CO129-399 - Governor Sir May - 1913 [1-2] — Page 249

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the Act of 31 Car, II C. 2. On a motion in arrest of judgment and for a new trial in a murder case one of the defendants (Rochelle) set up that, having been discharged from commitment for the same crime, for delay of prosecution, under the habeas corpus act, he could not be legally indicted and tried on the same charge. The court said;-

"The discharge of Rochelle under the habeas corpus act can

not, upon any sound principle, be considered as an acquittal from the charge so as to bar a subsequent prosecution for the same offence. The act was made to secure the citizens of

the state from vexatious arrests and imprisonment, and not to protect them from prosecutions for crimes actually com- -mitted. The act in favor of liberty, was sufficient to

operate the discharge of the prisoner, Rochelle, from his

former imprisonment, when the state's officer was not ready

to produce the proofs of his guilt; but it would be monstrous

to say that such discharge should shield him from a subse-

-quent prosecution, when the proofs of his guilt are ready

to be produced."

State vs Fley

4 American Decisions, p. 583

(2 Brevard, 338.)

The foregoing two cases do not deal with extradition but they plainly show the view of the courts to be that a prisoner is not protected from a second arrest upon the same charge by such a provision as section five, unless the first discharge was a judgment on the merits. What the merits are in extradition cases will be found discussed in Bassing v. Cady, Re Kelly and Re White hereinafter quoted.

The next case is a state decision upon an inter state extradition. To avoid misconception of this and the Bassing case, referred to later, it should be stated that extradition between the various states is not the same as rendition from one Britisn possession to another. Each state within itself and except so far as, for the com on welfare, it has relinquished its powers, is sovereign. The power to make treaties with each other or with foreign states is relinquished and to insure the exchange of fugitive offenders the Constitution provides

Art. IV.