it is also properly authenticated by the executive as required by statute, it will be sufficient proof of the fact that the accused is charged with crime to prevent his discharge from custody on the return of a writ of habeas corpus, though the indictment is inartistically drawn or is otherwise technically defective in form.1o

An affidavit alleging upon information and belief that the fugitive has committed a crime is wholly insufficient as proof of criminality.20 The general rule is that the affidavits and the requisition papers which are used as evidence in an interstate extradition proceeding need not be framed with extreme technical precision in order to be admissible. But they must show with clearness to the satisfaction of the magistrate that the party whose extradition is sought was in the demanding state at the time of the crime," that he is a fugitive from justice,22 as well as the character and venue of the crime with which he stands charged.23

10

Jackson v. Archibald, 12 Ohio Cir. Ct. 155; Davis's case, 122 Mass. 324, 329; In re Greenough, 31 Vt. 279; State v. O'Connor, 38 Minn. 243, 36 N. W. 462; In re Voorhees, 32 N. J. L. 141; Roberts v. Reilly, 116 U. S. 80, 29 L. ed. 544, 6 Sup. Ct. 291; Ex parte Reggel, 114 U. S. 642, 651, 29 L. ed. 250, 5 Sup. Ct. 1148; Hayes v. Palmer, 21 App. D. C. 450; Ex parte Pierce, 155 Fed. 663.

20Ex parte Smith, 3 McLean C. C. (U, S.) 121, 137, 22 Fed. Cas. 12968; Ex parte Morgan, 20 Fed. 298, 307. "It must appear, therefore, to the governor of the state to whom such a demand is presented, before he can lawfully comply with it, first, 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, certified as authentic by the governor of the state making the demand, and, second, that the person demanded is a fugitive from the justice of that state. The

first of these prerequisites is a question of law, and is always open upon the face of the papers to judicial inquiry, on an application for a discharge under a writ of habeas corpus. 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." A certified copy of the law said to have been broken need not be furnished. The courts of the United States take judicial notice of the law of all the states. Remarks of the court in Roberts v. Reilly, 116 U. S. 80, 95-96, 29 L. ed. 544, 6 Sup. Ct. 291.

21

People v. Conlin, 15 Misc. (N. Y.) 303, 36 N. Y. S. 888.

22 In re Heyward, 1 Sandf. (N. Y. Super.) 701; Ex parte Smith, 3 McLean C. C. (U. S.) 121, 137-139, 22 Fed. Cas. 12968; Dennison v. Christian, 72 Neb. 703, 101 N. W. 1045, 117 Am. St. 817.

23 Ex parte Romanes, 1 Utah 23; In re Manchester, 5 Cal. 237; Ex

If the indictment and the affidavit are properly authenticated as required by the statute, the court will not, upon the return of a writ of habeas corpus, receive evidence to prove or to disprove its validity, or to contradict its allegations, or generally to inquire into the guilt or innocence of the accused.24

§ 500. Constitutional and statutory regulation of the mode of proving and effect of records of other states.-As regards the mode of proving the necessary facts in interstate extradition, it may be sufficient to call attention to the provision of the federal constitution which enacts that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state; and the congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."25

To fully effectuate this constitutional provision congress has enacted "that the records and judicial proceedings of the courts of any state shall be proved or admitted in any other court within. the United States by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice or presiding magistrate, as the case may be, that the said attestation is in due form. And the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from whence such records are or shall be taken."26

parte Smith, 3 McLean C. C. (U. S.) 121, 134, 137, 22 Fed. Cas. 12968; Er parte Reggel, 114 U. S. 642, 651, 29 L. ed. 250, 5 Sup. Ct. 1148; State v. White, 40 Wash. 560, 82 Pac. 907, 2 L. R. A. (N. S.) 563n; Cheatham, Ex parte, 50 Tex. Cr. 51, 95 S. W. 1077.

Ex parte Devine, 74 Miss. 715, 22 So. 3; Work v. Corrington, 34 Ohio St. 64, 32 Am. 345n; Ex parte Sheldon, 34 Ohio St. 319; State V. Schlemn, 4 Harr. (Del.) 577; People v. Conlin, 15 Misc. (N. Y.) 303, 36

N. Y. S. 888; People v. Pinkerton, 77 N. Y. 245; In re White, 55 Fed. 54, 58, 5 C. C. A. 29. So, also, of a record of a conviction, Hughes v. Pflanz, 138 Fed. 980, 71 C. C. A. 234. The executive warrant is prima facie proof that the accused is a fugitive from justice, Ex parte Edwards, 91 (Miss.) 621, 44 So. 827.

25 Constitution of the United States, article 4, section I.

20 United States Statute, May 26, 1790; United States Statutes at Large, L. and B. Edition 122.

The attestation of the clerk which is required by the statute must be in form the same as that usually employed in the state whence it comes. If the court has a seal it must be affixed to the certificate of the clerk, while if it has none this fact must appear on the face of the certificate.27

The certificate of the judge, to the effect that the attestation is in due form, must show on its face that the judge certifying is the chief or presiding judge at the date of certifying the record.** It must also show that the clerk who attests is at the date of the attestation the clerk of the court, and that his attestation is in due form. Where a court has gone out of existence, the clerk and presiding justice of another court with which it has been consolidated, or upon which its powers and jurisdiction have been conferred, may furnish the requisite certification and attestation.

The statute, despite the mandatory character of its language. has been held not to furnish an exclusive mode of authenticating public records. And for the reason that the statute refers expressly only to courts having a presiding judge, a clerk and a seal, it has been held that courts not of record, or those having only limited powers and jurisdiction, were not included in its terms. The copies of the records and the proceedings of such courts as, for example, courts of justices of the peace and minor municipal courts, are to be proved and authenticated according to the procedure of the state in whose tribunals they are to be used. If the requirements of the federal statute are substantially complied with, a certified and attested copy ought not to be rejected because of mere formal verbal and technical irregularities, as, for example, because it does not show the identity of the accused, or that the court had competent jurisdiction, or the facts upon which his conviction was founded.30

29

§ 501. General rules regulating the taking of evidence in foreign extradition. In all cases of foreign extradition, the taking of the evidence and the examination of the accused, so far as these mat

For a full citation of civil and criminal cases, see Underhill on Evidence, § 148.

28 Settle v. Alison, 8 Ga. 201, 52 Am. Dec. 393; Stephenson v. Bannister, 3

Bibb. (Ky.) 369, and cases cited Underhill on Evidence, note 4, p. 224.

29 See Underhill on Evidence, p. 225. for cases.

30 See cases cited in Underhill on Evidence, §§ 148, 159.

ters are not controlled by statute, must be conducted according to the laws of the state in which the proceedings are had. If the law of that state entitles the accused on his preliminary examination to testify in his own behalf, a person under examination for extradition is entitled to be so examined.31 But generally the rules and principles of the English common law as applied to criminal charges are not controlling to their fullest extent in cases of international extradition. Usually the statutes and treaties provide for the character of the evidence and what form it shall assume. Their provisions are controlling and under them it has been held that the accused is not entitled to be confronted with the witnesses against him.32

So, too, the documentary evidence, if properly authenticated, must receive the same degree of credit and weight as proof in the court wherein it is offered, as would be accorded to living witnesses who give testimony personally in the presence of that court. 33

The federal commissioner should keep a record of all the oral evidence taken before him, written out in a narrative form and not by question and answer. He should note therein all objections to the admissibility of the evidence and the grounds of such objections. The party seeking the extradition of the fugitive ought to furnish the commissioner with an accurate translation of every piece of documentary evidence which is written in a foreign language, accompanied by an affidavit sworn to by the translator to the effect that the translation is correct.34

The statute provides that the commissioner shall receive the testimony of such witnesses as are offered by the accused. He need not adjourn the proceedings in order to permit the accused to procure depositions to prove an alibi.36

205, 48 L. ed. 938, 24 Sup. Ct. 657.

33 In re Farez, 7 Blatchf. C. C. (U. S.) 345, 8 Fed. Cas. 4645; Elias v. Ramirez, 215 U. S. 398, 30 Sup. Ct. 131.

In re Henrich, 5 Blatchf. C. C. (U. S.) 414, 425, 12 Fed. Cas. 6369. 3 Fed. Stat., § 5280; 22 U. S. Stat. Large, p. 215, August 3, 1882.

at

35

In re Wadge, 15 Fed. 864, aff'g 21 Blatchf. C. C. (U. S.) 300.

It is sufficient if there is some competent evidence of guilt or that probable cause exists for believing the accused guilty. The evidence of guilt need not be conclusive nor must the commissioner be absolutely certain of the guilt of the accused.

§ 502. Authentication by consular certificate of warrants and other papers used as evidence in international extradition.—The statute also provides that where any deposition, warrant or other papers, or copies thereof, shall be offered in evidence upon the hearing of any case, in which the extradition of an alleged fugitive is required, the same shall be received as evidence for all purposes of the hearing if they shall be legally authenticated so as to entitle them to be received for similar purposes in the courts and tribunals of the foreign country whence the accused is alleged to have escaped. And it is further provided that the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that any deposition, warrant or other paper or copies thereof, so offered, are authenticated in the manner required by this act.38

In construing this statute the courts have held that it provides for the introduction of two sorts of documentary evidence. First. Original depositions, original warrants and original "other papers." Second. Copies of any such depositions, warrants or "other papers," which must be originals or copies of such originals as are legally entitled to be received in the tribunal of the foreign country as proof of criminality with respect to the offense charged if the inquiry were had in the foreign tribunal. And all papers are to be authenticated according to the law of the foreign country.3

38

39

"United States v. Piaza, 133 Fed. crime by the party held for extradi998. tion "are properly and legally authenticated, so as to entitle them to be received for similar purposes by the tribunals of Great Britain," is the proper form, and the documents are to be received as competent evidence. In re Breen, 73 Fed. 458, 459. the In re Fowler, 4 Fed. 303, 309, 18 Blatchf. C. C. (U. S.) 430.

United States R. S., § 5271; In re Henrich, 5 Blatchf. C. C. (U. S.) 414, 425, 426, 12 Fed. Cas. 6369. See, also, In re Wadge, 16 Fed. 332, 333. In a case of international extradition, the certificate of the American embassador to Great Britain to effect that the papers containing the evidence of the commission of the

39