People ex rel. Nettles v. Police Commissioner

In a habeas corpus proceeding instituted by relator to test the legality of his arrest under a warrant of extradition issued by the Acting Governor of this State in compliance with a requisition from the Governor of South Carolina, relator appeals from an order of the Supreme Court, Kings County, dated October 7, 1960, dismissing the writ of habeas corpus and remanding the relator to the custody of South Carolina’s representative. The requisition is supported by the affidavit of the complainant in South Carolina. Order reversed-on the law and the facts, writ sustained and relator discharged from custody. Findings of fact inconsistent herewith are reversed, and new findings are made as indicated herein. An extradiction proceeding based upon an affidavit requires closer scrutiny than one founded upon an indictment; and the affidavit should plainly and distinctly charge the alleged offense. (People ex rel. Lawrence v. Brady, 56 N. Y. 182, 190-191; People ex rel. de Martini v. McLaughlin, 243 N. Y. 417, 419; People ex rel. Hodges V. Silberglitt, 11 A D 2d 681.) In our opinion, the affidavit of the complainant here fails to establish the commission of the crime sought to be charged, namely: obtaining money by false pretense. It is not stated that the acts of appellant were done with intent to cheat and defraud, which is a basic element of the crime alleged. (People v. Hicks, 77 S. C. 289; Code of Laws of South Carolina, § 16>-366; ef. People ex rel. de Martini v. McLaughlin, supra', People ex rel. Hodges v. Silberglitt, supra.) Nolan, P. J., Beldock, Christ, Pette and Brennan, JJ., concur.