Collins v. Traeger

Decision Date20 August 1928
Docket NumberNo. 5485.,5485.
Citation27 F.2d 842
PartiesCOLLINS et al. v. TRAEGER, Sheriff.
CourtU.S. Court of Appeals — Ninth Circuit

George D. Collins, Jr., of San Francisco, Cal., for appellants.

Asa Keyes, Dist. Atty., and Tracy Chatfield Becker, Deputy Dist. Atty., both of Los Angeles, Cal., for appellee.

Before RUDKIN, DIETRICH, and HUNT, Circuit Judges.

DIETRICH, Circuit Judge.

The appellant Millard stands charged in an Illinois court with the commission in that state of an offense defined by the statutes as obtaining money or property by "means, instrument, or device commonly called `the confidence game.'" He was found and arrested in California, and upon a requisition from the Governor of Illinois the Governor of California issued a warrant of rendition, under authority of which the appellee, sheriff of Los Angeles county, holds him for delivery to the designated agent of the demanding state. While so held, he made application to the United States District Court for a writ of habeas corpus, which, after a hearing, was denied, and from the order so made he prosecutes this appeal. His identity and his presence in Illinois at the time of the alleged offense are conceded.

The original complaint, or application for the writ, was signed and verified by G. D. Cole, with the explanation, therein set forth, that it was made on behalf and at the request of appellant, who, being in custody, was in peril of being removed from the jurisdiction of the court before he could act in person. By section 754, R. S. U. S. (28 USCA § 454), it is provided that application for a writ of habeas corpus shall be made "by complaint in writing, signed by the person for whose relief it is intended, * * * verified by the oath of the person making the application." But section 760, R. S. U. S. (28 USCA § 460), declaring that "the petitioner or the party imprisoned or restrained may deny any of the facts set forth in the return," would seem clearly to imply that under the circumstances here shown the petition may be made and verified by a person authorized to act on behalf of the one restrained of his liberty. Such a construction is embodied in a standing rule of the court below (No. 51), and is supported, we think, by the weight of authority. U. S. v. Watchorn (C. C.) 164 F. 152, 153; Ex parte Dostal (D. C.) 243 F. 664, 668; U. S. ex rel. Bryant v. Houston (C. C. A.) 273 F. 915. Contra, perhaps, is Ex parte Hibbs (D. C.) 26 F. 421, 435.

Besides, the point not being jurisdictional, but procedural only, and not having been raised or ruled upon by the trial court, it cannot now avail. Had the objection been made below, appellant would doubtless have sought and obtained leave to amend, by adding to the complaint his signature and verification.

The rendition warrant issued by the Governor of California contains the following recitals:

"Whereas, it has been represented to me by the Governor of the state of Illinois that Elid Stanitch, alias S. S. Millard, stands charged with the crime of confidence game committed in the county of Cook, in said state, and that he fled from the justice of that state, and has taken refuge in the state of California, and the said Governor of Illinois having, in pursuance of the Constitution and laws of the United States, demanded of me that I shall cause the said Elid Stanitch, alias S. S. Millard, to be arrested and delivered to Robert E. Calkins, who is authorized to receive him into his custody and convey him back to the said state of Illinois;

"And whereas, the said representation and demand is accompanied by a copy of complaint, warrant of arrest, certificate of judge and clerk, affidavit certified by the Governor of the state of Illinois, to be authentic, whereby the said Elid Stanitch, alias S. S. Millard, is charged with said crime; and it satisfactorily appearing that the representations of said Governor are true, and that said Elid Stanitch, alias S. S. Millard, is a fugitive from the justice of the aforesaid state," etc.

Appellant contends that the warrant is void upon its face for want of a recital that the affidavit or verified complaint was made before a magistrate. There is nothing in the statutes prescribing the form or contents of the warrant, and the decided cases exhibit great diversity. For this jurisdiction, however, we think the rule established that such a warrant is aided by the presumption of official regularity, and under that presumption the warrant here is prima facie valid. Where there is no indictment, an essential condition precedent to the exercise of the power to extradite is an "affidavit made before a magistrate" of the demanding state. But equally essential is it that the person demanded be a "fugitive from justice," and in Munsey v. Clough, 196 U. S. 364, 25 S. Ct. 282, 49 L. Ed. 515, it is said:

"The issuing of the warrant by him Governor of the asylum state, with or without a recital therein that the person demanded is a fugitive from justice, must be regarded as sufficient to justify the removal, until the presumption in favor of the legality and regularity of the warrant is overthrown by contrary proof in a legal proceeding to review the action of the Governor. Roberts v. Reilly, 116 U. S. 80, 95 6 S. Ct. 291, 29 L. Ed. 544; Hyatt v. Corkran, 188 U. S. 691 23 S. Ct. 456, 47 L. Ed. 657."

See, also, Reed v. U. S., 224 F. (C. C. A. 9th) 378, 381.

The further point that the warrant inadequately sets forth the elements of the offense charged is ruled by the same considerations.

At the hearing below there was introduced in evidence a file of papers, certified by the Governor of California as a full, true, and correct copy of the original record in his office. In this transcript are what purports to be a requisition by the Governor of Illinois, dated April 4, 1928, a petition therefor, signed by the state's attorney for Cook county, Chicago, Illinois, verified by the oath of one Leon E. Goetz, of date March 27, 1928, a "complaint for examination" in the municipal court of Chicago, sworn to by Goetz on March 23, 1928, before Matthew D. Hartigan, judge of the municipal court of Chicago, to which is attached an order by Judge Hartigan reciting that he was satisfied "there is probable cause for filing the same," and granting leave to file it; also a warrant of the same date, issued by the clerk of that court, reciting the making of the complaint before Judge Hartigan and the filing of it, and further that the court had read the complaint and examined the complainant under oath, and directing the arrest of Elid Stanitch, alias S. S. Millard, the person charged in the complaint with the offense of the "confidence game." To the papers is attached a certificate authenticating the copies as being true copies of the complaint and warrant on file in the clerk's office, followed by a certificate by one signing as chief judge of the municipal court as to the official character of the person signing as clerk, and stating that his attestation is in due form of law and is by the proper officer. This certificate, in turn, is followed by a certificate, purporting to be made by the clerk, of the official character of the person signing as chief judge.

The "complaint for examination" thus referred to sets forth that "Elid Stanitch, alias S. S. Millard, did, on the 4th day of November, 1927, at the city of Chicago, county of Cook, state aforesaid Illinois, feloniously and fraudulently obtain from U. S. Health Films, Inc., * * * the sum of twenty-five thousand ($25,000.00) dollars * * * by means and by use of the confidence game, with the felonious intent to then and there cheat the said corporation, in violation of section 98, par. 256, c. 38. R. S.," etc. The requisition refered to recites, inter alia, that "whereas it appears by the papers required by the statutes of the United States, which are hereunto annexed, and which I certify to be authentic and duly authenticated in accordance with the laws of this state, that Elid Stanitch, alias S. S. Millard, stands charged with the crime of confidence game," etc.

Upon this record, appellant further contends that the rendition warrant is void, because it nowhere appears that the requisite accusatory affidavit (the verified complaint for examination) was in fact annexed to the requisition, and hence covered by the authentication contained therein. But we think by clear implication it appears to be one of the papers annexed. The requisition recites that there are annexed the papers required by the United States statutes, this is such a paper, and it is certified as one of the papers submitted to the...

To continue reading

Request your trial
32 cases
  • In re Murphy
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 5, 1947
    ...62 S.W.2d 1086, 89 A.L.R. 589. The contention of the petitioners that a complaint cannot be an affidavit is unsound. Collins v. Traeger, 9 Cir., 27 F.2d 842, 844, 845;Riley v. Colpoys, 66 App.D.C. 116, 85 F.2d 282, 283;Lacondra v. Hermann, 343 Ill. 608, 613, 614, 175 N.E. 820;People v. Mulc......
  • Dorsey v. Gill
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • February 26, 1945
    ...673, 44 L.Ed. 813. The verification may be on information and belief: Ex parte Delgado, 12 Porto Rico 258. See, also, Collins v. Traeger, 9 Cir., 27 F.2d 842, 843. 61 Holiday v. Johnston, 313 U.S. 342, 350, 61 S.Ct. 1015, 85 L.Ed. 1392. 62 Pyle v. Kansas, 317 U.S. 213, 216, 63 S.Ct. 177, 87......
  • Whitmore v. Arkansas
    • United States
    • U.S. Supreme Court
    • April 24, 1990
    ...corpus statute to allow "next friend" standing in connection with petitions for writs of habeas corpus, see, e.g., Collins v. Traeger, 27 F.2d 842, 843 (CA9 1928); United States ex rel. Funaro v. Watchorn, 164 F. 152, 153 (SDNY 1908),3 and Congress eventually codified the doctrine explicitl......
  • Coalition of Clergy, Lawyers, & Professors v. Bush
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • November 18, 2002
    ...corpus that was not signed by the person in custody, but was "made on behalf and at the request of [the prisoner]." Collins v. Traeger, 27 F.2d 842, 843 (9th Cir.1928). On appeal, the state argued that the application, signed by someone other than the person in custody, was defective. We sa......
  • Request a trial to view additional results
1 provisions
  • 28 U.S.C. § 2242 Application
    • United States
    • US Code 2022 Edition Title 28. Judiciary and Judicial Procedure Part VI. Particular Proceedings Chapter 153. Habeas Corpus
    • January 1, 2022
    ...practice of the courts, as set forth in United States ex rel. Funaro v. Watchorn, C.C. 1908, 164 F. 152; Collins v. Traeger, C.C.A. 1928, 27 F.2d 842, and cases cited.The third paragraph is new. It was added to conform to existing practice as approved by judicial decisions. See Dorsey v. Gi......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT