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countries shall continue in force during the existence of any treaty of extradition with any foreign government, and no longer. [R. S.]

Act of Aug. 12, 1848, ch. 167, 9 Stat. L. 303.

Sec. 5275. [Protection of the accused.] Whenever any person is delivered by any foreign government to an agent of the United States, for the purpose of being brought within the United States and tried for any crime of which he is duly accused, the President shall have power to take all necessary measures for the transportation and safe-keeping of such accused person, and for his security against lawless violence, until the final conclusion of his trial for the crimes or offenses specified in the warrant of extradition, and until his final discharge from custody or imprisonment for or on account of such crimes or offenses, and for a reasonable time thereafter, and may employ such portion of the land or naval forces of the United States, or of the militia thereof, as may be necessary for the safe-keeping and protection of the accused. [R. S.]

Act of March 3, 1869, ch. 141, 15 Stat. L. not only for crime, but also on a civil action. 337.

In re Reinitz, (1889) 39 Fed. Rep. 204. This section applies to a subsequent arrest,

Sec. 5276. [Powers of agent receiving offenders delivered by a foreign government.] Any person duly appointed as agent to receive, in behalf of the United States, the delivery, by a foreign government, of any person accused of crime committed within the jurisdiction of the United States, and to convey him to the place of his trial, shall have all the powers of a marshal of the United States, in the several districts through which it may be necessary for him to pass with such prisoner, so far as such power is requisite for the prisoner's safe-keeping. [R. S.] Act of March 3, 1869, ch. 141, 15 Stat. L. department before his appointment. If not

so fixed, he is entitled only to his expenses. Compensation of United States marshal Extra Compensation, (1888) 19 Op. Atty.acting as agent. — Where a United States Gen. 121. marshal has, in pursuance of this section, Unlawful custody. - If the custody which been appointed as agent to go to a foreign the supposed agent exercised over the accountry and take the delivery of a criminal, cused was unlawful in the beginning, this he is entitled to receive compensation for his statute could not make the custody lawful services under the appropriation bills, where afterward. Matter of Lagrave, (Supm. Ct. the amount was fixed by regulation of the 1873) 45 How. Pr. (N. Y.) 301.

338.

Sec. 5277. [Penalty for opposing agent, etc.] Every person who knowingly and willfully obstructs, resists, or opposes such agent in the execution of his duties, or who rescues or attempts to rescue such prisoner, whether in the custody of the agent or of any officer or person to whom his custody has lawfully been committed, shall be punishable by a fine of not more than one thousand dollars, and by imprisonment for not more than one year. [R. S.]

Act of March 3, 1869, ch. 141, 15 Stat. L. 338.

Sec. 5278. [Fugitives from justice of a State or Territory.] Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, it shall be the duty of the executive authority of the State or Territory to which such person has Aed to cause him to be arrested and secured, and to cause notice of the arrest to be given to the

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executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to

agent when he shall appear. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the State or Territory making such demand, shall be paid by such State or Territory. [R. S.]

Act of Feb. 12, 1793, ch. 7, 1 Stat. L. 302. The law of the state should be construed in

Federal authority paramount. — The extra connection with the law of Congress of which dition of criminals is governed entirely by it is a part. Ex p. McKean, (1878) 3 Hughes the Constitution and laws of the United (U. S.) 23. States. No state can deal with other states, Under a state statute, “ in order to hold a under the express terms of the Constitution, fugitive from justice to await the requisition without the approval of Congress, and what of the governor of another state, it must afthe state cannot do its officers cannot do. firmatively appear from the complaint filed Malcolmson v. Gibbons, (1885) 56 Mich. 459. before the committing magistrate in this

The power of Congress to legislate on the state: 1. That a crime has been committed subject of interstate extradition is exclusive, in the other state. 2. That the accused has and its law is the paramount law of the sub been charged in that state with the commisject. Ex p. McKean, (1878) 3 Hughes (U. sion of such crime. 3. That he has fled from S.) 23.

justice and is within this state.” Ex p. LorState governors must rely on federal stat Taine, (1881) 16 Nev. 63. utes. - In interstate extradition matters, State and federal courts. — State courts state governors and their agents are compelled have concurrent jurisdiction with federal to rely upon federal statutes for authority to courts in extradition matters, but the judgdo the acts required thereby, and such stat ments of the state courts are not necessarily utes afford them justification. State v. Jus decisive, and do not conclude the federal tus, (1901) 84 Minn. 237. See Ex p. Smith, courts, although they are entitled to great (1842) 3 McLean (U. S.) 121.

respect, and are strongly advisory. State legislation in aid of the federal en Roberts, (1885) 24 Fed. Rep. 132. actments is not objectionable. The means by Territories are in the same position as which the fugitive is “ to be arrested and se states in regard to interstate extradition, cured” are not provided by the Act of Con. and the executive of a territory has the same gress, hence the legislature of a state may rights and is subject to the same duties as is and should provide proper and adequate the executive of a state. Ex p. Reggel, (1885) means and facilities for the accomplishment 114 U. S. 642; Ex p. Morgan, (1883) 20 Fed. of such extradition. Ex p. Ammons, (1878) Rep. 298. See also Matter of Romaine, 34 Ohio St. 518. See Com, v. Johnston, (1863) 23 Cal. 585. (1892) 12 Pa. Co. Ct. 263; Ex p. Butler, The District of Columbia not being a state, (1878) 18 Alb, L. J. 369.

and therefore not coming within the constiA state statute authorizing any court or tutional and statutory provisions relating to magistrate, on complaint against any person extradition to and from states, the Act of found within the state, charged with an of March 3, 1801, 2 Stat. L. 115, ch. 24, was fense committed in any other state, and liable passed providing for the delivering up of by the Constitution and laws of the United criminals and fugitives from justice found States to be delivered over, etc., to issue a within the District and requiring all execuwarrant and cause such person to be held for tive and judicial officers to obey all lawful examination, and imprisoned or bailed for a precepts or other process issued for that purlimited time, is one which the legislature is pose, etc. Although this statute does not competent to make and enforce, independently specifically provide for the return to the Dis. of the constitutional obligation to surrender trict of Columbia of fugitives from justice, such person to other states for trial and pun yet, under sec. 1014, R. S., it has been held ishment. When a matter is one within the that they may be so surrendereil. In re Buell, jurisdiction of the United States, the general (1875) 3 Dill. (U. S.) 116. See Matter of rule, in regard to conflicting laws of the Dana, (1873) 7 Ben. (U. S.) 1. l'nited States and of the state, is, not that The Cherokee nation being neither a state the act of the state may not in some re nor a territory, within the meaning of the spects have the force of law, but that so far constitutional clause and the Acts of Congress as it conflicts with that of the United States, relating to interstate extradition, a state govthe state law is inoperative and void. Com. ernor has, therefore, no authority to issue a v. Tracy, (1843) 5 Met. (Mass.) 536.

warrant for the arrest of a fugitive from jusWhen a state statute prescribes the pro tice upon the requisition of a chief of such ceedings to be followed in the case of one nation. Ex p. Morgan, (1883) 20 Fed. Rep. charged with being a fugitive from justice, 298. persons making an arrest on the pretense Strict compliance with Act. “The Act of that the one arrested is a fugitive, without Congress provides for a method that is sumfollowing the directions of the statute, are mary in its effect, and it must, therefore, be guilty of assault and battery. State v. Shel. strictly complied vil." Er p. Morgan, ton, (1878) 79 N. Car, 605,

(1883) 20 Fed, Rep. 298. 79

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Arrest before requisition. --- The constitujional provision relating to interstate rendivion does not contain a grant of power, but is ihe regulation of a previously existing right. It makes obligatory upon every state the performance of an act which previously was of doubtful obligation. There exists the power in every state of arresting and detaining a tugitive wherever he may be found, preparatory to a demand and surrender; there need be no delay until the demand for his surrender has been actually made. Matter of Fetter, (1852) 23 N. J. L. 311.

A person charged with felony in another state may, upon a principle of comity, through the agency, of the judicial tribunals of the state of refuge, be detained for a reasonable period for the purpose of affording time for an application to the governor of the state where the felony is charged to have been committed to make the demand. State v. Howell, (1821) R. M. Charlt. (Ga.) 120; State 0. Loper, (1842) Ga. Dec. (pt. ii) 33; Rea v. Smith, (1856) 2 Handy (Ohio), 193; State v. Buzine, 4 Harr. (Del.) 572; Morrell v. Quarles, (1860) 35 Ala. 544; Matter of Fetter, (1852) 23 N. J. L. 311; Ex p. Romanes, 1 Ut 23. See Simmons v. Com., (1813) 5 Binn. (Pa.) 617.

No demand before complaint. — “ Under the Constitution and Acts of Congress it is for the governor of the one state to determine whether he desires extradition, and for the governor of the other to decide whether he will grant it. Congress will not allow the demand to be made until the offender has either been indicted or otherwise complained of in the regular course of justice. There can be no demand before complaint.” Malcolmson v. Gibbons, (1885) 56 Mich. 459.

Respective rights of demanding and asylum states. -- Where a party is detained in one state because its laws have claims upon him, he cannot be extradited and taken to another state before the justice of the state holding him has been satisfied; that is, the right of the state demanding him is not superior to that of the state from which he is demanded. Matter of Briscoe, (Supm. Ct. 1876) 51 How. Pr. (N. Y.) 422; Taylor v. Taintor, (1872) 16 Wall. (U. S.) 366; Matter of Troutman, (1854) 24 N. J. L. 634; State v. Allen, (1840) 2 Humph. (Tenn.) 258; Ex p. Hobbs, (1893) 32 Tex. Crim. 312. This principle applies also where the process under which the accused is heard is a civil process. Matter of Briscoe, (Supm. Ct. 1876) 51 How. Pr. (N. Y.) 422; Matter of Troutman, (1854) 24 N. J. L. 634. But there must have been an actual arrest before the principle applies. Ex p. Rosenblat, (1876) 51 Cal. 285; Harriott's Petition, (1892) 18 R. I. 12.

Of course this right may be waived by the state in which the fugitive is, and, upon surrender to the demanding state, it loses its jurisdiction. Taylor v. Taintor, (1872) 16 Wall. (U. S.) 366; In re Hess, (1897) 5 Kan. App. 763.

Who is “a fugitive from justice.” — " To be a fugitive from justice in the sense of the Act of Congress regulating the subject under consideration, it is not necessary that the party charged should have left the state in

which the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun, but simply that having within a state committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offense, he has left its jurisdiction and is found within the territory of another.” Roberts v. Reilly, (1885) 116 U. S. 80; Ex p. Dickson, (Indian Ter. 1902) 69 S. W. Rep. 943; In re White, (C. C. A. 1893) 55 Fed. Rep. 54; Er p. Brown, (1886) 28 Fed. Rep. 653; In re Bloch, (1898) 87 Fed. Rep. 981; Matter of Voorhees, (1867) 32 N. J. L. 141; State v. Hall, (1894) 115 N. Car. 811, 44 Am. St. Rep. 501; Hibler 1. State, (1875) '43 Tex. 197; State 1. Richter, (1887) 37 Minn. 436; In ve Sultan, (1894) 115 N. Car. 57, 44 Am. St. Rep. 433; Drinkall v. Spiegel, (1896) 68 Conn. 441.

The party must have been actually present in the state by which the demand is made and in which the crime is alleged to have been committed, at the time of such commission, and thereafter have fled therefrom. Ex p. Smith, (1842) 3 McLean (U. S.) 121; Hyatt v. People, (1903) 188 U. S. 691, affirming People v. Hyatt, (1902) 172 N. Y. 176, and holding that the presence of the relator on business for one day in the state eight days after the alleged commission therein of the act, did not, when he left the state, render him a fugitive from justice, there being no evidence or claim that he then committed any act which brought him within the criminal law of the state, or that he was indicted for any act then committed, and the complaint not having been made nor the indictments found until months after such departure; Ex p. State, (1883) 73 Ala. 503, 49 Am. Rep. 63; Hartman v. Aveline, (1878) 63 Ind. 344, 30 Am. Rep. 217; Jones v. Leonard, (1878) 50 Iowa 106, 32 Am. Rep. 116; Matter of Mitchell, (1885) 4 N. Y. Crim. 596; State v. Hall, (1894) 115 N. Car. 811, 44 Am. St. Rep. 501; Wilcox v. Nolze, (1878) 34 Ohio St. 520, cited in Henderson v. James, (1895) 52 Ohio St. 260; Tennessee v. Jackson, (1888) 36 Fed. Rep. 258.

One who, within the jurisdiction of the state, has set in motion the machinery for crime and departs the jurisdiction before the commission of such crime, must be regarded

' fugitive from justice.” In re Cook, (1892) 49 Fed. Rep. 833, affirmed Cook v. Hart, (1892) 146 U. S. 183.

One who goes into a state and commits a crime, and then returns home, is as much a fugitive from justice as though he had committed a crime in the state in which he resided and then fled to some other state."

In re Roberts, (1885) 24 Fed. Rep. 132; In re Keller, (1888) 36 Fed. Rep. 681; Kingsbury's Case, (1870) 106 Mass. 223; In re Sultan, (1894) 115 N. Car. 57, 44 Am. St. Rep. 433; Ex p. Swearingen, (1880) 13 S. Car. 74; In re Hess, (1897) 5 Kan. App. 763. See also Adams' Case, (1844) 7. Law Rep. 386.

Executive must determine fact of flight. “Upon the executive of the state in which the accused is found, rests the responsibility of determining, in some legal mode, whether

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he is a fugitive from the justice of the demanding state. He does not fail in duty if he makes it a condition precedent to the surrender of the accused that it be shown to him, by competent proof, that the accused is, in fact, a fugitive from the justice of the demanding state.” Ex p. Reggel, (1885) 114 t'. S. 642; Roberts v. Reilly, (1885) 116 U. S. 80; Cook 1. Hart, (1892) 146 U. S. 183; Katyuga v. Cosgrove, (1901) 67 N. J. L. 213.

Vo special evidence required by the Act.The Act, however, “ does not prescribe any mode by which the fact that he is a fugitive from justice shall be authenticated.” Ex p. Swearingen, (1880) 13 S. Car. 74; Ex p. Reg. gel, (1885) 114 U. S. 642.

The question whether the person demanded is a fugitive from justice is a question of fact which the governor upon whom the demand is made must decide upon such evidence as he may deem satisfactory. If there be evidence pro and con the courts might not be justified in reviewing the decision of the governor, but when the court has before it uncontradicted testimony of the relator and the stipulation of counsel as to what the facts are, it has the right to say whether a case is made out within the federal statute justifying the action of the governor. Hyatt v. People, (1903) 188 L. S. 691.

Eridence as to flight from justice. — If the determination of the question whether the accused is a “fugitive from justice” by the executive of the state where he is found is subject to judicial review, upon habeas corpus, the accused, in custody, under his warrant which recites the demand of the executive of the demanding state, accompanied by an authentic indictment charging him, substantially in the language of the statutes of such state, with a specific crime committed within the limits thereof — should not be discharged merely because, in the judgment of the court, the evidence as to his being a fugitive from justice was not as full as might properly have been required. Ex p. Reggel," (1885) 114 C. S. 642.

Before the executive of one state is authorized to issue his warrant to cause to be arrested and secured a person charged in another state with crime, it should be shown by evidence making a prima facie case that such person has fled from the demanding state. This should be shown by competent evidence, as the fact of fleeing lies at the foundation of the right to issue a warrant of extradition. The certificate of the demanding governor is no evidence of the fact. In re Jackson, (1878) 2 Flipp. (U. S.) 183, 13 Fed. Cas. No. 7,125.

It is sufficient if a person charged with crime shall have fled from the justice of that state and be found in another state, though his presence there may be involuntary, and result from a rendition to that state from a third state. People v. Sennott, (1879) 20 Alb. L. J. 230.

Affidavit of prosecuting attorney that accused was fugitive from justice, etc., sufficient evidence of fact. Ex p. Sheldon, (1878) 34 Ohio St. 319.

False affidarit as to being fugitive. - Under this section, a person charged must be a fugi

tive from the state in which the crime was committed, before the executive authority can be called into action; and, where the affidavit as to his being a fugitive, upon which he has been surrendered, is false, he will be set free under a habeas corpus. Tennessee v. Jackson, (1888) 36 Fed. Rep. 258.

Warrant is prima facie evidence as to flight from justice. -The warrant of the executive, in rendition between states, is not conclusive, although it is prima facie evidence upon the question as to whether the accused is a fugitive from justice; ” and at any time before the accused is given up to the authorities of the state demanding him, that question may be considered under a habeas corpus. Cook, (1892) 49 Fed. Rep. 833; Hyatt v. People, (1903) 188 U. S. 691.

Where the governor, in his warrant, states or certifies that the party is a fugitive from justice, a prima facie case arises which must be overthrown by the petitioner when he makes that issue before a court on a habeas corpus. In re Keller, (1888) 36 Fed. Rep. 681, following Roberts v. Reilly, (1885) 116 U. S. 80; Eaton v. West Virginia, (C. C. A. 1898) 91 Fed. Rep. 760; State v. Justus, (1901) 84 Minn. 237.

In Katyuga v. Cosgrove, (1901) 67 N. J. L. 213, the court said that the issuance of a warrant, whether it contains a recital of an express finding that the accused is a fugitive from justice or not, is sufficient evidence that the executive so found.

Indictment need not be technical. - As each state may prescribe its own form of pleading and court procedure to be observed in both criminal and civil cases, subject only to those provisions of the Constitution involving the protection of life, liberty, and property in all the states of the Union, it is sufficient in an extradition case under this statute, if the indictment, in substance, conforms to the laws of the state from which the demand arises, it not being necessary that it shall follow the technical rules of criminal pleading. Ex p. Reggel, (1885) 114 U, S. 642; Ex P. Sheldon, (1878) 34 Ohio St. 319.

Technical sufficiency. When an indictment appears to have been returned by a grand jury, and is certified as authentic by the governor of the demanding state, and substantially charges a crime, the sufficiency of the charge as a matter of technical pleading is to be tried and determined in the state in which the indictment was found. Davis's Case, (1877) 122 Mass. 328; State v. O'Connor, (1888) 38. Minn. 243; State v. Goss, (1896) 66 Minn. 291; State v. Clough, (1902) 71 N. H. 594; In re Van Sciever, (1894) 42 Neb, 772; Matter of Voorhees, (1867) 32 N. J. L. 141.

In extradition proceedings “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.” Webb v. York, (C. C. A. 1897) 79 Fed. Rep. 616 [citing Roberts v. Reilly, (1885) 116 ('. S. 80; Er p. Pearce, (1893) 32 Tex. Crim. 301; In re Roberts, (1885) 21 Fed. Rep. 132; In re White, (1891) 45 Fed.

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Rep. 237; In re Keller, (1888) 36 Fed. Rep. must be made; and while the statute speaks 681; Kurtz l'. State, (1886) 22 Fla. 36). of an “indictment found or an affidavit made

“A requisition for the return of a fugitive before a magistrate,” it cannot be intended from justice cannot be denied when the copy to exclude a case where the charge is in the of the indictment or affidavit attached to the form of a criminal information, as in this requisition is held sufficient by the courts of state all offenses are triable by information the state where the offense was committed, filed by the district attorney of the proper although it would not be held good by the county, and it will be presumed that the decourts of the state where the accused has manding state has authorized prosecutions taken refuge.” Webb v. York, (C. C. A. by information. In re Hooper, (1881) 52 1897) 79 Fed. Rep. 616 [citing Er p. Reggel, Wis. 699. (1885) 114 U. S. 642; Pearce v. Texas, (1894) Affidavit. - The affidavit must be so ex155 U. S. 311].

plicit and certain that, if it were laid before Charge of indictable offense. - When the a magistrate, it would justify him in comcharge is by bill of indictment, the question mitting the accused to answer the charge, an whether the bill charges an indictable offense affidavit founded on belief or information not under the statute should be left to the de being sufficient. Ex p. Hart, (C. C. A. 1894) termination of the courts of the state in which 63 Fed. Rep. 249; Ex p. Morgan, (1883) 20 the offense is alleged to have been committed. Fed. Rep. 298; Ex p. Rowland, (1895) 35 In re Greenough, (1858) 31 Vt. 279.

Tex. Crim, 108. The omission to give the Christian names The affidavit accompanying the demand of of the person charged with the offense in the an executive of a state for the surrender of indictment would not justify the executive a fugitive must be one made in the due of the state in refusing to surrender, nor the course of a judicial proceeding, and it will courts in releasing on habeas corpus.

not be presumed in the absence of all evibe a fully authorized mode of proceeding un dence or recital of the fact that the affidavit der the laws of the demanding state. People was taken before a magistrate authorized to v. Byrnes, (1884) 33 Hun (N. Y.) 98. issue process for arresting persons charged

Upon the objection that the indictment did with crime. Ex p. Powell, (1884) 20 Fla. not charge the same offense as the affidavit 806. filed before the justice of the peace upon Where an affidavit began, “State of Wiswhich the requisition was obtained, it was consin, Municipal Court, City and County of held that, wliere the affidavit charged the em Milwaukee,” and was certified as sworn to bezzlement of money, an indictment for em before me, J. M., clerk of the Municipal bezzling property substantially charged the Court,” it was held that this fell sufficiently same offense. Waterman ve State, (1888) within the terms of this section requiring 116 Ind. 51.

that the affidavit shall be made “ before a By information. “ While it is in the magistrate.” “The oath being administered, power of the states to provide for the prose as certified to by the clerk of the court, in cution and punishment of all manner of crime criminal proceedings for embezzlement in the by information, and without indictment by court by law having cognizance and jurisdica grand jury,

still, if they wish tion of such offenses, to rely upon the provisions of the Constitu the affidavit must fail." In re Keller, (1885), tion and laws of the United States relating 36 Fed. Rep. 681. to fugitives from justice, they must strictly Affidavits insufficient. - Where affidavits observe and respect the conditions of the are filed with the governor of a state calling same.” An information cannot be considered upon him for a requisition, such affidavits, as the equivalent of an indictment, nor as such notwithstanding that they are a part of the an affidavit as is required by law, when it is requisition papers, do not suffice, under this verified by the prosecuting attorney, who section, if the governor only certifies to the swears that he believes the contents thereof authenticity of an information. Ex p. Hart, to be true, not that they are true. “The affi (C. C. A. 1894) 63 Fed. Rep. 249, reversing davit required in such cases should set forth 59 Fed. Rep. 894. the facts and circumstances relied on to prove Charges no crime. If the charge is by the crime, under the oath or affirmation of way of affidavit against the alleged fugitive, some person familiar with them, whose knowl and it appears clearly from the whole facts edge relative thereto justifies the testimony stated in the affidavit taken together that no as to their truthfulness, and should not be crime has been committed, the executive has the mere verification of a court paper by a no authority to issue the warrant. In re public official, who makes no claim to per Greenough, (1858) 31 Vt. 279, sonal information as to the subject-matter A complaint is not necessarily an affidavit of the same.” Ex p. Hart, (C. C. A. 1894) nor are they in legal practice or contempla63 Fed. Rep. 259.

tion understood as convertible terms. State When prosecution by information has been v. Richardson, (1885) 34 Minn. 115. adopted by a state making demand for rendi The question of the identity of the party tion, it must be considered prima facie evi arrested with the party described as the dence of a crime charged against the accused alleged fugitive in the mandate of the govunder the laws of that state. In re Van ernor in extradition proceedings is always Sciever, (1894) 42 Neb. 772. See State v. open to inquiry on habeas corpus. Matter of Richardson, (1885) 34 Minn. 115; State v. Leary, (1879) 10 Ben. (U'. S.) 197. Hufford, (1869) 28 Iowa 391.

The question of the identity of the person The Constitution of the United States does sccused cannot be inquired into on habeas not prescribe the form in which the charge corpus when his identity is expressly alleged

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