copy of the indictment should accompany the demand; it is sufficient if it is referred to in the writ-7 Ind. 1; 29 id. 10.

The requisition or proceeding must show that the alleged crime was committed within the jurisdiction of the State making the application-3 McLean, 121; and the charge must be positive, not on information or belief-id. The affidavit must show that the supposed culprit has fled from justice in one State, and has taken refuge, or is found, in another-3 McLean, 121; 13 West. Jur. 15. It is not necessary that the affidavit, upon which the requisition issued, should set forth the crime charged with all legal exactness-5 Cal. 237; nor that the prisoner is "a fugitive from Justice"; that he committed the crime, and then secretly fled, is sufficient-5 Cal. 237.

When the requisition certifies that the affidavit is "duly authenticated according to the laws" of said State, it is sufficient-5 Cal. 237. The governor of a State issuing the requisition for the fugitive is the only proper judge of the authenticity of the affidavit-5 Cal. 237.

Interstate extradition.-Certain of the colonies, before the declaration of independence, pledged their faith to each other that on the escape of a fugitive from justice, the colony wherein he should be found should, upon the certificate of two magistrates of the jurisdiction from which he escaped, forthwith grant a warrant for his arrest, and deliver him into the hands of the officers, or other persons in pursuit of him-24 How. 66; id. 101; 10 Serg. & R. 129; 2 Winth. Hist. of Mass. 121, 126. And the thirteen colonies in the articles of confederation included a similar but more explicit provision for the extradition of criminals-24 How. 66; id. 102. Afterward, upon the adoption of the Constitution of the United States, the same provision was literally included therein," high misdemeanor" being substituted for the word "crime," including every offense made punishable by the law of the State in which it was committed-id.; 48 Ind. 123. The provision of the Constitution of the United States rendered absolute the duty to surrender criminals by one State to another, which, before that, was entirely a matter of comity and in the discretion of the Staté authorities-24 How. 66; 16 Peters, 539; 14 id. 540; 17 Mass. 514; 10 Serg. & R. 125; 2 Brock. 493; 2 Sand. 482; 7 Am. Law Record, 212; 16 Wall. 366.

Offenses made punishable by the laws of the State where the act charged is committed, come within the meaning of the Constitutional provision-24 How. 66; 32 N. J. L. 141; Phill. N. C. 57; 1 Sand. 701; 31 Vt. 279; 112 Mass. 409; leaving no discretion with the State on which the demand is made-24 How. 66.

The provisions of the Constitution are not intended for the benefit of private persons, and may not be resorted to for the purpose of bringing a debtor within the jurisdiction-6 Wis. 42; 2 Sand. 717; 3 Paige, 314; 37 How. Pr. 235. The courts of the United States have full power and jurisdiction over cases of this nature-3 McLean, 121. Under the Constitution, the intercourse with foreign powers is vested exclusively in the United States government, and States have no authority to grant or cause the extradition of one of its citizens on demand of a foreign power-50 N. Y. 321; 14 Peters, 540; see 3 Wash. C. C. 546; 4 id. 556.

1549. A magistrate may issue a warrant for the apprehension of a person so charged, who flees from justice and is found in this State.

Warrant for arrest. The proceeding must be such as is usual in similar charges against residents, and the warrant, indictment, and demand must specify the nature of the crime charged-49 Cal. 436; 10 Serg. & R. 125; 28 Ind. 450; 56 N. Y. 182.

PEN. CODE.-51.

The only authority as to the extradition of criminals, is derived from the national Constitution, and if the proceeding be not in conformity thereto, extradition cannot be enforced-49 Cal. 435; 3 McLean, 121; 28 Iowa, 391; 9 Wend. 212; 1 Sand. 701; 6 Wis. 45; 56 N. Y. 182; 9 Tex. 635; see 6 Peters, 761; 4 Wash. C. C. 371.

A person cannot be arrested, unless a prosecution has been commenced and is pending against him in the State having jurisdiction of the offense-49 Cal. 437.

A State law for the surrender of fugitives from justice, is not unconstitutional-49 Cal. 434; id. 436.

1550. The proceedings for the arrest and commitment of a person charged are, in all respects, similar to those provided in this Code for the arrest and commitment of a person charged with a public offense committed in this State, except that an exemplified copy of an indictment found, or other judicial proceedings had against him, in the State in which he is charged to have committed the offense, may be received as evidence before the magistrate. Proceeding for arrest.-A State may provide for the arrest and detention of fugitives from justice before the requisition has arrived, and may accompany the act for the arrest by as many conditions as to the mode of arrest and examination as it sees fit, and such act must be strictly complied with-51 Cal. 287. An officer armed with civil process cannot take a person from the hands of another officer who holds him on a warrant issued on a criminal charge-51 Cal. 288.

The courts possess no power to control the executive discretion in surrendering fugitives from justice, yet, having acted, that discretion may be examined into in every case where the liberty of the subject is involved-5 Cal. 237. The sufficiency of the charges and regularity of the proceedings may be examined into on habeas corpus -5 Cal. 237; 56 N. Y. 182; 9 Tex. 635; 14 Abb. Pr. N. S. 333; 10 Wend. 636.

1551. If, from the examination, it appear that the accused has committed the crime alleged, the magistrate, by warrant reciting the accusation, must commit him to the proper custody in his county, for such time, to be specified in the warrant, as the magistrate may deem reasonable, to enable the arrest of the fugitive under the warrant of the executive of this State, on the requisition of the executive authority of the State in which he committed the offense, unless he gives bail as provided in the next section, or until he is legally discharged.

Commitment.-The law authorizing the arrest of a fugitive before a demand for his surrender, and his detention for a reasonable time to afford an opportunity for executive demand, is not in conflict with art. 4, § 2, of the Constitution of the United States-49 Cal. 437.

The State on which the demand is made is not bound to deliver up the offender until its own laws are satisfied-51 How. Pr. 422. One State cannot enforce the penal or criminal laws of another, or punish offenses against another State or sovereignty-10 Wheat. 66; id. 123; 14 Johns. 338; 3 Dutch. 499; 17 Mass. 515, 548; Tayl. (N. C.) 65; 14 Vt. 357; 4 Humph. 456.

1552. The magistrate may admit the person arrested to bail by an undertaking with sufficient securities, and in such sum as he deems proper, for his appearance before him at a time specified in the undertaking, and for his surrender to arrest upon the warrant of the governor of this State.

1553. Immediately upon the arrest of the person charged, the magistrate must give notice thereof to the district attorney of the county.

1554. The district attorney must immediately thereafter give notice to the executive authority of the State, or to the prosecuting attorney or presiding judge of the court of the city or county within the State having jurisdiction of the offense, to the end that a demand may be made for the arrest and surrender of the person charged.

1555. The person arrested must be discharged from custody or bail, unless, before the expiration of the time designated in the warrant or undertaking, he is arrested under the warrant of the governor of this State.

Person, when discharged.-When a person is arrested before a demand for his surrender has been made, he is entitled to his discharge, if after his examination has commenced it is postponed against his consent for a longer period than that mentioned in § 861 of this Code-51 Cal. 288.

1556. The magistrate must return his proceedings to the Superior Court of the county, which must thereupon inquire into the cause of the arrest and detention of the person charged, and if he is in custody, or the time of his arrest has not elapsed, it may discharge him from detention, or may order his undertaking of bail to be canceled, or may continue his detention for a longer time, or readmit him to bail, to appear and surrender himself within a time specified in the undertaking. [In effect April 12th, 1880.]

1557. When the governor of this State, in the exercise of the authority conferred by section two, article four, of the Constitution of the United States, or by the laws of this State, demands from the executive authority of any State of the United States, or of any foreign government, the surrender to the authorities of this State of a fugitive from justice, who has been found and arrested in such State or foreign government, the accounts of the person employed by him to bring back such fugitive must be audited by the board of examiners, and paid out of the State treasury.

The fact that a fugitive from justice has not been heard from for sixteen months, and that he was a passenger on a particular vessel bound for a specified port, and that neither the vessel or crew had ever been heard from, is not sufficient to raise a legal presumption of his death-8 Cal. 65.

1558. No compensation, fee, or reward of any kind can be paid to or received by a public officer of this State, or other person, for a service rendered in procuring from the governor the demand mentioned in the last section, or the surrender of the fugitive, or for conveying him to this State, or detaining him therein, except as provided for in such section.

CHAPTER V.

MISCELLANEOUS PROVISIONS RESPECTING SPECIAL PROCEED. INGS OF A CRIMINAL NATURE.

$ 1562.

Parties to special proceedings, how designated.

§ 1563. Entitling affidavits.

§ 1564. Subpœnas.

1562. The party prosecuting a special proceeding of a criminal nature is designated in this Code as the complainant, and the adverse party as the defendant.

1563. The provisions of section one thousand four hundred and one, in respect to entitling affidavits, are applicable to such proceedings.

1564. The courts and magistrates before whom such proceedings are prosecuted, may issue subpoenas for witnesses, and punish their disobedience in the same manner as in a criminal action.