ity. If houses of prostitution and resorts of vice are condemned by law and every possible effort made to suppress them for the good of the community, I see no reason why the vicious and filthy incidents of the lives of the inmates of such illicit resorts should be allowed to be spread before the public, young and old, in the printed pages. That the subject-matter of this book is vulgar and degrading does not necessarily destroy its corrupting effect on the minds and morals of those who may read it. It is not necessary that a publication should be of a high order literary merit or depict pleasant episodes to make it obscene. This book is suggestive throughout. It offends decency and good morals. In my opinion it completely meets the description of the books forbidden by the statute and I think the conviction of the defendant Harper & Brothers was right and should be affirmed.

Judgments reversed and information dismissed. Settle orders on notice.

SUPREME COURT. - SPECIAL TERM-NEW YORK.

July, 1920.

PEOPLE EX REL. MACSHERRY v. ENRIGHT.

HABEAS CORPUS-WHEN WRIT OF, DISMISSED-EXTRADITION-RENDITION WARRANT-CRIMINAL LAW.

Relator, against whom an information charging him with the crime of conspiracy to defraud and attempted grand larceny had been filed in a court of competent jurisdiction in the State of Florida, was arrested on a rendition warrant issued by the Governor of the State of New York upon the requisition of the Governor of the State of Florida. Held, that the information contained in the requisition papers being sufficient to charge the relator with crime and to require his extradition to the demanding state, a writ of habeas corpus issued upon his petition will be reversed and relator remanded in execution of the rendition warrant.

HABEAS CORPUS proceedings.

H. J. & F. E. Goldsmith, for writ.

Edward Swann, District Attorney (Felix C. Benvenga, of counsel), opposed.

BURR, J.:

The relator, Frank MacSherry, was taken into custody under a rendition warrant issued by the governor of the State of New York upon the requisition of the governor of the State of Florida. The rendition warrant called for the arrest of Frank MacSherry, alias, etc. It recited that it had been represented by the governor of the State of Florida that said MacSherry stood charged in that state with the crime of conspiracy to defraud and attempted grand larceny; that he had fled therefrom and taken refuge in the State of New York, and was a fugitive from the justice of the State of Florida. This warrant directed his arrest and surrender to the agent of the State of Florida. The relator, having been arrested under this warrant, sued out a writ of habeas corpus, claiming he was not properly charged with crime, and that his detention under the governor's rendition warrant was illegal. The police commissioner, upon whom the writ was served, made return to the writ, setting forth the governor's warrant as the cause of detention. The requisition papers upon which the governor of this state based his rendition warrant were submitted to the court by the relator. They show the charge of crime by "information " filed in the Criminal Court of Record for Hillsborough county, Florida, by the county solicitor for that county, and that there are three separate and distinct informations" on file against the relator. Counsel for the relator, on the assumption that the documents charging the relator with crime were "affidavits." contends that inasmuch as they were upon information and belief" such affidavits were insufficient to sustain a charge of

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crime. The charge of crime, however, is based upon "informations" filed by a prosecuting officer, and not upon affidavits, as contended for by the relator, and the objection that an affidavit which charges the commission of a crime upon information and belief, without stating the sources of the information or the grounds of belief, is insufficient as a charge of crime, does not apply where the charge is by "information." Where the charge is by "information," its sufficiency as a pleading is governed by the rules relating to the sufficiency of indictments. The United States Constitution (art. IV, § 2) provides that: 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 having Jurisdiction of the Crime." This provision was held not to be self-executing, and it becomes necessary to provide by law the mode of carrying it into execution. Accordingly, an act of Congress was passed in 1793 (vid. Kentucky v. Dennison, 65 U. S. [24 How.] 66, 103, 104), which was substantially reproduced in United States Revised Statutes (§ 5278) as follows: "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 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 apIt will be observed that the constitutional

pear.

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provision requires the surrender of a person "charged" with crime, and that the statute requires that the requisition be accompanied by an authenticated copy of the indictment or affidavit made before a magistrate, showing that the person demanded is " charged" with crime. The statute does not use the term " information.” The question, therefore, arises whether the requisition, accompanied by copies of the "information," charging the relator with crime is a sufficient compliance with the statute. It has been held that where the offense is charged in that manner it does conform with the statutes and affords sufficient evidence that the person demanded is charged with crime. (Matter of Hooper, 52 Wis. 699; People v. Stockwell, 135 Mich. 341; Mark v. Browning, 115 Pac. Rep. [Utah] 275; Morrison v. Dwyer, 143 Iowa, 502, 1064, and cases cited.) In the Hooper Case (supra), the court said: "I think, however, the evidence of the charge by information ' is a sufficient compliance with the law of congress. The intent of that law, obviously, is that the charge must be made in the regular course of judicial proceedings, in the form of an information filed by the proper law officer, an indictment or other accusation known to the law of the state in which the offense is committed. (Kentucky v. Dennison, supra; State v. Hufford, 28 Iowa, 391.) Each state has an undoubted right to regulate the forms of pleadings and process in her own courts, in criminal as well as civil cases, and is not bound to conform to those of any other state. (Taney, C. J., in Kentucky v. Dennison.) Presumably the state of Kansas has authorized its courts to hear, try and determine prosecutions for crimes by formation, as the state has done. The constitution of the United States does not prescribe the form in which the charge must be made; and while the act of congress speaks of an indictment found or an affidavit made before a magistrate,' etc., vet I do not think it was intended to exclude a case where the charge is in the form of a criminal information. In this state all offenses are triable by information filed by the district attor

ney of the proper county; and I do not feel authorized in holding that where the offense is charged in that manner it does not conform to the law of congress, nor afford sufficient evidence that a person is charged with the commission of a crime within. the meaning of the act. I therefore think it appears from the face of the warrant that a legal accusation or criminal charge in a judicial proceeding is pending against the petitioner in the state of Kansas, which authorizes his arrest in this state and removal to that state for trial." Neither the courts of this state nor the United States Supreme Court have directly passed upon the question whether an "information" is a sufficient charge of crime under the statute. But the cases of Matter of Strauss, 197 U. S. 324, and Compton v. Alabama, 214 id. 1, would seem to justify the conclusion that a charge by "information" conforms with the statute. In the Strauss Case (supra), the charge was made by "affidavit." It was contended that the constitutional provision for the extradition of persons" charged with treason, felony or other crime" required that the charge must be pending in a court having jurisdiction to try the defendant, and did not include one before a committing magistrate, who can only discharge or hold for trial before another tribunal. The court did not agree with this contention. Mr. Justice Brewer said: "But why should the word charged' be given a restricted interpretation? It is found in the Constitution, and ordinarily words in such an instrument do not receive a narrow, contracted meaning, but are presumed to have been used in a broad sense, with a view of covering all contingencies. * Under the constitution each state was left with full control over its criminal procedure. No one could have anticipated what changes any state might make therein, and doubtless the word charged' was used in its broad significance to cover any proceeding which a state might see fit to adopt by which a formal accusation was made against an alleged criminal. Why should the state be put to the expense of a grand jury and an indictment before securing

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