The Montgomery advertiser., 1904-02-29
CRITICISES FLORIDA
FORMER ATTORNEY GENERAL
 MARUIN IS INTERVIEWED.
He Discusses Legal Aspect of Hard" Ing Case and Says Our Neigh bors Ought to Correct
 an Error.

@&4k GHE0 ana SAWS OuE
 bors Ought to Correct
 an Error.
 Tn an interview yesterday Col. w. l..
 afun of Montgomery, formerly Attor- ney General of Alabama. sharply criti- slzes the Governor of Florida for refus- l.hg 70 honor a requisitfon of governor 1 Sstks Tor the return to Alabama or Leroy sr G aarding, who has since been reieasea Harding, 1t will be remembered, is wanted in North Alabama for embezzle- ment. He was captured in Brooksville, ra, Governor Jennings of Florida, on aavice of Attorney General Whitfield. de- I cined to honor the Alabama requisition on the ground that the indictment was not legally drawn.
 It appears from the press despatches of q Few days ago. said Colonel Martin. that the Governor of Florida has refused 70 honor a requisition made by the Gov ernor of Alabama for the surrender up or enc Harding to answer an indictment Tor embezzfement preferred against him py grand judy in the circuit court or Dekaib county in this State, the Cover nor Of Florida basing his action upon the opinion of the Attorney General of that State to the effect that the indictment, copy of which is set out in the opinion, does not charge the commission of a crime in the State of Alabama, and there is nothing in the indictment to show that Harding was ever In the State of Ala bama'
 If that decision is adhered to in the future by the State of Florida there will be no necessity for Alabama criminals taking flight to foreign country hay ing no extradition treaty with us. They may find an asylum nearer homs. And, as against Alabama, Florida will have nuilified the Constitution and laws of the United States bearing upon the subject of extradition between States of the Union. If the indictment against Hard ing is not good as to form then there is not good indictment in any court of this State.
 "If the attention of the Attorney Gen. eral of Florida had been called to the statutes of Alabama (enacted fifty years ago) dispensing with the useless tautology of the common law indictment and pre- scribing a system of criminal pleading with forms for almost every criminal of- fense: and that officer had consulted the decisions of the Supreme Court of Alabama sustaining these forms as good and sufficient, his opinion must have been different
 ''The indictment against Harding is in the prescribed form for the offense charged and has been many times held sufficient by our Supreme Court (Codo of 1896, paragraph 1923, 1, 4l)
 'In Nolles V. State, 24 Ala. 67l. 6s}. the court, speaking with respect to the ment, said: It is not pretended that the prisoner was tried out of the county in which the offense was committed. It was competent for the legislature to enact that 1t should not be necessary to allege where the offense was committed, but that the proof must show it to have been com mitted within the Jurisdiction of the in vv ha Ind ferred. Code QS52) section 3514. The &C., cusation of the commission of the crime, is the gravamen of the indictment. This cannot be dispensed with; but the par ticulars as to time, place, and circum- stances, not constituting essential ele- ments of the crime, may be dispensed with in the indictment, by the statute and be left as matter of proof as establishing or not the Jurisdiction of the court. We can see no inconvenience or injury, which could result to the accused, from this, as the statute now secures to him a trial in the county where the offense was com mitted, unless upon his motion 1t is taken to another county on change of venue.'
 ''The section of the Code of 1SS2 re- ferred to in the foregoing extract now constitutes section 49O2 of the Code of 1S96
 ''In Wesley vs. State. 52 Alabama 1s2,
  diction of the court Is dependent on venue, the original (marginaD statement in the indictment, State of Alabama. Montgom- cry County is equivalent to an aver ment that the offense was committed within the body of that county, and au- thorizes evidence that such was the fact (Ctting Noles vs. State, A Alabama 672)
 "In Smith vs State, 6 Alabama 55. 5s, the court. speaking of time and venue, said: These constituent elements, by a declaration of the legislative will, an in dictment framed according to section 4S14 of the Code (of 1870 must be understood as charging, although, in fact, it expresses neither of them. If the testimony fails to establish either one of these clements the defendant is entitled to an acquittaI.' The statute Code of 1896, sections 49Ol 49O2,) dispensing with averments of time and venue, the legal effect of the indict- ment against Harding is to charge him with the commission of the crime of em- oezzlement in the county of Dekalb State of Alabama, within three years be- fore the finding of the indictment-such being the limitation as to time in which a prosecution for that offense must be commenced.
 Since 14th and 18th Victoria, c. 100. Secs. 2S-A, it has not been necessary to state any venue in the body of an indict- ment preferred in an English court Archbald's Criminal Pl. & Pr. Secs. 260- 26A
 Each State has the right to prescribe forms of criminal and civil pleading. sub ject only to the provisions of the Consti- tuition of the United States and of the State designed for the protection of the life, liberty and property of the citi- zen; consequently. in a case involving the surrender. under the act of Congress, of fugitive from justice. it may not be objected that the indictment Is not fram- ed according to the technical rules of criminal pleading. If 1t conforms sub stantially to the laws of the demanding State.' Elk parte Reggel IA U. S.. 642
 ''The case of Roberts vs. Reilly, I16 United States 80. cited by the Attorney General of Florida in his opinion, does not apply, since. under the law of Ala bama. Harding is substantially charged with crime against the law of the de- manding State. by indictment cer- tihed by the Governor as authentic etc, and it was clearly the duty of the Florida officials to accede to the request. The same objection to our statutory indicf- ment was attempted to be raised in 1894 by one Pearce, who was eXtradited from the State of Texas. The Governor of that State honored the requisitlon of the Gov ernor of Alabama and Pearce was arrest ed upon the warrant. He sued out a writ of habeas corpus and prosecuted the same through the courts of Texas and to the Supreme Court of the United States. The result, both in the Texas courts and the Supreme Court of the United States was to hold that as 1t appeared that Pearce was charged by indictment in Alabama