1. EXTRADITION-SUFFICIENCY OF INDICTMENT.

Extradition cannot be properly granted unless the indictment against the accused contains every substantial element of the crime charged.

2. BANKS AND BANKING-INSOLVENT-PROSECUTION OF OFFICER— SUFFICIENCY OF INDICTMENT.

An indictment under Purdon's Dig. Pa. (13th ed.) p. 942, par. 195, making it a crime for an officer of an insolvent bank to receive deposits, is fatally defective if the names of the owners of a private bank are not given and there is no allegation that each is insolvent.

Habeas corpus by P. N. Rovnianek, held in custody by John T. Burke, as agent of the State of Pennsylvania, under a warrant of the Governor of Nevada, upon the requisition of the Governor of Pennsylvania. Discharged from custody.

Ayres & Gardiner, W. W. Griffin, and Augustus Tilden, for Petitioner:

There is no showing that the petitioner was a fugitive from justice in such a sense as to estop the statute of limitations from running. (2 Purdon's Digest Pa., secs. 55, 56, pp. 2297, 2298.) During petitioner's absence from Pennsylvania, if he was absent, the statute of limitations was running against him, and he was in no sense a fugitive from justice. (Appleyard v. Mass., 203 U. S. 227.)

The indictment states no offense against the Commonwealth of Pennsylvania. The indictment does not charge the petitioner with having received money from any one who is alleged to have been a depositor. This of itself renders the indictment fatally defective. (Commonwealth v. Schall, 5 York Legal Record, 137, 138; Commonwealth v. Delamater, 2 Pa. Dist. Ct. 118, 119; Commonwealth v. Junkin, 170 Pa. St. Rep. 199.) These decisions have laid down a positive rule as to the elements necessary to constitute the crime with which the petitioner is charged, and nowhere is it charged that the petitioner "took and

Argument for Respondent

received the money as a deposit from a depositor"; neither is there any record, as required by the authorities stated, "that at the time the deposit was received the institution of which he was an officer was insolvent." In the absence of allegations setting forth these two missing elements, no offense is charged against the Pennsylvania statutes.

Edward T. Patrick, Deputy Attorney-General; Wm. McKnight, Deputy Attorney-General, and R. M. Gibson, for Respondent:

Two prerequisites must appear before the governor of the refuge state may lawfully issue his rendition warrant: (1) That the demanded person is substantially charged with a crime against the laws of the demanding state by an indictment or affidavit made before a magistrate, certified as authentic by the governor of the demanding state. (2) That the person demanded is a "fugitive from justice" of the demanding state, as defined by the courts of the United States. The first of these prerequisites is a question of law and open upon the face of the record to judicial inquiry on habeas corpus. (Roberts v. Reilly, 116 U. S. 80, 94; Appleyard v. Mass., 203 U. S. 222, 229.) The second "is a question of fact which the governor of the state upon whom the demand is made must decide upon such evidence as he may deem satisfactory." (Roberts v. Reilly, supra; Munsey v. Clough, 196 U. S. 364, 372; Appleyard v. Mass., supra; McNichols v. Pease, 207 U. S. 100, 108.)

The guilt or innocence of the relator, or the motive of the prosecutor, is not a relevant subject of inquiry in extradition habeas corpus proceedings. (Drew v. Thaw, 235 U. S. 432, 439.) "There is no discretion allowed, no inquiry into motives." (Kentucky v. Dennison, 24 How. 66; Pettibone v. Nichols, 203 U. S. 192, 203; Matter of Strauss, 197 U. S. 324, 333; People ex rel. Jourdan v. Donahue, 84 N. Y. 438, 443.)

In passing upon an indictment forming the basis of an extradition warrant and demand, the indictment will be examined only to the extent of ascertaining whether it

Opinion of the Court-Coleman, J.

substantially charges a crime; whether its allegations are good in substance. Its technical accuracy as a pleading will be left to the tribunal of the demanding state in which it is pending. (Munsey v. Clough, supra; Drew v. Thaw, supra; Pierce v. Creecy, 210 U. S. 387.)

A charge of crime is good, from the standpoint of extradition, even though the indictment shows on its face that the period fixed by the statute of limitations expired while the relator was in the state. (Pierce v. Creecy, supra; Munsey v. Clough, supra; Reed v. United States, 224 Fed. 378, 381.)

The burden of showing the invalidity of the warrant rests upon the prisoner. (Bassing v. Cady, 208 U. S. 386, 392; McNichols v. Pease, supra; Appleyard v. Mass., supra; Roberts v. Reilly, supra; Hyatt v. Corkran, 188 U. S. 691.)

By the Court, COLEMAN, J.:

This is an original proceeding in habeas corpus.

The return to the writ shows that the petitioner is held in custody by John T. Burke, as the duly appointed and constituted agent of the State of Pennsylvania, by reason of a certain executive warrant issued by the governor of this state, upon the requisition of the governor of the State of Pennsylvania, based upon three indictments returned against the petitioner by the grand inquest of Allegheny County, Pa.

The point which is urged in behalf of respondent is that each of the indictments charges a crime within the meaning of article 4, section 2, subdivision 2, of the constitution of the United States. Since the three indictments are, in legal effect, substantially the same, we will, in considering the matter, confine ourselves to one of them. Omitting the formal parts it reads:

66 * * * P. V. Rovnianek, * * * * being then and there an officer of a certain private bank known as P. V. Rovnianek & Company Bank, unlawfully did then and there take and receive the sum of $55, lawful money of the government of the United States, from one John Dzurniak as a deposit in said bank, he, the said P. V. Rovnianek then and there knowing that the said P. V.

Opinion of the Court-Coleman, J.

Rovnianek & Company Bank was at the time insolvent, with the intent in him, the said P. V. Rovnianek, to fraudulently embezzle the said sum of $55 lawful money as aforesaid."

Great reliance is placed by counsel for respondent upon the case of Pierce v. Creecy, 210 U. S. 387, 28 Sup. Ct. 714, 52 L. Ed. 1113, and our attention is especially called to certain language used by the court in that case, which we quote:

"There must be objections which reach deeper into the indictment than those which would be good against it in the court where it is pending. We are unable to adopt the test suggested by counsel, that an objection, good if taken on arrest of judgment, would be sufficient to show that the indictment is not a charge of crime. Not to speak of the uncertainty of such a test, in view of the varying practice in the different states, there is nothing in principle or authority which supports it. Of course, such a test would be utterly inapplicable to cases of a charge of crime by affidavit, which was held to be within the constitution. (In the Matter of Strauss, 197 U. S. 324, 25 Sup. Ct. 535, 49 L. Ed. 774.) The only safe rule is to abandon entirely the standard to which the indictment must conform, judged as a criminal pleading, and consider only whether it shows satisfactorily that the fugitive has been in fact, however inartificially, charged with crime in the state from which he has fled."

As we interpret that decision, the court held that the indictment or other paper setting forth the charge would be deemed insufficient in habeas corpus unless every element of the crime sought to be charged were alleged, for the court says:

"The indictment, whether good or bad, as a pleading, unmistakably describes every element of the crime of false swearing. *

1. This is our understanding of the law; that is, if the indictment does not allege every substantial element of the crime in question, no crime is in fact charged, and hence the petitioner should be discharged from the custody of the agent of the State of Pennsylvania. In

Opinion of the Court-Coleman, J.

the matter of Hyatt v. Corkran, 188 U. S. 691, 23 Sup. Ct. 456, 47 L. Ed. 657, the court said:

"As was said in Roberts v. Reilly, 116 U. S. 80, 95, 6 Sup. Ct. 291, 29 L. Ed. 544, it must appear to the governor, before he can lawfully comply with the demand for extradition, that the person demanded is substantially charged with a crime against the laws of the state from whose justice he is alleged to have fled, by an indictment or an affidavit, etc.

See, also, In Re Waterman, 29 Nev. 288, 89 Pac. 291, 11 L. R. A. n. s. 424, 13 Ann. Cas. 926.

Certainly no one can be substantially charged with a crime unless every element of the crime is stated. If one element of a crime can be omitted from the indictment, then why not every element? If this is done, can a paper indorsed "Indictment" be said to be such in the sense contemplated? It is clear, we think, that no matter how inartistically an indictment may be drawn, it may be good in a habeas corpus proceeding if it charges every element of the offense in question. On the other hand, no matter how artistically it may be drawn, if it omits a single essential element of the offense sought to be stated, it is not such a charge of a crime as will justify the remanding of the person sought to be extradited to the custody of the officer. Taking this view, we must inquire if every element of the crime sought to be charged is contained in the indictments against the petitioner. The statute under which the crime is sought to be charged reads:

"Any banker, broker or officer of any trust or savings institution, national, state or private bank, who shall take and receive money from a depositor with the knowledge that he, they or the bank is at the time insolvent, shall be guilty of embezzlement, and shall be punished by a fine in double the amount so received, and imprisoned from one to three years in the penitentiary." (Purdon's Digest, 13th ed. p. 492, par. 195.)

2. Several reasons are urged as a basis for the contention that the indictments in question do not contain essential elements under the statute; but, as we view

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