In re Greenough

Bennett, J.

The second section of article four in the United States Constitution, provides that a person charged in any State with treason, felony or other crime, who shall flee from justice, and be found in any other State, shall, on demand of the executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime. The law of Congress, passed in 1793, provides for can-ying out this provision in the constitution. When the executive authority of a State shall demand a fugitive from justice, of the executive authority of the State to which the fugitive shall have fled, it becomes the duty of the executive authority of the latter State to surrender up the fugitive, that he may be carried back for trial, provided the requisition shall be accompanied with a copy of a bill of indictment found, or an affidavit, chan’ging the person *285 so demanded with having committed a crime, which bill of indictment, or affidavit, must be certified as authentic by the executive making the requisition. Greenough has been arrested upon the warrant of the executive of this State and delivered into the custody of the agent appointed by Gov. Bissell to receive him, and he now seeks to b s discharged upon habeas corpus, upon the ground that his imprisonment is illegal. It is a well settled principle that a habeas corpus will not lie, where the imprisonment is under voidable process, but only where the process is void. If the process is void, it is the same thing, as if there were no process, and then the party, in effect, is imprisoned without any authority whatever, and if in the case before us the executive of this State had no jurisdiction to issue his warrant, the whole proceeding may be regarded as coram non judice, and void, and Greenough should be discharged. If a warrant issues from a court of general jurisdiction, and is good upon its face, that is all that can be inquired into. If, however, the warrant is issued by a court having a special jurisdiction conferred by statute, then it is claimed that upon a habeas corpius it is proper to inquire whether the magistrate who issued the warrant had the case properly within his jurisdiction, so as rightfully to exercise the power which had been conferred upon him. For the purposes of the present decision, I have no objection to liken the executive of this State to a magistrate or court of a special and limited jurisdiction, and then see whether the person of Greenough and the subject matter are such as to .bring the case within the provisions of the constitution and the laws of Congress, and these must be the criteria of the jurisdiction of the executive. Greenough was clearly shown to have been a fugitive from justice, provided the complaint against him is such a subject matter as brings his case within the constitution and the laws of Congress. He had been demanded by the executive of Illinois of the executive of this State, as a fugitive from justice before the warrant was issued. The inquiry then arises, is the subject matter of the complaint against Greenough. within the constitution and the laws of Congress? The statute of Illinois enacts “ that if any person or persons shall knowingly and designedly by any false pretence or pretences obtain from any other person or persons any choses in action, money, *286 goods, wares, chattels and effects or valuable thing whatever, with an. intent to cheat and. defraud, upon conviction, he shall be declared a common cheat, and be subjected to fine and imprisonment,” etc., etc. The crime charged against Greenough in the bill of indictment, is a violation of this statute, and the precise question now is, shall we treat the crime of obtaining property by false pretences as within the constitution and laws of Congress ? In deciding this case we do not propose to go any further than the case calls for. It is claimed in argument that, the words in the constitution, “ treason, felony and other crime,” should be confined to crimes of great atrocity, and sucli as deeply concern the public safety, and are offences at common law; and that to include the crime with which Greenough is charged, as coming within the constitution, would be an act of despotism. If this case were to bo disposed of upon principles of international law and the courtesy of nations, treating the States as independent governments, there might be some plausibility, if not soundness, in the proposition that the exercise of the right should be confined to crimes of great atrocity, which deeply concern the public safety. But our constitution contemplates the exercise of a much broader power than was ever claimed to exist under the law of nations, independent of treaty stipulations, and it is a power most salutary in its general operation, inasmuch as it serves to discourage the commission of crime by cutting off to some extent the means of escape from punishment, and we trust the exercise of this power has hitherto been as useful in practice as its character is unexceptionable in principle. This provision in the constitution and laws of Congress has received a practical, uniform construction from Maine to Georgia, from an early day in our judicial history, if, indeed, it can be said to admit of construction. It has also been the subject of repeated judicial determination, and he must, I think, be a bold man, who at the present day is ready to hold that the subject matter of the complaint against Greenough is not within the constitution and laws of Congress. The language is broad and the crime charged is within its letter, and I apprehend, equally within the reason and spirit of the provision. It has been frequently held that the crime charged need not be a felony in the State where it is *287 alleged to have been committed, or an offence at common law.

In Clark’s case, 9 Wend. 218 , the charge was against the president of a bank in Rhode Island for a fraud in abstracting the funds of the bank to his own use in violation of the fiduciary-trust reposed in him, which was made criminal by a statute of Rhode Island, and this was held to be a crime within the constitution and laws of Congress. So in re Samuel Adams, 7 Law Reporter 386 , the charge was for obtaining property by false pretences, and the prisoner was given tip as a fugitive from justice. See also, Johnson v. Riley, 13 Georgia 97, and Fuller’s case, 3 Zabriskie (N. J.) 311.

No case has been cited in the argument in which it was held that the subject matter of the charge against Greenough was not within the constitution and law of Congress, and I am aware of no adjudged case to that effect.

We are not called upon to lay down any general rules as to what particular crimes will come within the constitution, and what will not, and we deem it unwise and a work of supererogation to attempt it. It is far better to let each case be decided as it shall arise. It is quite possible that the general term, “ or other crime,” in the constitution, should be limited by the words which precede it, so to include only crimes of a similar genus to those which may be denominated felonies, and no one can fail to see that the obtaining of goods by false pretences is a crime nearly allied to theft, and can hardly be regarded as less base, and even in many instances the distinction between them is very subtle. This provision in the constitution relative to fugitives from justice was wisely made a part of the original compact between the States, and it is in the nature of a treaty stipulation, and is eminently calculated to promote harmony and good feeling between them. The well working of our national government is intimately connected with this provision, and its just and salutary execution.

While on the one hand the liberty of the subject should be scrupulously guarded, and all his rights held sacred, yet on the other, we should not forget that it is abhorent to a proper administration of criminal justice and to the security and welfare of *288 the different States, that persons who have committed crimes in one State should find an asylmn from justice in another.

No question has been made as to the regularity of the papers accompanying the requisition of the executive of Illinois, or of their due authentication. The bill was found by a grand jury of the recorders court in the city of Chicago, and is exemplified according to the law of Congress. We have also an exemplified copy of the statute of Illinois, and the affidavit of A. M. Crane, duly authenticated, showing that Greonough is in fact a fugitive from justice from Illinois, and these papers with the executive’s requisition were all filed in the executive department of the government of this State, and accompany the executive’s warrant for the arrest and surrender of Greenough, and are referred to and made a part of the return upon the habeas corpus.

It has been claimed in argument that the facts charged in this indictment do not constitute the offence of obtaining goods by false pretences under the statute of Illinois. If this objection was one which went to show that the executive of this State had no jurisdiction to issue his warrant in this particular case, it might with some propriety be claimed that the whole proceeding was coram non juclice, and the imprisonment illegal. But it has been held, and for one, I think the view a sound one, that if the warrant is duly issued, the court, upon habeas corpus, can go behind it, only so far as to entertain a question as to the identity of the alleged fugitive, and so it was held in the case of the State v. Buzine, 4 Harrington 572 , and State v. Schlemn, 4 Harrington 577 , and also in State v. Daniels, 6 Penn. Law Journal 417, note. See also Clark’s case, 9 Wend. 218 . The court; upon the habeas corpus, can not pronounce upon the guilt or innocence of the alleged fugitive. That must be left to the courts of that State, where the crime is alleged to have been committed. If the charge is by way of affidavit against the alleged fugitive, and it appears clearly from the whole facts stated in the affidavit taken together, that no crime had been committed, it might with some show of reason be claimed that the subject matter was not within the provisions of the constitution and act of Congress, and therefore as to the jurisdiction of the executive to issue the *289 warrant, the whole matter would be non coram juclice. The case in 1 Parker’s Criminal Law Rep. 429, in re Heilbonn, is of this character. But that is far from being this case. Here the charge against the alleged fugitive is by a bill of indictment found by a grand jury, and whether the bill charges an indictable offence under the statute of Illinois, should be left to the determination of the courts of that State. If it should be determined that the crime of obtaining property by false pretences was not set out in the indictment, so as to make a case under their statute, it would not go to the jurisdiction of the court which was empowered to try the crime in question. No one would claim this, and it would be passing strange if the same objection could be urged to show that the executive had no jurisdiction to issue his warrant upon such a complaint. The language of the constitution and law of Congress only requires the alleged fugitive to be charged with “ treason, felony, or other crime.” We apprehend it would be an abuse of language, not to hold that Greenough was charged by this indictment with the., crime of obtaining property by false pretences., whether it is in fact a case within the Illinois statute or not. It, at all events, gave to the executive, when accompanied with the other papers in the case, a colorable authority to issue his warrant, and if this was colorarble proof to authorize the process, we can not, I think, upon habeas corpus, hold that it was a matter non coram judice. Errors of judgment can not be reviewed upon habeas corpus.

The executive, in one sense acts ministerially in issuing his warrant, in another judicially. So far as it is his duty to see that the case is a proper one for issuing his warrant, the character of his acts is strictly judicial. In re Prime, 1 Barb. 351 , it was held that even in a case of special jurisdiction, if there was colorable proof to authorize the process, it was enough, and that the exercise Bf the judgment of the magistrate in awarding the process; could not be attacked on habeas corpus.

But we think the executive had something more than a colorable authority for issuing his warrant, and that the subject matter of this indictment was not only colorable, but was really such as to bring the case within the law of Congress, that not only the crime, as created by the Illinois statute, of obtaining property *290 by false pretences is within the law of Congress, but that this indictment shows a ease in fact and in law within the statute of Illinois. It is claimed in argument that the means used by Greenough, as charged in the indictment, do not constitute a false and fraudulent pretence. The pretence, as charged, is the false and fraudulent representation that a certain recipe in writing-, combining certain articles, would produce, as a compound, a nonexplosive burning-fluid and camphene, of great value. The bill negates in toto the truth of the representation, and charges upon Greenough a scienter of its falsity, and fraud also, and that the vendee purchased the recipe for the sum paid by him as alleged in the bill, relying upon the representations of Greenough. If the means used by Greenough constitute a false pretence, I do not understand it is claimed that this is not a case within the Illinois statute. I am not aware what the decisions of the Illinois courts have been on this statute, but I presume they have been, and will be, in unison with those of other courts upon similar statutes. The statute of Illinois is equally broad with the English statute of George IV. and the statutes of other States, and it was designed to proteot the weaker part of mankind, and it has been held to be law at the present day, that it is none the less a false pretence, although the party imposed upon might by common prudence have avoided the imposition. If he was in fact imposed upon, it is no good reason for the offender to allege, that by use of due diligence or ordinary care the imposition might have been prevented. See 2 East Pleas of Crown 828; Rex v. Wickham, 10 Adol. & E. 34; Rex v. Woolley, 1 Den. C. C, 559; Commonwealth v. Henry, 10 Harris 256.

But suppose the rule to be, that the representation must be calculated to deceive persons of ordinary prudence, it would not alter the result of our argument. It would then be a question of fact ftp? the inquiry of a jury under the circumstances of each particular case. It may in truth be said that every false assertion is not a false pretence, but if it requires something to be done, by the application of tests or otherwise, to ascertain whether the representation is false, it then becomes a false pretence. See Rex v. Ball, 2 Russ. on Crimes 289. In this case, it was matter of experiment whether the ingredients specified in the *291 recipe would produce as a compound “ a non-explosive burning-fluid.” The falsity of the representation by Greenough was not to be discovered upon ocular inspection of the ingredients, but by the tests of chemical analysis, or actual experiment. The representation to constitute a false pretence must be of an exists ing fact, it is true, yet it is no objection that it has relation to a future event, as where the representation by the persons was that they had betted that a person named would walk a given distance in a given time, and should probably win the bet, and thus procured money towards the bet. See Roscoe Evi. 466; Young’s case, 3 Term 98; Rex v. Christey, 1 Cox C. C. 239. False pretences referring to future transactions are brought within the statute. Greenough is chargeable with the false representation of an existing fact, which would produce a future result; that is, that certain ingredients, then in a simple state, when combined, would produce a given result.

We apprehend the representation made by Greenough did constitute a false pretence within the statute in analogy to repeated decisions. A carrier pretended he had carried certain goods to a consignee, and thereupon demanded and received of the consignor his pay for the carriage, and this was held to be a case within the statute, Rex v. Coleman, 2 East. P. C. 672. See the cases collected in Archibald C. P. 347-8 and 2 Russ. on Crimes 286, sec. 2; People v. Kendall, 25 Wend. 399 and in State v. Mills, 17 Me. 211 , it was represented by the owner of a horse'; that he was called the Gharley, and by means of this false representation he procured an exchange of horses ; it was held that it was a false pretence within the statute and the indictment was sustained, although the horse, falsely called the Gharley, was of equal value to the one received in exchange, and as good a horse as the real Gharley horse.

But suppose for argument sake, we admit it to be fairly a debatable point, whether this indictment states a case within the Illinois statute or not, would that have the effect to render the warrant of the executive void f If so, it must be upon the ground that it showed a want of jurisdiction in the executive to issue his process, and this, I think, no one can well claim. To claim this *292 would be to claim that the executive must be held responsible for a right determination of the question.

On the whole, a majority of the court are clearly of the opinion that Greenough is not illegally restrained of his liberty, and he is therefore remanded into the custody of the agent appointed by the executive of Illinois to receive him, that he may be taken to that State and there dealt with according to law.

Poland and Aldis, J. J., dissented.