this proceeding is a negro. It is contended that the indictment is invalid because in violation of the Constitution and laws of the state of North Carolina and in violation of the Constitution and laws of the United States negroes were excluded from the grand jury which found the indictment.

This point cannot be raised in this proceeding. It is a matter which the defendant can raise only in the courts of the state of North Carolina when he is brought to trial there under the indictment which is the basis for his extradition.

In Matter of Wood, 140 U. S. 278, the court laid down the following rules: "When the statutes of a state do not exclude persons of African descent from service as grand or petit jurors, a person accused in a state court of crime, who desires to avail himself of the fact that they were so excluded in the selection of the grand jury which found the indictment against him, or of the petit jury which tried him, should make the objection in the state court during the trial, and, if overruled, should take the question for decision to the highest court to which a writ of error could be sued out from this court; and failing to do so, he cannot have the adverse decision of the state court reviewed by a Circuit Court of the United States upon a writ of habeas corpus."

Supreme Court, December, 1921.

[Vol. 117,

It is true that the Wood case was not an extradition proceeding, but the principle upon which the decision in that case was based was that an objection to an indictment on the ground that persons of African descent were excluded from the grand jury can be raised only in the trial court.

The courts of this state cannot undertake to sit in judgment upon the methods or procedure followed in a sister state in administering the laws of the sister state. Any objection to such methods and procedure must be made in the courts of the sister state.

It must be assumed that relator will have a fair trial in North Carolina.

Relator contends that he should not be surrendered to the agent of the state of North Carolina because he will be in danger of mob violence there and if brought to trial will not have a fair trial.

This court cannot go into that question in this proceeding. The courts of this state cannot impugn the motives of the authorities of the state of North Carolina by conducting an inquiry into the question of whether the fugitive will be accorded protection and given a fair trial in that state. We are bound to assume that the authorities of the state of North Carolina will do their full duty to the prisoner, will give him ample protection and accord him all his legal rights. We are not dealing here with a foreign power but with a sister state of the Union whose sovereignty is equal to our sovereignty, and who is entitled to our full confidence. See Marbles v. Creecy, 215 U. S. 63; Commonwealth v. Philadelphia Prison, 220 Penn. St. 401; Ex Parte Swearingten, 13 S. C. R. 74; 2 Moore Extradition, § 617; People ex rel. MacSherry v. Enright, 112 Misc. Rep. 568.

Writ dismissed.

Misc.]

Supreme Court, December, 1921.

PEOPLE ex rel. MARCI v. HANLEY, as Warden, etc.

(Supreme Court, New York Special Term, December, 1921.)

Criminal procedure · sentence - habeas corpus — defendant cannot show on habeas corpus a change in the decision of the magistrate in imposing sentence — judgment of commitment reviewable by appeal only-city of New York- Inferior Criminal Courts Act, § 88(3).

Under section 88(3) of the Inferior Criminal Courts Act, a magistrate in the city of New York, upon convicting a defendant of disorderly conduct, may lawfully impose a sentence of six months in the workhouse, and a warrant of commitment reciting such a sentence is a final judgment, reviewable only by an appeal.

A defendant so convicted and sentenced is precluded from showing on habeas corpus that the magistrate, after sentencing him to pay a fine and serve three months in the penitentiary, changed the decision and imposed the sentence recited in the warrant of commitment, and the writ of habeas corpus will be dismissed and relator remanded.

HABEAS Corpus.

Meyer Greenberg, for relator.

Edward Swann, district attorney, and Michael J. Driscoll, deputy assistant district attorney, opposed.

BURR, J. This is a proceeding instituted on a writ of habeas corpus obtained by the relator, Marci, directed to the warden of the city prison. The warden has duly made a return to the said writ which states in substance that the relator was convicted by City Magistrate Sweetser on the 4th day of October, 1921, for the offense of disorderly conduct, pertaining to a breach of the peace, and was sentenced to the workhouse for a period of six months.