Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1882-07-21


is a synopsis of the opinion of Judge Bran
non in the case of the State of Indiana vs.
H. L. Powers, the particulars of which have
heretofore appeared in the REGISTER. Ii II
said here that no similar case has yet beer
decided since the formation of West Vir
einia, and certainly not by the Court o.
Apbeols. Hence, the subject being new
and a question at issue involving the lib
erty of a citizen and the rights and dutie:
of the Executive, the opinion will be eager
ly read by all intelligent citizens:
The Optni0n.-
A question of great gravity has come
suddenly upon us. Gov. Porter, OF Indiana
demanded Of Gov. Jackson, Of this State
that Henry L. Powers should be arrested
and surrendered to Indiana to answer an
indictment for manslaughter as fugitive
from the justice of that State; and Gov.
Jackson issued his warrant upon this requi.
sition, commanding the sheriff to arrest
Powers and deliver him to the agent Of In
diana to be taken there; and under this
warrant the sheriff OF Lewis county arrest.
ed Powers, and Powers has sued out that
great writ of Iibertyof the English COM
mon law, the habeas corpus. to obtain re-
lease. The only ground assigned by Powers
for release is, that he is
Not Fugitive from Justice,
that he did not flee from the justice OF In
diana; that the act was done in October,
$780, and was under investigation in In
diana by grand jury and justice, and no
indictment was found and thereupon the
Justice discharged him, and he remained in
Spencer county, Indiana, openly until Feb
ruary, 1851, when, having made up his
mind to change his residence, he left there
openly to consult with his father here as to
his future home, went into business here,
and his whereabouts were known in In
diana. He was indicted after he left. The
Constitution OF the United States provides
that "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 fled
be delivered up to be removed to the State
having jurisdiction OF the orime." An act
of Congress in 1893 carries this provision
out.
Now, lust what should be the construc-
ton of this word "hee," may be little
nice; Just when person isa
Fugitive from Justice
is the point. If he was not in the State OF
the offence when it was committed, he does
not flee. Smith, the Mormon prophet, was
charged with instigating the shooting OF
a man in Missouri, and was taken up on a
reauisition under q warrant in Illinois;
bat a court discharged him because
he was not in Missouri when the offence
took place, but at Nauvoo, Illinois, 300
miles distant, as appeared from the papers.
The spirit and object OF the Constitution
would seem to be to hold person charged
with crime to answer, though he may pass
a State line-to vindicate the law, though
its breaker may remove himself from the
State of his crime.
He cannot be tried unless present, be-
cause the Constitution provides that he
must be present; and hence the necessity
of some means of obtaining possession oi
him, if he has gone out of the State before
trial; and as it is easy for person commit
ting crime to pass from one State to anoth'
er BY crossing q narrow river or stepping
over Surveyors line, and thus the
Violated Law
would be often defeated, the trainers Of the
Constitution, and the States for their own
protection, put into it duty on the States
of surrendering criminals, This is the
simple, plain object of the provision, and
il should receive such Q construc'
ton as will accomplish it. Every
one would admit that II one
commit murder in one State and promptly
run away to another, he should, when in
dicted six months afterwards, be sent back
but if he remain several months and then
20 openly away, it is claimed that he can
not be returned. Where is the logical
In both he is when indicted, absent; and
as the object Of the law is to return him to
answer, how is il material whether he In
stantly took fright and ran away, or re-
mained several months, hoping he might
not be prosecuted, but concluding finally
that it might come upon him, leaves? IL
would seem to be strong point If having
been in the State when the crime Is done
he leaves and is found in another State
when indicted, he should be returned, no
matter whether he left secretly, hastily, OF
a considerable time after, so he be out o'
the State when it calls upon him to answer
its violated law. He is not remanded as
A Penalty for Fleeing.
but because absent when called for. BuI
certainly the short space OF four months
between the act and the departure would
make no difference. The prisoner com
mitted the act in October, 1880; he makes
up his intent to change hi'
residence induced, doubtless, by thu
peril of his situation; he comes Y
this State, never returns even for his teai
ly: his family follows him the next fall
and he is indicted shortly after leaving
Does he not, in a common sense Viez, look
ing at the plain object OF the law flee fren
the law of Indiana? Must We not regart
him as having left to be absent il attacked
by the law? He has left his abode with
in four short months after the act and re-
tufns not, anu we must assume that ne i
driven away by the occurrence, ana tnat u
is fleeing within the spirit and m~.-ne O
the law from tie danger which may com,
upon him. II he had intent TO avoid the
law, no matter how or when he went, W.
should say he was fleeing from it; and ",
must infer such intent from common ex
rerience of the actions and motives Of men
But do not say that this specific intent i
indispensable. II lab0riDg under such
whether he goes by night or day, or run.
~ walks? He does that which
Avoids the Law.
He departs from the jurisdiction in which
he would have been called 10 answer il be
had remained, and illustrates the law until
recalled by the process OF extradition. The
word ''fiee" must not be given technical
strained condition, so ss to defeat the
plain purpose OF the law.
True, the law says he must fee from jus
ftice. Who is such q person? The Supreme
Court of New Jersey in the voorhees, mat
ter, 5 vroom 1f7, says. "a person who
commits crime within State and with
draws himself from such jurisdiction with.
out waiting to abide the consequences ol
such act, must be regarded IS q fugitive
from the justice OF the State whose laws be
has infringed." Gov. Fairchilds, Of Maine,
in 1888 said 81 am clearly Of opinion
that where one Is conscious Of having com.
mitted treason, felony or other crime in
one State, leaves that State, knowing that
he is subject to prosecution, sufficient
time not having elapsed or other circum.
stances occurred 20 remove all reasonable
apprehension of prosecution, he may fairly
be regarded fugitive from justice within
the meaning of the 4th article Of the Con
stitution."
Rouyier defines the word "fiight" as used
in the criminal Law a. "evading the course
of justice by a mans voluntarily with.
drawing himself" Wharton Grim. Prac.
n