
    SUPREME COURT—SPECIAL TERM—NEW YORK,
    February, 1915.
    THE PEOPLE EX REL. DEBONO v. BOARD OF POLICE OF NEW YORK.
    (89 Misc. 248.)
    Extradition—Warrant of, on charge of murder—When relator has THE RIGHT UPON RETURN OF WRIT OF HABEAS CORPUS TO TRAVERSE THE FINDING UPON JURISDICTIONAL QUESTION-WHEN RELATOR SHOULD BE DELIVERED UP FOR TRIAL.
    Where relator is held under an extradition warrant on a charge of murder, issued by the governor of this state upon the demand of the governor of a sister state, relator has the right upon the return of a writ of habeas corpus issued pursuant to section 827 of the Criminal Code to traverse the finding upon the jurisdictional question whether he was within the demanding state at the time of the commission of the alleged crime.
    Where relator denied he was in the demanding state on the day the crime was alleged to have been committed, but from the testimony, though conflicting, a reasonable inference can be drawn that he was within the demanding state at said time, he should be delivered up for trial, for the presumption raised by the face of the extradition warrant is not overcome.
    Habeas corpus proceedings.
    
      Mark Alter, for relators.
    
      Stanley Richter, for respondent.
   Lehman, J.:

The relator Velodi is held under a warrant issued by the governor upon the demand of the governor of Virginia on a charge of murder alleged to have been committed in Alexandria county, Va., on the 9th day of January, 1915. The relator, upon the return of a writ of habeas corpus, issued pursuant to section 827 of the Code of Criminal Procedure, denies that he was present in the state of Virginia on that day. In the case of McNichols v. Pease, 207 U. S. 100, the Supreme Court of the United States, in an opinion by Mr. Justice Harlan, stated that after a demand is made for the extradition of an alleged fugitive from justice charged with a crime upon papers in proper form by the governor of one state upon the governor of another state, “ if it be determined that the alleged criminal is a fugitive from justice—whether such determination be based upon the requisition and accompanying papers in proper form, or after an original independent inquiry into the facts—and if a warrant of arrest is issued after such determination, the warrant will be regarded as making a prima facie case in favor of the demanding State, and as requiring the removal of the alleged criminal to the State in which he stands charged with crime, unless in some appropriate proceeding it is made to appear that he is not a fugitive from the justice of the demanding State. A proceeding by habeas corpus in a court of competent jurisdiction is appropriate for determining whether the accused is subject, in virtue of the warrant of arrest, to be taken as a fugitive from the justice of the State in which he is found to the State whose laws he is charged with violating. One arrested and held as a fugitive from justice is entitled of right, upon habeas corpus, to question the lawfulness of his arrest and imprisonment, showing by competent evidence, as a ground for his release, that he was not, within the meaning of the Constitution and laws of the United States, a fugitive from the justice of the demanding State, and thereby overcoming the presumption to the contrary arising from the face of an extradition warrant.” Under the authority of this case, as well as under the authority of the opinion of the Court of Appeals of this state in the case of People ex rel. Corkran v. Hyatt, 172 N. Y. 176, there can be no .question but that the relator has upon the return of a writ of habeas corpus the right to traverse the finding of the governor upon the jurisdictional question of whether he is a fugitive from the justice of the state of Virginia, or, in other words, whether he was within the state of Virginia at the time of the commission of the alleged crime. At the oral hearing upon the trial of this issue it was conceded that the alleged murder was committed within a half hour after midnight on January ninth. The relator positively denied that he was in Virginia, or outside of New York city, at any time during the month of January, and testified to his doings at each hour of January ninth. He further produced one witness who testified that she went with the relator to a moving picture show on the night of January nine and returned home with him about ten o’clock, and another witness who testified that he was with him from ten-thirty till after one that night. Of course, if that testimony is true, then the relator could not have been in Virginia at the time of the commission of the alleged crime, and is, therefore, not a fugitive from justice within the meaning of the Constitution. On the other hand the state of Virginia produced two witnessed who testified positively that they saw the relator within a mile of the place where the murder was committed at half-past nine that night. The question, therefore, presented before me is whether this testimony of the relator, contradicted as it is by testimony produced by the state of Virginia, is sufficient to overcome the presumption arising from the face of the extradition, warrant. In the case of McNichols v. Pease, supra, the court stated that “ when a person is held in custody as a fugitive from justice under an extradition warrant in proper form, and showing upon its face all that is required by law to be shown as a prerequisite to its being issued, he should not be discharged from custody unless it is made clearly and satisfactorily to appear that he is not a fugitive from justice within the meaning of the Constitution and laws of the United States.” Upon the question of whether evidence produced by the relator, which is substantially contradicted, is sufficient for such purpose, there seems no judicial unanimity. In the case of People ex rel. Genna v. McLaughlin, 145 App. Div. 513, followed by the court in People ex rel. Fuchs v. Police Commissioner, 83 Misc. Rep. 643, the Appellate Division of the Second Department stated: “ The true rule should be that this question of jurisdictional fact must be determined by the court as any other question of fact which it has the power and duty to determine, according to the rule of the common law as to the preponderance of evidence.” This statement of the rule of law was, however, in nowise required by the decision in that case and is in direct conflict with the statement of the law laid down, though also only as a dictum, in the case of Munsey v. Clough, 196 U. S. 691. “ When it is conceded, or when it is so conclusively proved that no question can be made that the person was not within the demanding State when the crime is said to have been committed, and his arrest is sought on the ground only of a constructive presence at that time in the demanding State, then the court will discharge the defendant. Hyatt v. Corkran, 188 U. S. 691, affirming the judgment of the New York Court of Appeals. 172 N. Y. 176. But the court will not discharge a defendant arrested under the governor’s warrant where there is merely contradictory evidence on the subject of presence in or absence from the State, as habeas corpus is not the proper proceeding to try the question of alibi or any question as to the guilt or innocence of the accused.” Such a statement of the law, even though obiter, can hardly be swept away lightly as a dictum, especially when it is in line with the views expressed by the Court of Appeals in People ex rel. Corkran v. Hyatt, supra. It seems to me that the true rule is that in order to constitute clear and satisfactory proof the evidence produced by the relator must be either undisputed or at least so convincing that the court can reasonably hold that the relator should not be put on trial. If the testimony produced is so conflicting that a reasonable inference can be drawn that the relator was within the demanding state at the time of the commission of the alleged crime, then the relator should be delivered up for an orderly trial, for the presumption raised by the face of the warrant is not overcome. In this case the conflict of evidence is certainly substantial, and I believe, even if measured by the rule of preponderance of evidence, the relator has failed to show that he is not a fugitive from justice. Writ is, therefore, dismissed.

Writ dismissed.  