Ex parte Spears

I am unable to concur. “ The warrant of the governor is prima facie evidence, at least, that all necessary legal prerequisites have been complied with ” (Church on Habeas Corpus, sec. 480), and the petitioner has not made it appear to my satisfaction that the courts of Alabama could not hold him for examination on the affidavit charging him with embezzlement.

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

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

We have before us the copy of the affidavit which accompanied the…