author: Herrick, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. FRANK J. SHERMAN, Appellant, v. JOHN PERSON and Others, Composing the Board of Canvassers of the Town of Milton, Respondents.

      Election law — the indorsement of an official ballot far one office by apastes• will not authorize its being counted for another.

    At an election at a town meeting, held March 1, 1892, there were four tickets, one for town offices, headed by Frank J. Sherman for supervisor; one for the same offices, headed by Eben S. Lawrence for supervisor, and two excise tickets.
    The board of canvassers counted for Lawrence, as supervisor, three ballots, indorsed “ Excise,” but having pasted upon them his name and the names of the candidates for certain other town offices, which ballots were found in the box marked “ Town.”
    It was also alleged that similar paster ballots were found in the box marked “Excise,” and were counted for Lawrence.
    These paster ballots, against the protest of the Sherman faction, were burned.

      Held, that the case must be considered as if the paster ballots were still in existence.
    That, under the provisions of the Ballot Reform Law (chap. 262 of the Laws of 1890, as amended by chapter 296 of 1891), the proper legal indorsement of the ballot was an essential feature of an official ballot, and that a ballot not legally indorsed could not be received or counted..
    That an official excise ballot was not an official ballot for any other town office, and could not be made such by a paster.
    That the use of ballots marked “Excise” to vote for town officers would afford an easy means of identifying the voters, would destroy secrecy and nullify the purposes of the Ballot Reform Law.
    Appeal by the relator, Frank J. Sherman, from an order of the Supreme Court, entered in the office of the clerk of the county of Saratoga on the 31st day of March, 1892, denying a motion for a peremptory mandamus to compel the respondents to recount the votes cast for supervisor at a town meeting of the town of Milton, Saratoga county.

      Edgar T. Brackett, for the appellant.

      E. E. McKnight, John Person and J. 8. E Amóreaux, for the respondents.
   Herrick, J.:

This is an appeal from an order of the Special Term denying a motion made for a peremptory mandamus to compel the defendants to recount the votes cast for the various candidates for supervisor at a town meeting of the town of Milton, Saratoga county, held March 1, 1892, and directing that the ballots cast for Eben S. Lawrence for supervisor that were indorsed “ Excise,” or pasters attached to ballots marked “Excise,” cast for said Lawrence, be declared invalid, and directing said town board not to count such ballots, and directing said board to declare the result and issue a certificate of election to the candidate having the greatest number of ballots cast for him, without counting said votes indorsed “ Excise,” or pasters attached to ballots indorsed “ Excise.”

There is some dispute as to the facts set forth in the moving papers, but there are enough uncontroverted to enable the court to dispose of the matter; the material facts are undisputed. At the town meeting in question the relator, Frank J. Sherman, and one Eben S. Lawrence were competing candidates for the office of supervisor, and at such election there were four tickets, two for town officers, one headed by the relator Sherman, and the other by Lawrence, and two excise tickets, containing the name of a candidate for excise commissioner on each. There were two ballot-boxes, one marked “ Town ” and the other marked “ Excise.”

In the certificate of election, signed by the board of town canvassers, Eben S. Lawrence is credited with having received 576 votes and Frank J. Sherman with having received 571. Both parties aver that three ballots indorsed “ Excise,” having pasted upon them paster ballots containing the names of Eben S. Lawrence and his associate candidates for town offices upon them, were found in the ballot-box marked “ Town,” and that such paster ballots were counted for said Lawrence for supervisor.

It is also averred by both parties that similar paster ballots were found in the “ Excise ” box, and that they were also counted for Lawrence. The relator in his moving papers alleges that there were five such paster ballots found in the “Excise” box; the defendants allege that there were found certain excise ballots with such paster ballots upon them in the “ Excise ” box, but do not state how many there were so found; and they distinctly state that the 576 votes credited to Lawrence included said paster ballots, and they do not deny that five such ballots were found in the “ Excise ” box.

The watchers present in the interest of the Sherman ticket objected to the counting of the paster ballots, pasted on the ballots indorsed “ Excise,” and asked to have them preserved pursuant to the provisions of the ballot act, such ballots were not preserved, but were burned with the other ballots. Whether done ignorantly or willfully, the case must be treated as if the ballots were still in existence and preserved as the law requires: We have a full and complete description of such ballots, so far as is necessary to enable us to determine what should be done with them. We know, with reasonable certainty, how many there were of them; and we cannot allow the object of the law to be defeated by a wanton or ignorant violation of its provision. Were the paster ballots thus destroyed properly counted for Eben S. Lawrence as a candidate for the office of supervisor ?

The board of canvassers and the court below seem to have fallen into error as to what is an official ballot under the law, and to have held that because the ballot indorsed “ Excise ” was an official ballot that, therefore, a paster ballot for any officer or officers might be affixed to it and counted by virtue of the provisions of section 25 of chapter 262 of the Laws of 1890, commonly known-as the “Ballot Reform Law ” or “ Ballot Law.” The portions of that section pertinent to this question read as follows: “ The voter may write or paste upon his ballot the name of any person for whom he desires to vote for any office. Any voter may take with him into the voting booth or compartment a printed ballot of his own selection or preparation, to be known as a paster ballot, containing the names of all the offices to be filled, and of the candidates therefor for whom he desires to vote, which paster ballot may be gummed on the back thereof, and the voter may paste the whole of such paster ballot on any of the official ballots below the stub.”

The permission to paste the paster ballot on any official ballot, together with a misconception as to what is an official ballot, has evidently caused the difficulty in this matter.

Under the law of 1890 there were as many official ballots as there were tickets nominated, and, in addition, a blank ballot; but the candidates for all offices were to be on a single ticket, the elector could only vote one ballot, and there was only one ballot-box provided for to receive the voted ballots; and when the statute said the voter could paste his paster ballot on any of the official ballots-it simply meant any one of the ballots that should be printed for the legally nominated candidates, and also the blank ballot. So-long as all offices to be voted for were to be voted for upon a single ballot, and only a single ballot could be voted, and there was only a single box to receive them, there was not much chance for misapprehension. But, in the year 1891, the law was amended so as to-provide for an additional ballot and an additional ballot-box, so that now we have two kinds of official ballots, subdivided into-as many more as there may be candidates or tickets legally placed in nomination.

The law as amended must be so construed, if possible, as to preserve its spirit and give effect to its intent. At town elections the relator can now vote two ballots, both must be, however, official ballots. This leads us to consider, what is an official ballot ? One-of its essential features is a proper and legal indorsement, and a. ballot not legally indorsed cannot be received or counted.

Section 17 of the ballot law, among other things, provides as follows: On the back of each ballot shall be printed in type known as-great primer Roman condensed capitals, the indorsement ‘ official ballot for..........,’ and after the word for ’ shall follow the-designation of the polling place for which rhe ballot is prepared,, the date of the election, and a fac simile of the signature of the county clerk. The ballot shall contain no caption or other indorsement, except as in this section provided. * * * Whenever candidates are to be voted for only by the voters of a particular district, town, village, city or county, the names of such candidates shall not be printed on any other ballots than those provided for use in such district, town, village, city or county respectively.” In the year 1891 the ballot law was amended in various respects, among other things by adapting it to the election of town offices. Prior to that time all offices were to be voted for on a single ballot. The law was so amended as to provide for a separate ballot for excise commissioners and for two ballot boxes, whereas under the law of 1890 only one ballot-box had been allowed.

Section 17. There shall be but one ballot-box at each polling place for receiving all ballots cast for candidates for office.”

Section 38, chapter 296 of the Laws of 1891, provides as follows: “ * * * The names of candidates for the office of excise commissioner shall be printed on a different ballot from the one containing the names of candidates for other town offices. Such ballots shall be indorsed ‘Excise,’ and shall be deposited when voted, in a separate ballot-box, which shall also be marked ‘Excise.’ They shall be furnished by the clerk as the other ballots are, and shall be substantially in the same form, but not less than six inches long. The ballots containing the names of candidates for other local offices shall be indorsed ‘ Town.’ ”

Section 29 of chapter 296 of the Laws of 1891 provides that: “No inspector of election shall deposit in a ballot-box, or permit any other person to deposit in a ballot-box, on election day, any ballot which is not properly indorsed and numbered.”

Section 31 of the same law provides that: “No ballot that has. not the printed official indorsement shall be counted, except such as are voted in accordance with the provisions of section twenty-one of this act.” The exception relates to the provision made for voting when official ballots have not been delivered or have been destroyed. It will thus be seen that the proper legal indorsement of the ballot is regarded as an essential and vital feature of the ballot law; the reasons for so regarding it must occur to everyone, and it is not necessary to recapitulate them now.

It seems to me unnecessary to argue that an official excise ballot is not an official ballot for other town offices, or vice versa.

In People ex rel. Nichols v. Board of Canvassers (129 N. Y., 395) the ballots rejected by the court were, in a sense, official ballots; that is, they were properly indorsed, if used in the proper district; but the official ballot for Election District No. 1 was not the official ballot for Election District No. 2.

So the ballot indorsed “ Excise ” is an official ballot for the purpose of voting for excise commissioners, but is not an official ballot for the purpose of voting for other town offices; and a ballot with the names of candidates for town offices printed upon it and indorsed “ Excise ” would not be legally indorsed under the law, and would not be an official town ballot within the meaning of the statute, and could not be legally received or counted by the inspectors, and the legal effect is not changed if the name of the candidates for town officers are printed on another piece of paper and that paper pasted on the ballot indorsed Excise.” To permit this to be done would open the door to fraud.

The voter is entitled to vote the town ticket and the excise ticket; he could thus vote his choice for town officers by means of the ballot indorsed “ Town,” and put a paster for the same officers upon the excise ballot, and, in that way, vote twice for the same offices. It was attempted to answer this objection by saying that both the excise and town ballots being numbei’ed alike the fraud would be detected; the learned counsel forgot that the numbers are on the stubs; that the stubs are torn from the ballots before they are deposited in the box, so that when the ballots come to be counted they have no numbers, so that the fraud could not be detected. If any voter voted both ballots, the number in the box might over-run the poll list, but in drawing out to equalize the poll list the beneficiary of the fraud is no more likely to have the ballots cast for him drawn out than is the person injured by the fraud.

The court below in holding that these paster ballots should be counted did so upon the theory that effect must be given to the intentions of - the voter. The answer to that is contained in the principal opinion in the Nichols Case (129 N. Y., 401) as follows: “ The right to vote, secured to the citizen by the Constitution, must be exercised in the manner, and subject to the regulations lawfully prescribed by the legislature in respect to the time when and the method by which his will is expressed, and in order to make his will and intention effectual at the election, he must comply with, at least, all substantial requirements of law.” And again, at page 408, the court say: “ The legislature has forbidden the elector to cast such a ballot: It has prohibited the inspectors from placing it in the box and the canvassers from counting it. The case could be no stronger had it, in terms, declared such a ballot absolutely void for all purposes. But it is said that this result will disfranchise the electors who cast these ballots in good faith believing that they were the proper official ballots. The answer is that when an elector attempts to express his will at an election by the use, through either design or accident, of ballots which the law declares shall not be counted, the courts have no power to help him. * * * The law contemplates that the elector will not blindly rely upon any one, not even the election officers, in the preparation of his ballot. If he is handed an official ballot, with a distinguishing mark upon it or cm improper indorsement, he is not obliged to vote it, but may procure a proper ballot. In this case it cannot be said that the electors were obliged to use these ballots or omit to vote at all. It was their duty to see to it that so important a part of the ballot as the indorsement was in conformity with the statuteP * * * “ That the use of these ballots was, at best, a wholly unnecessary and thoughtless act on the part of the voters who cast them, is entirely evident. But even if it could be .said that those electors had no knowledge or means of knowledge in regard to the improper indorsement, and that they could not, without some inconvenience, provide themselves with ballots such as the law required, we would still be obliged to hold that it would be far better that their votes should be deemed ineffectual than that the fundamental purposes of an important public statute should be subverted, and in the struggle to save these votes by judicial construction the door should be thrown open for evasions of the statute which might revive evils far more dangerous to the public welfare than can possibly, under any circumstances, follow the exclusion of a few hundred votes in a single county, cast by voters, who, at least, as all must admit, neglected to observe important requirements of the law.”

Also the language of chief justice in the same case on page 420:

“ The purpose of the act seems to require that these provisions should be held to be mandatory, and that a disregard of them, upon any pretense whatever, should constitute a violation of the law and a forfeiture of any benefits sought to be derived from such illegal ballots.”

The language I have quoted applies with peculiar force to the facts in this case, and, at the same time, shows how important the court regards the proper indorsement of the ballot and the strictness with which the provisions of the ballot law are to be construed.

There is another reason why the paster ballots, pasted upon the ballots marked “Excise” and found in the'town box, should not be counted In the Nichols case great stress was laid upon the fact that using ballots in one district indorsed for another district afforded a means of identifying the voters, destroyed the secrecy of the ballot, and opened the door for the corruption of the voters, thus nullifying the intention of the law, and that, for those reasons, the ballots should not be counted. So, the use of ballots marked “ Excise ” to vote for. town officei-s -would afford an easy means of identification, and would nullify the law. If paster ballots can be received and counted, under the circumstances disclosed in this case, then the provisions as to indorsement are of no effect. The word “ Excise ” is not the legal official indorsement of the ballot for town offices, nor the word “ Town ” the legal official indorsement for the Excise ballot; and if the provisions of the statute as to not counting ballots not properly indorsed are to be enforced, then the paster ballots for town offices, found upon the ballot indorsed “ Excise,” should not be counted.

Eor these reasons the order of the court below should be reversed and a peremptory mmidamus issue directing the defendants to recount the ballots cast for the office of supervisor, and to exclude from such count and refrain from counting, the paster ballots found on the ballots marked Excise,” and that they issue a certificate of election to the candidate for supervisor receiving the greatest number of ballots, exclusive of ballots for supervisor pasted on the ballots marked “Excise.”

Order reversed, with fifty dollars costs and printing disbursements, and let a peremptory mandamus issue in accordance with the views expressed in this opinion.

Mayham, P. J., and Putnam, J., concurred.

Order reversed. Peremptory mcmdamus to issue directing the defendants to recount ballots and deduce the result, excluding from such recount the paster ballots found on the ballots marked “ Excise,” with fifty dollars costs and disbursements.


source: Caselaw Access Project

author: Putnam, J.: Herrick, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. JAMES E. OSTRANDER, Respondent.

      Savings bank — verification of a false report by its treaswer — indictmentfor perjury.

    James E. Ostrander, treasurer of the Ulster County Savings Institution, was indicted for perjury alleged to have been committed in his falsely verifying a semi-annual report of that institution, made pursuant to sections 270, 271 and 272 of chapter 409 of the Laws of 1882, which was required to contain a statement of the assets and liabilities of the institution.
    Section 279 of the act of 1882 requires the trustees to examine, semi-annually, the books, vouchers, assets and affairs generally of the bank; and provides as follows: “And the statement or schedule of assets and liabilities reported to the superintendent of the banking department for the first of January and July in each year shall be based upon such examination, and shall be verified by the oath of a majority of the trustees making such examination.”
    Section 273 provides that “such report shall be verified by the oath of the two principal officers of the institution, and the statement of assets shall be verified by the oath of a majority of the trustees who examined the same, pursuant to the requirements of section 279 of this act.”
    The defendant demurred to the indictment.

      Held, that, under sections 273 and 279, a principal officer of the bank, such as Ostrander, was compelled to verify the entire report.
    That the position that the statute, in effect, only required the principal officer to make oath that the result of the examination as made by the trustees was correctly stated, was untenable.
    That the examination required by section 279 was a different matter from the report required by sections 270, 271 and 272.
    That, although by section 279 the report, made under section 270, is to be “based upon ” the examination of the trustees, this did not justify a principal officer in charge of the bank in verifying the report as to the condition of the bank, when he knew of his own knowledge that the condition of the bank was' incorrectly stated in such report.
    That if Ostrander knowingly swore that the liabilities of the bank aggregated a certain sum or amount, when he knew them to be another and different amount, he was, under section 273, guilty of perjury.
    That it was not necessary to set out in the indictment the whole affidavit which was claimed to constitute the perjury, nor was it necessary that the affidavit of verification should embody in itself, otherwise than by a reference to the report containing them, the facts alleged to be false.
    That a statement in an indictment that the liabilities were a much larger sum than that stated in the report was sufficient, the amount of the excess not being material to the crime.

      Appeal by the plaintiff, the People of the State of New York, from a judgment of the Ulster Oyer and Terminer, rendered on the 12th day of April, 1892, allowing the defendant’s demurrer to an indictment for perjury.

      J. JY. Yanderlyn and A. Sohoonmaker, for the appellant.

      William Lounsberry and D. M. De Witt, for the respondent.
   Putnam, J.:

The defendant was indicted for perjury claimed to have been committed in making a false verification to the semi-annual report of the Ulster County Savings Institution rendered to the superintendent of the banking department of the State of New York on July 29, 1890. A demurrer interposed by defendant, on the grounds that the indictment does not conform to the requirements of sections 275 and 276 of the Code of Criminal Procedure, and also that the facts stated do not constitute a crime, was sustained at the Oyer and Terminer and judgment ordered for the defendant, from which this'appeal is taken.

By section 270, chapter 409 of the Laws of 1882, savings banks, such as the Ulster County Savings Institution, are required, on or before the first days of February and August in each year, to make a report in writing to the superintendent of the banking department of its condition on the mornings of the first days of January and July preceding. Sections 271 and 272 prescribe the contents of such report. That it shall contain, among other things, a statement of assets and how invested, and also a statement of the liabilities of the corporation, amount due depositors and other facts. Section 273 provides for the verification of said report as follows:

“ Such report shall be verified by the oath of the two principal officers of the institution, and the statement of assets shall be verified by the oath of a majority of the trustees who examined the same, pursuant to the requirements of section 279 of this act.”

The defendant was the treasurer of said corporation and made the affidavit required by section 273 on July 29,1890, to the report then made by said bank, in pursuance of the provisions of sections 270, 271 and 273. This affidavit is the one mentioned in said indictment. It is clear that the defendant at the time was one of the principal officers of the bank, within the meaning of the statute, and a proper party to make said affidavit.

The act of 1882, section 279, also provides that the trustees of every savings institution shall, on or before the first day of January and July in each year, thoroughly examine the books, vouchers and assets of such savings institution and its affairs generally, and that the statement or schedule of assets and liabilities reported to the superintendent of the banking department for the first day of January and July in each year shall be based upon such examination and shall be verified by the oath of a majority of the trustees making it.

At the Oyer and Terminer it was held by the court that, under the provisions of sections 273 and 279, the principal officers of the bank were not called upon or authorized in the making of the report to the superintendent of the banking department to verify such report as to the assets or liabilities of the bank. That the report of said officers, as made to the superintendent of the banking department, was based upon the report made by the committee of the trustees, and hence that perjury cannot be predicated upon an affidavit made by defendant as to the assets and liabilities of the bank, which he was not bound under the statute to make. That the oath of the defendant set out in the indictment was extra-judicial, the act only requiring the defendant to. make oath that the statement of liabilities and amount due depositors was correct according to the finding of the committee of the trustees.

It is to be regretted if this is a correct construction id the act of 1882. If so, officers of a savings bank like defendant, who, in fact, control its affairs, and have the charge and management of its books and vouchers, obtaining a report from a committee of its trustees on such books, vouchers and papers as such officers choose to submit to such committee, can swear to such a report, although knowing it to be a false one, without being guilty of perjury.

I am unable to agree with such an interpretation of the statute. I think that the very language of section 273 requires the principal officers of the bank to verify the entire report. Sections 270-272 (supra) provide for the making of the report and what it shall contain, and then section 273 enacts that the said report shall be verified by the two principal officers of the bank. The statute does not say that apart of the report shall be verified, but provides that “ such report shall be verified.” This, I understand, means all the report.

There is nothing in the provisions of section 279 inconsistent with those of section 273. The latter section, as I construe it, requires the oath of the officers to the whole report, and sections 273 and 279 together require the affidavit of a majority of the committee of the trustees to the statement of the assets and liabilities. It is true that the report made and sworn to by the officers of the bank and its trustees is based upon the examination made in pursuance of section 279. Although based upon such examination the statute prescribes that it shall be sworn to by the officers the whole of it. The language of section 273 is significant. "While providing that the report generally shall be verified by the oath of two of the principal officers, it specifies what part of the report shall be verified by the oath of the trustees — the statement of assets and liabilities. So, had it been the intention of the law makers that the principal officers should only verify a portion of the report, the statute would doubtless have stated what part said officers should make oath to.

Although the report so made, under section 279 (supra) is based on the examination of the trustees, if the defendant, as alleged in the indictment, knowing said report to be false, willfully and corruptly made a false affidavit verifying it, I think this is perjury under the Penal Code. Should a case arise where the examination of the trustees of the bank did not show the correct amount of assets or liabilities and the true sum due depositors, to the knowledge of the officers, the latter would not be compelled to verify the report known by them to be false. In such a case a special affidavit could be drawn to meet the difficulty.

On the trial of the case, if it should appear that the defendant relied upon the examination of the trustees and verified the semiannual report in good faith upon their statement, although the report proves to be false in fact, he would be entitled to an acquittal. But if it should be shown that the report submitted by the bank to the superintendent of the banking department, as alleged in the indictment, was false in fact, and the defendant, while knowing it to 'be so false, made an affidavit of its correctness, he could be properly convicted of perjury under the statute. The evident intent of the statute is to provide for the verification of the report by the principal officers of the bank, who know best as to its condition, and also for a semi-annual examination of the affairs of the institution by ij¡s trustees, evidenced to the superintendent of the banking department by the affidavit of the committee of such trustees attached to the semi-annual report.

I conclude that the oath of the defendant to the semi-annual report of the Ulster County Savings Institution, as alleged in the indictment, was not extra-judicial, but was an affidavit required by the plain terms of section 273 of the act of 1882, and that hence, if the allegations in the indictment are true, that the defendant can be held for perjury.

There are other objections made by the defendant to the indictment which the justice holding the Oyer and Terminer did not consider, and which I do not think it necessary to discuss at length.

It is claimed by the defendant that the indictment is fatally defective, in that it fails to aver that the defendant swore that the affidavit subscribed by him was true — it (the affidavit) only stating that the statements contained in the report were correct. This position of defendant is a novel one, and I think not well taken.

Section 96 of the Penal Code provides: “ A person who swears * * * or states in his testimony, declaration, deposition, affidavit or certificate any material matter to be true which he knows to be false is guilty of perjury.” In the indictment the report to the superintendent of the banking department is alleged to have stated the liabilities of the Ulster County Savings Institution at a certain sum, and that this was sworn to by defendant as correct. Such statement was in fact false, and defendant knowing that the said allegation was false and that the liabilities of said bank and the amount due depositors was much larger than that stated in said report verified, etc That was an allegation, as stated in the indictment, by the defendant in his affidavit of the truth of the facts stated in the report known by him to be false, and seems to come within the definition of perjury as defined in section 96 (supra).

To constitute perjury under said section it is not necessary in an affidavit of verification itself to state the facts sworn to.' The facts sworn to may be stated in. .the report or pleading to which said affidavit is annexed or attached. Such report or pleading and affidavit of verification forming, in fact, one paper. It is immaterial whether the facts sworn to are set out in the affidavit or in the paper annexed, of which the affidavit may be deemed a part.

In my judgment, the statement in the indictment that the liabilities were a much larger sum than the amount mentioned in the report is sufficient. . It is not necessary to state the amount of liabilities in excess of the amount reported. It is not a case where the amount of such excess is material.

I have read the indictment with some care, and it seems.to me to be carefully drawn and to comply with the requirements of the Code of Criminal Procedure. (See §§ 275,284, 285, 291; People v. Clements, 11 N. Y. State Rep., 384, 385; People v. Higbie, 66 Barb., 138; People v. Dimick, 107 N. Y., 29, 30.)

The judgment allowing the demurrer should be reversed and the demurrer disallowed, with liberty to defendant to plead to the indictment. '

The same disposition should be made of the other case of the People v. James H. Ostrander and that of the People v. Matthew T. Trumpbour.

Herrick, J.:

This is an appea. from a judgment of the court below sustaining a demurrer to the indictment herein. Sections 275, 276, 284 and 285 of the Code of Criminal Procedure provide the tests for determining the sufficiency of an indictment..

“ It must contain a plain and concise statement of the act constituting the crime, without unnecessary repetition, and it is sufficient if the act charged as the crime is plainly and concisely set forth with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case; and no indictment is insufficient by reason of any imperfection in matter of form, which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” (People v. Dimick, 107 N. Y., 13-29; People v. Weldon, 111 id., 575.)

It should also set forth the act or acts charged to constitute the crime with sufficient definiteness and precision that the defendant may avail himself of it as a plea in bar, if he is charged with the same offense or any offense constituted by the same act a second time.

Tested by these requirements, it seems to me that the indictment is good in form, and that the acts constituting the alleged crime are well pleaded.

Do the facts alleged constitute the crime of perjury? It is alleged that at the time of the acts charged in the indictment the Ulster County Savings Institution ” was an incorporated savings bank and institution for savings, duly incorporated and existing under the laws of the State of New York, and that the defendant was one of its two principal officers. The law governing savings banks is contained in chapter 409 of the Laws' of 1882.

Section 270 of that act directs such corporations to make semiannual reports on or before February first and August first, of its ■ condition on the mornings of the first days of January and July preceding.

Sections 271 and 272 prescribe the contents of such report.

Section 272 reads in part as follows: Such report shall also state all the liabilities of such savings corporation on the morning, of the said first day of January; the amount due to depositors, which shall include any dividend to be credited to them for the six-months ending on that day, and any other debts or claims against such corporation which are or may be a charge upon its assets.”

It is provided by section 273 that such report shall be verified by the oath of the two principal officers of the institution and the statement of assets shall be' verified by the oath of a majority of the trustees who examined the same pursuant to the requirements of section 279 of this act; ” and it further provides that any' willful false swearing, in regard to such reports, shall be perjury. Section 279 reads as follows: “ It shall be the duty of the trustees of every savings bank, by a committee of not less than three of such trustees, on or before the first day of January and July in each year, to thoroughly examine the books, vouchers and assets of such savings bank and its affairs generally; and the statement or schedule of assets and liabilities reported to the superintendent of the banking department for the first of January and July in each year shall be based upon such examination, and shall be verified by the oath of a majority of the trustees making such examination.” The provisions of this last section, when read in connection with the other first referred to, are what have given rise to the contention now before the court.

It is claimed that, inasmuch as section 279 says that the report of the statement or schedule provided for by section 270 shall be based upon the examination directed to be made by the trustees, that the verification to the report is simply a statement that it is a correct report of the examination made by the trustees, and that any other affidavit is extra-judicial, and that a charge of perjury cannot be predicated upon it; and, again, it is contended that the affidavit shall be that the report filed was correct, as based upon the examination of the trustees, and that any other affidavit would be extra-judicial. In other words, that the verification of the principal officers is to a report, not .as to what is the true condition of the corporation, but that the report correctly sets forth the examination of the trustees. To me it seems that reading the statute, bearing in mind its intern tion, will solve all difficulty; the court will not be curious to find or force a construction that opens the way to dishonesty or a loose way of transacting business; the law must be so construed, if possible, as to enforce its intent, and. that intent must not be defeated by refinements or subtleties in construction. The legislature evidently intended that, at least twice a year, the banking department should be informed of the exact condition of the savings institutions of the State. For that purpose it required an examination by the trustees N ext it required a report to be verified by the principal officers of the bank, and, as to the statement of its assets and liabilities, also by the affidavits of a majority of the trustees making the examination. The statute is particular in stating what the report shall contain;. it shall state all the liabilities of the bank ; it shall state the amount due depositors. And the report containing these things shall be verified by the oath of the two principal officers. They are to swear to the truth of that report, not to the truth of the report made by the trustees, nor is the report to state that it contains what the trustees found on their examination, but the report is to set forth what, in truth and fact, the real condition of the bank is, not wliat somebody else says it is; not what it is as appears from the examination made by the trustees; the bank department is to be informed of its true condition as known by its principal officers. The report provided for by sections 270, 271 and 272 is different from the examination provided for by section 279. One is a check upon the other.

It is true that section 279 says that the statement or schedule of assets reported, as provided for in section 270, shall be based upon the examination required by section 279, but that certainly does not mean that the principal officers are simply to report what the trustees found upon their examination, and that the banking department is not to have the benefit of the knowledge of the officers who, in fact, conduct the every-day business of the bank, but only the knowledge acquired by a committee of trustees who have examined the records of the business kept by those officers.

Such a construction would lead to this, that the principal officer could make his report, saying in it, or in the affidavit by which he verified it, that it was correct as based upon the examination of the trustees, and he could not be indicted for perjury, although he knew that such examination did not disclose the true condition of the bank, and knew that it was, in fact, false.

Having the books of the bank under his control, in most instances keeping them, he could falsify them so that, upon examination by the trustees, they would not discover the true condition of the bank; and he could truthfully swear that the report was based upon the examination of the trustees. When the statute says the statement or schedule of assets and liabilities reported shall be based upon such examination, it means that the report is to be something separate and apart from the statement of the result of the examination by the trustees; the result or statement of such examination is like the search furnished by the searcher to the pains-taking conveyancer, it simply furnishes him the basis for his own examination; he takes it and goes to the records and verifies it himself from those records before he certifies it as correct under his own hand.

This examination is also a basis for the report in another aspect. in addition to the report being verified by the two principal officers, its statement of assets and liabilities is also to be sworn to by the majority of the trustees making the examination required by section 279 ; of course, their examination gives them the knowledge — is the basis of their information — as to whether such statements are correct or not.

The contention of the defendant’s counsel, in substance, amounts to this: That the examination by the trustees, and their statement thereof, is, as to the two principal officers, res adyudicata as to the creditors of the bank; that their report must state that it is based upon such examination, and any other report is not called for by the statute, is extra-judicial, and perjury cannot be predicated upon it; that if the report is correctly based upon the examination and verified schedules made by the trustees, then they commit no perjury, although such verified schedules are, in fact, false, and do not represent, but misrepresent, the true condition of the bank.

- That if they make a report stating the schedule different from the one prepared and verified by the trustees, and verify it by their oaths, that then they would be guilty of perjury, although their report gave the true condition of the bank, and the schedule verified by the trustees did not. It seems to me that the mere statement of the construction contended for is a sufficient answer to it. A construction which will permit the officers of a bank to file and swear to a report which they know to be false and escape all liability therefor, simply because it is based upon an examination and report made by other officers, cannot possibly be what the legislature intended. The statute says that the corporation shall make a report in writing at a specified time to the superintendent of the banking department of its condition. The indictment says such a report was made. The statute says such report shall state all the liabilities of the corporation, and also the amount due depositors. The indictment says that th.e report purported to set forth and declare the . whole amount due depositors, and specifies the amount the report indicated and declared -was due depositors. The statute says such report shall be verified by the oath of the two principal officers of the bank. The indictment says that the defendant is one of the two principal officers of the bank, and, in proper form, alleges that he verified, by his oath, the said report. The statute also says that any willful false swearing in regard to such, or in regard to any reports made to the superintendent of the banking department, pursuant to the provisions of such act, shall be deemed perjury. The indictment charges that the defendant willfully swore that such report was, in respect to the statement of the liabilities, in all respects, correct, to the best of his knowledge and belief, and showed the true condition of the bank, when, in truth and in fact, it was not, in all respects, correct to the best of his knowledge and belief, as he well knew, and charges that this statement of the amount due depositors, was not the same set forth in the report, but was a much larger sum, as the defendant well knew. These matters being set forth in the proper legal form and verbiage as they are in this indictment, are sufficient. The oath is alleged to have been taken before an officer duly authorized to administer oaths, his name and office are given in the indictment. It was not necessary to set forth in full the affidavit by which he verified the report. All that is necessary is to set forth its substance and effect. (Code of Crim. Pro., § 291; People v. Warner, 5 Wend., 271; Wharton’s Criminal Law [9th ed.], § 1298.) The indictment sets forth the amount stated in the report to be due depositors, and then proceeds to state that such sum was not the amount due creditors, but that, in fact, the amount due creditors was a much larger- sum.

It was not necessary to specify in the indictment how much larger that sum was; all that was necessary was to negative the truth of the alleged fact or statement upon which the charge of perjury is predicated. It is not like a case of larceny where the grade of the offense depends upon the value of the thing taken.

Some stress has been laid upon the fact that in section 273 it says that the statement of assets, shall be verified by the oath of the trustees, while in section 279 it provides that the schedule or statements of assets and liabilities shall be verified by the trustees. If this indictment was against the trustees so verifying the report, the questions raised upon these differences in the two sections might be of some consequence, but I do not see how they can 'be in this case. Assuming that the verification or oath of tile trustees is defective, I cannot see how that affects the defendant; the oath or verification of the officers and of the trustees are separate and distinct affairs, the- one is as to the whole report, the other is as to certain statements in the report. If one is wrong in form, is extra-judicial, or in any way defective, that does not in any way affect the other.

However defective the report or affidavit may be in other respects, if, in making it out, the defendant has willfully, knowingly sworn that the liabilities of the bank, the amount due depositors, was a certain _ sum or amount, when, in truth and in fact, it was another and different sum or amount, and he knew it, then he is guilty of perjury.

For these reasons I think the court below erred in sustaining the demurrer to the indictment, and that the judgment of the Court of Oyer and Terminer allowing the demurrer to the indictment should be reversed. .

Mayham, P. J., not sitting.

Judgment reversed, demurrer disallowed, with liberty to defendant to plead over.


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    THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. MATTHEW T. TRUMPBOUR, Respondent.

      Savings bank report — peiyury—a deponent assuming to be a “principal officer” and. verifying the repoi't, estopped.

    Under section 273 of chapter 409 of the Laws of 1882, providing that the report required by that act as to the condition of a savings bank “shall be verified by the oath of the two principal officers of the institution,” Matthew T. Trump, hour, an assistant treasurer .of such an institution, verified a report alleged to be false.
    Upon the hearing on a demurrer interposed to an indictment against him for perjury:

      Held, that as he had assumed to be the proper person to verify the report, and had done so, he could not now claim that he was not a “principal officer” of the institution, and that he was, therefore, incompetent to take the oath.
    Appeal by tbe plaintiff, the People of the State of New York, from a judgment of the Ulster Oyer and Terminer, rendered on the 12th day of April, 1892, allowing the defendant’s demurrer to an indictment for perjury.

      J\ JV. Vcmderlyn and A. 8ohoonmalcer, for the appellant.

      William Lounsbery and D. M. De Witt, for the respondent.
   Herrick, J.:

This is an appeal from the judgment of the Ulster County Oyer and Terminer sustaining a demurrer to the indictment herein.

The case is similar to the cases against James E. Ostrander, argued before us at this term, except that while in those cases it was alleged that Ostrander was the treasurer of the Ulster County-Savings Institution and one of its two principal officers, in this case it is alleged that the defendant Trumpbour was the assistant treasurer and one of its two principal officers, and acting as such. The reports upon which the several indictments were founded were made at different times.

It is claimed by the defendant that, inasmuch as the statute provides that the report shall be verified by the two principal officers, and it appears upon the face of the indictment that the defendant was the assistant treasurer, that, therefore, he was not one of the two principal officers; that he is not one of the persons required by the statute to make the affidavit or verification; that his action in making it was extra-judicial, and that an indictment against him for perjury in making such verification will not lie. Whether he was or was not one of the two principal officers of the bank I think is of no consequence; assuming that he was not, still, in.my opinion, his contention is unfounded.

A report was required by law to be.made and verified; he assumes to be one of the two proper persons to verify it and does so. He cannot now come -forward and claim that he was incompetent to take the oath; that he was not the proper person to verify the report so long as, in fact, he did verify it. (People v. Bowe, 34 Hun, 528; Chamberlain v. People, 23 N. Y., 85; Howard v. Sexton, 4 Comst., 157; Pratt v. Price, 11 Wend., 128; Mackin v. People, 56 Am. Rep., 167; Penal Code, § 98.)

The other questions under the indictment have been discussed in the Ostrander cases, decided at this term.

The judgment of the Oyer and Terminer allowing the demurrer should be reversed.

Putnam, J., concurred; Mayham, P. J., not sitting.

Judgment reversed; demurrer disallowed, with liberty to defendant to plead over.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE W. POST, Appellant, v. ISAAC B. CROSS, Sheriff of Albany County, Respondent.

      Interstate extradition — a criminal may be extradited for one crime and be subsequently indicted and tried for a different offense — Constitution of the United States, art. 4, sec. 2.
    George W. Post was indicted by a grand jury of Albany county, New York, for grand larceny on February 13, 1889, and on October 9, 1891, was arrested upon a requisition made by tbe governor of New York upon the governor of Wisconsin, from which latter State, his residence, he was brought to Albany county. He was arraigned and plead not guilty. On November 30, 1891, he was indicted for robbery in the first degree, and the indictment for grand larceny was subsequently quashed.
    Upon an application for his discharge:

      Held, that interstate extradition, being founded upon section 2 of article 4 of the Constitution of the United States, applied to all crimes and was a matter of strict right upon the part of the State demanding the criminal.
    That it was proper, therefore, that such a criminal should be extradited for one offense and be held and subsequently indicted for a different offense.
    The distinction between extradition from foreign countries and extradition as between'the States, considered.
    Appeal by the relator, George W. Post, from an order of a justice of the Supreme Court, entered in the office of the clerk of Albany county on the 3d day of May, 1892, dismissing a petition and writ of habeas corpus, refusing to release the relator from imprisonment and remanding him to the custody of tlie sheriff of Albany county after a hearing at chambers.

      John H. Gleason, for the appellant.

      James W. Eaton, district attorney, for the respondent.
   Putnam, J.:

The relator, George W. Post, being indicted by the grand jury of Albany county at a Court of Sessions held on February 13,1889, for the crime of grand larceny, was, on October 9, 1891, arrested on a requisition by the governor of New York to the executive of Wisconsin, in the latter State (his then residence), brought to this State and delivered to' the sheriff of Albany county. During the same month he was arraigned on said indictment, and pleading not guilty was committed to the custody of said sheriff upon a bench warrant issued by the district attorney. On November 30, 1891, the relator, at a Court of Oyer and Terminer in said county, was indicted by the grand jury for robbery in the first degree, and being arraigned plead not guilty. On April 21, 1892, the former indictment for grand larceny was by order of the court duly quashed; and on that day, and before the prisoner was released, the said district attorney issued to the sheriff a' bench warrant on the indictment for robbery, and relator is now impi’isoned thereunder. He claims and insists that being brought to this State on the requisition of its governor on the charge of grand larceny, he cannot, be held here on a charge for another and different crime until he has had a reasonable time to return to the State from which he was brought, and hence that he is now entitléd to be discharged.

It may at this time be deemed settled that a fugitive from justice, extradited from a foreign country, can only be held' and tried for the offense for which his extradition1 was obtained. Formerly there was some conflict of authority on this question, but the- decision of the Supreme Court of the United States, in United States v. Rauscher (119 U. S., 407), has séttled the law in this regard.

Does the doctrine, as laid down in that case and kindred authorities, apply in cases of interstate extradition ? The question is a debatable one, but in my judgment there is a clear distinction between cases of foreign and interstate extradition. In the former case the right to demand a fugitive from justice depends upon treaties between governments. In United States v. Rauscher (supra) it was held :

“ (1.) That a treaty to which the United States is a party is a law of the land, of which all courts, State or national, are to take judicial notice, and by the provisions of which they are to be governed so far as they are capable of judicial enforcement.”

(2.) That, on a sound construction of the treaty under which the defendant was delivered to this country, and under the proceedings by which this was done and acts of congress on that subject (U.S. R. S., §§ 5272, 5275), he cannot lawfully be tried for any other offense than murder.”

“ (3.) The treaty, the acts of congress, and the proceedings by which he was extradited, clothe him with the right to exemption from trial for any other offense until he has had an opportunity to return to the country from which he was taken for the purpose alone of trial for the offense specified in the demand for his surrender. That national honor also requires that good faith shall be kept with the country which surrenders him.”

The same justice who delivered the opinion in the Rauscher case, in Ker v. Illinois (119 U. S. Rep., 443), speaking of the Rauscher ease, says: “ It was there held that, when a party was duly surrendered by proper proceedings under the treaty of 1842 with Great Britain, he came to this country clothed with the protection which the nature of such proceedings and the true construction of the treaty gave him. One of the rights with which he was .thus clothed, both in regard to himself and in good faith to the country which had sent him here, was, that he should be tried for no other offense than the one for which he was delivered under the extradition proceedings.”

The treaty of 1842 referred to in the said case provided for the delivery of a fugitive in case of certain mentioned crimes, and that said delivery should only be made upon such evidence of criminality as would justify his apprehension and commitment for trial according to the laws of the place where the fugitive shall be found, if the crime or offense had been there committed.

The right to arrest a fugitive from justice in any other State of the Union is given by the Constitution. It exists as to all crimes. No proof is required except a copy of the indictment or an affidavit 'made before a magistrate charging the person demanded with a crime properly certified.

There is a clear distinction between the two cases. In the one case the right of extradition depends upon a treaty or contract between two countries. It only exists as to a few crimes, and there is a provision for the giving of evidence before the rendition of the fugitive. In the other case the right of extradition is given by the supreme law of the land and applies to all crimes, including misdemeanors. There is no examination had, the fugitive being delivered up on the copy of the indictment or an affidavit duly certified.

In cases of foreign extradition the right to demand fugitives is limited; only to be exercised in a certain way and after certain proceedings, and in cases of a limited number of crimes. There are crimes under our laws, such as political ones and other offenses, for which foreign nations would not wish or agree to surrender to us fugitives from justice. Hence it is important that, m extradition proceedings from foreign countries, the criminal should only be tried for the crime for which he was brought within our jurisdiction; the crime on account of which the foreign nation has consented to surrender him to us, for which we demanded his rendition.

I think, therefore, that, while in cases of fugitives from a foreign country delivered to us, under the provisions of a treaty, it is proper that the criminal should only be held for the crime on account of which the foreign country surrendered' him to us, because, in fact, such a procedure is according to the contract under which the criminal was delivered to us, as justly held by the Supreme Court of the United States; no such reason exists why a fugitive from justice from this State, arrested in another State and brought here, should not be tried for another offense than the one for which he was arrested.

The reason stated in “ Rauscher ” and kindred cases why one extradited from a foreign country should not be brought to trial for an offense different from the one for which he was delivered up, does not exist in cases of interstate extradition. In such a case the fugitive is surrendered by virtue of the supreme law of the land. The authorities demanding his rendition have an absolute right to such surrender in all cases of crime. They have as clear a right under the law as if the fugitive, instead of being in another State, was in another country of this State. The procedure is different in the two cases, but in both the arrest and rendition of the criminal is an absolute right under the law. That law contains no provision, express or implied, that a fugitive shall not be tried for an offense other than the ■ one for which he was delivered under the extradition proceedings. Nor is there any good reason why the fugitive, being brought within our State, should not be held and tried for any and every offense he may have committed here.

The above views are supported by several well-considered cases. (See State ex rel. Brown v. Stewart, 60 Wis., 587; In the Matter of Noyes, 17 Alb. L. Jour., 407; U. S. v. Watts, 14 Fed. Rep., 138, 139; People ex rel. Suydam v. Sennott, 20 Alb. L. Jour., 230; Hackney v. Welsh, 107 Ind., 253.)

' There are several authorities cited by the appellant holding a contrary doctrine, among which are: State v. Hall (40 Kan., 328); In the Matter of Cannon (47 Mich., 481); Matter of Hope (7 N. Y. Crim. Rep., 406); Matter of Baruch (7 N. Y. Crim. Rep., 325); Ex parte McKnight (28 N. E. Rep., 1034). •

It must be conceded that these conflicting eases leave the question presented to us in this case a somewhat doubtful one. The views, however, enunciated in the above cited case of State ex rel. Brown v. Stewart, and kindred cases, accord with my opinion, and I think should be followed in the disposition of this case. And I desire to refer to the said last-mentioned case as containing a full, able and complete discussion of the question under consideration.

It has been determined that a fugitive from justice, who had been kidnapped and brought into the State where the crime was committed, being so within the jurisdiction of such State, although illegally brought there, may, nevertheless, be held and tried for his offense. (In re Miles, 52 Vt., 609; State v. Brewster, 7 id., 118; State of Iowa v. Ross and Mann, 21 Ia., 467; People v. Rowe, 4 Parker Crim., 253; Dow’s Case, 18 Pa., 37; Mahon v. Justice, 127 U. S., 700; Ker v. Illinois, 119 id., 437-444.)

I am unable to perceive that the relator, legally brought within our jurisdiction on a criminal charge, which has been abandoned, and thus being within the State, is in any better' condition, as to exemption from arrest under the indictment against him, than he would have been if brought here unlawfully by kidnappers.

If the relator were within this State, by virtue of a treaty and contract between nations which impliedly provided that he should only be brought to trial for the offense on account of which he was extradited, or if the Constitution and laws of the United States, as to interstate extradition, contained any provision as to his trial only,' for the crime named in the extradition proceedings, the case would be different. As it is, the relator being within our jurisdiction and indicted for a crime, and the authorities of the State, under the Constitution and laws of the United States, having an absolute right to his rendition here from any State for trial under the indictment, I am unable to see that any useful purpose would be served by going thrpugh the form of returning him to Wisconsin and again having him brought back to this State.

The order should be affirmed.

Mayham, P. J., and Herrick, J., concurred.

Herrick, J.:

The application of the relator to be discharged is founded upon the assumption that interstate extradition is governed by the same principles as extradition from foreign countries. This, I think, is error. It seems to me entirely unnecessary to call attention to the fact that the relations between the States of the Union, and the relation between the United States, or one of the States, and foreign governments, are entirely different. Without discussing or citing the various cases that have arisen and have been reported in the different State courts, and in the United States courts, and among which there is considerable conflict of opinion, it seems to me that a brief discussion or review of the principles which have guided the courts in determining that prisoners extradited from foreign countries cannot be tried for any other than the specific crime for which they were extradited, will show that the same reasons or principles do not apply in the case of a person extradited from one State of the Union to another.

Extradition from foreign countries is based either upon international comity or upon treaty; where no treaty exists prisoners have seldom been given up for any except the gravest of offenses, and it has been the rule not to surrender for any offense of a political character; good faith between nations, under such circumstances, requires that a party should not be tried for any other offense than that which has been brought to the attention of the foreign government, and upon which it has surrendered him.

There being no law governing the matter, the foreign State in each instance passing upon the particular case brought to its attention, it might very well be that while it might be willing to extradite in the case that was laid before it, that it might not be willing to extradite in the case for which it was afterwards proposed to bring the prisoner to trial. If such a practice were to be tolerated, persons having an asylum in foreign countries could be brought into another under the pretense of a desire to try for one offense, whereas, in truth and in fact, it was the intention to try for another or different offense, for which extradition would not be granted, as, for instance, political offenses.

Where extradition is founded upon treaty, I think, without exception, the specific crimes for which extradition will be granted are set forth in the treaty, and specifying the particular crimes for which éxtradition will be granted, excludes all other crimes; and the fair inference is that the treaty-making powers are not willing to surrender to each other persons to be tried for any other or different crimes except those mentioned in the treaty; and a strict observance of such treaty, and good faith as well, requires that the persons extradited for an offense mentioned in the treaty should not be tried for any other or different offense.

And it was upon these principles, as I understand it, that the case of the United States v. Rauscher (119 U. S., 407) was decided. Although decided by a divided court,__ and upon different grounds, that is now the leading and controlling case in this country upon foreign extradition. Coupled with the reasons I have recited, the court in that case also called attention to the fact that the laws of congress of the United States provided that persons brought into this country by extradition must be tried for the offense upon which they were extradited; and Justice Gray, in concurring in the decision of the court in that case, concurred upon the single ground that the statutes of the United States provide that persons so surrendered should be tried for no other or different offense than that upon which they were surrendered.' (See page 433.)

Interstate extradition is founded neither upon comity between States or treaties, but upon the fundamental law of the land, the Constitution of the United States. Section 2 of article 4 reads as follows: “A person charged in any State with treason, felony or •other crime, who shall flee from justice and be found in another ¡State shall, on demand of the Executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime.”

It will thus be seen that the principles applying to foreign extradition are not applicable to interstate prisoners; extradition is not confined to specific crimes, but includes all crimes. No question can arise that the State might be willing to surrender a fugitive for one crime but not for another, as in the case of a foreign country, but the States are commanded to surrender for all crimes; there is no question of bad faith that can arise by reason of extraditing for one crime and trying for another; there is no imposition upon the surrendering State, because the demanding State has a right to demand for any crime.

In the Rauscher case the prisoner was tried for an offense which was not extraditable, the charge upon which he was extradited being abandoned, and the court held that where a person had been extradited for one offense he could not be tried for any other until a reasonable time and opportunity had been given him after his release or trial upon such charge, to return to the country from whose asylum he had been taken. Where a person can only be taken for certain specified crimes, that is a reasonable rule and the principle of it easily understood. And in that case there was a statute of the United States requiring that he be protected by the United States authorities for a reasonable time after his discharge from custody on account of the crime for which he was extradited.

But in the case at bar the State of New York can demand of the executive authorities of the State of Wisconsin a surrender of the relator, to be tried for the crime of robbery just the same as for the crime of larceny; and it would be a manifest absurdity that a law should be so construed as to require that a defendant should be set at large or returned to the State of Wisconsin, and a demand forthwith made upon the authorities of that State to return him to this State again, that he may be tried. And there is no statute requiring it as in the Rauscher case.

Mayham, P. J., and Putnam, J., concurred.

Order affirmed.