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Criminal law and procedure of California including the penal code of California online

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conflicting evidence does not prevent a review of the facts
where the evidence, if taken as true, does not establish an
offense.^^ This rule is founded on the fact that the jury
had the opportunity to observe the demeanor of the wit-
nesses and is therefore more competent than the appellate
court to decide upon their credibility. The rule is a most
salutary one and ought not to be lightly departed from.
Nevertheless, there are exceptional cases in which the pre-
ponderance of evidence against the verdict is so great as
to produce a conviction, that in rendering it the jury must
have been under the influence of passion or prejudice."

INSUFFICIENCY OF EVIDENCE.

The rule for insufficiency of evidence is the same as that
for conflicting evidence, and the verdict will not be dis-
turbed except where there is a failure of proof in some par-
ticular necessary to a conviction, and the question is one
of law and not of fact.°^ The suflSciency of evidence is a
question for the jury.^® On appeal the court will not deal
with a question of mere preponderance of the evidence.**
This is a question for the trial court, and if that court is
satisfied from a review of the evidence that it is not suf-
ficient, it should grant a new trial.'^'' Where the verdict

53 People V. Manning, 48 Cal. 335; People v. Durrant, 116
Cal. 201; People v. Wong Cheng Suey. 110 Cal. 121;
People V. Ah hoy, 10 Cal. 301; People v. Brown, 27 Cal.
501.

»* People V. Logan, 123 Cal. 414.

»8 People V. O'Brien, 106 Cal. 104.

5« People V. Harailtcn, 46 Cal. 543.

57 People V. DaiT, 61 Cal. 554; People v. Eagan, 116 Cal.
291; People v. Hurley, 60 Cal. 74; People v. Durrant,
116 Cal. 201.

58 People V. Nelscn, 85 Cal. 422; People v. Mayes, 66 Cal.
597.

50 People V. Ashnauer, 47 Cal. 94.

60 People v. Lum Yit, 83 Cal. 134; People v. Flood, 102 Cal.
333; People v. Knutte. Ill Cal. 456.



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474 CRIMINAL LAW AND PROCEDURE.

of the jury is based upon legal evidence, it is absolutely
final on appeal and not subject to review.*^ If the evidence
tends in any way to sustain the verdict®^ or preponderates
in favor of it, the verdict will not be disturbed.^'*

OBJECTIONS TO THE ADMISSION OF EVIDENCE.

Errors in ruling on evidence will not be considered on
appeal without the objections thereto are stated.** If no
objections are made in the court below, errors in the admis-
sion or rejection of evidence will not be reviewed'^ as
objections cannot be made for the first time in the Supreme
Court.*® They must be taken in the court below.*^ A
failure to object is a waiver of its incompetency.** There
must be an objection, a decision and an exception.** The
objection must be made at the time the evidence is oflfered.^*
Where evidence is admitted without objection, the party
has no right to have it striken out.^* Objection to the
weight of evidence does not render it inadmissible.^*
Informal objections will not be considered.^^ but objection
is sufficient when it is understood by all the parties.'*
Errors on admission of imrnaterial evidence are not revers-
ible when not prejudicial.^" The exception must be taken
at the time of the objection and ruling.^* It must be made

ei People V. Maroney, 109 Cal. 277.

«2 People V. Wilson, 66 Cal. 370.

«8 People V. Alsemi, 85 Cal. 434.

«4 People V. GiDSon, 106 Cal. 468; People v. Woon Tuck

Wo. 120 Cal. 298.
65 People V. Baird. 105 Cal. 126.
«o People y. Northey, 77 Cal. 620.

67 People V. Keeley, 81 Cal. 210.

68 People V. Smith, 121 Cal. 355.

69 People V. Sanford, 43 Cal. 29; People v. Westlake, 62
Cal. 309.

70 People V. Salorse, 62 Cal. 139; People v. Moan, 65 Cal.
532.

71 People V. Patterson, 124 Cal. 102.

72 People V. Martin, 102 Cal. 558; People v. Butler, 8 CaL
440; People v. Brotherton, 47 Cal. 405.

73 People V. Yee Fook Din, 106 Cal. 163; People v. Wong
Chuey, 117 Cal. 624; People v. Shattuck. 109 Cal. 678;
People V. Miller, 122 Cal. 84.

74 People V. Shattuck, 109 Cal. 673.

75 People V. Fick, 89 Cal. 144.

76 People V. Coffman, 24 Cal. 230.



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APPEAL. 475

SO as to leave no doubt as to the precise grounds for if''
A general objection to the admission of evidence is insuf-
ficient/* and cannot be made specific on appeal ;^' it must
be specific.'^ The objection will be confined to the one taken
at the trial .•^ But the court and prosecutor should be lib-
eral in regard to objections of defendant and resolve a
doubt in his favor .®^ A premature objection to a prelimin-
ary question is properly overruled.*' Evidence apparently
irrelevant should have its purpose stated when offered.**
But when not limited it may be used for any purpose for
which it is competent.**^ The trial judge should be in-
formed in some way as to the particular matters . intended
W be proved by the answer of the witness.*^ An objection
and exception need only be taken once and are sufficient as
to all such evidence.*^ It need not be repeated to every
question, when the same line of evidence has been clearly
and pointedly objected to several times.** Leading ques-
tions are within the discretion of the trial court**

7T People V. Owens, 123 Cal. 422; People v. Frank, 28 Cal.

519; People v. Mahoney, 77 Cal. 533; People v. Louie

Foo. 112 Cal. 23.
T8 People V. Apple, 7 Cal. 290; People v. Glenn, 10 Cal.

37; People v. Chee Kee, 61 Cal. 405.
TO People V. Glenn, 10 Cal. 37; People v. Chee Kee, 61

Cal. 405.
•0 People V. Nelson, 85 Cal. 421; People v. Mahoney, 77

Cal. 529; People v. Louie Foo, 112 Cal. 21; People v.

Clark, 130 Cal. 642; People v. Conkllng, 111 Cal. 616;

People V. Sehom, 116 Cal. 503; People v. Bush, 68 Cal.

623; People v. Hickman, 113 Cal. 88; People v. Frank,

28 Cal. 507; People v. Eckman, 72 Cal. 583; People v.

Manning, 48 Cal. 335; People v. Chee Kee, 61 Cal. 405;

Brumley v. Flint, 87 Cal. 474; People v. Rodley, 131

Cal. 240.

81 People V. Louie Foo, 112 Cal. 17; People v. Sehom,
116 Cal. 510.

82 People V. Southern, 120 Cal. 645.
88 People V. Bidleman, 104 Cal. 608.

84 People V. Shaw, 111 Cal. 171.

85 People V. Smith, 121 Cal. 355.
88 People V. Schell, 123 Cal. 360.

87 People V. Castro, 125 Cal. 5Sl.

88 People V. Mullings, 88 Cal. 138.

8» People V. Brown, 130 Cal. 591; People v. Clary, 72 CaL
59; People v. Shem Ah Fook, 64 Cal. 380; People y.
Goldenson, 76 Cal. 349; People v. Fong Ah Sing, 70 CaL
8.



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476 CRIMINAL LAW iifD PROCEDURE.

TfiE dttDEk OF PROOF.

The trial court has a reasonable discretion in deteiTiiihing
the preliminaries of the trial,®® and the order of proof."

ERRORS FAVORABLE TO THE DEFENDANT.

Errors in ruling on evidence where the answers are
favorable to the defendant are harmless and cannot be re-
viewed 0^ appeal.^ Error in the exclusion of evidence is
cured by its subsequent admission,^ and in its admission
by striking it out and instructing the jury to disregard it'
When already received without objection, it may be re-
peated,* and the consent of the defendant to its admission
where objection might have been made renders its admis-
sion proper.^ Objection is waived by the defendant's sub-
sequent testifying to the same fact,® or his introdttctiOii
of evidence to the same effect.^ The error in the admis-
sion of hearsay evidence is not cured by instruction to the
jury that the defendant is not bound by anything said out
of defendant's presence.® Where the evidence is unprejudi-
cial the error should be disregarded.® A motion to strike
out should not be allowed where the evidence is given

»o People V. Stonecifer, 6 CaL 405.

»i People V. Yokum, 118 Cal. 437; People v. Brotherton.
47 Cal, 388; People v. Jones, 123 Cal. 65; People v. Van
Horn, 119 Cal. 323; Bates v. Tower, 103 Cal. 406; People
V. Daniels, 105 Cal. 262; People v. Mayes, 113 Cal. 618;
People V. Shainwood, 51 Cal. 468; People v. Teixelra, 123
Cal. 297.

1 People V. Barney, 114 Cal. 554; People v. Donaldson,
70 Cal. 116; People v. Chin Hane, 108 Cal. 597; People ▼.
Clark, 106 Cal. 32; People v. Brown, 76 Cal. 574; People
V. Mullings, 83 Cal. 146.

2 People V. Ross, 115 Cal. 233; People v. Howard, 112
Cal. 135; People v. Johnson, 106 Cal. 289; People T.
Plyler, 126 Cal. 379; People v. Wong Chuey, 117 Cal.
624; People v. Phelan, 123 Cal. 551.

3 People V. Sears, 119 Cal. 267; People v. Hoy Yen, 34 Cal.
176.

* People V. Chin Hane, 108 Cal. 597.

B People V. Ah Ton, -53 Cal. 741.

People V. Marseiler, 70 Cal. 98.

7 People V. Daniels, 70 Cal. 521; People v. Ketchum, 7S

Cal. 638.
« People V. Wallace, 89 Cal. 158.
9 People V. Collins. 75 Cal. 411.



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APPEAL. 477

without objection.^^ Where no objection is made to the
evidence it is within the discretion of the court afterwards
to strike it out." But this rule does not apply to answers
which are not responsive to the question. They must be
stricken out on motion whether objiected to or not.^^ The
court may reject evidence on its own motion if improper ,^^*
or where the answer could not have been anticipated by
objection.^^ But usually the motion to strike out must be
preceded by objection to its admission." irrelevant state-
ments by a witness may be stricken out. The remedy is not
by cross-examination."

10 People V. Long, 43 Cal. 444; People v. Kolfe, 61 Cal.
542; People v. Salorse, 62 Cal. 145; People v. bamario,
84 Cal. 484; People v. Nelson, 85 Cal. 426.

11 People V. Wallace, 89 Cal. 159.

12 People V. Dixon, 94 Cal. 255; In re Wax, 106 Cal. 347.
12a People V. Wallace, 89 Cal. 158; People v. Turcott, 65

Cal. 126; Spottiswood v. Weir, 80 Cal. 451.

13 People V. Williams, 127 Cal. 212.

14 People V. Rolfe, 61 Cal. 541; People v. Nelson, 85 Cal.
426; Estate of Wax, 106 Cal. 347; People v. Samario,
84 Cal. 485.

15 People V. French, 95 Cal. 371.



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CHAPTER LXV.



HABBAS CORPUS.



OFFICE OF THE WRIT.

A writ of habeas corpus will not be granted to a person
WHO is not actually imprisoned. If h^ is released on bail
he is not restrained of his liberty and the writ will not lie.^
It is a remedy for unlawful imprisonment, but not imprison-
ment unlawful because of erroneous process.' Its func-
tions extend only to an inquiry into the jurisdiction and
the validity of the process upon its face.' It may extend to
the question whether the complaint charges an offense
known to the law, since this objection goes to the juris-
diction,* or as to whether the imprisonment is authorized
by the law under which the prisoner was sentenced.* If
the acts of which the defendant was convicted do not con-
stitute a crime, the conviction is void.' The judgment will
not be reviewed when the court acts within its jurisdiction/

1 Ex parte Jones, 41 Cal. 209.

2 Ex parte McCullough, 35 Cal. 97.

3 Ex parte McLaughlin, 41 Cal. 211; Ex parte Hartman,
44 Cal. 35; Ex parte Granice, 51 Cal. 376; Ex parte
Miller, 82 Cal. 455; Ex parte Cohn, 55 Cal. 196; Ex parte
Long, 114 Cal. 159; Ex parte Stemes, 77 Cal. 156.

4 Ex parte Williams, 121 Cal. 330; Ex par.e Maler, 103
Cal. 476.

5 Ex parte Sylvester, 81 Cal. 199.

6 Ex parte Kearney, 55 Cal. 212; Ex parte Maguire, 57
Cal. 609; Ex parte Hollis, 59 Cal. 407; Ex parte Foley,
62 Cal. 509; In re Kowalsky, 73 Cal. 122; E^x parte Hen-
shaw, 73 Cal. 508; Ex parte Mirande, (6 Cal. 371; Ex
parte McNulty, 77 Cal. 166; Ex parte Ah Men, 77 Cal.
201; Ex parte Acock, 84 Cal. 54; E^x parte Noble, 96
Cal. 364; Ex parte Maier, 103 Cal. 479; In re Corryell.
22 Cal. 178.

T Ex parte Perkins, 18 Cal. 60.



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HABEAS CORPUS. 479

The inquiry is only to the jurisdiction of the court, and
will not reach mere errors or irregularities not touching the
jurisdiction.® It was not framed to retry issues of fact,
or to review the proceedings of a legal trial.® Hence,
mere errors and irregularities cannot be reviewed.^® It
does not lie for any defective statement of the offense,^^
to review the sufficiency of the evidence to sustain the
conviction,^* nor for a failure to state an offense if the
complaint is not made a part of the record.*' A prima
facie case is all that is necessary to show in order to
defeat the discharge of the prisoner.** The judgment is
not void and the imprisonment will not be inquired into
by the writ, if it appears from the judgment that the
court had jurisdiction and the defendant was convicted.**
An illegality which will be reviewed must be such an
illegality as is contrary to the principles of law as dis-
tinguished from rules of procedure.*® Thus findings of
fact passed on by the lower court cannot be reviewed,*^

« Ex parte Ah Men, 77 Cal. 198; Ex parte Fil Ki, 79 Cal.

584.
» EJx parte Bird, 19 Cal. 130; Ex parte Cottrell, 59 Cal.

422; Ex parte Lehmkuhl, 72 Cal. 54; Ex parte Long,

114 Cal. 161.

10 Ex parte Hartman, 44 Cal. 32; Ex parte Cohn, 55 Cal.
197; Ex parte McLaughlin, 41 Cal. 211; Ex parte Turner,
75 Cal. 228; Ex parte Stephen, 114 Cal. 283; Ex parte
Ah Sam, 83 Cal. 620; Ex parte Stemes, 77 Cal. 156; Ex
parte Long, 114 Cal. 161; Ex parte Lehmkuhl, 72 Cal.
53; Ex parte Mirande, 73 Cal. 365; Ex parte Smith, 89
Cal. 79; Ex parte Raye, 63 Cal. 492; Ex parte Young

' Ah Gow, 73 Cal. 442; Ex parte Kelly, 120 Cal. 273; Ex
parte Max, 44 Cal. 579; Ex parte Bowen, ^o Cal. 113;
Ex parte Noble, 96 Cal. 362; Ex parte Walpole, 85 Cal.
362.

11 Ex parte Williams, :21 Cal. 329; Ex parte McNulty,
77 Cal. 164.

12 Ex parte Williams, 87 Cal. 78.

18 Ex parte Rosenheim, 83 Cal. 388.

1* Ex parte Palmer, 86 Cal. 631.

15 Ex parte Gibson, 31 Cal. 620; Ex parte Raye, 63 Cal.

492.
i« Ex parte Gibson, 31 Cal. 620; Ex parte McCullough, 35

Cal. 101.
17 Ex parte Clark, 110 Cal. 405; Ex parte Cottrell, 59 Cal.

420; Ex parte Sternes, 77 Cal. 163; Ex parte Noble, 96

Cal. 364.



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480 CRIMINAL LAW AUD FI(QPEDUBB.

nor defect in the indictment,'^ nor irregidarity in the com-
mitment,'® nor the denial of a jury trial in cases where a
jury may be waived^** as in a trial in a justice court for
misdemeanor.^' But it will review the denial of a jury
trial in cases of felonies.^^ It will lie to relieve a party
convicted under a void law,^^ but where the complaint
states a violation of two laws and the penalty is not in
excess of either, the prisoner will not be discharged where
one of the acts is void.^* If the sentence is illegal in part,
the writ will not lie to discharge the prisoner before the
legal part is satisfied,^^ but punishment in excess of that
allowed by law is void and the writ will lie.^* It will also
authorize the release of a person arrested upon a present-
ment by a grand jury for a misdemeanor.-" Judgments on
contempt are reviewable on habeas corpus,-® but not where
the question is whether the judgirient was warranted by the
evidence. Disobedience of an order which the court had
no jurisdiction to make it not contempt and habeas corpus
will' lie to release the prisoner.^" If the judgment shows
jurisdiction on its face, the writ will not lie to inquire into
the punishment any further than to see whether it shows
what punishment the prisoner is to suffer.*** The action
of the court in recalling a remittitur cannot be collaterally
attacked by habeas corpus.^' It will lie to release a witness
who has been unreasonably detained. And where a peti-
tioner is held for extradition, the court will inquire by

18 In re Kowalsky, 73 Cal. 120.

i» Ex parte Granice, 51 Cal. 375; Ex parte Keil, 85 CaL
309.

20 In re Fife, 110 Cal. 8.

21 Ex parte Miller, 82 Cal. 454.

22 Ex parte Wong You Ting, 106 Cal. 296.

23 Ex parte Keeney, 84 Cal. 304.

24 Ex parte Taylor. 87 Cal. 91.
26 Ex parte Mitchell, 70 Cal. 1.
20 Ex parte Bulger, 60 Cal. 438.
2T In re Grcsbols. 109 Cal. 445.

28 Elx parte Rowe, 7 Cal. 181; Ware v. Robinson, 9 Cal.

Ill; People v. O'Neil, 47 Cal. 110; Ex parte Hollis. 59

Cal. 408; Huerstal v. Mulr, 62 Cal. 481.
20 Ex parte Tinkum. 54 Cal. 201.
10 Ex parte Murray, 43 Cal. 455.
31 Ex parte Gallagher, 101 Cal. 113.



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HABEAS OOSFUB. 4SMl

habeas corpus whether the complaint states an offense
under the laws of the demanding state.'* The court will noli
discharge the petitioner when it appears he is guilty ol aot
oflFcnse tmtil the time is allowed for a legal arrest where
he is held under a void commitment'* The writ will
not justify a discharge for a defective commitment.'* A
defective commitment does not authorize a discharge, if it
appears that the order endorsed on the depositions is cor^
rect, and no allegations by way of traverse returned that a
sufficient order was not so endorsed.'* A certified copy
of the judgment, properly entered, is sufficient authority ta
detain the prisoner and the court will give a reasonable time
to obtain a certified copy thereof before ordering his dis-
charge, if it appears that it can be procured.'^ Where the
defendant is convicted of a misdemeanor and imprisoned in
the state prison he will be released on habeas corpus."
All the presumptions are in favor of the regularity of the
judgment under which the petitioner is held." The judg"
ment is conclusive and the sufficiency of the evidence cannot
be inquired into;'® so are the recitals of the jurisdictional
facts.***^ The burden is on the petitioner to show the re-
straint apparently legal is not so, and allegations are taken
most strongly against the pleader.*^ But where no legal
right to detain the petitioner is claimed, habeas corpus will
discharge him.** No appeal will lie from a judgment on

»2 Ex parte Spears, 88 Cal. 640.
88 Ex parte Crandall, 2 Cal. 144.

84 Ex parte BuH. 42 Cal. 196; Ex parte KeH, 86 Cal. 310.

85 Ex parte Estrado, 88 Cal. 316.

80 In matter of Ring, 28 Cal. 248; Ex parte Gibson, 31 Cal.

623; Matter of Brown, 32 Cal. 49; Ex parte Ahem, 103

Cal. 444.
8T Ex parte Ah Cha, 40 Cal. 426; Ex parte Turner, 75 Cal.

228.

88 Ex parte Morrison, 88 Cal. 113.

89 Ex parte Acock, 84 Cal. 50.

*o Ex parte Sternes, 77 Cal. 156; Ex parte Stephen, 114
Cal. 280; Ex parte Ah Men, 77 Cal. 203; Latham v. Blake,
77 Cal. 649; De Pedrorena v. Superior Court, 80 Cal. 146;
White V. Superior Court, 110 Cal. 65.

« In re Clark, 125 Cal. 389.

<2 Ex parte The Queen of the Bay, 1 Cal. 157.



CRIMCS - 31



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482 CBDflVAL LAW AND PBOCKDUBK.

liabcas corpus,*' neither is it a bar to a further proceeding
\ipon another application before another tribunal, for the
**doctrine of res adjudicata does not apply.** The decision
^of the court refusing to discharge a prisoner is not a bar
^o another application before another judge or court. The
prisoner has the right to exhaust the whole judicial power
of the state.*' Where the commitment is to the wrong
officer, the petitioner will be remanded to the proper officer,
but not discharged. An appeal from habeas corpus pro-
ceedings in the federal courts upon a conviction in the
state court operates as a stay in the state court.** The
writ may be issued by the Supreme Court and returnable
before a Superior Court which has the same authority un-
der it as the Supreme Court has.*' The state court, how-
ever, has no authority to release from the state prison a
prisoner held under federal process.** The writ will
not issue out of the county except for good cause shown;
such as absence, disability, or refusal of the local judge
to act.**

HABEAS CORPUS TO ADMIT TO BAIL.

Application for habeas corpus to admit to bail will be
denied where the evidence shows facts to warrant a verdict
of murder in the first degree. Where new proofs are
desired to be added, an application should be made to the
Superior Court.*^® On habeas corpus to reduce bail after an
indictment, the guilt of the defendant is assumed,'^ and to
authorize an interference by the court upon habeas corpus,
the bail demanded must be per se excessive.'*

48 People V. Schuster, 40 Cal. 62T.

44 In re Perkins, 2 CaL 424.

45 In matter of Ring, 28 Cal. 248.

4« EIx parte Edgar, 119 Cal. 123; In re Ebanks, 84 Fed. Rep.

313.
47 Ex parte Booker, 51 Cal. 317.
4S Ex parte Le Bur, 49 Cal. 159.
4» Ex parte Ellis, 11 Cal. 223.
BO Ex parte Curtis, 92 Cal. 188.
»i Ex parte Duncan. 53 Cal. 41§; Ex parte Duncan, 64 Cal.

78.
•2 In re Williams, 82 Cal. 183.



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HABEAS OORPUB. 488

COMMITMENT WITHOUT PROBABLE CAUSE.

On application to be discharged upon the ground that
the commitment of the magistrate was without probable
cause, the petition must be verified and must set out all
the evidence in such form that perjury may be assigned
thereon.*' The facts stated must show an illegal impris-
onment.** But where the commitment was without prob-
able cause, the prisoner will be discharged on habeas cor-
pus.** The probable cause of the commitment may be in-
quired into by the writ. The district attorney in filing the
information acts only in a miniijerial capacity.** And for
the purpose of determining whetheO&jpbable cause appears
for commitment, the question of whemv^epositions taken
before the magistrate are sufficient, may^bifjeviewed, and
the depositions may be examined for that puf^sfip.*"



B3 Ex parte Buckley, 106 Cal. 123; Ex parte WiAple, 84
Cal. 584. K

B« Ex parte Walpole, 84 Cal. 584.

BB In re Howell, 114 Cal. 250.

B» Ex parte Stemes, 82 Cal. 245; Ex parte Nicholas, 91
Cal. 646.

»T People v. Smith, 1 Cal. 9; Ex parte CottreU, 53 Cal. 422;
Ex parte Stemes, 82 Cal. 247.



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CHAPTER LXVL



BXTRADITION.



FUGITIVES FROM JUSTICE.

The obligation of the federal statute that a fugitive from
justice from one state shall, on demand of the executive
authority of the state from which he fled, be delivered up
to be removed to the state having jurisdiction of the crime,
is an absolute right and duty and no longer a matter of
mere comity between the states.^ But the provision for the
arrest and detention of such fugitives before the requisition
has arrived, is upon principles of comity only.^ Where
the surrender is for a crime not specified in a treat}% it
will be presumed it was within the exercise of sovereign
discretion as an act of comity.^ The power to issue the
warrant for the apprehension of a fugitive from justice de-
pends upon the following facts: (i) That the person is
charged in some state or territory of the United States with
any treason, felony or other crime; (2) that he has fled from
justice; (3) that he is found in this state; and (4) that
the executive authority of the state or territory from which
he fled, has demanded his delivery, to be removed to the
territory having jurisdiction of the crime.* Any illegal
means used to effect this purpose does not impair the juris-
diction of the court to try for an offense committed within
its jurisdiction,** but the trial should be for the crime on

1 In Matter of Romaine, 23 Cal. 591.

2 Ex parte Rosenblat, 51 Cal. 285.
« Ex parte Foss, 102 Cal. 347.

4 In matter of Romaine, 23 Cal. 591.
8 People V. Pratt, 78 Cal. 345.



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EXTRADITION. 486

which the extradition is based only.* When, however,
the indictment is set aside another may be filed for the
same offenseJ An affidavit is not sufficient if it is made
merely on information and belief.® The recitals in the
warrant of arrest will be taken as true, on habeas corpus,
if not disputed.® The cause of imprisonment ma^ be in-
quired into by habeas corpus and a refusal to deliver, as
commanded in the writ, is a contempt of court.** The
governor of this state has no power to surrender a fugitive
unless judicial proceedings have been commenced against
the prisoner in the state where the crime was committed;
he cannot be even arrested without such proceedings hav-
ing been begun,** but a fugitive from justice, who has fled
from another state, before a demand for his surrender by
the executive authority of the state from which he fled,
may be arrested and detained for a reasonable time to
afford an opportunity for such demand.** The proceedings
under the statute in relation to the arrest and detention,
are required to be similar to those against the person
charged with crime committed in this state, and the war-
rant must specify the offense alleged to have been com-
mitted by the accused.**

« People V. Gray, 66 Cal. 271.
^ Ex parte Foss, 102 Cal. 347.
8 Ex parte Spears, 88 Cal. 640.
» Ex parte Lewis, 79 Cal. 96.

10 Jn re Robb, 64 Cal. 431; Ex parte Sternes, 77 Cal. 168.

11 Ex parte White, 49 Cal. 433.

12 Ex parte Cubreth, 49 Cal. 436; Ex parte White, 49 Cal.
438.

18 E)x parte Cubreth, 49 Cal. 436.



Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 39 of 77)