The San Francisco call., 1898-09-10

murdered woman. John P. Cunning, Chief
 d1;on mees noes i9 not nestaTs s to express m his
 gpod fellow and e all tha bnt %an he mfs hss ds
 played little inclination to assist in cap turing his wife's assassin. His place during
 this case is right hero in San Francisco. | Had he been here we would have been saved an immense amount of unsatisfac- | tory work and a great deal of time. I
 don't know just how to explain his
 Detective Mcvey said that In case Gov ernor Budd should alloy extradition, Mrs; in Delaware will be to her disadvantage. sfa.
 The expenses of all of her witnesses to | the Eastern court will De met by his neys that they are necessary to the de- l fense. Everything that can be will be done by the Delaware authorities to as- nampered trial. This assurance of Detec- tive McVey disposes of one idea that has caused Mrs. Botkin a great deal of hard l worry, as she has all of the time been
 under the impression that this expense would be upon her. l Mrs. Botkin. however, is quite confident 1 that the State of Delaware will not be put to any transportation expense. Her | spirits are in accord with her health, and 1 her appetite, all of which, according to
 her faithful sister, Miss Brown, are of | the best.
 She has become accustomed to the curious crowd that each day comes to the disposed of them by filing with the matron a standing refusal to be exhibited.
 The question of the extradition of Mrs. Prison and charged with the murder of Mrs. Dunning and Mrs. Deane, Is at tracting the attention of laymen and lawyers throughout the United States The horror of the crime with which Mrs Botkin is charged is not the only fact which makes the case of absorbing inter- est to the people, but the legal questions involved in the matter of her extradition to the State of Delaware invest 1t with an additional interest, especially for the members of the, legal profession. The Budd, which is set for Tuesday next, upon which the question of the extradi- tion of the prisoner will be elaborately argued, is awaited with much interest
 The question of interstate extradition is not new one to the jurisprudence of this or, perhaps. any other State in the Union. and there are to be found cases very, similar to that of Mrs. Botkin and involving the same questions of law.
 A very interesting paper on the subject of interstate extradition was read by of this city, before the Young Mems Bar Association of San Francisco In July, 1884 The, paper was published In full in Vol complete and exhaustive of the subject of which it treats. It opens with a statement of the constitutional and stat sons charged with crime who flee from justice. It Is not in the nature of an opinion on the question, but a statement cation of those principles by. State and Federal courts of the United States to the facts of particular cases.
 All the leading reported cases are cited and discussed, and from the law as laid down by those cases mind without legal training must come to the conclusion that Mrs. Botkin. cannot be extradited.
 Judge Slack also discusses the question of executive discretion In causing the ar rest and delivery of the fugitive. It seems from the authorities that the provision in the constitution declaring that it shall be the duty of the executive to cause the arrest and delivery of the fugitive is declarative and not mandatory that 1t duty, and that this is so because no means are provided to compel the execu- ton of this duty, nor inflct any punish ment for neglect. or refusal on the part of of warrant for the arrest and detention of an alleged fugitive rests in the dis cretion of the State executive.
 The next point discussed Is as to the jurisdiction of the courts to inquire into the course of the detectives It seems that when the executive has once acted, may be investigated on habeas corpus whether or not the prisoner is properly detained under the constitution and law of Congress; In other words, the deter imitation of a Governor is not conclu- sive.
 Another interesting point discussed is who are fugitlves from justice. It seems from the leading judicial opinions that in order to constitute a person a fugitive from justice such person must have been within the State where the crime was committed and at the time 1t was com mitted and have fled therefrom. That person can be constructively in the State at the time, as has been suggested by the authorities here in the Botkin case finds no authority in law. and the very reverse has been actually decided
 In the case of Louis Reggie, reported in the one hundred and fourteenth vol ume of United States Reports, the Uni point which will be raised by the attor- neys for Mrs. Botkin before Governor Budd. Reggie was alleged to be a fugi- tive from justice from Pennsylvania. and upon the reQuisition of the Governor of that State the Governor of Utah. where he was discovered issued a warrant for his extradition.
 Justice Harlan wrote the opinion of the court, and in 1t said: "The only ques- ton remaining to be considered relates to the, alleged want of competent evil dence before the Governor of Utah at the time he issued the warrant of arrest to prove that the appellant Reggle) was a fugitive from justice from Pennsylva- mia. Undoubtedly the acts of Congress thority of the Territory the duty of sur rendering the appellant, unless it was made to appear in some proper way that he was fugitive from justice Tn other words the. appellant was entitled under the acts of Congress to insist upon proof that he was within the demand ing State at the time he is alleged to have committed the crime charged and subsequently withdrew from her jurisdic- ton so that he could not be reached by her criminal processes.
 "The statute, 1t is to be observed. does not prescribe the character of such proof. but that the executive authority of the Territory was not required by the acts of Congress to cause the arrest of ap- pellant and his delivery to the agent ap- pointed by the Governor of Pennsylva- mia without proof of the fact that he was a fugitive from justice, is in our judg- ment clear from the language of that act. Any other interpretation would lead to the conclusion that the mere requisi- ton by the executive of the demanding State, accompanied by a copy of an fn- dictment or an affidavit before a magis- trate certified to by him to be authentic, charging the accused of crime committed within her limits, imposed upon the exec utive of State or Territory where the accused is found the duty of surrender ing him, although he may be satisfied from incontestable proof that the accused had, in fact, never been in the demand ing State, and therefore could not have been said to have fled from its justice
 Upon the executive of the State in which the accused is found rests the re