THE PEOPLE OF THE STATE OF NEW YORK ex rel. VETA GENNA, Appellant,
WILLIAM MCLAUGHLIN, Warden of the City Prison, Respondent.
APPEAL by the relator, Veta Genna, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings, dismissing a writ of habeas corpus.
Hector McG. Curren, for the appellant.
John F. Clarke, District Attorney [Peter P. Smith of counsel], for the respondent.
An indictment was found in the Circuit Court of Madison county, in the State of Illinois, by the grand jury of said county, by which a person named therein as Vito Tony Zuchero, alias Veta Genna, was charged with the crime of
murder in the first degree for the felonious killing of one Leonard Labianca at a place called Collinsville, in said county, on the 16th day of October, 1910. Thereupon the Governor of the State of Illinois made a requisition on the Governor of the State of New York for the arrest and extradition of the person named in the indictment. The Governor of this State issued a warrant of extradition accordingly, and the police of the city of New York arrested, as the person named in the warrant of extradition, one Veta Genna, a resident of the borough of Brooklyn. The prisoner was brought before a justice of the Supreme Court in Kings county, as provided by section 827 of the Code of Criminal Procedure. Thereupon the prisoner denied that he was the person named in the indictment and requisition and warrant of extradition aforesaid. A writ of habeas corpus was issued to determine the legality of the prisoner's detention. A return was made to the writ, setting up the warrant of extradition, the indictment aforesaid and the requisition of the Governor of Illinois based thereon. The prisoner traversed the return by denying that he was the particular person named in the indictment and the other specified papers, and by further denying that he was in the territory of the State of Illinois at the time of the commission of the crime in question, or at any time before or since the commission of said crime. Thereupon the court at Special Term proceeded to take oral proofs on the issues raised by the traverse to the return. On the completion of the proof offered for and against the prisoner, the court handed down a written opinion in which it declared that it established completely and satisfactorily, in its judgment, that the prisoner was not in the State of Illinois at the time of the commission of the crime charged in the indictment, but it also declared that, inasmuch as there was a conflict of testimony on this point, it had not the power to determine that the prisoner had not been in the demanding State at the time of the commission of the crime. It thereupon made an order adjudging that the prisoner was the same person named in the warrant of extradition and the requisition and indictment and directing his requisition, but which contained no determination of any other fact put in issue by the pleadings. From that order an appeal was taken
to this court. It appears from the opinion of the learned court at Special Term that it was of opinion that the prisoner, on the whole case before it, had made out by a pre-ponderance of evidence a complete and satisfactory alibi. It said: 'As a matter of evidence the weight appears to be with the relator; in fact I am convinced that he was not in Illinois at the time the crime is said to have been committed, and that we are in the presence of a case where the proof of an alibi is complete and satisfactory.'
Nevertheless, as it declares, it felt itself bound to ignore this 'complete and satisfactory' proof of an alibi because, as it declared, an alibi is a matter of defense at the trial and cannot be used to defeat extradition. It based this conclusion on the authority of People ex rel. Ryan v. Conlin (15 Misc. 303), and upon some expressions of the Court of Appeals in People ex rel. Corkran v. Hyatt (172 N.Y. 176), supplemented by a statement of Mr. Moore in section 633 of his work on 'Extradition.' How far the learned Special Term was justified in this conclusion we shall now inquire. In this State the only authority which held expressly that the question of an alibi could not be considered on habeas corpus to review a warrant of extradition is that of People ex rel. Ryan v. Conlin (supra). That decision was not made by an appellate court. In that case a warrant had issued to deliver prisoners to the State of Massachusetts. In habeas corpus proceedings the prisoners gave proof that they were not in the demanding State at the time of the commission of the crime. The court declared that, inasmuch as this proof went to establish an alibi, it was a matter of defense at the trial and could not be considered on habeas corpus to review the warrant of extradition. The reason given by that court for this conclusion was that it was settled that in proceedings to review a warrant of extradition the guilt or innocence of the prisoner could not be inquired into. (Matter of Clark, 9 Wend. 212.) Therefore, it argued, as an alibi is concerned with the question of guilt or innocence, it cannot be considered on habeas corpus. It seems to us that this reasoning is clearly unsound. An alibi in its general features consists of proof that the defendant was not at the scene of the crime at the time of its commission. Proof that the
prisoner was not in the demanding State at the time of the commission of the crime is necessarily proof that he was not at the scene of the crime. But the question involved in extradition proceedings is not whether the defendant was at the scene of the crime at the time of its commission, but whether he was anywhere within the demanding State when the crime was committed. This latter question had nothing to do with guilt or innocence, but it has all to do with the question whether the prisoner has fled from the demanding State and is, therefore, a fugitive from justice.
In Matter of Clark (supra) the presence of the prisoner in the demanding State when the crime was committed was not disputed, and hence the question of alibi was not involved. Before a warrant of extradition can be sustained it must appear as a jurisdictional fact that the prisoner is a fugitive from justice; that is, it must be shown that he was actually present in the demanding State when the crime was committed. Mere constructive presence is not enough. (People ex rel. Corkran v. Hyatt, 172 N.Y. 176; sub nom. Hyatt v. Corkran, 188 U.S. 691; Ex parte Reggel, 114 id. 642; Munsey v. Clough, 196 id. 364; Appleyard v. Massachusetts, 203 id. 222; McNichols v. Pease, 207 id. 100.)
In McNichols v. Pease (supra) the Supreme Court of the United States, through HARLAN, J., reviewing many of its preceding decisions on this question, set forth seven distinct propositions of law which it deemed established by its prior decisions. It was there held that a warrant of extradition in itself made out a prima facie case that the prisoner was a fugitive from justice of the demanding State, that the warrant could be reviewed by habeas corpus, and, in the language of the court itself, that 'One arrested and held as a fugitive from justice is entitled, of right, upon habeas corpus, to question the lawfulness of his arrest and imprisonment, showing by competent evidence, as a ground for his release, that he was not, within the meaning of the ...