The Goodland republic., 1906-12-21

/ The dissenting opinion Of Mr.. Jus
tice McKenna follows In fuIl-
/ am constrained to dissent from
the opinion and judgment Of the
court. The principle announced. as /
understand II, is that q circuit court
OF the United States, when asked up-
on habeas corpus to discharge a per
son held in actual custody BY a state
| for trial In one OF its open courts un-
der an Indictment charging a crime
against It's laws, cannot properly
/ take into account the methods where
BY state obtained such custody.
! No Precedent.
In other words, and to illustrate the
principle by the light OF the facts in
this case (faCts, I mean, as alleged,
| and which we must assume to be true
| for the purpose OF our discussiOn) .
| that the officer OF one state may false
y represent that a person was per
/ sOnally present in the state and COM
| mitted crime there, and had fed
/ from its justice, may arrest such per
son and take him from another state,
i the officers Of the latter knowing Of
\ the false accusation and cOnniving in
and aiding its purpose, thereby de-
/ priving him OF an opportunity to ap-
/ peal to the courts; and that such per
son cannot invoke the rights guar
/ anteed to him by the constitution and
| statutes OF the United States in the
\ state to which he is AIKEN And his,
/ II is said, is supported by the cases OF
Ker vs. Illinois, 119 L. S. AS, and Ma
L hon vs. Justice, 127 Z. S. 700. These
] cases extreme as they are, do not
/ justify, in my judgment the conclu-
| sion deduced from them. In neither
case was the state the actor in the
/ wrongs that brought within its con-
| fines the accused person.
Real Offenders.
| IN THE CASE AT BAR THE
STATES, THROUGH THEIR OFF,
/ CrERC
/ by an Illegal eXertiOn Of power, de-
/ prived the accused Of a constitutional
! right The distinction is important
| to be observed. It finds expression in
need emphasizing. KIDNAPPING Is A
CRIME, pure and simple. It is diff
/ flcult to accomplish; hazardous at eY-
| cry step. All officers OF the law are
But HOW is IT WHEN THE LAW
BECOMES THE KIDNAPER? When
| the officers Of the law, using its forms
and eIerting its power, become alb
ductors? This is not a distinction
without a difference. 1t is another
form Of the crime Of kidnapping DIS
TINGUISHED FROM THAT COM
MITTED BY AN INDIVIDUAL ONLY
BY CIRCUMSTANCE IA state may
say to one within her borders and uD-
on whom her process is served: Il
Will not inquire how you came here-
I must execute my laws and remit
you to proceedings against those who
have WrOnged you" may she so plead
against her own OfTenSe2 May she
claim that by mere physical presence
OF the accused within her borders the
accused persons is within her juris-
diction deprived OF his constitutional
rights, though he has been brought
there by violence?
Violate Rights.
CONSTITUTIONAL RIGHTS THE
ACCUSED IN THIS CASE GER
TAINLY DID NOT HAVE, and val
liable ones. The foundation Of extra
diting between the state is, that the
accused should be a fugitive from jus
tice from the demanding state and
he may challenge the fact by habeas
corpus Immediately upon his arrest
II he refutes the fact he cannot be
removed (V. COrkrafn, 1O8 U. s. SD,
and the right to resist removal is not
| a right Of asylum. To call it 50, in
I the state where the accused is, is mis-
/ leading. 1t is the right to be free
from mOlestatiOn. 1t is the right Of
sense; and this right was vindicated
/ in V. COckrain and the action Of a
constructive presence in a state and
constructive flight from a constructive
/ presence rejected
| This decision illustrates at once the
value OF the right, and the value OF
/ the means to enforce the right 1t is to
| be hoped that our criminal jurisprud-
/ ence VIII not nGeQ LOE us GulClEuL au-
ministratiOn the destruction Of either
/ the right or the means to enforce it
/ The decision, in the case at bar, as
view It, brings US peTilOusly near both
/ results. Is this exaggeratiOn2 What
are the facts in the case at bar as al
legged in the petition, and which 1t is
] conceded must be assumed to be true
/ The complaint, which was the founda-
] ton Of the eLtraditiOn proceedings,
/ charged against the accused the crime
/ OF murder on the 5Oth day Of Decem-
/ Der, 1905, at Caldwell, in the county
/ OF Canyon, state Of Idaho, by killing
/ one Frank Stunenberg, by throwing
an explosive bomb at and against his
] person. The accused AYERS in his Pc
| tition that he had not been in the
| state Of Idaho, in any way, shape or
| form, for a period Of more than ten
years prior to the acts Of which he
/ complained; and that the governor OF
Idaho knew accused had not been in
the state the day the murder was COM
mitted, nor at any time near that day
Conspiracy OF Governors.
/ A conspiracy is alleged between the
/ governor Of the state Of Idaho and his
/ advisers, and that the governor Of the
state Of Colorado took part in the
| conspiracy. the purpose Of which was
| ''to avoid the constitution OF the Unit