IN RE STRAUSS(1905)
The petitioner was charged by affidavit before a justice of the peace of Youngstown township, Ohio, with the crime of obtaining $400 worth of jewelry at Youngstown, Ohio, by false pretenses, contrary to the law of that state. He was arrested as a fugitive from justice and brought before a magistrate of the city of New York, August 11, 1902. The governor of New York, after a hearing, at which the accused was represented by counsel, issued his warrant, dated August 22, 1902, directed to the police commissioner of New York city, directing him to arrest the accused and deliver him to the duly accredited agent of Ohio, to be taken to that state.
The warrant recites that it has been represented by the [197 U.S. 324, 325] governor of Ohio that the accused stands charged in that state of the crime of securing property by false pretenses, which is a crime under its law, and that he has fled from that state. It also recites that the requisition was accompanied by affidavits and other papers, duly certified by the governor of Ohio to be authentic, charging the accused with having committed the said crime, and with having fled from Ohio and taken refuge in the state of New York.
On the 29th of August, after the arrest of the petitioner, a writ of habeas corpus was allowed by the district court. The police commissioner made return that he held the accused by virtue of the governor's warrant. On September 16, 1902, the district court discharged the writ and remanded the accused to the custody of the police commissioner. This order was taken on appeal to the circuit court of appeals of the second circuit, which certified the following questions:
Article 4, 2, subd. 2, of the Constitution reads:
Messrs. Max J. Kohler and Moses H. Grossman for Strauss.
Mr. Justice Brewer delivered the opinion of the court:
The Constitution provides for the surrender of a person charged with treason, felony, or other crime. The statute prescribes the evidence of the charge to be produced, to wit: 'A copy of an indictment found or an affidavit made before a magistrate . . . charging . . . treason, felony, or other crime.' The offense for which extradition was sought is, under the Ohio statute, a felony (Bates' Anno. Stat. Ohio 4th ed. 7076), and subject to trial only upon an [197 U.S. 324, 330] indictment (Ohio Const. art. 1, 10, Bill of Rights), the proceedings in such a case before a justice of the peace being only preliminary and for the purpose of securing arrest and detention. It is contended that the constitutional provision for the extradition of persons 'charged with treason, felony, or other crime' requires that the charge must be pending in a court that can try the defendant, and does not include one before a committing magistrate, who can only discharge or hold for trial before another tribunal.
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. In M'Culloch v. Maryland, 4 Wheat. 316, 4 L. ed. 579, one question discussed was as to the meaning of the word 'necessary,' as found in the clause of the Constitution giving to Congress power 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.' Chief Justice Marshall, speaking for the court, said (p. 415, L. ed. p. 603):
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 signification, to cover any proceeding which a state might see fit to adopt by which a formal accusation was made against an alleged criminal. In the strietest sense of the term a party is charged with crime when an affidavit is filed, alleging the commission of the offense, and a warrant is issued for his arrest; and this is true whether a final trial may or may not be had upon such charge. It may be, and is, true, that in many of the states some further proceeding is, in the higher grade of offenses at least, necessary before the party can be put upon trial, and that the proceedings before an examining magistrate are preliminary, and only with a view to the arrest and detention of the alleged criminal; but extradition is a mere proceeding in securing arrest and detention. An extradited defendant is not put on trial upon any writ which is issued for the purposes of extradition, any more than he is upon the warrant which is issued by the justice of the peace directing his arrest.
Cases are referred to, such as Virginia v. Paul, 148 U.S. 107 , 37 L. ed. 386, 13 Sup. Ct. Rep. 536, in which a distinction is made between the preliminary proceedings looking to the arrest and detention of the [197 U.S. 324, 332] defendant, and those final proceedings upon which the trial is had. That was a removal case, and, discussing the question, Mr. Justice Gray, speaking for the court, said (p. 119, L. ed. p. 390, Sup. Ct. Rep. p. 540):
But such decisions, instead of making against the use in this constitutional section of the word 'charged' in its broad sense, make in its favor, because, as we have noticed, an extradition is simply one step in securing the arrest and detention of the defendant. And these preliminary proceedings are not completed until the party is brought before the court in which the trial may be had. Why should the state be put to the expense of a grand jury and an indictment before securing possession of the party to be tried? It may be true, as counsel urge, that persons are sometimes wrongfully extradited, particularly in cases like the present; that a creditor may wantonly swear to an affidavit charging a debtor with obtaining goods under false pretenses. But it is also true that a prosecuting officer may either wantonly or ignorantly file an information charging a like offense. But who would doubt that an information, where that is the statutory pleading for purposes of trial, is sufficient to justify an extradition? Such [197 U.S. 324, 333] possibilities as these cannot be guarded against. While courts will always endeavor to see that no such attempted wrong is successful, on the other hand care must be taken that the process of extradition be not so burdened as to make it practically valueless. It is but one step in securing the presence of the defendant in the court in which he may be tried, and in no manner determines the question of guilt.
While perhaps more pertinent as illustration than argument, the practice which obtains in extradition cases between this and other nations is worthy of notice. Sections 5270 to 5277, Rev. Stat. (U. S. Comp. Stat. 1901, pp. 3591 to 3597), inclusive, provide for this matter. In none of these sections or in subsequent amendments or additions thereto is there any stipulation for an indictment as a prerequisite to extradition. On the contrary, the proceedings assimilate very closely those commenced in any state for the arrest and detention of an alleged criminal. They go upon the theory that extradition is but a mere step in securing the presence of the defendant in the court in which he may lawfully be tried. In the memorandum issued by the Department of State in May, 1890, in reference to the extradition of fugitives from the United States in British jurisdiction, is this statement (1 Moore, Extradition, p. 335):
And this is in general harmony with the thought underlying extradition. [197 U.S. 324, 334] Entertaining these views, we answer the first question in the affirmative and the second in the negative.
Mr. Justice Harlan did not hear the argument and took no part in the decision of this case.