Argument for Plaintiff in Error.

provision of Magna Charta (c. 14), for trial by a jury of the vicinage. (1 East P. C. 366; 1 Gabbett's Crim. Law, 501.) It is universally admitted that when a shot fired in one jurisdiction strikes a person in another jurisdiction, the offender may be tried where the shot takes effect, and the only doubt is whether he can be tried where the shot is fired. Rex v. Coombes, 1 Leach (4th ed.) 388; United States v. Davis, 2 Sumner, 482; People v. Adams, 3 Denio, 190, 207, and 1 N. Y. 173, 176, 179; The Queen v. Keyn, 2 Ex. D. 233, 234; Rev. Stat. sec. 731.

When an offence is committed by means of a communication through the post office, the sender has sometimes, as appears by the cases cited for the petitioner, been held to be punishable at the place where he mails the letter. United States v. Worrall, 2 Dall. 384; United States v. Bickford, 4 Blatchford, 337; Rex v. Williams, 2 Campbell, 506; The King v. Burdett, 3 B. & Ald. 717, and 4 B. & Ald. 95; Perkin's Case, 2 Lewin, 150; Regina v. Cooke, 1 Fost. & Finl. 64; The Queen v. Holmes, 12 Q. B. D. 23; S. C., 15 Cox Crim. Cas. 343. But it does not follow that he is not punishable at the place where the letter is received by the person to whom it is addressed; and it is settled by an overwhelming weight of authority that he may be tried and punished at that place, whether the unlawfulness of the communication through the post office consists in its being a threatening letter, The King v. Girdwood, 1 Leach, 142; S. C., 2 East P. C. 1120; Esser's Case, 2 East P. C. 1125; or a libel, The King v. Johnson, 7 East, 65; S. C., 3 J. P. Smith, 94; The King v. Burdett, 4 B. & Ald. 95, 136, 150, 170, 184; Commonwealth v. Blanding, 3 Pick. 304; In re Buell, 3 Dillon, 116, 122; or a false pretence or fraudulent representation, Regina v. Leech, Dearsley, 642; S. C., 7 Cox Crim. Cas. 100; The Queen v. Rogers, 3 Q. B. D. 28; S. C., 14 Cox Crim. Cas. 22; People v. Rathbun, 21 Wend. 509; People v. Adams, 3 Denio, 190, and 1 N. Y. 173; Foute v. State, 15 Lea (Tenn.), 712; In re Palliser, 136 U. S. 265.

All throughout this country there are many cities, large and small, and villages on opposite sides of state boundaries, some separated by a river and others only by an imaginary boundary

Argument for Plaintiffs in Error.

line. A person may shoot and maim or kill another across the line, or hurl a lighted missile across the boundary and commit arson, send an innocent messenger and commit larceny by pretenses, or commit larceny by the use of the telephone or telegraph or mail, and be absolutely exempt from the trial and punishment in the State wherein the crime was committed, when, if the same person, by the same means, offended against the laws of the United States, he could be surrendered and sent into the other State or district for trial and punishment. Can it be possible that an invisible line of demarcation shall be regarded as an unsurmountable barrier against the just demands of the neighboring State, so far as crimes against the laws of the State are concerned, when, as to offences against the United States, the width of the continent is no protection?

IX. Tennessee is the State having jurisdiction of the crime. The crime charged in the indictments herein was the crime of grand larceny and false pretenses. The defendant in error could have "committed the crime within the State" of Tennessee, although never physically present within the State. Adams v. People, 1 N. Y. 173; State v. Grady, 34 Connecticut, 118; Commonwealth v. White, 123 Massachusetts, 430; Commonwealth v. Smith, 93 Massachusetts, 243; Lindsey v. Smith, 38 Ohio St. 507; United States v. Davis, 2 Sumner, 482; Regina v. Barrett, 22 Eng. Law & Eq. 611; Regina v. Brisac, 4 East, 164; State v. Chapin, 17 Arkansas, 565; State v. Morrow, 40 S. C. 211; Noyes v. State, 41 N. J. L. 418; Simpson v. State, 92 Georgia, 41; Hatfield v. Commonwealth, 12 S. W. Rep. 309.

"When the commission of an offence commenced without this State is consummated within its boundaries, the person committing the offence is liable to punishment therefor in this State, although he was out of the State at the commission of the offence charged; if he consummated it in this State through the intervention of an innocent or guilty agent, or by any other means proceeding directly from himself, and in such a case the jurisdiction is in the county in which the offence was consummated, unless otherwise provided by law." Sec. 5801, M. & V. Code, Tennessee.

X. The plaintiff in error returned only paper he had. There

Argument for Defendant in Error.

seems to be some criticism in the opinion of the court below of the plaintiff in error for the failure to return all the papers that were used before the governor, but the plaintiff in error should not be criticised for this, nor should any unfavorable presumption be indulged in as against him, for the reason that it is the invariable rule of the executive of the State of New York to refuse to return any paper in an extradition case other than the warrant, and this rule is based upon the opinion prevailing in the executive department that the courts of the State have no jurisdiction to review the governor's action. Larceny is a crime and the merits cannot be tried in habeas corpus.

It is said that it is hard to send a man from his home and friends to a distant jurisdiction for trial, but there is no real hardship in this. When a man commits a crime within another jurisdiction he thereby selects the jurisdiction wherein the trial shall be had, and there is no burden imposed when the courts compel him to abide by his own selection. It would be a greater hardship to require prosecuting authorities to go to the distant place of his home and appear, first, before a committing magistrate, second, before a grand jury, and lastly, in a trial court, and to bring on these three occasions all the witnesses and documents.

Mr. William S. Bryan, Jr., with whom Mr. A. de R. Sappington was on the brief, for defendant in error.

I. Whether the decision of the governor of the asylum State shall be final on the question as to whether the person sought to be extradited was in fact a fugitive from the justice of the demanding State, is a question proper to be determined by the courts of that State. Cook v. Hart, 146 U. S. 193. That in New York such inquiry is open to the courts of that State on habeas corpus, appears from the decision below in the case at bar.

Judge O'Brien in his opinion said: "The warrant did not conclusively establish the facts recited. It was so held by this court, People ex rel. Lawrence v. Brady, 56 N. Y. 182, and the law as laid down in that case has never been modified but has been repeatedly approved. Indeed I do not understand that

Argument for Defendant in Error.

there is now any difference of opinion as to the legal effect of the warrant as evidence. It raised a presumption, but nothing more."

The view of the Court of Appeals of New York that the recitals in the warrant of the governor are only prima facie and are liable to be rebutted by proof on habeas corpus is the prevailing view. Ex parte Todd, 47 L. R. A. 566; Matter of Cook, 49 Fed. Rep. 823; Ex parte Hart, 63 Fed. Rep. 260; Work v. Conington, 34 Ohio St. 64; Matter of Manchester, 5 California, 237; 15 Am. & Eng. Ency. of Law (2d ed.), 205. Whether the accused is a fugitive from justice is a question of fact. Roberts v. Reilly, 116 U. S. 80.

We have just seen that this question of fact was decided by the court below against the plaintiff in error, and that that finding is not reviewable by this court.

II. If the facts were open for review, there was obviously no error in the conclusion reached by the court below. But the finding of that court on the facts is not open for review in this proceeding. Nothing is open for review on this writ of error, but such rulings in law as erroneously decide some Federal question against the plaintiff in error.

It is well settled that on a writ of error, this court will confine itself to an examination of such of the questions of law decided by the court below as are properly reviewable here, and that it cannot, and will not, review the findings of that court on questions of fact. In re Neagle, 135 U. S. 42; Gardner v. Bonestell, 180 U. S. 370; Dower v. Richards, 151 U. S. 658; In re Buchanan, 158 U. S. 36; Hedrick v. Atchison, Topeka etc. R. R., 167 U. S. 677; Turner v. N. Y., 168 U. S. 95; West. Union Tel. Co. v. Call Pub. Co., 181 U. S. 103; Egan v. Hart, 165 U. S. 189; Chicago, Burlington etc. Rd. v. Chicago, 166 U. S. 246.

It cannot be denied that this court has the power to examine the opinions in the court below to ascertain the grounds of that court's decision. Kreiger v. Shelly R. R., 125 U. S. 44; Dibble v. Bellingham Co., 163 U. S. 69. It cannot be contended successfully that the decision below was against the validity of the authority and power exercised under the Constitution of

Argument for Defendant in Error.

the United States and under section 5278 of the Revised Statutes. Cook County v. Calumet etc. Canal, 138 U. S. 653; Balto. & Pot. R. R. v. Hopkins, 130 U. S. 224; Brooks v. Missouri,

124 U. S. 394.

Stated shortly, the case is this:

(a) The legality of Corkran's detention under the governor's warrant of extradition was a question into which the state and Federal courts in New York had concurrent jurisdiction to enquire. Robb v. Connolly, 111 U. S. 639.

(b) The state court in the exercise of this rightful jurisdiction decided the question of fact, i. e., that Corkran was not a fugitive from justice, against the plaintiff in error. This decision, as already stated, did not in any way impugn the statute nor any right conferred by it, and the writ of error should be dismissed for want of jurisdiction.

III. There was no authority in the governor of New York to order the extradition of Corkran for trial for an offence claimed to have been committed when he was not corporeally present in the State of Tennessee.

The Constitution of the United States (Art. 4, sec. 2, subd. 2,) 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."

Flight-being a fugitive from justice is the jurisdictional fact. In speaking of the necessity for an actual flight or departure from the demanding State of the accused before he can be said to be a fugitive from justice, Judge Seevers in delivering the opinion of the court in Jones v. Leonard, 50 Iowa, 108, said: "It is difficult to see how one can flee who stands still. That there must be an actual fleeing we think is clearly recognized by the Constitution of the United States. The words, 'who shall flee' do not include a person who never was in the country from which he is said to have fled."

A great cloud of state decisions enforce the construction of the Constitution that the accused must have been physically present in the demanding State at the time when the assumed VOL. CLXXXVIII-45