That fact of itself presented a material inquiry in the case, and wilfully false testimony given to establish it by the defendant, would create the crime of perjury. The court in answer to a question by one of the jurors, stated that they were bound by the specific date of the 9th of July, 1879, upon the inquiry whether there was a house of assignation within the bounds mentioned in the indictment and the evidence given by the defendant. And to that direction an exception was taken by his counsel. But as the whole of the issue presented by the indictment and the evidence which the defendant gave upon the trial before the referee, and that presented by the defense in the civil action, confined the time to the date of the 9th of July, 1879, and no uncertainty was in any respect connected with either of the statements relating to it, the court rightly confined the investigation of the jury to the question whether on that date there was such a house within the prescribed locality. This was no disadvantage to the defendant, for if the prosecution failed to satisfy the jury that there was no such house there on that date then he was entitled to his acquittal. And as he had given his evidence concerning it positively as to the date, it was his right to have the range of inquiry by the jury restricted in this manner. No injury whatever resulted to the defendant from the denial of the motion to strike out the evidence relating to the fact that the defendant had falsely sworn that he had seen the plaintiff in company with a person not her husband in August 1880, even if such a motion could be regularly made after the proof had been received in the case. For the court had already decided that perjary could not be assigned upon that evidence, which as completely disposed of it as though it had been stricken out of the case. In neither one of the respects to which exception has been taken in the case, does there appear to have been any error to the prejudice of the defendant upon the trial. The offense was sufficiently charged by the indictment and made out by the proof, and the judgment accordingly should be affirmed. DAVIS, P. J., and BRADY, J., concur. Supreme Court-General Term-First Department. PEOPLE ex rel. NUBELL v. BYRNES. May, 1884. EXTRADITION PROCEEDINGS.-U. S. CONSTITUTION, ART. 4, § 2, The return to a writ of habeas corpus sued out by Otto A. Nubell, set forth that he was arrested and held upon a warrant issued by the Governor of this state, in conformity to a requisition of the Governor of the state of Illinois for the arrest and return to that state of O. A. Nubell, which warrant was annexed to the return, and recited that it had been represented by the Governor of the state of Illinois that O. A. Nubell there stood charged with the crime of conspiracy, committed in the county of Cook and state of Illinois; that he had fled from justice in that state, and had taken refuge in the state of New York; that the representations were accompanied by an indictment and affidavit whereby the said O. A. Nubell is charged with the said crime, and with having fled from said state and taken refuge in the state of New York, which were certified by the Governor of Illinois to be duly authenticated. The copy indictment, etc., was not produced, but remained in the custody of the executive. Relator demurred to the writ on the grounds that the indictment set forth no offense, and was fatally defective in that it was presented against Nubell by the initial letters only of his Christian names. The relator also alleged that his name was not O. A. Nubell. Held, that the return was sufficient; that under the Constitution of the United States, art. 4, § 2, sub. 3, and U. S. Revised Statutes, § 5278, controlling extradition proceedings, such proceedings must be sustained when a criminal charge is shown to the executive of this state by a copy of the indictment certified to be anthenticated by the governor of the state from whence the person charged therein is shown to have fled into this state; that in such a case the executive must act solely upon the facts so presented, and that neither it nor the courts have authority to examine into the charge, or the sufficiency of the indictment, or alleged irregularities therein. But, further held, that as relator, by his objections to the return, in effect raised the issue of identity, the order sustaining the warrant must provide for the determination of that question. People v. Brady, 56 N. Y. 188, distinguished. An indictment is not necessarily inoperative or void, even at common law, because of its omission to designate the person charged by the full Christian name. He may be indicted by the initials of his Christian name, and legally convicted if he fail to raise the objection by plea in abatement, and it may be shown in answer to such plea that the accused was usually known by the name under which he was indicted. APPEAL taken by the relator, Otto A. Nubell, from a final order dismissing writs of habeas corpus and certiorari issued to inquire into the cause of his imprisonment, and remanding him to the custody of the respondents. It was taken pursuant to Code of Civil Procedure, § 2058. The petition recited that he was imprisoned by the respondents at police headquarters in New York city, and that the cause or pretense of his imprisonment, according to his best knowledge, was a telegraphic request from "some person in Chicago, Illinois," to the police officials of this city "to arrest and detain your petitioner until a requisition from the governor of Illinois can be obtained for his delivery and extradition for some alleged offense committed in said state." The return in answer to the writ of habeas corpus set out and annexed as a part thereof, as the warrant for relator's detention, a mandate or warrant of the governor of this state, as follows: "State of New York, Executive Chamber, Grover Cleveland, Governor of the State of New York. "TO THOMAS BYRNES, Inspector of Police, and the Sheriffs, Constables and other peace officers of the several counties in the said state: "Whereas, it has been represented to me by the governor of the state of Illinois, that O. A. Nubell stands charged with the crime of conspiracy committed in the county of Cook in said state, and that he has fled from justice in that state, and has taken refuge in the state of New York, and the said governor of Illinois having, in pursuance of the Constitution and laws of the United States, demanded of me that I shall cause the said O. A. Nubell to be arrested and delivered to Hum phrey J. Moynihan, who is duly authorized to receive him into his custody and convey him back to the said state of Illinois. "And whereas the said representation and demand is accompanied by indictment and affidavit whereby the said O. A. Nubell is charged with the said crime, and with having fled from said state, and taken refuge in the state of New York, which are certified by the said governor of Illinois to be duly authenticated. "You are therefore required to arrest and secure the said O. A. Nubell wherever he may be found within the state, and to deliver him into the custody of the said Humphrey J. Moynihan, to be taken back to the said state from which he fled, pursuant to the said requisition; and also to make return to this department, within thirty days from date hereof, of all your proceedings under this writ and of any facts or circumstances relating thereto. "Given under my hand, and the privy seal of the State at the city of Albany, this twenty-fourth day of April in the year of our Lord one thousand eight hundred and eighty-four. "By the Governor. DANIEL S. LAMONT, [L. S.] (Sgd.) Private Secretary. GROVER CLEVELAND." The relator filed a verified demurrer and traverse to the return made by the defendants to the writs of habeas corpus and certiorari herein, as follows: "1. That said return is insufficient in law upon the face thereof to justify the detention of this petitioner, forasmuch as (a) It fails to set forth any warrant for the detention of this petitioner, but sets forth a warrant against one 'O. A. Nubell.' (b) It fails to make any return whatever to the writ of certiorari herein, and fails to show what evidence, if any, the petitioner is detained under, or upon what evidence, if any, the warrant if any, for his detention was issued. (c) It fails to set forth or allege the commission by this petitioner of any crime whatever against the laws either of this state or of the state of Illinois. "And further, your petitioner traverses said return, avers that his name is not 'O. A. Nubell,' but is and ever has been Otto A. Nubell, and that he is not guilty of the crime of 'conspiracy,' if there be such a crime, nor of any other crime against the laws of the state of Illinois." After hearing counsel, the court dismissed both writs, and remanded the prisoner. E. P. Wilder, for the relator, appellant.-I. The governor's mandate is void on its face. It fails to set forth any warrant for the detention of this petitioner, but sets forth a warrant against one "O. A. Nubell." A warrant is no protection to the officer unless it correctly names the defendant. "The name of the person to be apprehended should be accurately stated, if known, and must not be left in blank to be filled up afterwards; and a description thus:-'A. and his associate,' is void as to the latter." 1 Colby's Crim. Law, 179; 1 Chit. Cr. L. 39; 2 Hale's P. C. 114; Fost. 312; Wells v. Jackson, 3 Mumf. 458; Rex v. Hood, 1 M. & W. 281. "If, however, the name of the party be unknown, the warrant may be issued against him by the best description the nature of the case will allow; as, the body of a man whose name is unknown, but whose person is well known and who is employed as the driver of cattle, wears a white hat, and has lost his right eye."" 1 Colby's Crim. Law, 179; 1 Hale P. C. 577; Chit. Cr. L. 39-40. "The arrest of a person by a wrong name cannot be justified, though he was the person intended, unless it be shown that he was as well known by one name as the other." Mead v. Haws, 7 Cow. 332; Griswold v. Sedgwick, 6 Cow. 456; Scott v. Ely, 4 Wend. 555. Such was the law in this State prior to 1830, when the act was passed. Laws of 1830, p. 395, 262, providing for the description of a defendant, whose real name is unknown, by a fictitious name, &c., and providing for a plea in abatement and amendment, &c., on that ground. Gurnsey v. Lovell, 9 Wend. 319. The law as laid down in the above decisions and amendatory statute, is still preserved as the law of this state. Code Crim. Pro. § 152; Miller v. Foley, 28 Barb. 630. It thus appears that initial letters do not constitute a name. |