Ex parte Lorraine , 16 Nev. 63 ( 1881 )

By tbe Court,

Hawley, J.:

In order to bold a fugitive from justice to await tbe requisition of tbe governor of another state, it must affirmatively appear from tbe complaint filed before tbe committing magistrate in tbis state: 1. Tliat a crime bas been committed in tbe other state. 2. That the accused bas been charged in that state witb tbe commission of such crime. 3. That be bas fled from justice and is within tbis state. (Criminal Pr. Act, secs. 651-653; 1 Comp. L., 2278-2286.)

The complaint upon wbieb petitioner was arrested accused him of having committed the crime of robbery in Alpine county, California, on the twenty-eighth of February, 1881. The commitment recites the same facts. Neither the complaint, warrant of arrest, nor commitment avers that ho is charged with such crime in the state of California. The proceedings in so far as they are based upon the provisions of the criminal practice act relating to fugitives from justice are entirely null and void. (Matter of Edwin Heyward, 1 Sandf. 701; Matter of Leland, 7 Abb. (N. S.) 64; Matter of Rutter, Id. 68; State v. Hufford, 28 Iowa, 391; Ex parte White, 49 Cal. 433.)

It is, however, claimed that petitioner should be -held to await the requisition of the governor of the state of California under the provisions of section 67 of the act concerning crimes and punishments (1 Comp. L. 2373), because, as claimed by the prosecution, the money taken by petitioner was by him brought into this state.

It would be necessary, in order to authorize the magistrate to commit petitioner under this provision of the statute, to have a complaint filed setting forth the offense substantially in the language of the statute. Upon this point it is proper for us to state that we have examined the testimony taken before the committing magistrate, and that, in our opinion, it is not sufficient to warrant the detention of the petitioner upon this ground.

The petitioner must be discharged from custody. It is so ordered.