MCKENNA, J., dissenting.

203 U. S.

when his house was surrounded and he arrested. Moyer was arrested under the same circumstances at 8:45, and he and accused "thrown into the county jail of the city and county of Denver." It is further alleged that, in pursuance of the conspiracy between the hours of five and six o'clock on Sunday morning, February 18, the officers of the State and "certain armed guards, being a part of the forces of the militia of the State of Colorado," provided a special train for the purpose of forcibly removing him from the State of Colorado, and between said hours he was forcibly placed on said train and removed with all possible speed to the State of Idaho; that prior to his removal and at all times after his incarceration in the jail at Denver he requested to be allowed to communicate with his friends and his counsel and his family, and the privilege was absolutely denied him. The train, it is alleged, made no stop at any considerable station, but proceeded at great and unusual speed; and that he was accompanied by and surrounded with armed guards, members of the state militia of Colorado, under the orders and directions of the adjutant general of the State.

I submit that the facts in this case are different in kind and transcend in consequences those in the cases of Ker v. Illinois and Mahon v. Justice, and differ from and transcend them as the power of a State transcends the power of an individual. No individual or individuals could have accomplished what the power of the two States accomplished; no individual or individuals could have commanded the means and success; could have made two arrests of prominent citizens by invading their homes; could have commanded the resources of jails, armed guards and special trains; could have successfully timed all acts to prevent inquiry and judicial interference.

The accused, as soon as he could have done so, submitted his rights to the consideration of the courts. He could not have done so in Colorado, he could not have done so on the way from Colorado. At the first instant that the State of Idaho relaxed its restraining power he invoked the aid of

habeas corpus successively of the Supreme Court of the State and of the Circuit Court of the United States. He should not have been dismissed from court, and the action of the Circuit Court in so doing should be reversed.

I also dissent in Nos. 250, 251, 265, 266 and 267. (See p. 222, post.)

MOYER v. NICHOLS.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF IDAHO.

No. 250. Argued October 10, 11, 1906.-Decided December 3, 1906.

Pettibone v. Nichols, ante p. 192 followed; 85 Pac. Rep. 897, 902, affirmed.

THE facts are stated in the opinion.

Mr. Edmund F. Richardson and Mr. Clarence S. Darrow, with whom Mr. John H. Murphy was on the brief, for appellants.

Mr. James H. Hawley, with whom Mr. W. E. Borah was on the brief, for appellee.

MR. JUSTICE HARLAN delivered the opinion of the court.

This case does not differ, in principle or in its facts, from Pettibone v. Nichols, just decided. Moyer was also charged with the murder of Steunenberg, and was arrested in Colorado, upon the warrant of the Governor of that State, and taken to Idaho, and delivered to its authorities. He was embraced in the same indictment with Pettibone, and was held in custody for trial under that indictment. He sued out a writ of habeas corpus from the Supreme Court of Idaho, but the writ was

dismissed by that court, Ex parte Moyer, 85 Pac. 897, and a writ of error has been prosecuted to this court. That is case No. 266 on our present docket. He then sued out a writ of habeas corpus from the Circuit Court of the United States, and his discharge being refused by the court, he prosecuted the present appeal.

For the reason stated in Pettibone's case, the final order is

MR. JUSTICE MCKENNA dissents.

Affirmed.

The final order of the Circuit Court of the United States for Idaho, in Haywood v. Nichols, No. 251, on appeal, is affirmed on the authority of Pettibone v. Nichols, ante, p. 192, from which, as to the facts or the questions involved, it does not differ. The orders in Pettibone v. Whitney, No. 265, Morey v. Whitney, No. 266, and Haywood v. Whitney, No. 267-each of which cases is here upon writ of error to the Supreme Court of Idaho-involve the same questions as those determined in Pettibone v. Nichols, and by agreement is to depend upon the judgment in that case, must also be affirmed. It is so ordered. MR. JUSTICE MCKENNA dissents.

APPLEYARD v. MASSACHUSETTS.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.

No. 115. Submitted November 16, 1906.-Decided December 3, 1906.

The constitutional provision relating to fugitives from justice is in the nature of a treaty stipulation entered into for the purpose of securing a prompt and efficient administration of the criminal laws of the several States and its faithful and vigorous enforcement is vital to their harmony and welfare; and while a State should protect its people against illegal action, Federal courts should be equally careful that the provision be not so narrowly interpreted as to enable those who have offended the laws of one State to find a permanent asylum in another.

A person charged by indictment, or affidavit before a magistrate, within a State with the commission of a crime covered by its laws and who leaves the State, no matter for what purpose nor under what belief, becomes

from the time of such leaving and within the meaning of the Constitution and laws of the United States, a fugitive from justice; and in the absence of preponderating or conceded evidence of absence from the demanding State when the crime was committed it is the duty of the other State to surrender the fugitive on the production of the indictment or affidavit properly authenticated.

Although, regularly, one seeking relief by habeas corpus in the state courts should prosecute his appeal to, or writ of error from, the highest state court, before invoking the jurisdiction of the Circuit Court on habeas corpus, where the case is one of which the public interest demands a speedy determination, and the ends of justice will be promoted thereby, this court may proceed to final judgment on appeal from the order of the Circuit Court denying the relief.

THE appellant was indicted in the Supreme Court of New York, county of Erie, for the crime of grand larceny, first degree, alleged to have been committed in that county on the eighteenth day of May, 1904.

Upon that indictment a warrant of arrest was issued, but the accused was not arrested, for the reason that he was not found within the State.

Then the District Attorney of Erie County applied to the Governor of New York for a requisition upon the Governor of Massachusetts for Appleyard as a fugitive from justice. The application was based upon the above indictment and numerous accompanying affidavits, stating, among other things, that the accused was then in Massachusetts. A requisition was accordingly made upon the Governor of that Commonwealth for the apprehension of Appleyard and his delivery to a named agent of New York, who was authorized to receive and convey him to the latter State, to be there dealt with according to law. With that requisition went properly authenticated copies of all the papers which had been submitted to the Governor of New York by the District Attorney of Erie County.

The Governor of Massachusetts received the requisition and pursuant to the statutes of that Commonwealth referred it to the Attorney General for examination and report. Giving the accused full opportunity to be heard and to introduce

evidence, of which he availed himself, that officer examined the case and reported that the requisition was in regular and proper form and that there was no sufficient reason why it should not be honored. The Governor thereupon issued a warrant for the arrest of Appleyard and his delivery to the agent of New York to be taken to that State, the officer who should execute the warrant being required to give the accused such opportunity to sue out a writ of habeas corpus as was prescribed by the laws of Massachusetts in such cases. Appleyard having been arrested applied for a writ of habeas corpus to the Supreme Judicial Court of Massachusetts. This fact is stated in the return of the officer holding the accused and is not denied. That court, after hearing an argument, denied the application and remanded the petitioner to the custody of the agent of New York to be held in accordance with the warrant issued by the Governor of Massachusetts.

The accused then applied to the Circuit Court of the United States for a writ of habeas corpus, alleging that the warrant of the Governor of Massachusetts and the order for his delivery to the agent of New York were issued without authority of law and contrary to the Constitution and laws as well of the United States as of Massachusetts, and "especially contrary to sec. 2, art. 4, of the Constitution of the United States and of sec. 5278 of the Revised Statutes of the United States, in that your petitioner is not a fugitive from justice." The writ was issued and a return was made of the above facts.

At the hearing in the Circuit Court the accused requested a ruling that on the evidence it did not appear that, within the meaning of the Constitution and laws of the United States, he was a fugitive from justice, and, also, that he should be discharged from custody unless it appeared positively, by a preponderance of proof, that he "consciously fled from justice when he left the State of New York." Those requests were denied. But the court granted a request that the finding by the Governor of Massachusetts as a fact that the accused was a fugitive from justice was not conclusive. The court refused