In re Strauss

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 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:

'First. Whether the delivery up of an alleged fugitive from justice against whom a complaint for the crime of securing property by false pretenses has been sworn to and is pending before a justice of the peace of Ohio, having the jurisdiction conferred upon him by the laws of that state, is authorized in view of the provisions of article 4, § 2, subd. 2, of the Constitution?

'Second. Is § 5278 of the Revised Statutes (U.S.C.omp. Stat. 1901, p. 3597), in as far as it authorizes the delivery up of an alleged fugitive from justice upon an affidavit of complaint pending before a justice of the peace in Ohio for the crime of securing property by false pretenses, which said justice of the peace has the jurisdiction conferred upon him by the laws of the said state, violative of article 4, § 2, subd. 2, of the Constitution?'

Article 4, § 2, subd. 2, of the Constitution reads:

'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.' Revised Statutes, § 5278, so far as is material, is:

'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 arrested and secured, and to cause notice of the arrest 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 appear.'

Messrs. Max J. Kohler and Moses H. Grossman for Strauss.

[Argument of Counsel from pages 326-328 intentionally omitted]

Messrs. Howard S. Gans and William Travers Jerome for respondent.

Mr. Justice Brewer delivered the opinion of the court: