Ex parte Spears

De Haven, J. The petitioner is before the court upon a writ of habeas corpus, the return to which shows that he is in the custody of the sheriff of Nevada County by virtue of a warrant for his arrest as a fugitive from justice, issued by the governor of this state in compliance with a requisition from the governor of the state of Alabama.

The governor of this state was not authorized to issue his warrant for the arrest of petitioner, unless it was shown to him that the petitioner is substantially charged with a crime in the state from which it is alleged he has fled, and the law of Congress (Rev. Stats., sec. 5278) requires that this fact must be made to appear by a copy of an indictment found, or an affidavit made before a magistrate of such state, certified as authentic by the governor of the state making the demand. (Roberts v. Reilly, 116 U. S. 95.) And whether the alleged fugitive is so substantially charged with a crime is a question of law, which is always open, upon the face of the papers, to judicial inquiry, on an application for discharge under a writ of habeas corpus. (Roberts v. Reilly, 116 U. S. 95.)

We have before us the copy of the affidavit which accompanied the requisition of the governor of Alabama, and the sole question for determination is, whether such affidavit substantially charges the petitioner with having committed any crime which would have justified his arrest in that state. The affidavit purports to have been made by one J. C. Orr, and charges that he, Orr, “ has reason to believe, and does believe, that within twelve months before making this affidavit in said county, W. A. Spears embezzled, or fraudulently converted to his own use, one car-load of mules, or the value of the same, to wit, of [642]two thousand dollars, the personal property of J. C. Orr, which came into W. A. Spears's possession by virtue of an employment to sell said mules.”

It is obvious that this affidavit does not directly charge that petitioner has committed any offense, and it would be a dangerous precedent to establish, that any man may be deprived of his liberty and removed to another state upon such an accusation. The statement therein, that affiant “ has reason to believe, and does believe,” that petitioner embezzled, or fraudulently converted to his own use, the property mentioned, is not the statement of any fact, and for that reason the affidavit is fatally defective. The language of the supreme court of Michigan in Swart v. Kimball, 43 Mich. 451, is applicable here: —