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« HuttOD V. State (Tex. Ct. App.), 5 8. W. Rep. 122.

s^KiDgy. Jefferson City, etc., 71 Mo. 628; s. c, 89
Am. Rep. 499; Burdick v. Babcock, 31 Iowa, 662.

» Balding v. State (Tex. Ct. App.), 4 S. W. Rep. 579;
8. c, 24 Reporter, 814.

St Danenhoffer y. State, 69 Ind. 295; s. c, 85 Am.
Rep. 216.

*f State V. Yanderbilt (Ind.), 8 N. W. Rep. 266.

« Heritage y. Dodge (N. H.), 9 Atl. Rep. 722.

» SUte y. Mizner, 50 Iowa, 145, 149.

» Sheeban y. Struges, 58 Conn. 481, 484.

1 State V. Mizner, 45 Iowa, 248; s. c, 24 Am. Rep.
769; Steyens y. Fassett, 27 Me. 266.

« State y. Yon Stranz (Tenn.), 8 Leg. Rep. 19.

— ^There seems to be no reasonable doubt
that the supervision and control of the school
master over the scholar extends from the
time he leaves home to go to school until he
returns home from school. Hence, where
the offense has a direct and immediate ten-
dency to injure the school and bring the
teacher's authority into contempt, although
committed an hour and a half after the school
had been dismissed, when done in presence
of other pupils and of the teacher, and with
a design to insult him, he may inflict punish-
ment for such act, upon return of the pupO
to school again.** Respecting this question,
the Supreme Court of Missouri, in a recent
case, very succinctly states the rule: ^^If the
effect of acts done out of the school room
while the pupils are returning from their
homes, and before parental control is re-
sumed, reach within the school room^ and are
detrimental to good order and the best inter-
est of the school, no good reason is perceived
why such acts may not be forbidden, and
punishment inflicted on those who commit
them." In conformity with this view, a vio-
lation of the rule against the use of profane .
language by pupils and quarrelling and fight-,
ing among them, on going to or returning
home from school may be punished.** And
in Texas it has been adjudged that a teacher'a
authority extends to the prescribing and en-
forcement of reasonable rules and require-
ments, even while the pupils are at their
homes. Hence, in harmony with this rule,,
it has been held in that State that the pupil
may be required to prepare lessons while at

6. Severity of Punishment. — ^There seema
to be a tendency to restrict rather than to
enlarge the authority of the teacher as to
corporal punishment. Public sentiment and
a general tone of the decisions do not now
tolerate such severe corporal punishment of

ss The pupil called the teacher **01d Jack Seayera I '^
Lander y. Seayer, 82 Yt. 114, 120.

*<De8kin8y. Gose, 85Mo. 485; s. C, 55 Am. Rep.
387. The Missouri sUtute proyides (Rey. Stot. 1879, f
7045), that the school board shall haye power to make
all needful rules and regulations for the goyenunent
of the school. If the board fail to do so, the right of
the teacher employed to conduct the school, to adopt
reasonable rules, to promote good order and discipline,,
arises out of the yery nature of the employment: 75.

» Balding y. State (Tex. Ct. App. ), 24 Reporter, 814;
8. c, 4 S. W. Rep. 579. Fighting away from school r
Button y. State (Tex. Ct. App.), 5 S. W^p. 122.

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pupils as was formerly thought permissible
and even necessary,^ and it is evident that
it wiU eventually disappear from the schools
as it h%s already disappeared from the list of
punishment of crime.

The law has not undertaken to prescribe
stated punishment for particular offenses —
but has contented itself with a general grant
of power of reasonable and moderate correc-
tion, and has confided the gradation of pun-
ishment within the limits of this grant, in a
large degree, to the discretion of the teacher.
The line which separates moderate correction
from immoderate punishment can only be as-
certained by reference to general principles.
While all of the decisions sanction moderate
corporal punishment,^ yet it is very difficult
to determine with exact precision when the
teacher has exceeded the bounds of modera-
tion. That correction which will be consid-
ered by some as unreasonable will be viewed
by others as perfectly reasonable. What
may be considered by some a venial folly, to
which none, or very little, correction ought
to be applied, by others will be considered
as an offense that requires very severe treat-
ment. Perhaps the solution of this question
is the most embarrassing and diffcult of any
respecting the subject under consideration.
The pupil being helpless and in the power of
the teacher, that power should be restrained
and not allowed to be wantonly abused with
impunity. It has been well said that the
government of a school should be patriarchal,
rather than despotic. If it be a monarchy it
should be a limited one and not absolute.^
The character and interest of the teacher,
combined with the refinement which educa-
tion gives to the human mind in softening the
heart, like parental love, is generally found
a sufficient protection for the children. But
if these fail the law affords ample protection
against cruelty, and oppression, while it is a
shield to those who have done their duty.^
The punishment should not be excessive or
cruel. It should be administered with ^^kind-

w Per Cooley, J., in note 15 to his edition of Black-
stone, p. 408.

S7 SUte y. Pendergrass, 2 Dev. & Bat. (N. C.) 865;
Texas Penal Code, art. 490, par. 1; Balding v. State, 28
Tex. App. 172; Hntton v. State, 28 Tex. App. 886;
Stanfield Y. State, 48 Tex. 167; Dowlen v. SUte, 14
Tex. App. 61.

V Anderson v. SUte, 8 Head (Tenn.), 465, 457.

» €k>mmonwoa]th v. Seed, 5 Pa. L. J. Rep. 78, 82.

ness, prudence and propriety," ^^ *'appor-;
tioned to the gravity of the offense and within .
the bounds of moderation."^ It must not;
be protracted beyond the child's power of .
endurance or with an instrument, unfitted for .
the purpose and calculated to produce dan- .
ger to life or limb.^ Whether the punish- .
ment is moderate or excessive is a question r
of fact for the jury ,^ and the proper, and/
doubtless the only test, is the general judg- :
ment of reasonable men.^ This will largely
depend upon the nature of the offense, the
apparent motive and disposition of the of- '
fender, the infiuence of his example and
conduct upon others, the age, sex, condition
and strength of the pupil and the character
of the instrument with which the punishment
is inflicted.^ The teacher's calm and honest
judgment should have great weight.^.
Where no improper weapon is employed the
presumption, until the contrary appears in
the proofs, will be that what was done was
done rightly ,^^ and where a reasonable doubt
that the punishment was excessive exists,
the teacher should have the benefit of it.^^
A father cannot authorize excessive punish-
ment ; not having possessed that right him-
self, he cannot delegate it,^ but he may
delegate his authority over his child to the
school master,^ yet the latter cannot delegate*
his authority to punish." Where the correc-

« Danenhoffer V. State, 69 Ind. 295; s. c, 85 Am..
Rep. 216; 1 Bishop Crim. Law (7th ed.), S 886; State.
V. Vanderbilt, 18 N. W. Bep. 266.

«Vanvactorv. State, 118 Ind. 276; s. c, 15 N. W.
Bep. 84; Anderson v. SUte, 8 Head (Tenn.), 455, 457.

« Beglna v. Hopley, 2 Fost. & Fin. 206.

«1 Whart. Crim.Xiaw (9th ed.). S 682; Sheehan y.
Struges, 53 Conn. 481; s. c, 22 Reporter, 455.

4« Patterson Y. Hitter, 78 Me. 509; s. c, 57 Am.
Bep. 818; 8. C, 7 Atl. Bep.'278; Lander v. Seaver, 82
Vt. 114; 8. C, 76 Am. Dec 156.

48 Dowlen y. State, 14 Tex. App. 61; Stonfield y»
Stote, 48 Tex. 167; Lander y. Seaver, 82 Yt. 128; Shee-
han y. Sturges, 53 Ck>nn. 481; Com. y. Bandall, 4 Gray,
86) Anderson y. State, 8 Head (Tenn.), 455; Cooper y.
McJunkin, 4 Ind. 90.

^ 1 Bishop Crim. Law (7th ed.)f S 886; Yanyacter y.
State (Ind.)f 1^ N. W. Bep. 841; SUte y. Pendergrass,
2 Dey. & Bat. (N. C.) 865; 1 Whart. Crim. Law (9th
ed.), S 682.

^Ib; Anderson y. State, 8 Head (Tenn.), 455, 457;
Dowlen y. SUte, 14 Tex. App. 61, 65; Cooley's Const.
Lim. (5th ed.), 417; Cooley on Torts, 171, 172.

« Lander y. Seayer, 82 Yt. 114, 124.

« Begina y. Hopley, 2 Fost. & Fin. 202.

n 2 Kent's Com., 169, 170; Steyens y. Fassett, 27 Me.
266, 280; SUte y. Pendergrass, 2 Dey. & Bat. (N. C.)

» Beeyes Dom. Bel. (8d ed.) 875.

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tion administered is not in itself immoderate,
and therefore beyond the authority of the
teacher, its legality or illegality must depend
entirely upon the qtu> animo with which it is
administered. Within the sphere of his au-
thority, the master is the judge when correc-
tion is required, and of the degree of correc-
tion necessary, and like all others intrusted
with a discretion, he cannot be made penally
responsible for error of judgment, but only
for wickedness of* purpose.^ *^He is a judge
witn limited authority, not an autocrat"^
But where excessive violence is shown, as
where it produces death, the teacher's motive
is immaterial.** A few illustrations wiU be
given. Where a pupil becomes rebellious,
•exhibiting a violent temper by screaming and
jumping, a flogging with a small, smooth
rattan is moderate punishment.^ So, nine
licks inflicted with a switch of reasonable
size, leaving no severe bruises, abrasions or
other serious injury, is not unreasonable.^
Punishment with a rod which leaves marks or
welts on the person of the pupil for two
months afterwards, or much less time, is
immoderate and excessive,*^ but the fact of
leaving temporary marks alone is not suflS-
cient to so characterize the punishment.^
Whether a raw hide is a proper instrument
of punishment is a question for the jury.
Evidence that it was used in other schools in
the vicinity is admissible to rebut the charge
of malice.^ Beating a boy 13 or 14 years of
age, although with the assent of his father,
secretly and in the night-time, for two and
one-half hours, with a thick stick, until he
dies, is unquestionably cruel, excessive, and
brutal, clearly subjecting the teacher to a
charge of manslaughter.

Eugene McQuillin.

ASCom. y. Seed, 5 Pa. L. J. Bep. 78, 80; State v.
Pendergrass, 2 Dev. & Bat. (N. C.) 865; Cooley's
Const. Lim. (5th ed.) 417; Cooley on Torts, 171, 172,
288; Beeves on Dom. Rel. (8d ed.) 420.

M Cooley on Torts, 288.

MReginav. Hopley, 2 Fost. & Fin. 202; Whart. on
Horn. (2d ed.) S 165; Lander v. Seaver, 82 Yt. 114, 124.
See Heritage v. Dodge (N. H.)f AU. Rep. 722.

^ Com. V. Seed, 5 Pa. L. J. Rep. 78, 81.

^ Button V. State (Ct. App. Tex ), 5 S. W. Rep. 122.

^ State V. Mizner, 50 Iowa, 145.

» State V. Pendergrass, 2 Dev. & Bat. (N. C.) 865,
867; State v. Alforst, 68 N. C. 822.

» Lander v. Seaver, 82 Yt 114, 125.

« Reglna V. Hopley, 2 Fost. & Fin. 202; Wbart. on
nom.(2ded.)S 165.



Supreme Court Kam$a$, December 8, 1888,

1. A defendant extradited from another State charged
with a specific crime, cannot be tried for a crime not
mentioned in the requisition.

2. Upon failure to prove the defendant guilty of such
specific crime, he must be allowed reasonable time in
which to depart.

Valentine, J., delivered the opinion of the

The judgment of the court below must be af-
firmed. The question presented is this: Where
a fugitive from justice from the State of Kansas
to another State has lawfully been extradited from
such other State back to Kansas, for the purpose
that he may be required to answer to a criminal
charge contained in a certain indictment, can he,
at once, be put upon trial to answer to another
and different criminal charge, contained in an-
other and different indictment, but a charge of an
offense for which he could have been, but was
not, extradited? In other words, can a person be
extradited for one offense, and immediately tried
for a wholly different offense? We would think
not. It is a general maxim of law that judicial
process shall not be abused. But to try a person
for an offense other than the one for which he
was extradited would be an abuse of judicial pro-
cess. Within this broad and general maxim
above referred to is included the following more
definite rule of law, to- wit : Where the presence
of a person has been changed from a place outside
of the territorial jurisdiction of a court of justice
to a place within such jurisclctlon, and this
change has been procured through the instru-
mentality of another person, and upon a pretext
of thereby accomplishing some particular pur-
pose, such first mentioned person cannot, after his
presence has been thus obtained within the terri-
torial jurisdiction of the court, and before he has
had an opportunity to return, be prosecuted in
such court by the person who has thus been in-
strumental in procuring his presence for the pur-
pose of accomplishing some wholly different
purpose. This rule of law has often been applied
by the courts in civil cases. Van Horn v. Manu-
facturing Co., 37 Kan. 523, 526, 15 Pac. Bep. 662,
and cases their cited; Spear, Extrad. 526, and
cases their cited ; Compton v. Wilder, 40 Ohio St.
130. This rule of law is applied in cases of sepa-
rate jurisdictions, whether the separate jurisdic-
tions are cities, counties, districts. States or foreign
countries. It Is often the case, however, that the
jurisdiction of a court extends to every portion of
the State; but a court cannot have jurisdiction
beyond the boundaries of its own State, nor can
it send its process into other States or countries.
It cannot compel a fugitive from justice or any
other person beyond the boundaries of its own

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Vol. 28.



state, to attend its sessions. A fogitive from
justice can be obtained from another State or
country only with the consent of the executive
authorities of such other State or country; and
for a State to procure a fugitive from justice from
"some other State or country to be tried for some
particular offense, by the consent of such other
State or country, and then to try him for another
and a different offense before he has had an op-
portunity to return would be such an unwarranted
abuse of judicial process, such a fraud upon jus-
tice, such an act of perfidy, that no court in any
country should for a moment tolerate the same.
The foregoing rule of law applies in criminal
cases where the fugitive from justice has been
extradited from a foreign country. United States
V. Rauscher, 119 U. S. 407, 7 S. C. Rep. 234;
United States v. Watts, 8 Sawy. 370, 14 Fed. Rep.
130; Ex parte mhhs, 26 Fed. Rep. 421, 431; Ex
parte Coy, ^2 Fed, Rep. 911, and note; Com. v.
Hawes, 13 Bush, 697; SUte v. Vanderpool, 39
Ohio St. 273; Blandford v. State, 10 Tex. App.
627. In the cases above cited the fugitives from
justice were extradited under treaties, but In these
treaties there was no provision that the fugitive
from justice should be tried only for the offense
for which he was extradited ; hence the foregoing
decisions are perfectly applicable to this case.
The foregoing rule of law also applies in criminal
cases between States. State v. Simmons, 39 Kan.
262; In re Cannon, 47 Mich. 481, 11 N. W. Rep.
280, and it applies as strongly between States as it
does between foreign countries. In Lagrave^s
Case, 14 Abb. Pr. (N. S.) 344, 346, Judge Daniels
uses the following language: *'In piinciple, there
can be no practical difference between the case of
fugitive brought from a neighboring State under
the constitution and laws of the United States,
and one brought from a foreign country under the
provisions of its treaties. In each, the right of
freedom to return is precisely the same, and the
implied guaranty of that rifcht under the laws is
no greater in one case that it is in the other."

The foregoing rule of law, stated broadly, as it is,
is upheld and sustained by the great preponder-
ance of authority in this country. When applied
to civil cases it is sustained by nearly the entire,
if not the universal, current of authority. When
applied to criminal cases, where the extradidon
is from a foreign country, it is sustained by almost
all authority. When applied, however, to crimi-
nal cases where the extradition is from a sister
State, a majority of the cases is against the rule,
and, as we think, without any good reason. The
State should not be allowed to obtain jurisdiction
of a fugitive from justice for one purpose, and
then to take advantage of that jurisdiction thus
obtained and use it for another and different pur-
pose. A State has no more right to act fraudu-
lently or unfairly than an individual person has,
and what the State does by its officers or agents it
does itself. Mr. Samuel T. Spear, author of the
work on the Law of Extradition, and also Judge
Cooley, have carefully considered this entire

question and have come to the same conclusion
that we have. See Spear, Extrad. ch. 12. Among
the things which Mr. Spear has said upon this
subject, we would quote the following: "No suf-
ficient reason can be assigned why these principles
of law should not be applied in extradition cases,
so as to guard the process, against abuse or diver-
sion from the purpose intended by the constitu-
tion. The use of the process for any other purpose
is an abuse. On this point, Judge Cooley uses
the following strong and emphatic language: ^To
obtain the surrender of a man on one charge, and
then put him upon trial on another, is a gross
abuse of the constitutional compact. We believe
it to be a violation also of legal principles. It is
a general rule that where, by compulsion of law,
a man is brought within the jurisdiction for one
purpose, his presence shall not be taken advantage
of to subject him to legal demands or legal re-
straints for another purpose. The legal privileges
from arrest, when one is in the performance of a
legal duty away from his home, rest upon thia
rule, and they are merely the expressions of rea-
sonable exemption from un'air advantages. The
reason of the rule applies to these cases; and it
should be held, as it recently has been in Ken-
tucky, that the fugitive surrendered on one charge
is exempt from prosecution on any other. He is
within the State by compulsion of law upon a
single accusation. He has a right to have that
disposed of, and then to depart in peace.' Prince-
ton Review, Jan., 1879, p. 176. Courts, as will
appear in the sequel, have not always adopted
this view; and yet it is the only just and proper
view in the premises, and the only view that is
consistent with the letter and intent of the consti-
tutional provision relating to extradition.^'
Spear, Extrad. 527, 528. "Now, to use the con-
stitution and the law for the purpose of forcibly
removing a person, on the charge of a specific
crime, from one State to another, in order that he
may in the latter State be tried for that crime,
and then to use the custody thus secured for a
different purpose, is to make a case different from
the one contained in the constitution and the law,
different from the one that appeared in the extra-
dition proceedings, different from the avowed
purpose of the demanding State at the time of
making the demand, and different from the case
that was l>efore the delivering State, and on which
it passed judgment as to the obligation of deliv-
ery. The State that takes this course after ob-
taining possession of the fugitive gives the lie to
its own official declaration ; and if, at the time of
seeking the possession, it meant to do so, then it
meant to perpetrate a fraud upon the surrendering
State. Such a course would plainly carry the
jurisdiction exercised over*the surrendered party
beyond the point and beyond the purpose con-
templated in the constitution and the law. That
purpose, as expressly stated, is that the party de-
manded and charged with a specific crime by one
State, and arrested and delivered up by another
State, may *be removed to the State having juris-

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No. 10

diction of the crime^ charged, and that he may be
there put on trial for that crime. It is no part of
this purpose that the party being delivered up in
the manner specified should, at the pleasure of
the State receiving him, be held and tried for
other crimes, or that he should be arrested and
held to bail in civil actions by creditors, whether
these creditors procured his extradition are not.
Either proceeding would be foreign to, and in
excess of, the one purpose for which, under the
constitution and the law, the demand was made
by one State, and the arrest and delivery were
ordered by the executive authority of another
State. The constitution furnishes the extradition
remedy for the case which it describes, and for
. no other case ; and the arrest of the extradited
party in a civil action, or his trial for an offense
different from the one specified in the proceed-
ings, is a use of the custody thus secured that is
not in that case. It must be put there, if at all,
by judicial construction: and such construction
we are compelled to regard as an abuse of the
remedy. It is due to good faith between the
States, to the sovereignty of the States as distinct
political communities, to the terms of their inter-
course with each other in demanding and surren-
dering fugitives from justice, and to the plain
intent of the constitution in providing the extra-
dition remedy, that when one State in this way
obtain the custody of a person, it should limit the
use of that custody to the purpose for which it
was obtained, and which was distinctly avowed
by it when obtaining t)ie same; and hence, when
this purpose has been gained, the State demand-
ing and receiving the fugitive should Interpol no
legal hinderance to his freedom or departure and
return to the State from which he was thus re-
moved. The matter for which be was brought
into the State havins: been legally disposed of,
then, in the language of Judge Oooley, he has a
right 'to depart in peace.' Any other course, if
originally intended, would be a fraud on the part
of the demanding State, and if not so intended,
would be an act of bad faith. Extradition is not
an act between the extradited party and the per-
son or persons, who may have procured the ex-
tradition, but between two sovereign States, for
the purpose of public justice in the case specified.
These States are bound to act in good faith
towards each other, no matter what may have
been the motives of private parties in seeking the
extradition. One of these States set forth its
case, and if the other responds affirmatively by
compliance with its demands, as it will be bound
to do if the case comes within the provisions of
the constitution and the law, then the former
State will be equally bound in honor to confine
the exercise of its jurisdiction to the case pre-
- sented.'* Spear, Extrad. 548-550. ''The consti-
tution and the law make it the duty of the asylum
State to give the necessary consent and put forth
the necessary action when, and only when, the
prescribed conditions are present; and one of
these conditions is a specific and definite cliarge

of a particular crime as the ground of the re-
moval, and also a declaration of the purpose for
wlLich the removal is sought. The obvious im-
plication arising from this condition is that the
State receiving the fugitive, under the constitution
and the law, like a nation receiving a fugitive
under a treaty, should use the custody only for
the purpose professed when acquiring it, and
which was had in view by the delivering authority
when making the arrest and surrender. This im-
plication naturally arises from the constitution
and the law; and, if so, then it is binding on State
courts as it would be if it had been stated in ex-
press words. What the constitution or the law,
by a just and fair construction, implies, is a part
of that constitution or that law.'' Spear, Extrad.

The provision of the United States constitution
upon which interstate extradition is founded reads
as follows : *' 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 fied, be delivered up, to be removed
to the State having jurisdiction of the crime.''
Const. U. S. art. 4, § 2. This provision does not

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