Eastwood, Goldmann and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.
The determinative question is whether the Essex County Court erred in denying the petitioner, in habeas corpus proceedings, the right to offer testimony to establish the motives and animus of the complaining witnesses whose testimony allegedly resulted in the criminal indictments returned against him in Massachusetts.
Cohen was indicted by the grand jury of Suffolk County, Massachusetts, for the alleged larceny of $2,100 from one Howard Eveleth and for obtaining by false pretense certain moneys of one Alfred J. Tomasi. The Governor of Massachusetts forwarded a requisition with accompanying papers to the Governor of New Jersey on March 11, 1952, requesting Cohen's arrest and return as a fugitive from justice. The requisition was honored by the Governor of New Jersey on March 19, 1952; a warrant of rendition was issued and duly executed on March 28, 1952. On the latter date the Honorable W. Stanley Naughright, Judge of the Essex County Court, allowed a writ of habeas corpus to test the validity of the extradition. At the hearings there was no dispute as to the question of the petitioner's identity, or that the charges in the indictments were crimes under the law of Massachusetts, or that petitioner was present in the demanding state on or about the times alleged in the indictments. The only question raised by Cohen before Judge Naughright, and the only question raised here is whether the court erroneously rejected certain evidence tending to show that the bases for the indictments were of a civil nature and that the purpose of the extradition was to secure Cohen's presence in Massachusetts to obtain service of civil process upon him and enforce the civil claims.
So far as the courts of New Jersey are concerned, the case is one of first impression. As we shall demonstrate,
there are numerous decisions in this State and other states which establish the rule that in habeas corpus proceedings such as that under review here, the court may not take testimony as to the merits of the prisoner's defense to the charges or as to his guilt or innocence. However, an examination of the New Jersey cases does not reveal any decision that directly meets the specific issue raised here.
We think it will be interesting and informative to state the prevailing rule in New Jersey and other jurisdictions with respect to the scope of the inquiry that may be made at a habeas corpus hearing in extradition cases.
The return of fugitives from one state to another is a federal and not a state matter, governed by the Constitution of the United States and the act of Congress passed pursuant thereto. U.S. Const., Art. IV, sec. 2. 18 U.S.C.A. c. 209, Extradition; Title 18, sec. 3182. See our Uniform Criminal Extradition Law adopted in New Jersey in 1936, R.S. 2:185-6 et seq. (now R.S. 2 A:160-6 et seq.). U.S. ex rel. Silver v. O'Brien , 138 F.2d 217 (7 Cir., Ill. 1943), certiorari denied, 321 U.S. 766, 64 S. Ct. 522, 88 L. Ed. 1062; South Carolina v. Bailey , 289 U.S. 412, 53 S. Ct. 667, 77 L. Ed. 1292 (1933); People ex rel. Carr v. Murray , 357 Ill. 326, 192 N.E. 198 (Sup. Ct. 1934); Stark v. Livermore , 3 N.J. Super. 94 (App. Div. 1949). Our New Jersey courts have held that one of the purposes of the provisions of the Federal Constitution was "to impose an absolute obligation on each state to surrender criminals fleeing from the justice of another state" and that "if the demand be made in due form and the requisite documents exhibited, showing that the fugitive is charged with crime, the duty to surrender becomes merely a ministerial one." In the matter of Peter Voorhees , 32 N.J.L. 141, 145, 146 (Sup. Ct. 1867); In re Thompson , 85 N.J. Eq. 221, 227, 228 (Ch. 1915); Roberts v. Reilly , 116 U.S. 80, 6 S. Ct. 291, 94, 29 L. Ed. 544, 548 (1885). There is no obligation upon the Governor, upon whom requisition is made for a fugitive from justice, to hear the accused before ordering his
removal, and the person demanded has no constitutional right to be heard before the Governor. Munsey v. Clough , 196 U.S. 364, 25 S. Ct. 282, 49 L. Ed. 515 (1905); People ex rel Corkran v. Hyatt , 172 N.Y. 176, 193, 64 N.E. 825, 60 L.R.A. 774 (Ct. App. 1900), affirmed 188 U.S. 691, 23 S. Ct. 456, 47 L. Ed. 657 (1902); In re Murphy , 321 Mass. 206, 72 N.E. 2 d 413 (Sup. Jud. Ct. Mass. 1947); Pettibone v. Nichols , 203 U.S. 192, 204, 27 S. Ct. 111, 51 L. Ed. 148, 7 Ann. Cas. 1047 (1906); People of State of Illinois ex rel. Nichols v. Pease , 207 U.S. 100, 109, 28 S. Ct. 58, 52 L. Ed. 121 (1907). Under R.S. 2:185-12 (now R.S. 2 A:160-12),
"When a demand shall be made upon the governor of this state by the executive authority of another state for the surrender of a person so charged with crime, the governor may call upon the attorney general or any prosecuting officer in this state to investigate or assist in investigating the demand, and to report to him the situation and circumstances of the person so demanded, and whether he ought to be surrendered."
Whether a hearing may be accorded by the Governor of this State to the accused is a matter of grace and not of right. In re Thompson, supra; In re Colier , 140 N.J. Eq. 469, 470 (E. & A. 1947). The Governor may properly exercise a discretion in determining whether a case contemplated by the Constitution and the laws of the United States has been presented for his action. He cannot be interfered with in the exercise of this discretion should he decide that no such crime is charged. 22 Am. Jur., Extradition, sec. 34, pp. 272, 273. There is apparently no authority whereby one may compel the Governor to issue his warrant if he refuses to do so. Drew v. Thaw , 235 U.S. 432, 35 S. Ct. 137, 138, 59 L. Ed. 302 (1914); People v. Murray, supra; Ex parte Wallace , 38 Wash. 2 d 67, 227 P. 2 d 737, 738 (Wash. Sup. Ct. 1951); Ex parte Moyer , 12 Idaho 250, ...