CLARK and MACRAE, JJ., dissent. The defendants were arrested, and are now held under the statute (The Code, sec. 1165), which provides that any one of certain judicial officers therein named, "on satisfactory information laid before him that any fugitive 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, shall have full power and authority, and is hereby required to issue a warrant for said fugitive, and commit him to jail within the State for the space of six months, unless sooner demanded by the authorities of the State wherein the offense may have been committed, pursuant to the act of Congress in that case made and provided," etc. It is manifest that the prisoners cannot be lawfully detained, under the unmistakable language of the law, unless it has been made to appear that they are liable to extradition under the act of Congress, passed in pursuance of Article IV, section 2, clause 2, of the Constitution of the United States, in order *Page 567 to provide for the surrender of persons charged with criminal offenses "who shall flee from justice and be found in another (814) State."
The prisoners were tried for murder in Cherokee County, and, upon appeal, it was held (114 N.C. 909) that if the deceased, at the time of receiving the fatal injury, was in the State of Tennessee, and the prisoners were in the State of North Carolina, the courts of the former Commonwealth alone had jurisdiction of the offense. The prisoners, if such were the facts, were deemed by the law to have accompanied the deadly missile sent by them across the border, and to have been constructively present when the fatal wound was actually inflicted. As our statute confers no power to detain in custody, or to surrender at the demand of the Executive of another State, any person who does not fall within the definition of a fugitive from justice according to the interpretation given by the courts of the United States to the clause of the Federal Constitution providing for interstate extradition, and the act of Congress passed in pursuance of it, the only question before us is, whether a person can, in contemplation of law, "flee from justice" in the State of Tennessee when he has never been actually but only constructively within its territorial limits. Upon this question there is abundant authority, emanating not only from the foremost text-writers and some of the ablest jurists of the most respectable State courts, but from the Supreme Court of the United States, whose peculiar province it is to declare what interpretation shall be given to the Federal Constitution and the statutes enacted by Congress in pursuance of its provisions, which are declared by that instrument to be the supreme law of the land. If we can surrender under our statute only fugitives within the meaning of the act of Congress, it would seem sufficient to cite Ex parte Reggel, where it is held that a person arrested as a fugitive has a right "to insist upon proof that he was within the demanding State at the time he is alleged to have committed the crime charged, and consequently withdrew from her jurisdiction so that he could not be reached by her criminal (815) process." It is admitted that the prisoners have never withdrawn from the jurisdiction of the courts of Tennessee, and have never been, either at the time when the homicide was committed, or since, exposed to arrest under process issuing from them.
But in a case involving so important a principle, and calculated to excite general interest on the part, especially, of the legal profession, we feel warranted in not only citing but quoting from other authorities. Where a person is charged with cheating by false pretenses by means of a misrepresentation in writing, sent to another State, whereby he procures something of value in the State to which such writing goes, he is deemed to be constructively present where the false pretense is successfully *Page 568 used and where the money or property is obtained, and is consequently liable to be indicted and punished there, if he comes within the reach of the process of its courts. People v. Adams, 3 Denio (N. Y.), 190. But the Supreme Court of Alabama, in a case exactly in point(In re Mohr., 73 Ala. 63), state the principle applicable here with great clearness and force. The defendant was charged with cheating, by false pretense, a prosecutor in the State of Pennsylvania, though it was admitted that he had never actually gone within the limits of the State. The Court said: "It is clear to our minds that crimes which are not actually but are only constructively committed within the jurisdiction of the demanding State do not fall within the class of cases intended to be embraced by the Constitution or act of Congress. Such, at least, is the rule, unless the criminal afterwards goes into such State and departs from it, thus subjecting himself to the sovereignty of its jurisdiction. The reason is, not that the jurisdiction to try the crime is lacking, but that no one can, in any sense, be alleged to have fled the State in the domain of whose territorial jurisdiction he has never been (816) corporally present since the commission of the crime." That Court cited, to sustain this view, among other authorities, Wharton's Criminal Pleading (8 Ed.), 231; Kingsbury's case, 106 Mass. 223;Ex parte Smith, 3 McLean, 121, and Wilcox v. Noyle, 34 Ohio St. 520. Bouvier (Law Dict., 551) defines a fugitive from justice as "one who, having committed a crime within one jurisdiction, goes into another in order to evade the law and avoid punishment." The same writer says also that the Executive of a State cannot be called upon to deliver up a person charged with a criminal offense in another State, unless it appear that such person "is a fugitive from justice." Rapalje (Law Dict., 555) defines a fugitive from justice as "one who, having committed a crime in one jurisdiction, flees therefrom into another jurisdiction in order to escape punishment." See, also, 1 Abbott's Law Dict., 508, for definition of "fleeing."
To hold that a person, who is liable to indictment only by reason of his constructive presence, is a fugitive from the justice of a State within whose limits he has never gone since the commission of the offense, involves as great an error as to maintain that one who has stood still and never ventured within the reach of another has fled from him to avoid injury. One who has never fled cannot be a fugitive. Jones v. Leonard,50 Iowa 106; 7 A. E., 646, and note 1, and 647. 2 Moore Extradition, sec. 582, et seq., after quoting the extract already given from Reggel's case, cites a number of other cases wherein Governors of States, under well-considered opinions of their legal advisers, have recognized and acted upon the principle that a person cannot be said to flee from a place where he has never actually been, but to which, by legal fiction, *Page 569 he is deemed to have followed an agency or instrumentality, put in motion by him, to accomplish a criminal purpose. Spear (Extradition, pp. 396 to 400) cites and discusses the authorities bearing upon the question whether a person can be a fugitive from a State into which he has never entered, and not only reaches the same (817) conclusion at which we have arrived, but maintains arguendo that a person who has been extradited as a fugitive cannot be sent back from the demanding State on requisition of the Executive who surrendered him, to answer a crime committed while he was a fugitive, because one who is forcibly taken away does not, in contemplation of law or in fact, flee from justice. The author says that, to assume that an abduction by force, though under legal process, is fleeing, "is a gross absurdity, quite as bad as the theory of fugitives by construction."
Had it not been provided by the Constitution of the United States (Art. IV, sec. 2, clause 2) that "A person charged in any State with treason, felony or other crime, who shall flee from justice and be found in another State, shall, on demand of the Executive authority of the State from which he has fled, be delivered up," etc., the States, as to the right to demand and the power to surrender fugitives from justice, would have sustained relations to each other analogous to those existing between independent nations. S. v. Cutshall, 110 N.C. 538. If no stipulation by treaty were now in force requiring the Government of the United States to surrender, on requisition of the authorities of Canada, persons charged with murder in that Dominion, those guilty of such crimes would find this country a safe asylum. In the absence of any provision of law imposing upon the Executive of the State of North Carolina the duty of surrendering, on requisition of the Governors of other States, any person charged with a criminal offense in the demanding States, except such as shall be shown to have fled from justice within the meaning of the Federal Constitution, the Governor must search in vain for authority to issue a warrant of extradition in a case like this before us, as was in effect conceded in In re Sultan, ante, 57.
While a statute passed now, and making it murder to wilfully put in motion within the State of North Carolina any force which should kill a human being in a neighboring State, might not be (818) amenable to such constitutional objection as that discussed inS. v. Knight, 1 N.C. 143, it would, as to this case, be an ex post facto law. But in the exercise of its reserved sovereign powers the State may, as an act of comity to a sister State, provide by statute for the surrender, upon requisition, of persons who, like the prisoners, are indictable for murder in another State, though they have never fled from justice. If it shall be proved that the prisoners were in fact in North Carolina and the deceased in Tennessee when the fatal wound was inflicted, a law may *Page 570 still be enacted giving the Governor the authority to issue his warrant and deliver them on requisition. Meantime, it may be asked, what can be done to provide for this casus omissus? We may answer, in the language of Spear,supra, p. 400: "Nothing, by any extradition process, until there is some authority of law for it. . . . State statutes may be enacted to furnish a remedy not now supplied by either Federal or State law." Were the courts, without any semblance of right, to supply the legislative omission, it would be a criminal usurpation of authority, more pernicious to the public interests than the escape of, not two, but scores of criminals. Appellate courts cannot deliberately legislate for the punishment of crime without incurring a moral accountability as grave as that of the criminal who suffers by the usurpation.
The Attorney-General, with commendable frankness, admitted that he could find no authority to sustain his contention. It is not pretended that a single appellate court, Federal or State, or a respectable law-writer, has given any other interpretation to the law than that adopted by us. Courts cannot amend or override constitutions and statutes, and, upon the higher-law idea, anticipate dilatory Legislatures by providing for the safety of the public in the event that anarchists should (819) project deadly missiles across a State border. Mobs can be suppressed under the common law, wherever they may assemble for an unlawful purpose and attempt to put such purpose into execution. But if they could not, it would be the duty of the Legislature, not of the courts, to provide for their suppression. If there is any foundation for apprehending that the disorderly elements of society are watching for opportunity to take life and destroy property, provided they can see a way of escape through the loopholes of defective laws, the representatives of the people must be trusted to meet, if not anticipate, emergencies as they arise. Neither actual nor possible consequences should deter judges from executing the law as it is plainly written. The argumentum abinconvenienti, when used to bring about a modification of a well-established principle of law, should be addressed to the lawmaker, whose province it is to provide a remedy for any evils growing out of its enforcement. Addressed to judges, under such circumstances, it is an invitation or a temptation offered to violate their sacred obligations in order to appease the public.
In S. v. Spier, 12 N.C. 491, the Supreme Court declared the prisoner entitled to his discharge upon a writ of habeas corpus, where the term of the court expired pending his trial for murder, because he could not be again put in jeopardy for that offense. The defect in the law was subsequently remedied by statute, allowing the court to continue into the next week if a felony were being tried when the week expired. But the Court, composed of Taylor, Hall, and Henderson, did not hesitate for a *Page 571 moment because a guilty man might escape. On the contrary, JudgeHall said: "The guilt or innocence of the prisoner is as little the subject of inquiry as the merits of any case can be, when it is brought before this Court on a collateral question of law." Courts enforce laws not simply to punish the guilty, but as well to protect the innocent. The law which fails to provide for the extradition of a guilty man must be understood and adhered to, because it may be invoked as (820) a protection to the innocent who are prosecuted without cause, against the annoyance, expense and invasion of personal liberty involved in being extradited. There was error. The prisoners should have been discharged.
Error.