and if satisfied of the identity of the person, such court or judge shall order him to be delivered up to the agent of the state or territory demanding him, to be transported to such state or territory, agreeably to the laws of the United States; otherwise, he shall discharge such person from custody. See notes to section 1670, Burns' R. S. 1901. 1669. Commitment to jail-Delivery to agent.-28. If no agent of the state or territory making the demand be present, the fugitive shall be committed to the jail of the county in which the hearing before such court or judge is had; and such court or judge shall forthwith inform the governor of this state of the fact of such commitment. And, on request by the agent of the state or territory making the demand upon the jailer having such fugitive in custody, and upon the order of the governor of this state, such fugitive shall be delivered up to such agent, to be transported to the state or territory from which he fled; and if such fugitive be not demanded within ten days after his commitment, the jailer shall discharge him. 1670. Costs paid before removal.-29. All costs incurred in apprehending, securing and keeping such fugitive shall be paid by the agent of the state or territory making the demand, before he shall be permitted to receive such fugitive into custody. 1671. Warrant refused, when.-30. If it shall be made to appear to the governor before issuing such warrant, that the alleged fugitive is held in custody or on bail to answer for any crime or misdemeanor against the laws of this state, the governor of this state shall thereupon refuse to issue such warrant, informing the executive authority of the state or territory making the demand of the grounds of such refusal. 1672. Surrender refused, when.-31. If it shall appear to the court or judge before whom such examination is had, that the alleged fugitive is held in custody or on bail for any crime or misdemeanor against the laws of this state, such court or judge shall, for that reason, refuse to make an order for the delivery or removal of such fugitive, and shall immediately report the facts to the governor of this state, who shall inform the governor of the state or territory making the demand thereof. 1673. Citizens not surrendered, when.-32. No citizen or resident of this state shall be surrendered under pretense of being a fugitive from justice from any other state or territory, where it shall be clearly made to appear to the court or judge holding such examination that such citizen or inhabitant was in this state at the time of the alleged commission of the offense, and not in the state, or territory from which he is pretended to have fled; and in such case, the court or judge holding such examination shall discharge the person arrested, and forthwith report the facts to the governor. See notes to section 1674a, Burns' R. S. 1901. 1674. Warrants by judge or justice of the peace.-33. Whenever any person shall be found within this state charged with any offense committed in any other state or territory, and liable by the constitution and laws of the United States to be delivered over upon the demand of the governor of such other state or territory, any court, judge or justice of the peace authorized to issue warrants in criminal cases, may, upon complaint in writing on oath setting forth that a crime has been committed in such other state or territory, that the accused has been charged in such state or territory with the commission of such crime, and that the accused has fled from such state or territory and is found within the [this] state, issue a warrant, directed to the sheriff or any constable of the county in which such complaint may be filed, commanding him to apprehend such fugitive, wherever he may be found in the state, and bring him before the same, or any other court, judge or justice of the peace, who may be nearest or most convenient of access to the place at which the arrest may be made, to answer such complaint; to which warrant shall be attached a certified copy of the complaint upon which the same is issued, and upon which the examination and trial shall be had. 1675. Hearing-Recognizance-Forfeiture.—34. If, upon the examination of the person charged, it shall appear to the court, judge or justice of the peace, that there is reasonable cause to believe that the complaint is true, and that such person may be lawfully demanded of the governor by the governor of the state or territory where such offense is alleged to have been committed, he shall, unless such person is charged with murder or treason, and the proof is evident or the presumption is strong, recognize the accused in a bond in a reasonable sum with sufficient sureties, conditioned that the accused shall appear before such court, judge or justice at a future day, to be named therein, allowing a reasonable time to obtain the warrant of the governor, as hereinafter provided, and to abide the order of such court, judge or justice of the peace in the premises. If the person so recognized shall fail to appear according to the conditions of his recognizance, he shall be defaulted and the same proceedings shall be had as in the case of other recognizances entered into before such court, judge or justice of the peace in criminal cases. 1676. Detention in jail.-35. If such person shall not enter into such recognizance, or if he shall be charged with murder or treason, and the proof is evident or the presumption strong, he shall be committed to the jail of the county in which the hearing before the court, judge or justice of the peace is had, and there detained until a future day, named in the order of commitment, allowing a reasonable length of time to obtain the warrant of the governor as herein provided. 1677. Notice to governor.-36. The court, judge or justice of the peace before whom the hearing is had, shall forthwith inform the governor of the fact that such person is in custody or out on bail, and it shall be the duty of the governor forthwith to notify the gov ernor of the state or territory where such offense is alleged to have been committed, that the fugitive is in custody or out on bail within this state. 1678. Warrant by governor.-37. Upon the demand of the governor of the state or territory where such offense is alleged to have been committed, for the surrender of such fugitive from justice, pursuant to the constitution and laws of the United States, it shall be the duty of the governor to issue his warrant, as provide 1 in section twenty-six of this act, and like proceedings shall be had as if such fugitive had been originally demanded by the governor of the state or territory where such offense is alleged to have been commtited, as provided for in this act. 1679. Discharge in absence of agent.-38. If the person so recognized shall appear before the court, judge or justice of the peace upon the day fixed in such bond, he shall be discharged unless he shall be demanded by some person authorized by the warrant of the governor to receive him: Provided, That whether the person so charged shall be recognized, or committed or discharged, any person authorized by the warrant of the governor may at all times take him into custody, and take him before the proper court or officer for examination, as provided in section twenty-six, and such arrest shall be a discharge of the recognizance if there was one given. 1680. Costs-Affiant's liability-Release.-39. In case no agent of the state appear and demand such person within the period prescribed by this act, the person filing the affidavit upon which such person was apprehended shall be answerable for all the actual costs and charges, including the support in jail while confined, which support shall not exceed forty cents per day. In case such agent appears, and such fugitive is turned over to him, he shall be responsible for all the costs incurred in apprehending, receiving and keeping the fugitive, and upon failure or refusal to pay the same, such fugitive shall be discharged. In case the governor of the state from which such person is a fugitive shall inform the governor of the state that he does not desire the arrest or further apprehension of such person, the governor of this state shall at once so notify the court, judge or justice before whom such person is held for examination, who shall thereupon discharge such person from custody. 1681. Practice on examination.-40. Such examination of such fugitive or fugitives as herein provided, before the court, judge or justice of the peace, shall in all respects not herein otherwise provided, be governed by the law regulating criminal cases. 1682. Damages-Affiant's liability.-41. In case such person is wrongfully held or detained under the provisions of this act, the person filing the affidavit shall be responsible in damages for any injury sustained, to be recovered as in other civil cases. 1683. Expenses of agent, how paid.-42. When any person charged with a felony has fled to any other state, territory or country, and the governor has issued a requisition for such person, or has requested the president of the United States to issue extradition papers, the county commissioners may pay to the agent designated in such requisition or request to execute the same, all necessary expenses of pursuing and returning such person so charged, or so much thereof as to them seems just, out of any fund in the county treasury which shall have been appropriated by the county council for that purpose. [Acts 1905, p. 584. In force April 15, 1905.] 1684. Affidavit. 43. When complaint is made in writing, upon oath, before any justice of the peace, that the complainant has just cause. to fear, and does fear, that another will destroy or injure his property, or injure, by violence, himself or some member of his family or his ward, and that he makes such affidavit only to secure the protection of the law and not from anger or malice, any justice with whom such affidavit is filed shall issue his warrant, and cause the person complained of to be arrested and brought before him for trial. See sections 1675-1687, Burns' R. S. 1901, and notes. 1685. Affidavit, form.-44. An affidavit for surety of the peace, substantially in the following form, shall be deemed sufficient: State of Indiana, county of SS: A. B. swears (or affirms, as the case may be) that he has just cause to fear, and does fear, that C. D. (here describe the injury apprehended); and that he makes this affidavit only to secure the protection of the law, and not from anger or malice. Subscribed and sworn to, before me this day of .. A. B. 19.. Justice of the peace. See notes to section 1676, Burns' R. S. 1901. 1686. Warrant, form.-45. A warrant substantially in the form following shall be deemed sufficient: State of Indiana, county of SS: To any constable of..... ...county: Whereas, A. B. has filed with me his affidavit, that he has just cause to fear, and does fear, that C. D. (here insert the injury apprehended, as specified in the affidavit); and that he makes said affidavit only to secure the protection of the law, and not from malice or anger: You are therefore commanded, forthwith, to arrest said C. D., and bring him before me, at my office, to be dealt with according to law; and have then there this writ. Dated this..day of. 19.. .... Justice of the peace. 1687. Issue and trial.-46. The issue to be tried in such case shall be, whether the complaining witness has just cause to entertain the fears expressed in his affidavit; which issue shall be tried and determined by the justice or jury. Changes of venue and continuances shall be granted as in other cases. See notes to section 1678, Burns' R. S. 1901. 1688. Recognizance by defendant.-47. If the justice or jury trying the issue shall find that the complaining witness had, at the time. the affidavit was filed, just grounds to entertain the fear expressed in his affidavit, the justice shall rquire of the defendant recognizance and freehold surety in a sum not less than fifty nor more than one thousand dollars, for his appearance before the circuit or criminal court on a day to be fixed by such justice, and to keep the peace meanwhile toward the person named in the affidavit and all the inhabitants of the state. Such rcognizance shall be substantially in the following form: We, A. B. and C. D., severally acknowledge ourselves bound to the State of Indiana in the penal sum of .... dollars each, if said A. B. shall not appear on....day of........19.., before the... .court of..... .county, to answer a complaint of surety of the peace made against him by and abide the order of such court therein, and in the meantime to keep the peace toward all the inhabitants of this state. 1689. Filing recognizance and transcript.-48. Such recognizance shall be filed and recorded in the same manner, and shall have the same |