Price, Gaulkin and Foley. The opinion of the court was delivered by Foley, J.A.D.
The Bergen County Court ordered extradition of the defendant to the State of Michigan and simultaneously denied his application for a writ of habeas corpus. Defendant appealed from each of said orders. The appeals have been consolidated.
The demand issued by the Governor of Michigan to the Governor of New Jersey recited that the defendant stood charged with the "crime of Conspiracy to Cheat and Defraud: Conspiracy to Violate [the] False Advertising Statute: and False Advertising," contrary to the laws of Michigan, and sought Phillip's extradition to that state. Annexed to it was a copy of a complaint which charged that Harold Phillips and others "on the 1st day of December, A.D. 1958 and on divers other days and dates up to and including the 4th
day of May, A.D. 1959, at the City of Detroit * * * unlawfully, falsely, deceitfully, and fraudulently did combine, conspire, confederate and agree * * * to obtain and acquire unto themselves * * * large sums of money." The complaint further charged that the said defendant and others "on December 1, 1958, and on divers other days and dates up to and including May 4, 1959 * * * did wickedly, maliciously, and feloniously conspire, combine, confederate and agree * * * for the purpose and with the intent * * * to violate the false advertising statute of this state. * * *."
The conspiratorial scheme alleged by the complaint was that the defendant Harold Phillips and others operating through a Michigan corporation, Floor Magic of Michigan, Inc. (hereinafter referred to as "Floor Magic") solicited prospective salesmen by advertisements placed in the Detroit Times and the Detroit Free Press , and in so doing made certain representations which were false in that they failed to apprise the prospective employees that an investment would be required of them. In addition to the general charge it was specifically alleged that one Andrew L. Percy, a prospective employee, was misled by an advertisement appearing in the Detroit Times of January 6, 1959, fraudulently placed therein by Harold Phillips and Floor Magic.
Also contained in the application for requisition were an information presented by the prosecuting attorney of Wayne County, Michigan, which alleged violations identical with those contained in the complaint, and affidavits of Andrew L. Percy, Soulby R. Haymour and Samuel H. Olsen, the prosecuting attorney. Percy in his affidavit, insofar as it is relevant here, alleged that after reading Floor Magic's advertisement of January 6, 1959 in the Detroit Times he applied for employment and, as part of the hiring procedure, was interviewed by Harold Phillips on January 16, 1959, and at that time signed what he thought to be a franchise but which was in fact a contract whereby he, unknowingly, became obligated to Floor Magic in the sum
of $889 for floor waxing materials to be supplied to him. He deposed further that he had been misled by the failure of the advertisement to indicate that an investment was required and by the statements made by Harold Phillips regarding the instrument signed. Soulby Haymour similarly deposed that he was misled by the advertisement and by oral representations made by Phillips when he met him on January 9, 1959. Both Percy and Haymour in their affidavits indicated that they met Phillips on the respective dates specified within the State of Michigan. Samuel Olsen's affidavit related the applicable statutory provisions allegedly violated. During the hearing of the matter in the Bergen County Court, Mr. Benjamin Cornelius, an assistant prosecutor of Wayne County, Michigan, testified that he saw Phillips twice in Michigan during April 1959.
Defendant offered no proof either at the hearing or by affidavit that he was not within Michigan during the period December 1, 1958 to May 4, 1959. His sole argument was that since the only specific dates alleged in the complaint and information are December 1, 1958, January 6, 1959 and May 4, 1959, the burden rested upon Michigan to prove his presence within that state on one of these dates, and having failed to do so his fugitivity was not established and he is not the subject of rendition. This contention is the basis of the appeal.
Extradition is a federal matter, the basic authority for which is contained in U.S. Const., Art. IV, § 2, cl. 2; Foley v. State , 32 N.J. Super. 154 (App. Div. 1954); see also 18 U.S.C. , §§ 3182-3195. The federal provisions are implemented by N.J.S. 2 A:160-1 et seq. Fundamental requirements of any interstate rendition proceeding are that the accused is the party named in the requisition and rendition warrant and that he is a fugitive from justice. Passalaqua v. Biehler , 46 N.J. Super. 63, 67 (App. Div. 1957). The latter inquiry includes a finding that in substance a crime is alleged, In re Williams , 101 N.J. Eq. 75 (Ch. 1927), and that the accused having committed said
crime has "fled" from the "demanding" jurisdiction. It must appear that the accused was within the demanding state at the time the crime was committed so as to constitute him a "fugitive" by his commission of the crime and his later flight. Hyatt v. People of State of New York ex rel. ...