Page:Harvard Law Review Volume 12.djvu/558

538 538 HARVARD LAW REVIEW. author fortifies by language of the Supreme Court in a later case,^ that the language above quoted from Ex Parte Reggel does not necessarily call for the exaction of specific proof of flight before the governor of the State in which the prisoner is may con- stitutionally take any action. But certainly under the language of Ex Parte Reggel an alleged fugitive is entitled to have the question, whether he had been corporeally within the demanding State and left it, passed upon before he may be lawfully sur- rendered. There may be prima facie ground for action without specific allegations in the requisition papers that the person called for has fled from the demanding State, and even for final action if the question of flight is not put in issue. But, if the person apprehended does deny that he was corporeally within the demand- ing State at the time of the commission of the alleged offence, he has a constitutional right to have such issue passed upon by the governor in the first instance, and by the courts on habeas corpus, and is constitutionally entitled to be discharged unless it appear at least presumptively that he is an actual fugitive. This rule that only an actual fugitive is extraditable is one to be broadly accepted and administered in practice according to its fullest and most radical scope. Any other rule would lead to grave injustice and grievous oppression. Take, for instance, the recent Botkin case, in which a conviction was secured in California. The theory of the prosecution was that Mrs. Botkin, the defendant, deposited poisoned candy in the mail in California directed to her victim in Delaware. Under the statute law of California the offence was triable there, and it accorded with common sense and convenience and was eminently just both to prosecution and de- fence that the trial should be had not at the technical locus of the crime, but at the place where the defendant was alleged to have performed the act that set the crime in motion. Suppose, on the other hand, that Mrs. Botkin had been under the law extraditable and had been transported to Delaware to answer the indictment. She would have been compelled, among strangers, it may be with- out means to adequately present her defence, to stand trial for a capital crime. If she wished to present evidence besides her own it might have been impracticable to procure the personal presence of important witnesses, and, herself a foreigner under suspicion, she might have been subjected to the prejudices of a local jury, 1 Roberts v. Reilly, Ii6 U. S. 80.