If in conveying a prisoner from one state to another he is taken through a foreign country, and sues out a habeas corpus in the foreign country, he is entitled to his freedom, for interstate requisitions will afford in the foreign country no justification to the persons having him in charge.

§ 883. International extradition.-International or foreign extradition is based entirely on treaties. A fugitive from justice can not be extradited except for a crime enumerated in a treaty.98 When extradited for a crime therein enumerated he can not be tried for any other until after reasonable time and opportunity have been afforded him to return to his own country.99 He can not be extradited unless a fugitive from justice, but as in the case of interstate extradition, this does not mean that he must actually have gone to the foreign country to escape the consequences of his acts. It is sufficient that he has been in the foreign country at all after the commission of the crime.

In extraditing from this country a person charged with an extraditable crime, first the foreign sovereign requests of the president the delivery of the accused. The president then appoints an examiner to investigate the case, who may be a Federal or state judge, or a United States Commissioner. Such examiner issues a warrant for the arrest of the fugitive, and receives whatever evidence is offered in the case. certifies this evidence to the secretary of state who examines it, and reports his conclusions to the president, who then either issues or refuses to issue a warrant of extradition. The president has discretion, as a governor has, and can not be compelled to issue a warrant where he refuses. Nor will

98 Ex parte McCabe, 46 Fed. 363, 12 L. R. A. 589.

He

99 State v. Vanderpool, 39 Ohio St. 273, 48 Am. Rep. 431; Blandford v. State, 10 Tex. App. 627.

the courts review his action in issuing a warrant, if there is material evidence of the fugitive's guilt, and the proceedings are regular. But the accused may sue out a writ of habeas corpus to try a question of law even after the president has issued his warrant.

§ 885. Preliminary proceedings.—Ordinarily a person arrested can not be tried immediately, and must therefore be held for trial. So a person arrested, charged with crime, has a right to a preliminary examination, before a proper magistrate as soon as the circumstances will permit, in order to ascertain whether in fact a crime has been committed, and if it is so found, whether there is probable cause to believe him guilty.1 If an indictment against the accused has already been found by the grand jury, it is not necessary to hold an examination before a magistrate, for he can be held under the indictment; nor is examination necessary if the accused was a fugitive from justice when arrested. coroner's inquest is a preliminary inquiry, and at common law is equivalent to an examination before a magistrate.3 The right of examination may be waived by the accused.*

1 Simmons v. Vandyke, 138 Ind. 380, 37 N. E. 973, 26 L. R. A. 33, 46 Am. St. 411; Papineau v. Bacon, 110 Mass. 319.

2 People v. Kuhn, 67 Mich. 463, 35 N. W. 88.

A

3 Commonwealth v. Lafferty, 11 Pa. Co. Ct. 513; Wormeley v. Commonwealth, 10 Grat. (Va.) 658.

4 Stuart v. People, 42 Mich. 255, 3 N. W. 863.

If preliminary examination is delayed an unreasonable and unnecessary length of time, the holding of the accused becomes false imprisonment.5

8

§ 886. Procedure in examination.-At common law the officer may take his prisoner before either the magistrate issuing the warrant or any other magistrate having jurisdiction of the offense. In some staes, by statute, it must be taken before the issuing magistrate. Justices of the peace have authority to commit accused persons for their trials,R and this power may also be exercised by United States Commissioners or Federal judges and in some states by higher judicial officers of mayors of cities. The procedure in a preliminary examination must follow the rules prescribed by statute.10 There should be a complaint whether the arrest has been made with or without a warrant,11 but in most cases the complaint upon which the warrant is issued will serve as the complaint for the examination. 12 The complaint should be verified by oath or evidence under oath should be given as to the crime.13 The complaint, need not be in the technically correct form of an indictment.14 In most instances the accused person may be held if the evidence shows him guilty of a crime different from that alleged in the complaint. 15 An insufficient complaint may usually be amended. 16

5 Tubbs V. Tukey, 3 Cush. (Mass.) 438, 50 Am. Dec. 744; Arnold v. Steeves, 10 Wend. (N. Y.) 515.

6 Wiggins v. Norton, 83 Ga. 148, 9 S. E. 607.

7 People v. Fuller, 17 Wend. (N. Y.) 211.

8 Ormond v. Ball, 120 Ga. 916, 48 S. E. 383.

9 United States v. Hughes, 70 Fed. 972; United States v. Rundlett, Fed. Cas. No. 16208, 2 Curt. C.

19

At common law the accused had no right to be represented by counsel, but is given this right by statute in most states,17 and also it is provided by statute that the examination shall be in the presence of the accused. 18 Probably at common. law the accused could not insist upon the right to examine witnesses, but by statute in most states he has this right.1 The accused can not be compelled to testify, but in most jurisdictions is permitted by statute to testify in his own defense which he could not do at common law.20 The issue to be tried before the magistrate is not whether the prisoner is guilty, but whether there is probable cause to believe him guilty. Therefore the same degree of proof is not required to hold a man for trial as is necessary to convict him on trial.21 The magistrate at common law in cases of felony has the power to bind over the witnesses for the prosecution to appear at the trial of the cause either by commitment or recognizance.22 If the magistrate determines that he should hold the accused to trial, he should make an order to that effect, and fix the amount of bail, if the offense is bailable.23 If he thinks the evidence insufficient to show probable cause for believing the accused committed the crime he must discharge him.24 But a discharge by a magistrate on preliminary examination is not a bar to any new proceedings. 25

Irregularities at preliminary hearing can not affect the right of the grand jury to investigate a case and return an indictment,26 but in states where trial may be had upon infor

17 Cox v. Coleridge, 1 Barn. & C. 37.

18 Harris v. People, 130 Ill. 457, 22 N. E. 826.

19 United States v. White, Fed. Cas. No. 16685, 2 Wash. C. C. 29; Whart. Crim. Pl. & Prac., § 72.

20 Commonwealth V. Nichols, 114 Mass. 285, 19 Am. Rep. 346; State v. Kinder, 96 Mo. 548, 10 S. W. 77; Black on Const. Law 497.

21 Bostick v. Rutherford, 11 N. Car. 83; 4 Bl. Comm. 296.

222 Hawk. P. C., ch. 16, § 2.
23 Goodwin v. Dodge, 14 Conn.

206.

24 Templeton v. People, 27 Mich. 501.

25 State v. Ritty, 23 Ohio St. 562.

26 Osborn V. Commonwealth, (Ky), 20 S. W. 223.