Webb v. York

THAYER, Circuit Judge, after stating the case as above, delivered the opinion of the court. In Ex parte Reggel, 114 U. S. 642, 649, 5 Sup. Ct. 1148, it was said by Mr. Justice Harlan, in substance, that," in proceedings under sections 5278 and 5279 of the Revised Statutes of the United States, it is the duty of the executive, upon whom a demand is made for the arrest and return of a fugitive from justice, to comply with the requisition when it appears—First, that the demand is accompanied by a copy of tbe indictment or affidavit made before a magistrate, charging the accused with the commission of treason, felony, or other crime within the state from whence the requisition comes, and that said indictment or affidavit is certified as authentic by her governor; second, that the person demanded is a fugitive from justice. In the present case the requisition was accompanied by an affidavit duly authenticated, which at least attempted to charge Emma York, the appellee, with the crime of embezzlement, committed in the state of California, and the proof laid before the governor of Colorado that she was a fugitive from justice was certainly adequate to warrant him in finding that such was the fact. No reasons are disclosed, therefore, which would have warranted the governor of Colorado in refusing to honor the requisition, or on account of which the executive warrant which was issued by the gov [621] ernor of Colorado can be held void, unless it be that the affidavit filed in the police court for ¡.he city and county of Ban Francisco, which was attached to the requisition, fails to charge a crime. This, we think, is the sole question which deserves notice. It is well settled that, in so far as the sufficiency of this affidavit is open for consideration in this proceeding, its sufficiency must be tested by the Code of Criminal Procedure of the state of California, rather than by common-law rules. Every state has the right to regulate tlie forms of pleadings and process in civil and criminal cases, and to determine what shall be deemed a sufficient indictment, information, affidavit, or declaration in its own courts. A requisition for the return of a fugitive from justice cannot be denied when the copy of the indictment or affidavit attached to the requisition is held sufficient by the courts of the state where the offense was committed, although it would not be held good by the courts of the stale where the accused has taken refuge. Ex parte Reggel, 114 U. S. 642, 651, 5 Sup. Ct. 1148; Pearce v. Texas, 155 U. S. 311, 15 Sup. Ct. 116, and cases there cited. The particular objection made to the affidavit charging the appellee with embezzlement, which was filed in the police court of ¡he city and county of San Francisco, seems to be that it did not describe the particular character of the alleged bailment. It is urged that, because the accused was alleged to have embezzled money which she held as bailee, it was essential to have described the precise character of the bailment, and that because the affidavit fails in this respect, it was insufficient, and subject to a demurrer or motion to quash. An early case in California, decided in 1857 (People v. Cohen, 8 Cal. 42), supports that view; but since then the Code of Criminal Procedure in that state has been very much changed, and, as we understand later legislation and later decisions in that state, the affidavit in question would now be held sufficient. The Criminal Code of California now provides that “the indictment or information must contain: (2) A statement of tlie acts constituting the offense in ordinary and. concise language, and in such manner as to enable a person of common understanding to know what is intended.'"’ 4 Deering’s Ann. Codes & St. Cal. p. 203, § 950. In People v. King, 27 Cal. 507, it was said, in substance, that the Criminal Code; of that state was designed to work the same change in pleading and practice in criminal actions that is wrought by tlie Code of Civil Procedure in civil actions, and that, therefore, it was not always necessary to state the facts constituting the offense with the same particularity as would be required in indictments by the common law. To ¡he same effect was the decision in People v. Cronin, 34 Cal. 193. It has been held repeatedly in that state that, an indictment or information, charging an offense in the language of the statute creating it, is sufficient. People v. Girr, 53 Cal. 629; People v. De La Cour Soto, 63 Cal. 165. And in Peqple v. Tomlinson, 66 Cal. 344, 5 Pac. 509. People v. Treadwell, 69 Cal. 226, 10 Pac. 502, and People v. Mahlman, 82 Cal. 585, 23 Pac. 145, the doctrine last stated was applied to indictments charging the offense of embezzlement; that is to say, it was held that an indictment [622] charging a person with the embezzlement of money intrusted to his care, as an agent or as an officer of an incorporated company, was good if the charge was couched substantially in the language of the statute, although it did not describe the ■ nature of the agency. In the absence of these decisions, we should entertain no doubt that the information or affidavit quoted in the statement charged the offense of embezzlement with sufficient certainty to put the accused on trial, in view of the liberal provisions of the California Code of Criminal Procedure above cited. It must be conceded, we think, that the affidavit charges the commission of an offense with such certainty “as to enable a person of common understanding to know what is intended,” and that is the test prescribed by the statute. Aside from these considerations, we think it is the better view that, in a proceeding by habeas corpus, an executive warrant for the arrest of a fugitive from justice should be upheld, when the foreign indictment or affidavit on which it is based is properly authenticated, and charges an offense committed within the foreign state with reasonable fullness and accuracy. In such a proceeding the executive warrant ought not to be pronounced void, merely because of some technical defect in. the foreign indictment or affidavit, provided the offense is substantially alleged or described'. Such we understand to be the view that was expressed by the supreme court of tbe United States in Roberts v. Reilly, 116 U. S. 80, 94, 95, 6 Sup. Ct. 291, and the same view has been adopted by some other courts. Ex parte Pearce, 32 Tex. Cr. App. 301, 23 S. W. 15; In re Roberts, 24 Fed. 132; In re White, 45 Fed. 237; In re Keller, 36 Fed. 681; Kurtz v. State, 22 Fla. 36. The order appealed from is according^ vacated and annulled, and the case is remanded, with directions to enter an order committing the petitioner, Emma G-. York, to the custody of the appellant, the sheriff of Arapahoe county, state of Colorado, to be dealt with by him in accordance with the warrant for her apprehension, which was issued by tbe governor of the state of Colorado.