(concurring in the result).
I am unable to concur except in the result of the opinion of the majority, as it seems to me to misinterpret section 5278 of the Revised Statutes (18 USCA § 662) governing extradition, which the opinion construes in the light of the Fourth Amendment of the Federal. Constitution. The Fourth Amendment has nothing to do with the forms of complaints, or the grounds on which a warrant for arrest may be issued in the several states.
The opinion states that “it is well settled that the affidavit called for by section 5278 when so construed, is an affidavit stating facts of the affiant’s own knowledge, which would be admissible in evidence and sufficient to warrant a finding of probable cause of the commission of the offense by the person charged therewith;” but the eases, with the exception of Ex parte Hart (C. C. A.) 63 F. 249, 28 L. R. A. 801, cited in support of the statement, viz. Wagner v. United States (C. C. A.) 8 F.(2d) 581; Schencks v. United States, 55 App. D. C. 84, 2 F.(2d) 185; Rice v. United States (C. C. A.) 24 F.(2d) 479; Ripper v. United States (C. C. A.) 178 F. 24, 26, are all eases involving federal offenses and the issuing of search warrants under the Fourth Amendment of the Federal Constitution, and sections 613, 614, and 615 of title 18, USCA, and, of course, must conform thereto; but they do not eontrol the issuing of warrants on complaints or affidavits in the several states. In the Matter of Strauss, 197 U. S. 324, 331, 25 S. Ct. 535, 536, 49 L. Ed. 774; Pierce v. Creecy, 210 U. S. 387, 404, 28 S. Ct. 714, 719; 52 L. Ed. 1113; Webb et al. v. York (C. C. A.) 79 F. 616.
It is perfectly clear that what is meant by the affidavit referred to in section 5278 is an affidavit made for the purpose of instótuting proceedings in a state court for the arrest of the accused and the eventual determinationof his guilt or innocence of the crime charged in' the affidavit, which is complied with by what is commonly termed a complaint under oath. •
The people in adopting the first ten amendments not only reserved the determination of the form in which charges should be made against persons accused of offenses against a state and on what evidence warrants of arrest may be issued, but by the Fourth and Fifth Amendments they placed certain inhibitions on the federal authorities in criminal proceedings against a citizen. To hold that Congress has imposed any restrietions upon the powers reserved to the states in such matters is contrary to the spirit in which these amendments were added to the original Constitution, and is in violation of the prerogatives expressly reserved to the states, The case of Ex parte Hart relates to an information, unverified on oath, and has not been followed nor cited in any later extradition ease in support of the rule stated in the opinion, nor does the case itself go that far. Oh the contrary, it has been expressly held, as stated above, in the eases of In the Matter of Strauss and in Pierce v. Creeey, that the Federal Constitution does not eon-trol the manner in which the “charge” shall be made in the demanding state, nor does section 5278, except that it shall be by indietment, or an affidavit before a magistrate,
In fifie matter of Strauss,' supra, in eon-struing section 5278, Rev. St., the court said: “Under the Constitution each state was left -^th full control over its criminal procedure, Uo one could have anticipated what changes any state might make therein, and doubtless wor¿ ‘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 eriminaj_ Jn the strictest sense of the term a party is charged with crime when an affidavit js filed, alleging the commission of the offense, an¿ a -waxcsait is issued for his arrest; and this ig true whether a final trial may or may not ^ fiafi upon such charge.”
And in Pierce v. Creecy, supra, the court said: “But the Constitution does not reqmre, as an indispensable prerequisite to interstate ^tradition, that there should be a good mdietment, or even an indictment of any kind. It requires nothing more than a charge of crime. Congress, in aid of the execution of the constitutional provision, has enacted a law — § 5278, Rev. Stat. [18 USCA § 662]— directing that the charge shall be made either fiy ‘an indictment found’ or ‘an affidavit made before a magistrate;’ and, as we have seen, this court has held that such an affidavit is sufficient, saying ([In re Strauss] 197 U. S. 331, 25 S. Ct. 537, 49 L. Ed. 778): ‘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 arL alleged criminal.’ ”
The federal question, therefore, involved in section 5278 is whether a charge has been made against the alleged fugitive from justice by indictment, or affidavit before a mag*197istrate, in accordance with, the Constitution and laws of the demanding state, and not whether it has been made in accordance with the Fourth or Fifth Amendment to the Federal Constitution, or any federal statute, though the requirements may, in terms, be substantially the same.
The county attorney of Hennepin county, Minn., properly based Ms petition to the Governor of that state for the extradition of Huie Fong on the complaint and warrant alone. The complaint was positively sworn to as true; a warrant was issued thereon with a return by an officer nine months thereafter of non est inventus. No more was required under section 5278 to warrant extradition, unless evidence in the form of affidavits or otherwise, satisfactory to the Governor of Massachusetts, and sufficient to satify him that the person so charged was a fugitive from justice in Ms state. In the Matter of Strauss, supra; Compton v. Alabama, 214 U. S. 1, 29 S. Ct. 605, 53 L. Ed. 885, 16 Ann. Cas. 1098, affirming 152 Ala. 68, 44 So. 685; Chandler v. Sipes, 103 Neb. 111, 170 N. W. 604; Morrison v. Dwyer, 143 Iowa, 502, 121 N. W. 1064; Ex parte Flournoy, 310 Mo. 355, 275 S. W. 923; People v. Chief of Police, 97 Misc. Rep. 254, 162 N. Y. S. 845; State ex rel. v. Goss, 66 Minn. 291, 68 N. W. 1089; State ex rel. v. Curtis, 111 Minn. 240, 242, 126 N. W. 719. That this petitioner was a fugitive from justice might even have been inferred from the return of the warrant issued on the complaint before tbe magistrate in Minnesota.
While the demand of the Governor of Minnesota on the Governor of Massachusetts states that “it appears by the complaint and accompanying affidavits” that Huie Fong stands charged with the crime of murder and is now a fugitive from justice, and may have taken refuge in the state of Massachusetts, it surely does not follow, in view| of the authorities above cited, that the accompanying affidavits were necessary to comply with section 5278, Rev. St. (18 USCA § 662), or that they must be read together with the complaint for that purpose. No doubt they were intended for the consideration of the Governor of Massachusetts. That they were necessary under section 5278 to warrant compliance with the demand of the Governor of Mmnesota I do not agree, unless the Governor of Massachusetts required additional evidence to that contained in the complaint and warrant that the accused was a fugitive from justice and had taken refuge in Massachusetts.
It is also quite obvious that the affidavit of the officer Mullen, to which the dying declaration was attached, was not made in connection with the complaint, but was made nine months later, either to comply with some rule adopted by the executive department in Minnesota in relation to extradition proceedings or to eomply with section 11 of chapter 276, G. L. Mass.
Such a rule or statute in a demanding state might be construed as in aid of section 2 of article 4 of tbe Federal Constitution, and not contrary to the provisions of section 5278, but, if a statute in a state of refuge, similar to that of Massachusetts above referred to, is construed to require anything more from a demanding state than the federal statute requires, it is inconsistent with and not in aid thereof, and cannot stand. If the Massachusetts statute is to be literally construed and applied, it would defeat the very purpose of the Federal Constitution and the federal statute, which were enacted to promote goo'd will and comity between the states, Kentucky v. Dennison, 24 How. 66, 16 L. Ed. 717; since there are few eases where one could make an affidavit of the facts constituting the crime charged as of their actual knowledge, and as a result many a criminal would go “unwMpped of justice.”
States undoubtedly may legislate in aid of tbe provisions of article 4, § 2, of tbe Federal Constitution, where Congress has not fully covered the subject, but where Congress has specifically covered the conditions under which the obligation to surrender up a fugitive from justice arises, a state of refuge cannot impose additional conditions to* those imposed by Congress; otherwise confusion would result, to avoid which section 2 of article 4 was inserted in the federal Constitution, and section 5278 was enacted. Innes v. Tobin, 240 U. S. 127, 131, 36 S. Ct. 290; 60 L. Ed. 562,
In other words, if a complaint positively sworn to, charging a crime under the laws of the demanding state, in a manner sufficient to warrant an arrest in that state, is sufficient to comply with section 5278, ap it clearly appears to be, a state of refuge cannot insist upon additional affidavits setting forth in detail the facts constituting the crime’ charged as of the actual knowledge of the affiants as a sine qua non of surrendering up a fugitive from justice.
The opinion states that the complaint and accompanying affidavit of Officer Mullen were the basis of the demand by tbe Governor of Minnesota. His requisition does *198not so state, but that “it appears by the complaint that the accompanying affidavits,” which included those of Axk Sing and Dong Toy, as well as that of Mullen.
The affidavit made by Mullen is therefore of little consequence in this case, except as bearing on the identity of the accused with the alleged fugitive from justice, on which issue the Governor of Massachusetts is not bound by the ordinary rules of evidence. It is therefore immaterial in these proceedings whether the dying declaration is admissible as evidence in the courts of Minnesota or not.
The essential point in this case is that the requisition discloses that three days after the crime was committed the officer had gathered sufficient knowledge of the facts on which to base a charge against the fugitive of the crime of murder, to which he made positive oath before a magistrate, and upon which complaint a magistrate issued his warrant for the arrest of the accused. No further affidavits were necessary to satisfy the requirements of section 5278.
" In Collins v. Traeger (C. C. A.) 27 F.(2d) 842, 845, the court used this language: “It is next objected that the complaint or affidavit is insufficient, for the reason that the Illinois .statute requires that a complaint for preliminary'- examination shall contain, in addition to a concise statement of the offense and the name of the accused, an averment that the complainant has just and reasonable grounds to believe that such person committed the offense. Such language is not found in the complaint, but it goes further than is necessary, and charges directly and positively that appellant committed the offense — language manifestly stronger than that required by the statute.”
The Governor of Massachusetts had before him a duly authenticated copy of a complaint under positive, oath that the alleged fugitive, Huie Fung, had committed the crime of murder in the state of Minnesota. Notwithstanding the complaint was positively sworn to by the complainant Mullen, the opinion states that it is not to be assumed that he had personal knowledge of the’ facts therein stated, but the complaint must be construed in the light of the accompanying affidavit of Mullen, made nine months later. But, at least, there is no presumption that the dying declaration was the only souree of the officer’s information as to the facts on which the complaint was based, which is in the usual form charging murder; on the contrary, there is the presumption that the magistrate before whom the complaint was verified on oath acted in accordance with the Constitution (article 1, § 10) and laws of Minnesota (section 10577, Gen. Statutes), and that the complainant presented to him sufficient evidence on which he found that the crime of murder had been committed, and also facts, either of his own knowledge or obtained from sources believed to be reliable, On which the magistrate found that there was probable cause to believe that .Huie Fung-was guilty of the offense charged. No evidence was presented to the Governor of Massachusetts or the District Court to overcome this presumption, if, indeed, it is rebuttable in extradition proceedings. Ex parte Swearingen, 13 S. C. 74, 77, 78. Probable cause does not require actual knowledge of facts sufficient to convict, nor that all the information the complainant had on which probable cause was .found be obtained under circumstances to make it admissible in a court of law. It is only required that he has legal evidence to show that a crime has been committed and facts of his own knowledge, or obtained from reliable sources, to warrant a reasonable man to believe that the accused is the guilty party. Husty v. United States, 282 U. S. 694, 700, 701, 51 S. Ct. 240, 75 L. Ed. 629, 74 A. L. R. 1407.
A complaint positively sworn to, and the issuance of a warrant of arrest by a magistrate, are evidence that the requirements of article 1, § 10, of the Constitution, and section 10577 of the General Statutes of Minnesota have been complied with and probable cause shown. State v. Nerbovig, 33 Minn. 480, 24 N. W. 321.
Neither the Governor of Massachusetts nor this court, therefore, is concerned with the question of whether the accused can be convicted in Minnesota, or whether the dying declaration of the deceased is admissible in evidence in that state., That is for the courts of Minnesota to determine.