Rock Island Argus. (Rock Island, Ill.) 1893-1920, 1907-05-14
DISSENTING OPINION OF JUSTICE
M'KENNA IN YER.HAYWOOD CASE

len. And this, it is said is supported
by the cases of Ker VS.. Illinois Q19 u.
Is. 1860, and Mahon VS.. Justice Q27
L. S. 700). These cases, extreme as
they are, do not justify, in my judg
ment, the conclusions deduced from
them. In neither case was the state
the actor in the wrongs that brought
within its confines the accused person.
"ln the case at bar the states, through
their officers, are the offenders. They,
by an illegal eXertion of power, depriv-
ed the accused of constitutional right
The distinction is important to be OBJ
served. 1t finds expression in Mahon
VS.. Justice. But it does not need en-
phasizing. kidnapping is a crime, pure
and simple. 1t is difficult to accom-
pliSh; hazardous at every step. All of
| the officers of the law are supposed to
| be on gnard against it. All of the Off
GERS of the law may be invoked against
| it. But how is it when the law becomes
the kidnaper? Whensthe officers of the
power, become abductors? This is not
distinction without a difference-an-
other form of the crime of kidnapping
distinguished only from that commit
ted by an individual by circumstances.
| If a state may say TO one within her
borders and upon whom her process is
Iserved, | will not inquire how you came
here: | must execute my laws and re-
NIT you to proceedings against those
who have wronged you, may she so
plead against her own offenses? May
ishe claim that by mere physical pres
ence within her borders an accused per-
son is within her jurisdiction denuded
of his constitutional rights, though he
has been brought there by her VIC
Hence?
II And constitutional rights the accus-
ed in this case certainly did have. and
valuable ones. The foundation of eX
tradition between the states is, that the
accused should be a fugitive from jus
tice from the demanding state, and he
may challenge the fact by habeas cor
pus Immediately upon arrest. If he
refute the fact he cannot be removed
(Hyatt VS.. Corkran, 1913 u. S. 691), and
the right to resist removal is not {
right of asylum. To call it so, in the
state where the accused is, is mislead
ing. 1t is the right to be free from
molestation. 1t is the right of persona
liberty in it's most complete sense; ant
this right was indicated in Hyatt VS.
Corkran and the fiction of construc
tive presence in a state and a cOnStruc
tive flight from a constructive presence
rejected.
This decision illustrates at once thu
value of the right, and the value of thu
means to enforce the right 1t is to b.
| hoped that our criminal Jurisprudence
| will not need for its efficient admins
tration the destruction of either tn
| right or the means to enforce it. TIL
decision, in the case at bar, as | viey
it, brings us perilously near both re
suits. Is this exaggeration? What ar
the facts in the case at bar as allege
in the petition, and which it is conceC
ed must be assumed to be true? TIL
complaint, which was the foundation c
the extradition proceedings, charge
against the accused the crime of mu
der on the 30th of December, 1905, q
Caldwell, in the county of Canyon, stat
of Idaho, by killing one Frank Steiner
berg. by throwing an explosive bonn
lat and against his person. The aeon
led AYERS in his petition that he ha