It appears from the record that the petitioner, M. M. Veasey, was arrested on a warrant issued by P. T. Perry, a justice of the peace of Bertie County, charging him, under C. S., 4550, with having uttered a worthless check in the State of Georgia, contrary to the criminal laws of the state, and with being a fugitive from the justice of the said state.
Pending a hearing upon said warrant, the defendant therein sued out a writ of habeas corpus to test the validity of his arrest and restraint of liberty, and "while in the process of this (habeas corpus) hearing, J. W. Cooper, sheriff of Bertie County, in open court, served extradition warrant, issued by the Governor of North Carolina, upon the same charge as contained in the said warrant of P. T. Perry, justice of the peace," etc.
To review the order of discharge, upon the grounds above stated, application for writ of certiorari was duly filed in the Supreme Court, and writ ordered to issue. *Page 664 The petitioner, M. M. Veasey, was arrested under C. S., 4550, which provides that any Justice of the Supreme Court, or any judge of the Superior Court or of any criminal court, or any justice of the peace, or mayor of any city, or chief magistrate of any incorporated town, on satisfactory information laid before him that any fugitive or other person in the State has committed, out of the State and within the United States, any offense which, by the law of the state in which the offense was committed, is punishable either capitally or by imprisonment for one year or upwards in any state prison, has full power and authority, and is required, to issue a warrant for such fugitive or other person and commit him to any jail within the state for the space of six months, unless sooner demanded by the public authorities of the state wherein the offense may have been committed, pursuant to the act of Congress in that case made and provided, and if no such demand be made within that time the person arrested is entitled to be liberated, unless sufficient cause be shown to the contrary.
It was on a warrant, issued by virtue of this statute, that the petitioner was held at the time he sued out a writ of habeas corpus.
Upon the findings made by his Honor below, and the conclusions drawn therefrom, we are of opinion that no error was committed in the order of discharge from arrest under the warrant issued by P. T. Perry, justice of the peace.
It appears, however, that during the habeas corpus proceeding, the sheriff of Bertie County, in open court, served upon the petitioner an extradition warrant issued by the Governor of North Carolina for the arrest of the accused on the same charge as that contained in the warrant of the justice of the peace.
Application for writ of certiorari was made to this Court to review the action of the judge in not holding the accused under the extradition warrant of the Governor, but this warrant is not in the record and apparently it was not offered on the hearing as the sheriff's authority for holding the accused.
One who is sought to be extradited may contest the validity of the extradition proceedings on writ of habeas corpus by showing (1) that he is not charged with a crime in the demanding state, or (2) that he is not a fugitive from the justice of the demanding state. Both of these are jurisdictional matters, and, if the accused can establish either, he is entitled to be discharged from custody. The first is a question of law *Page 665 to be determined upon the face of the requisition and the indictment or affidavit accompanying it, the law of the demanding state, of course, furnishing the test, while the second is a question of fact which, when controverted, may be established by evidence like any other disputed fact.Com. ex. rel. Flower v. Supt. of Prison, 220 Pa., 401, 69 A. 916, 21 L.R.A. (N.S.), 939; S. v. Adams, 192 N.C. 787, 136 S.E. 116.
On receipt of a requisition in proper form, it is the duty of the governor of the asylum state, under the Federal Constitution (Art. IV, sec. 2) and act of Congress (U.S. Comp. Stat., 1918, sec. 10126), to issue his warrant for the arrest of the accused. This, when challenged on habeascorpus proceeding, should disclose on its face: (1) That a demand by the executive has been made for the party in custody as a fugitive from justice, and that the demand is accompanied by a copy of the indictment or affidavit, charging him with having committed a crime within the demanding state; (2) that the copy of such indictment or affidavit was certified as authentic by the governor of the state making the demand; and (3) that the person demanded is a fugitive from justice. Roberts v. Reilly, 116 U.S. 80;Ex parte Reggel, 114 U.S. 642.
It is the generally accepted rule that an accused, held in the asylum state on an extradition warrant, issued pursuant to the requisition of the executive of the demanding state, cannot defeat his extradition by proof, on habeas corpus proceeding, of his innocence of the charge for which it is sought to extradite him, since the right to extradite does not depend on guilt, but on flight from charge of guilt. Ex parte Larney, 4 Ohio N. P., 304. Thus, it is the holding in many jurisdictions that the courts of the asylum state will not, on habeas corpus hearing, inquire into the guilt or innocence of the accused. This is a matter for the courts of the demanding state. Drew v. Shaw, 235 U.S. 432; Munsey v. Clough, 196 U.S. 364; Note, 21 L.R.A. (N.S.), 939.
In the instant proceeding the learned judge may have assigned, in part at least, the wrong reason for his judgment, if the extradition warrant were considered by him, but as the record fails to show any criminal charge against the accused in the State of Georgia — the requisition papers not having been sent up — we cannot say that the error, if any, is reversible.
On certiorari, as well as on appeal, the party who alleges error must show it. It is not presumed. Jones v. Candler, ante, 382.
Affirmed. *Page 666