Citation Numbers: 26 N.Y. Crim. 294, 73 Misc. 200, 132 N.Y.S. 666
Judges: Mulqueen
Filed Date: 7/15/1911
Status: Precedential
Modified Date: 1/13/2023
On June 16, 1911, Alfred G. Ourphey and Thomas W. Kirk-bride were arrested on preliminary process as fugitives from justice of 'the State of Pennsylvania. They were brought before me in my capacity as a magistrate. A separate information wias laid against each of them and an examination of each was had in accordance with the provisions of the statute. Code Orim. Pro., §§ 828-830. It appeared from the examination that they were charged in the State of Pennsylvania with the crime of obstructing justice and contempt of court, and they Mad left the State of Pennsylvania and come to the State of Kew York, where they were found and arrested. Two requisitions, one for the surrender of each defendant, from the gover- 1 nor of Pennsylvania on the governor of New York were put in
*297 “ An order having been made on the 16tli day of June, 1911, by the Hon. Joseph F. Mulquéen, one of the justices of this -court, that Alfred G. Ourphey be held in the custody of the keeper of the city prison for the period of thirty days, exclusive -of the day of the said arrest, to enable the arrest of the said Alfred G. Ourphey to be made under the warrant of the governor of this State, on the requisition of the executive authority of the State of Pennsylvania, and he having been duly admitted to bail in the sum of twenty-five hundred dollars by the Hon. Joseph F. Mulqueen;
“We, Alfred G. Ourphey, principal, residing at the Ritz Carlton Hotel, in the said city of Hew York, and Hational Surety Company, a Hew York corporation, surety, residing at Ho. 115 Broadway, said city, hereby jointly and severally undertake that the above-named Alfred G. Ourphey shall appear and shall be and abide within the jurisdiction of this court, and shall appear in person before the Hon. Joseph F. Mul-queen .aforesaid on the 14th day of July, 1911, at any time within thirty days from the date hereof, and shall at all times render himself amenable to the process of the court; and shall render himself in execution of any warrant which may be issued by the governor of the State in the proceedings aforesaid; .and if he fail to perform either of these conditions that we will pay to the People of the State of Hew York the sum of twenty-five hundred dollars.”
The undertaking given by Kirkbride is in the same terms. The undertakings having been accepted the defendants were released from custody.
The provisions of law governing the commitment of the defendants iand their admission to bail are contained in sections 830 and 831 of the Code of Criminal Procedure, which are as follows:
“ Sec. 830. When and for what time to be committed. If from the examination under such warrant it appears to the satis*298 faction of the magistrate that the person under arrest is charged in such other State or territory with treason, felony or other crime and has fled from justice, the magistrate, by warrant reciting the accusation, must commit him to the proper custody in his county for a time specified in the warrant, to enable an arrest of the fugitive to 'be made under the warrant of the governor of this State, which commitment shall not exceed thirty days, exclusive of the day of arrest, on the requisition of the executive -authority of the State or territory in which he is charged to have committed the offense, unless he give bail, as provided in the next section, or until he be legally discharged.”
“ Sec. 831. His -admission to bail. Any judge of any court named in section eight hundred and twenty-seven may, in his discretion, admit the person arrested to bail, by an undertaking, with sufficient sureties and in such sum as he deems proper, for his appearance before him at a time specified in the undertaking, which must not be later than the expiration of thirty days from the date of arrest exclusive of such date, -and for his surrender to be arrested upon the warrant o-f the governor of this State.”
It appears that when the requisitions heretofore referred to were presented to the governor of Hew York he granted the accused persons a hearing before passing upon the demand for their surrender. He subsequently declined to honor those particular requisitions on the ground that the defendants were not physically present in the State of Pennsylvania on June 14, 1911, the date upon which the crimes charged in the accompanying indictments were alleged to have been committed. In the meantime, however, and on June twenty-seventh the governor of Pennylvania made another requisition on the governor of Hew York for the surrender of the defendants. This requisition was accompanied by an information made before a Pennsylvania magistrate, which charged the defendants with the offense of obstructing justice, conspiracy and contempt. The
Section 830 of the Criminal Code provides for the commitment of the defendant “ for a time specified in the warrant,” to enable his arrest “ to be made under the warrant of the governor of this State, which commitment shall not exceed thirty days, exclusive of the day of arrest.” Section 831, which provides for an admission to bail, requires that the undertaking shall be for the appearance, of the defendant before the judge “ at a time specified in the undertaking, which must not be later than the expiration of thirty days from the date of arrest exclusive of such date, and for his surrender .to be arrested upon the warrant of the governor of this State.
In Pernetti v. People, 99 App. Div. 391; affd., 181 N. Y. 556, a prisoner had been held by a coroner to answer a specific charge of homicide. Pernetti became his surety, giving an undertaking which, after reciting that an order had been made that the prisoner “be held to answer upon a charge of homicide,”- was conditioned that the prisoner “ shall appear and answer the charge above mentioned in whatever court it may be prosecuted, and shall at all times render himself amenable to the orders and process of the court.” The grand jury dismissed the charge of homicide, but on the same day found an indictment against the defendant for perjury, based upon testimony
I think the decision in the Pernetti cas|e controls the present case. It is true that the statute under which the undertaking was given in the Pernetti case (Code Crim. Pro., § 568) contained a provision that the defendant would at all times render himself amenable to the order and process of the court, and that no such provision .is contained in the statute under which the undertakings involved in the present cases were given, although the undertakings contained a recital to that effect. Even if that provision of the present undertakings be eliminated as not being required by the statute, the statute contains a specific provision requiring the undertaking to be given for the appearance of the defendant before the court “ ¡at a time specified in the undertaking.” The time specified in each of the present undertakings is July fourteenth, which is within thirty days of the date of arrest. The failure of the defendants to appear when called before the court on July fourteenth constituted ¡a default in that specific condition. If they had remained in' custody instead of being released on bail the keeper
Counsel for the defendants relies upon the case of People v. Felton, 36 App. Div. 429. I do not think that case is in point. There there was an indictment pending against the principal. He was arraigned, pleaded not guilty and Felton became surety for his appearance at the next term of couirt to answer the in
Presccution is not limited to the extradition offense; and I
It is further suggested in behalf of the defendants that the undertaking should be strictly interpreted in their favor. The Appellate Division has said: “A contract of suretyship is to be construed in accordance with the same rule that applies to the interpretation of any other written instrument. The limitation of liability is not upon'the interpretation, but in application of the contract after interpretation when the rule of
I have discussed the matter at length because the subject of interstate rendition is an important one. The right of a .State to. demand the surrender of such persons as have offended against, its laws and departed from its jurisdiction is conferred by the Federal Constitution, which also imposes on the State in which the fugitive is found the duty of delivering him up. That provision of the Constitution was adopted to promote justice and to aid the States in enforcing their laws by insuring that flight over an imaginary line should not secure to the fugitive immunity from arrest and prosecution. It was intended to include, and does include, every act forbidden and made punishable by the law of the State where it was committed, irrespective of whether or not it would constitute a crime under the law of the State to which a demand for a surrender was presented. (Kentucky v. Dennison, 65 U. S. 66; Ex parte Reggel, 114 id. 642; People ex rel. Lawrence v. Brady, 56 N. Y. 182.) It is the policy of the law" that each State shall determine what acts committed therein shall be regarded as crimes, and to require all other States to deliver up persons charged with the commission of such acts, who have departed from the State where they were committed, upon the demand of the executive authority thereof. The Federal statute (U. S. Rev. Stat., § 5278) under which proceedings for the extradition of fugitives are instituted was designed by Congress as a method of carrying into effect the constitutional provision. (Roberts v. Reilly, 116 U. S. 80; Kentucky v. Dennison, 65 id. 66, 104.) That provision is a compact which should, be rendered as effectual as possible, regard being had, of course, to all the just rights of the accused. The Supreme Court of the United States has announced its adherence to the doctrine that a. broad and liberal interpretation of the laws relating to the extradition of fugitives is essential to the harmony and welfare of the States, and that they should be construed so as to carry out the
In the case of In re Barlow, 141 App. Div. 641, 655, Laughlin, J., said: “ The duty owing to other States under the extradition laws required that the utmost care should be exercised to hold alleged fugitives from justice until extradition warrants may be obtained in due course from the executive of the State. There is no right to bail in extradition cases, excepting as the .State Legislature may so provide by statutes not inconsistent with the Acts of Congress, on arrest of fugitives from justice pending extradition proceedings * * *. The statutory provisions for the arrest and holding of fugitives from justice in advance of the issuance of an extradition warrant (Code Crim. Proc., §§ 828-831) were designed to make extradition proceedings effectual * *
The admission to bail pending requisition proceedings is entirely discretionary, and so careful was the Legislature that it empowered only the justices of the higher courts to admit to bail. ‘The Legislature also fixed thirty days as a reasonable period within which proceedings for the extradition of a fugitive might be perfected and a warrant for his surrender issued, and the statute provides expressly for his detention for a specific time, not to exceed thirty days. In these cases the detention ordered was for the period of thirty days. The undertakings must be construed to cover the same period. The executive warrant was issued within that time. If bail had been given the defendants would have been in the custody of the keeper of the city prison, who could have produced them in the execution of the warrant. I, therefore, am of the opinion that the surety was obligated by
An order may be entered in each case acordingly.
Ordered accordingly.