People Ex Rel. De Martini v. McLaughlin , 243 N.Y. 417 ( 1926 )

We think the affidavits submitted in support of the requisition fail to charge the appellant with the commission of a crime. (People ex rel. Lawrence v. Brady, 56 N.Y. 182; People exrel. Jourdan v. Donohue, 84 N.Y. 438; People ex rel. Corkran v. Hyatt, 172 N.Y. 176, 191, 195.)

When extradition is sought on the basis of an indictment, the forms of pleading established in the demanding State will be accepted as sufficient by the courts of the State in which the fugitive is seized (Hogan v. O'Neill, 255 U.S. 52; Pierce v. Creecy, 210 U.S. 387; People ex rel. Marshall v. Moore,167 App. Div. 479; affd., 217 N.Y. 632). The finding of an indictment presupposes the testimony of witnesses before a grand jury, and is thus a safeguard against a removal that is ignorant or wanton (Matter of Strauss, 197 U.S. 324, 332). When extradition is sought on the basis of an affidavit, there is need for closer scrutiny (People ex rel. Lawrence v. Brady, supra;People ex rel. Himmelstein v. Baker, 137 App. Div. 824;Davis' Case, 122 Mass. 324, 327, 330). The affidavits in this case, when read together, are seen to proceed upon information and belief, though one of them, if read alone, suggests a profession of knowledge that is erroneous and unwarranted. The charges are vague, indefinite and general. They are made without specification of the sources of information or the grounds of belief (People ex rel. Livingston v. Wyatt, 186 N.Y. 383,391). If they are accepted at their face value, they still omit a basic element of guilt, in that the prisoner, prosecuted as an accessory after the fact, is not stated to have had knowledge of the guilt of the principal offenders (Wharton Crim. Law [11th ed.], § 282). There is room for argument that any one of these grounds of criticism, standing alone, would be inadequate. Our duty is to weigh them in their cumulative significance. We think the danger of a removal that is merely ignorant or wanton would be extended beyond precedent if affidavits so defective were to be accepted as a basis of extradition. Neither formally nor substantially is there a sufficient charge of crime.

The orders of the Appellate Division and of the Special Term should be reversed, and the discharge of the relator ordered.

HISCOCK, Ch. J., CARDOZO, POUND, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur.

Ordered accordingly.