(concurring in result).
I concur in the result of the majority opinion, but I do not fully concur in the reasoning, as it seems to me by necessary in*91ference from the language of the opinion, it holds that an indictment, in order to comply with section 5278 of the United States Revised Statutes (18 USCA § 662), must comply with the Fifth Amendment to the Federal Constitution as interpreted in Ex parte Bain, 121 U. S. 1, 7 S. Ct. 781, 30 L. Ed. 849; Ex parte Hart (C. C. A.) 63 F. 249, 28 L. R. A. 801, or with an indictment at common law. It fails to recognize that the Fifth Amendment or the rules followed in the federal courts as to the sufficiency of indictments do not control the criminal procedure in the states.
In respect to the methods of charging a person with a crime, the states reserved that prerogative to themselves. As the Supreme Court said In the Matter of Strauss, 197 U. S. 324, 331, 25 S. Ct. 535, 536, 49 L. Ed. 774: “Under the Constitution each state was left with full control over its criminal procedure.” And as the Supreme Court also said in Pierce v. Creecy, 210 U. S. 387, 404, 28 S. Ct. 714, 719, 52 L. Ed. 1113, in defining the word “charged” as used in the Constitution and section 5278: “Doubtless the word 'charged’ was used in its broad signification to cover any proceeding which a state might see fit to adopt, by which a * * * formal accusation was made against an alleged criminal.”
In other words, the issue before this court on habeas corpus proceedings in extradition eases is not whether the indictment conforms to the rules of criminal proceedings practiced in the federal courts, but whether the alleged fugitive has been charged with an offense in accordance with the constitution and laws of the demanding state.
Ex parte Hart, which seems to require that an indictment shall comply with the practice in federal courts, has never been follovred in any later case. On the contrary, the cases cited above indicate that it is to the state Constitution and laws to which we must turn for tests in the matter of extradition, and if the charge by indictment or affidavit is sufficient under the laws of the demanding state to warrant an arrest in that state, it is sufficient on which to base extradition, Webb v. York (C. C. A.) 79 F. 616, 621; In re Reggel, 114 U. S. 642, 651, 5 S. Ct. 1148, 29 L. Ed. 250; Pearce v. Texas, 155 U. S. 311, 313, 15 S. Ct. 116, 39 L. Ed. 164, assuming, of course, there is no violation of the Fourteenth Amendment.
It is, of course, apparent that the indictment as found hv the grand jury in this case was not sufficient on which t'o issue a warrant for an arrest, but a state in liberalizing its criminal procedure — of which there is now a persistent demand — may provide by statute, if not inconsistent with its Constitution, in the case of a person indicted under a fictitious name, that if his true name is later discovered and entered on the records of the court, an arrest and prosecution may follow. Chapter 277, section 19 of the Gen. Laws of Massachusetts is an instance; and if in the ease of Com. v. Gedzium, 259 Mass. 453, 156 N. E. 890, after his true name was discovered and had been entered on the records of the court, I think an authenticated copy of the indictment and of the record of the court would have been sufficient on which to have obtained his extradition, if he had been a fugitive from justice.
I do not agree, as is intimated in the majority opinion, that any attempt was made in this ease to amend the indictment by the district attorney, or that amendments under sections 293 and 294 of the New York Code of Criminal Procedure, could have any bearing on extradition proceedings. These sections refer only to amendments during the trial, but whether the district attorney attempted to insert the true name of the respondent in this case in “subsequent proceedings” after the indictment, in accordance with section 277 of the New York Code of Criminal Procedure, or whether an arrest of the petitioner could now he had in New York on this indictment, is not made clear on the record in this ease. For this reason I concur in the result.