State ex rel. Liimatainen v. Boekenoogen

• Decision Date: 19 April 1918
• Docket Number: No. 20919.,20919.
• Citation: 167 N.W. 301,140 Minn. 120
• Parties: STATE ex rel. LIIMATAINEN v. BOEKENOOGEN, Sheriff.
• Court: Minnesota Supreme Court

140 Minn. 120

167 N.W. 301

STATE ex rel. LIIMATAINEN

v.BOEKENOOGEN, Sheriff.

No. 20919.

Supreme Court of Minnesota.

April 19, 1918.

Appeal from Order of Court Commissioner, Aitkin County; Carl E. Taylor, Court Commissioner.

Habeas corpus by the State, on relation of Nestor Liimatainen, against I. E. Boekenoogen, Sheriff, to review the issuance of a warrant for his arrest in an extradition proceeding. Relator discharged, and defendant appeals. Order reversed.

Syllabus by the Court

A witness may testify from a memorandum where he has no independent recollection of the facts even after seeing it, if he recollects having seen it before and remembers that at the time he saw it he knew the contents to be true. Want of independent recollection, if obvious, need not be directly proved.

A Governor's warrant of extradition presumptively establishes: (1) That the accused stands charged in proper form with a crime committed in the demanding state; and (2) that the accused is a fugitive from justice.

In determining whether the accused is a fugitive from justice, the court does not act on mere preponderance of evidence. It must be made clearly and satisfactorily to appear that he is not a fugitive from justice.

There is substantial evidence in this case that relator was in the demanding state within the period during which he is charged with commission of a crime.

The question of his guilt or innocence is one for the courts of that state, and not for this court, to try. George C. Von Beseler, of Painesville, Ohio, and E. H. Krelwitz, of Aitkin, for appellant.

W. M. O'Hara, of Aitkin, for respondent.

HALLAM, J.

Relator stands indicted by a grand jury in Lake county, Ohio, of the crime of neglect and refusal to provide for his minor daughter ‘on the 6th day of February, 1910, and from that day until the commencement of these proceedings, to wit, April 11, 1917.’ Relator was found in Minnesota. The Governor of Ohio made requisition upon the Governor of Minnesota for his apprehension and return as a fugitive from justice. The Governor of Minnesota honored the requisition and issued a warrant and relator was arrested by defendant, sheriff of Aitkin county. He procured a writ of habeas corpus and after hearing was discharged. Defendant sheriff appeals.

The complaining witness was formerly relator's wife. The child is the child of both. They were divorced in Ohio early in 1910 and the custody of the child given to the mother. By order pendente lite, and also by the terms of the decree, relator was required to pay stipulated amounts for the maintenance of the child. This fact is not of vital importance. The duty of support existed without decree or order of court. Perhaps the order and decree defined the limit of his duty.

[1] 1. For the purpose of proving when relator left Ohio, the state offered proof that he was there at the trial of the divorce suit and then offered the testimony of the presiding judge to prove the date of the trial. The judge produced the docket of his court containing notes or entries made by himself in the regular course of his duties and testified that the entries as to this case were made by him on the day of the trial and that they are correct. He then testified that the docket shows that the entry granting a decree was made February 16, 1910, and from examination of the docket he testified that the trial could not have been at a time earlier than February 16, 1910.

Relator contends this use of the docket was improper. We think it was proper. A witness may use a memorandum where he has no independent recollection of the facts even after seeing it, if he recollects having seen it before and remembers that at the time he saw it he knew the contents to be true. Ammon v. Illinois C. R. Co., 120 Minn. 438, 139 N. W. 819;Costello v. Crowell, 133 Mass. 352; 1 Wigmore, Ev. §§ 725-734; 1 Elliott, Ev. § 872. That is really the situation in this case.

Relator contends that it was not made to appear that the judge had no independent recollection of the facts. But it is never necessary to show that by direct proof if it is obvious he could have no independent recollection. Stahl v. City of Duluth, 71 Minn. 341, 349, 74 N. W. 143;Meyers v. McAllister, 94 Minn. 510, 103 N. W. 564;Naas v. C., R. I. & Pac. Ry. Co., 96 Minn. 84, 104 N. W. 717. This is obvious in this case. The evidence was properly received.

[2] 2. On receipt of the requisition it was the duty of the Governor to consider and determine: (1) Whether relator stands charged, in proper form, with a crime committed in Ohio; and (2) whether he is a fugitive from the justice of that state. The Governor's warrant of extradition presumptively establishes the affirmative of both propositions. State ex rel. v. Justus, 84 Minn. 237, 87 N. W. 770,55 L. R. A. 325;State ex rel. v. Gerber, 111 Minn. 132, 126 N. W. 482. If the extradition papers are regular on their face, every intendment is indulged in favor of their validity and the burden is on the prisoner to show that some one of the conditions of extradition prescribed by the...