
    The People of the State of New York ex rel. Leona Coine, Appellant, v. Thomas J. Reilly, a Police Officer of the City of New York, Respondent.
    Second Department,
    February 14, 1930.
    
      K. Henry Rosenberg, for the appellant.
    
      Henry J. Walsh, Assistant District Attorney [George E. Brower, District Attorney, with him on the brief], for the respondent.
   Per Curiam.

The relator has been indicted in Cook county, 111., charged with the crime of making a false return of an election in violation of section 5 of article VI of chapter 46 of the Illinois Revised Statutes.

It also appears that in or about the month of October, 1927, the relator was convicted in the County Court of Cook county, 111., of the offense of contempt of court under another provision of the same statute and sentenced to the county jail for one year. This conviction was affirmed in the appellate courts of Illinois. Subsequently she was indicted for the crime of making a false return of an election, and it is under this indictment that her extradition is sought, it being claimed that she is a fugitive from justice in the State of New York.

The relator contends that it appears conclusively that she has already been convicted and sentenced for the very same acts constituting the crime for which she has been indicted, and that her prosecution under this indictment would be subjecting her to double jeopardy, and consequently that, in the present habeas corpus proceeding and for the purpose of preventing extradition, the appellant is entitled to show that she has already been convicted for the acts constituting the crime charged in the indictment, and, because of that fact, the Constitution bars further prosecution and that the writ should be sustained and the relator discharged.

We are of the opinion that the issue' of former jeopardy cannot be raised in this proceeding in this State. It is a matter of defense before the court wherein the indictment is pending. (Matter of Bloch, 87 Fed. 981; Munsey v. Clough, 196 U. S. 364.)

The order dismissing the writ of habeas corpus should be affirmed and the relator remanded to the custody of the agent of the State of Illinois pursuant to the warrant of the Governor of the State of New York.

Lazansky, P. J., Young, Kapper, Hagarty and Carswell, JJ., concur.

Order dismissing writ of habeas corpus affirmed and relator remanded to the custody of the agent of the State of Illinois pursuant to the warrant of the Governor of the State of New York.  