accused and there was probable cause to believe he was there, although he may not be found within;71 and the same rule is probably true if the house is that of a third person.72 A private person may not break into a house to arrest a suspected felon,73 but he may break into it to arrest a person for a felony actually committed by him, or to prevent the commission of a felony. He also may break into a house to arrest a person who has escaped from lawful custody, provided he has made a proper demand to be admitted and his demand has been refused.75 74 § 879. Disposal after arrest.—A private person, who without a warrant has arrested another for treason or felony, may either take him immediately before a magistrate or deliver him to a police officer or jailor.76 He must not retain him in his custody an unreasonable time, but if he has arrested him for affray he may keep him until the heat is over." officer, after making an arrest, must without unnecessary delay take the prisoner before some proper magistrate for examination.78 An § 880. Search warrants-The United States Constitution and the state constitutions prohibit unreasonable searches and seizures. Reasonable searches are allowed both by statute and at common law, both to recover stolen property or discover evidence of a crime. A magistrate may issue a warrant directing the party to whom it is addressed to search 71 Commonwealth v. Reynolds, 120 Mass. 190, 21 Am. Rep. 510. 72 Commonwealth V. Irwin, 1 Allen (Mass.) 587. 73 Brooks v. Commonwealth, 61 Pa. St. 352, 100 Am. Dec. 645. 74 Handcock v. Baker, 2 Bos. & P. 260; 1 Chitty Crim. L. 53. 75 Genner v. Sparks, 6 Mod. 173, 1 Salk. 79. 76 Commonwealth v. Tobin, 108 Mass. 426, 11 Am. Rep. 375. 771 Chitty Crim. L. 20; 2 Hawk. P. C., ch. 13, § 8. 78 Commonwealth v. Wilcox, 1 Cush. (Mass.) 503; Davis v. Carroll, 159 N. Y. S. 568, 172 App. Div. 729; Haglund v. Burdick State Bank, 100 Kans. 279, 164 Pac. 167. and seize the property therein described. The warrant must be based upon proper complaint and this must appear upon the face of the warrant." 79 The warrant must describe accurately the place to be searched, the person whose place is to be searched, and the property to be seized. Only the place described may be searched.80 Generally speaking, the warrant must direct search to be made in daytime, but in special cases may direct a search at night.81 It must command that the property be brought before the magistrate.82 The premises may be broken into if necessary, but where there is a person at hand, upon whom demand may be made, admittance must be demanded and refused before breaking.83 General search warrants are void.84 Statutory requirements must be strictly complied with. § 881. Extradition and fugitives-Generally.-The authority of a warrant extends only to the territory within which the issuing court sits. One who commits a crime in onę state or country, and flees to another, is a fugitive from justice, and usually may be arrested and sent back to the state or country where he committed the crime, there to be tried. This is accomplished by the process called extradition. Extradition from one state to another of the same nation is interstate extradition; and from one nation to another international extradition. 79 Commonwealth v. Phillips, 16 Pick. (Mass.) 211; Allen v. Colby, 47 N. H. 544. 80 Commonwealth V. Intoxicating Liquors, 140 Mass. 287, 3 N. E. 4. 812 Hale P. C. 150. 82 White v. Wagar, 185 III. 195, 57 N. E. 26, 50 L. R. A. 60; Early v. People, 117 Ill. App. 608; Hibbard v. People, 4 Mich. 125; Bell v. Clapp, 10 Johns. (N. Y.) 263, 6 Am. Dec. 339; Cooley Const. Lim. 369. 83 Androscoggin R. Co. v. Richards, 41 Maine 233. 842 Hawk. P. C., ch. 13, § 17. § 882. Interstate extradition.-Interstate extradition is based upon provisions of the United States Constitution and acts of Congress. In most of the states there are statutes providing the mode of extradition; but where they conflict with the mode provided by Congress the latter governs. The acts of Congress, following the constitutional authorization, provide for extradition in the case of treason, felony, or other crimes.85 This has been said to include misdemeanors.86 However, a governor will not usually issue a warrant of extradition for a fugitive whose crime is a misdemeanor where committed. Where the crime was a felony where committed, but only a misdemeanor in the state to which the fugitive has fled, an extradition requisition will be issued.87 Extradition warrants will issue only where the accused is a "fugitive from justice." Actual flight is not essential to make one a fugitive from justice, but if the accused personally committed the crime in one state, and then went into another, with or without the intention of avoiding justice, for any purpose, even to his own home, he is subject to extradition by the authorities of the state where the crime was committed.88 But one who as a principal commits a crime in one state through an agent, himself being in another state, may not be extradited, for he has never been in the state where the crime was committed.89 In cases of interstate extradition, a fugitive from justice who has been surrendered for one crime 85 United States Const., art. 4, $2. 86 In re Clark, 9 Wend. (N. Y.) 212; State v. Stewart, 60 Wis. 587, 19 N. W. 429, 50 Am. Rep. 488. 87 Johnston v. Riley, 13 Ga. 97; Wilcox v. Nolze, 34 Ohio St. 520. 88 Roberts v. Reilly, 116 U. S. 80, 29 L. ed. 544; Kingsbury v. United States, 106 Mass. 223; Taft v. Lord, 92 Conn. 539, 103 Atl. 644; People ex rel. Goldfarb v. Gargan, 168 N. Y. S. 1027, 181 App. Div. 410, 36 N. 89 In re Mohr, 73 Ala. 503, 49 Am. Rep. 63; 1 Bish. New Crim. Proc., 53; State v. Wellman, 102 Kans. 503, 170 Pac. 1052, L. R. A. 1918 D, 949; Ex parte Montgomery, 244 Fed. 967; Taft v. Lord, 92 Conn. 539, 103 Atl. 644; Innes v. Tobin, 240 U. S. 127, 36 Sup. Ct. 290, 60 L. ed. 562. may be tried for any other for which he may not have been extradited.90 This rule does not apply to a case of foreign extradition, which is governed entirely by treaty agreements between different countries; and in such cases, usually, if extradited for one crime, he may not be tried for another until he has returned to the foreign country and has been again extradited for another offense, or has been given a reasonable time in which to return to the foreign country." 91 If the accused is kidnapped from one state to another, the fact that he has not been legally extradited is no defense to the charge of crime against him.92 He has a right of action for damages against the person who kidnapped him. This principle applies in a case where he has been kidnapped from a foreign country, and in such case the country from which he has been kidnapped may have an action against the kidnapper, or may demand reparation from the country into which he is taken. Though the language of the constitutional provision which requires governors to deliver up fugitives from justice is mandatory, it is in fact not obligatory, for there is no means of compelling a governor to issue a warrant of requisition if he refuses. The governor is not presumed to base his decision on the merits of the case, but if he believes that the object in seeking requisition of a fugitive is private gain instead of public interest, or in some cases in which the crime with which the fugitive is charged bears a political aspect, he will refuse to issue a warrant.98 90 Lascelles v. Georgia, 148 U. S. 537, 37 L. ed. 549; Commonwealth v. Wright, 158 Mass. 149, 33 N. E. 82, 19 L. R. A. 206, 35 Am. St. 475. 91 United States V. Rauscher, 119 U. S. 407, 30 L. ed. 425; State v. Vanderpool, 39 Ohio St. 273, 48 Am. Rep. 431. 92 State v. Ross, 21 Iowa 467; Brookin v. State, 26 Tex. App. 121, 9 S. W. 735; State v. Wellman, 102 Kans. 503, 170 Pac. 1052. 24 93 Kentucky V. Dennison, How. (U. S.) 66, 16 L. ed. 717; Ex parte Manchester, 5 Cal. 237. The first step in the procedure of obtaining an interstate extradition warrant is for the state's attorney in the county in which the crime was committed to make a complaint against the accused, and have a warrant issued for his arrest. A formal indictment is not essential. The substance of the charge must appear, but need not be alleged with the formality required in an indictment.94 After obtaining the warrant, the state's attorney should file with the secretary of state certified copies of the complaint and warrant, together with affidavits of good faith and of the flight of the accused to the other state.95 These papers are presented by the secretary of state to the governor who examines them, and if satisfactory, issues his requisition to the governor of the state to which the accused has fled. This requisition, together with copies of papers filed in the case is taken by the agent of the governor of the demanding state and filed by him with the secretary of state of the other state. This secretary of state, in whose office they are filed, submits them to the governor, who, after examining them, either issues or refuses to issue his warrant of extradition.98 After the warrant of extradition is issued, the accused may sue out a writ of habeas corpus, and this will entitle him to be heard by the court," as to the regularity of the extradition proceedings. The court, however, will not consider whether the object of the extradition is private gain or not, but as said before, the governor will consider this matter. 94 People v. Stockwell, 135 Mich. 341, 97 N. W. 765; Hard v. Splain (D. C.), 45 App. D. C. 1; Hart v. Mangum, 146 Ga. 497, 91 S. E. 543. 95 Kingsbury v. United States, 106 Mass. 223; State v. Clough, 71 N. H. 594, 53 Atl. 1086, 67 L. R. A. 946; Ex parte Jones (Tex. Cr.), 199 S. W. 1110; Pool v. State (Ala. 96 People v. Brady, 56 N. Y. 182; 97 Roberts v. Reilly, 116 U. S. 80, 29 L. ed. 544; Work v. Corrington, 34 Ohio St. 64, 32 Am. Rep. 345. |