
    The People, ex rel. Harry Cornett, Relator, v. The Warden of the City Prison of Brooklyn, New York City, Respondent.
    (Supreme Court, Kings Special Term,
    October, 1908.)
    Extradition — Detention — Preliminary warrant — Sufficiency of affidavit.
    The constitutional provisions and statutes regulating interstate extradition apply only to persons legally charged with a felony or other crime; and, unless so charged, they cannot be apprehended here as fugitives from justice or delivered to another jurisdiction.
    
      An affidavit to obtain a warrant preliminary to extradition charging one with the commission of a crime is insufficient unless facts are stated showing the sources of the information and the grounds of belief; and where it was predicated upon an information sworn to in the State where the alleged crime was charged to have been committed, upon belief only that he had committed the crime, without facts showing the source of information or the grounds of belief, the magistrate here had no jurisdiction and defendant was entitled to be released upon habeas corpus, unless otherwise held.
    Habeas corpus proceedings.
    John D. Barben (William F. Hurley, of counsel), for relator, for the writ.
    John F. Clarke (Peter P. Smith, of counsel), district attorney, in opposition.
   Stapleton, J.

The relator asks for a final order discharging him in a proceeding on return of habeas corpus.

A magistrate of the city of New York issued his warrant as a preliminary proceeding to the issuing of a requisition by the Governor of the State of Pennsylvania upon the Governor of the State of New York for the apprehension of relator, Harry Cornett, alleged to have been charged with burglary in the State of Pennsylvania, to have fled from justice in that State and to have been found within this State.

The warrant of the magistrate was issued upon the affidavit of one Francis S. Carberry, attached to the detective bureau of the city of Hew York, whose affidavit is predicated upon an information sworn to before an alderman of the city of Easton, county of Horthampton, Commonwealth of Pennsylvania, and a warrant issued thereon by said aider-man. The information laid before the alderman is as follows:

County of Northampton,
The Commonwealth of Pennsylvania,
“ Before Me, the subscriber, one of the Alderman in and for the County aforesaid, personally came Jacob Johnson, County Detective, of the City of Easton, County of Northampton, Pa., who upon his solemn oath according to law saith on information received which he believes to be true, one Harry Cornett did on December the 10th A. D. 1907, in the night-time feloniously and burglariously, break and enter the cigar store of J. P. Medemack at Bethlehem, Pa., aforesaid county and state, and 2 Doz Meerschaum Pipes, 1½ Doz Briar Pipes in cases, ½ Doz Amber cigar holders in cases, ½ Doz Amber cigar holders without cases, 1 Doz Amber cigarette holders in cases, 1 Doz Briar pipes amber bits without cases, 1 Pair Platinum and gold cuff links Chinese heads, and five dollars in money, were feloniously and burglariously stolen, taken and carried away, to the value of $440.00 more or less, contrary to the Act of Assembly in such cases made and provided and further saith not.
“ Jacob Johnson.
“ Sworn to and subscribed before me this 23rd day of March, 1908.
“ Howard J. Reed,
"Alderman.
“Alderman 4th Ward, Easton, Northampton Co., Penna. Office 419 Northampton St. Commission expires First Monday May, 1912.”

It will be observed, it states no fact which charges the relator with the commission of a crime. Hnless he be charged with the commission of a crime, he cannot be apprehended here as a fugitive from justice or delivered to another jurisdiction. Code Crim. Pro., tit. IV, chap. I. The informant simply swears to his belief, without' stating the ground thereof, or the sources of information which would lead thereto. He should have incorporated in the information the facts upon which his belief was based to enable the court to judge of its sufficiency.

The language of the Constitution and Federal and State statutes covering this situation applies only to persons charged with a felony or other crime. The unsubstantiated belief, surmise, guess, suspicion or intuition of a police official is not a charge of crime.

It was argued that the information in the proceeding in this State stated the affiant’s source of information and ground of the belief. Granting this contention, the source of information and ground of belief was the insufficient information laid in Pennsylvania. That the fugitive must be charged with crime (which means charged lawfully by a person who has knowledge of its commission or is possessed of information which he must state under oath which would lead a reasonable and fair mind to infer its commission) is the primary and indispensable requirement to the institution of proceedings against a fugitive from the justice of a foreign jurisdiction.

This is not a case of defective or inaccurate complaint, the rectification or other disposition of which should be left to the foreign court. It is a case of no complaint, no charge, as those terms have legal significance. The authorities of this State must be legally apprised of the facts upon which the constitutional and statutory duty to deliver a citizen, inhabitant or temporary resident of this State depends.

The law has been recently restated by the Court of Appeals, in People ex rel. Livingston v. Wyatt, 186 N. Y. 386, at page 392: “ Suspicion is not enough, and information and belief are not enough, unless facts are stated showing the source of the information and the grounds of belief. The information should fairly warrant the inference by the magistrate that in good faith and on reasonable grounds the complainant believes that a definite crime has been committed by a designated person.”

In the light of this rule, it is impossible to hold, upon the information and warrant lodged against the relator in the State of Pennsylvania, that the relator was charged with a crime and fled from justice and was found within this State. The magistrate here, therefore, had no jurisdiction to issue his warrant; and the relator is unlawfully restrained in his liberty under that warrant. It was suggested on the argument, perhaps irrelevantly, that the relator was not a desirable person. He is entitled, however, together with all citizens, to such protection as the law gives to all. It is important that the proper demands of other States should be respected, fugitives should be apprehended, crime should he punished; but it is far more important that unauthorized arrests should not be countenanced.

There are abundant authorities, culling from which is needless, compelling the determination about to be made. Hyatt v. People ex rel. Cockran, 188 U. S. 691; Matter of Reggel, 114 id. 642; Ex parte Joseph Smith, 3 McLean, 121, 135, 136; Lawrence v. Brady, 56 N. Y. 182.

Let a final order he entered discharging the relator forthwith, unless he he held under some other process or warrant.

Ordered accordingly.  