Ex Parte CUBRETH, 49 Cal. 435

Mr. Tyler was proceeding to argue that the Act of the Legislature of the State, (Chapter IV, Penal Code) is in contravention of the second

section of the fourth

article of the Constitution of the United States, in that the Act provides for the arrest and detention of an alleged fugitive from justice from another State of the Union, without reference to, and only in anticipation of a demand for his surrender, by the Executive authority of the State from which he fled. The Court, however, declined to hear argument upon the point; the Chief Justice observing, that the question had lately undergone thorough examination by the Court in Ex parte White, (ante p. 433), and that the Court was unanimously of the opinion that the Act was not obnoxious to constitutional objection.

He observed that while the provision of the constitution referred to, required that the fugitive should be surrendered upon the demand of the Executive of the State in which the crime is charged to have been committed, it did not otherwise, or in the absence of the Executive demand, undertake to define the duties or limit the authority of the State within which the fugitive from justice might be found.

The Constitution of the United States does not assume to deal with the question, before the proper Executive demand shall have been made, while upon the other hand the statute provides for the detention of the fugitive for a reasonable length of time in advance of, and to afford an opportunity for the Executive demand upon which the surrender is to be made. He said that the paramount constitutional duty of the State to make the surrender upon proper Executive demand was in no wise in conflict with its reserved power to deal with the fugitive in the absence of such a demand.

He added, however, that irrespective of the constitutional question referred to, the prisoner was entitled to his discharge. The warrant upon which he is detained is radically defective, in that it does not set forth the commission of any offense whatever.

The proceedings under the statute against fugitives from justice are required to be similar in all respects to those instituted against persons charged with public offenses committed within the territorial limits of the State (Penal Code, Sec. 1,550), and it is indispensable to their validity in either case that the warrant should specify the offense alleged to have been committed by the accused.

Here the only charge set forth is that the accused is “a fugitive from justice.” This is obviously insufficient, and it not being made to appear to the Court (in accordance with Sec. 1,489, Penal Code) that the prisoner is in fact guilty of any criminal offense, it results that he must be discharged. So ordered.