Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1883-11-21
REOUISIRION REFUSED.

for the Return of Gen. Myers for Adult
tery-Opinion of Attorney General Hahn
and the Consequent Action of Governor
Hubbard.
The following is in part the opinion of
Attorney General W. j. Hahn, as rendered
to Governor L. F. Hubbard and on which
on Monday, he predicated his refusal to
O'Brien d Wilson, the counsel for d. 81.
Vermilye. for requisition on the governor
of Illinois for the return of General VIM.
Myers to the state of Minnesota for trial
for adultery with the formers wife. AS
will be seen, the adverse opinion is princi-
pally predicated on the law for finding an
Indictment under the statute of limita-
tions, too great time having elapsed be-
tween the committal of the crime and the
commencement of the prosecution there
for:
Nov. 10, 1888.
His ExcelIency L. F. Hubbard, Gov
ernor:
Sir-On the 9th instant your excellsncy
refused to me the application for requi-
sition on the governor of the state of Hi
nois, Tor Gen. VIM. Myers, made by
Messrs. O'Brien & Wilson on behalf of
David B. VeImilye, Esq, with request
that 1 investigate the grounds of such ap-
plication and report to You all material
circumstances which might come to my
| knowledge, with an abstract of the evil
dence and my opinion as to the expadi-
ency of the demand.
On the same day caused notice to be
served on Messrs. O'Brien and Wilson,
informing them of your excellency's &C.
ton in the premises and appointing P.
m. of that day as the time when hear
ing would be granted, The afternoon of
that day and also of the following day was
consumed in the hearing, most of it in the
endeavor to convince the parties ap-
plying of the reasonableness of your ex-
cellency's requirements.
The testimony of Mr.. Vermilye was tax
en- and is herewith transmitted for your
excellency's examination. No other evil
dencs was offered. Statements we're made
as to other facts which it was claimed
could be substantiated by competent testi-
mony; but as no such proof was produced,
1 deem it unnecessary to trouble
your excellsncy with repetition
of them. You are SO conversant
with what has since transpired that it is
useless to call attention to it. There are
no other material circumstances which
have come to my knowledge with which
your excellency is not already familiar.
And now as to my opinion as to the ex-
pediency of the demand. In considering
this question it is to be observed at the
outset, that the only papers submitted
upon which to base the granting of this
request is a certified copy of a complaint
made before the municipal court of st.
Paul, and an affidavit of MIR. Vermilye
that Gen. Myers on or about Oct. Is, 1882,
''did depart and has fled from the said
state of Minnesota, and is now
and has been since on or about the 18th
day of October, 1882, fugitive from the
justice of the state of Minnesota.
BY the rules of the executive depart
ment governing the issuance of requisi-
tons land rules of similar import are in
force in all or nearly all the states in the
Uuion) applications are required to be
made by the county attorney who Is re-
CURED to certify that he approves of the
application and that the ends of justice re
quiIe that he should be brought back to
this state for trial. He is also required
when the application is on complaint be-
fore q magistrate to certify that if the
facts stated in the afidavits accompa
nying the complaint are true, they
would, in his opinion result in convic-
ton. Said rules also require that if the
application is made upon complaints and
afidavits the m lgistra.e taking them
must certify that in his opinion the par
ties making the affidavits are to be believ-
ed, and that they present a proper case for
reqdisition.
The necessity and wisdom of these re-
quirements are obvious and need no iusti
fication. They simply embody ia a CON
densed form what is re ad by Spar in his
work on Examination, when is in short:
"That the executive should have before
him form of indictment, or an affidavit
of facts and circumstances constituting the
crime alleged, and from these draw careful
conclusions"
In this case there Is an entire absence of
any attempt to comply with either of
these rules. This fact calls for the closest
scrutiny, and before issuing q Tequisition,
your excellency should be convinced. by
tbs showing made, that there is sufficient
legal evidence ut hand at least to warrant
an Indictment. Besides the lack Of evi-
dence which arises in this case q fatal OBJ
iecIion to granting a requi5ition Is the
bar of the statute of Limitations, viz:
Section 1, of chapter c, page go, gen
| eral statutes 1873, after prescribing the
punishment for adultery concludes 'bltt
aolprosecution for adulsery shall be com
menced except on the complaint of the
husband or wife, and no such prosecution
shall be commenced after one
year from the time of com
hitting the ofense." In this
| case it is alleged that the crime was com
mitted September, 1882, and prosecution
commenced Nov. Z, 1883.
This provision, says the attorney, was so
plain to my mind that if the counsel rad
not SO strenuously insisted in the argument
bsfore you that there was no bar in this
case, would not deem it necessary to do
more than simply call your attention to
| this course
| The attorney then proceeds to discuss
the law to show that it means Just what it
| says, citing State vs.. Armstrong, MINI
343, and a wilderness of othez decisions
proving the position taken by him that
this case is barred under the status of lin
itgtion as above stated.
In conclusion he says: Such have been
the Uniform rulings of the courts, and
when 10 this is added the we'll settled doc
trine that statutes OF Limitation gre to be
! literally construed ID favor of the defend
ami that s.ft Il tho roITav of tho fo- ~