In Re Thurber

[572]

SHAW, J.

Petitioner, who is in custody under a warrant issued by the chief executive of this state on a requisition made by the Governor of Illinois, seeks his discharge therefrom upon the grounds: First, that he is not a fugitive from justice; and, second, alleged insufficiency of the information which charges him with the crime of abandoning his wife and minor child, who were in destitute circumstances, without providing them with means of support.

In our opinion, there is no merit in either point. The first contention is supported by affidavits which, in effect, tend to show that, prior to his leaving the state of Illinois, petitioner had made provision for the support of his wife and child, from which facts, if true, petitioner argues that he is innocent of the offense charged against him, and, therefore, could not be a fugitive from the justice of the demanding state. The expression “fugitive from justice,” ■as used in the Revised Statutes, section 5278, [3 Fed. Stats. Ann., 2d ed. p. 285; U. S. Comp. Stats. 1916, sec. 10,126], regulating the extradition of fugitives from justice, has refer-' ence to a person, who, having within the state committed that which by its law constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offense, has left its jurisdiction and is found in the territory of another state.

(Roberts

v.

Reilly,

116 U. S. 80, [29 L. Ed. 544, 6 Sup. Ct. Rep. 291]; Bailey on Habeas Corpus, see. 129.) The authorities go no further than to hold that inquiry may be made into the question of fact as to whether the accused was within the territory of the state when he is alleged to have committed the offense charged against him. If it' be made to appear that he was not, then he could not have fled therefrom and could not be a fugitive from justice.

(Ex parte Reggel,

114 U. S. 642, [29 L. Ed. 250, 5 Sup. Ct. Rep. 1148];

Bruce

v.

Rayner,