Raftery v. Bligh

• Decision Date: 19 January 1932
• Docket Number: No. 2580.,2580.
• Citation: 55 F.2d 189
• Parties: RAFTERY ex rel. HUIE FONG v. BLIGH et al.
• Court: U.S. Court of Appeals — First Circuit

55 F.2d 189 (1932)

RAFTERY ex rel. HUIE FONG v. BLIGH et al.

No. 2580.

Circuit Court of Appeals, First Circuit.

January 19, 1932.

Essex S. Abbott, of Boston, Mass. (John P. Feeney and Joseph V. Carroll, both of Boston, Mass., and Edward F. Flynn, of Lynn, Mass., on the brief), for appellant.

George B. Lourie, Asst. Atty. Gen. (Joseph E. Warner, Atty. Gen., and Stephen D. Bacigalupo, Asst. Atty. Gen., on the brief), for appellees.

Before BINGHAM and WILSON, Circuit Judges, and MORRIS, District Judge.

BINGHAM, Circuit Judge.

This is an appeal from a decree of the District Court for Massachusetts, dismissing a petition for a writ of habeas corpus and remanding the petitioner to custody.

March 2, 1931, Ed. J. Goff, attorney for Hennepin county in the state of Minnesota, applied to the Governor of that state for a requisition upon the Governor of the state of Massachusetts for Huie Fung, stating that he stood charged by complaint with the crime of murder in the first degree committed in the county of Hennepin, in said state, on the 8th day of June, 1930, and was a fugitive from the justice of the state and now in Massachusetts; that the fugitive was under arrest; that all the papers submitted with the application had been compared, were in triplicate, and were in all respects exact counterparts; that there was attached to his application a true and correct copy of the complaint, a correct copy of the warrant of arrest issued on the complaint, a copy of the statute upon which the charge against the accused was based, defining said crime and the prescribed punishment therefor; and requested that James L. Mullen, a police officer of the city of Minneapolis, be appointed as agent to act for the state in the matter.

On March 3, 1931, the Governor of Minnesota issued a demand on the Governor of Massachusetts, in which he stated:

"Whereas it appears by complaint and affidavits (a copy whereof is hereunto attached and which I certify to be authentic and duly authenticated in accordance with the laws of this State) that Huie Fung stands charged with the crime of murder in the first degree committed in the County of Hennepin in this State, (which I certify to be a crime under the laws of this State) and it having been presented and satisfactorily shown to me that said Huie Fung since the commission of said offense has fled from the justice of this State and now is a fugitive from the justice thereof, and may have taken refuge in the State of Massachusetts,

"Now, therefore, pursuant to the provisions of the constitution and laws of the United States in such case made and provided I do hereby request that the said Huie Fung be apprehended and delivered to James L. Mullen who is hereby appointed agent to convey him to the State of Minnesota there to be dealt with according to law."

March 24, 1931, the Governor of Massachusetts issued his warrant, in which, after reciting that it had been represented to him by the Governor of Minnesota that Huie Fung was charged in that state with the crime of murder in the first degree, who certified the same to be a crime under the laws of that state committed in Hennepin county in said state, that he was a fugitive from justice, that a demand "pursuant to the Constitution and Laws of the United States" had been made by the Governor of Minnesota for the arrest and delivery of Huie Fung to James L. Mullen as agent; and further stating that the representation and demand were accompanied "by certain documents whereby the said Huie Fung is shown to have been duly charged with the said crime and to be a fugitive from the justice of the State of Minnesota, and to have taken refuge in this Commonwealth, which documents are certified by the governor of the State of Minnesota to be authentic and duly authenticated," the warrant concludes: "Wherefore, you are required to arrest and secure the said Huie Fung, wherever he may be found within this Commonwealth and afford him an opportunity to sue out a writ of habeas corpus, * * * and thereafter deliver him into the custody of the said James L. Mullen to be taken back to the state of Minnesota from which he fled."

Among the documents accompanying the demand and attached thereto was a copy of a complaint subscribed and sworn to by James L. Mullen (a police officer of Minneapolis and a deputy sheriff of Hennepin county) before the judge of the municipal court of the City of Minneapolis, in Hennepin county, Minn., which complaint in substance states that on the 8th day of June, 1930, within the corporate limits of the city of Minneapolis, Hennepin county, Minn., Huie Fung, then and there being armed with a revolver loaded with gun powder and leaden bullets, then and there feloniously, intentionally, without excuse or justification, without authority of law, and with premeditated design to effect the death of a human being, one Woo Sam, did kill and murder the said Woo Sam by discharging said revolver into the body of Woo Sam, inflicting a mortal wound of which the said Woo Sam thereafter died on the 9th of June, 1930.

An affidavit of facts and circumstances in support of the complaint, subscribed and sworn to by James A. Mullen before the judge of said municipal court, also accompanied and was attached to the demand, in which it was stated: "That the circumstances and facts showing the commission of the crime charged in the complaint against Huie Fung are as follows: That affiant now is and for forty-five years has been a resident of the City of Minneapolis, County of Hennepin, State of Minnesota. That affiant now is and for seventeen years has been a police officer of the City of Minneapolis, County of Hennepin, State of Minnesota. That on June 8, 1930, at about 11.30 p. m., one Woo Sam, a Chinaman, was shot in front of 1122 Seventh Street South, in the City of Minneapolis, Hennepin County, Minnesota; that said Woo Sam lived at and conducted a laundry at said 1122 Seventh Street South in said City of Minneapolis; that said Woo Sam had been visiting at Number 715 Third Avenue South in said City of Minneapolis, and was on his way home; that as said Woo Sam arrived in front of said 1122 Seventh Street South, an automobile, with three men therein, stopped in front of said 1122 Seventh Street South, and said Huie Fung stepped out of the said automobile, walked up to Woo Sam and when he, said Huie Fung, was near said Woo Sam, said Huie Fung began to shoot at said Woo Sam, shooting five times and five bullets hit said Woo Sam; that said Woo Sam dropped to the sidewalk and said Huie Fung then ran to the automobile and was driven away; that said Woo Sam had known said Huie Fung for eight years and was positive that the man who shot him was Huie Fung; that said Woo Sam was taken to the General Hospital of the said City of Minneapolis, where he, the said Woo Sam, died on the ninth day of June, 1930, from the gun wounds so inflicted by said Huie Fung; that said Woo Sam, just before he died, knowing that he was going to die and was dying, made his dying statement in writing stating the facts as herein made and signing said statement in the presence of witnesses; that a true and correct copy of the dying statement of said Woo Sam is hereto attached and made a part hereof. That said Huie Fung immediately left the City of Minneapolis, County of Hennepin, State of Minnesota; that the whereabouts of said Huie Fung was not known until February 28, 1931; that said Huie Fung is now in the City of Boston, Massachusetts."

The copy of the dying declaration of Woo Sam attached to the affidavit is in question and answer form. It was given by Woo Sam in the presence of Frank Forestal, James L. Mullen, and W. S. Wood, and, upon being transcribed, was signed by Woo Sam in their presence, who attested his signature. It appears to have been taken in the General Hospital, to which Woo Sam had been removed, at 12.30 a. m. June 9, 1930, the day on which it is alleged in the complaint that Woo Sam died, and about one hour after he was shot. It reads as follows:

"What is your name? A. Woo Sam. Q. Where do you live? A. 1122 7th St. So. Q. How old are you? A. 55. Q. What is your business? A. Laundry. Q. At 11.15 p. m. June 8th you were shot at 11th St. & 7th Ave. So., do you know who shot you? A. Huie Fung. Q. Did he say anything to you before he shot you? A. Nothing. Q. Was there anyone with him? A. Two or three. Q. How close was he to you when he shot you? A. Right by me, not over a foot or two away. Q. Did you see what kind of a gun he had? A. No. Q. How long have you known Huie Fung? A. Seven or eight years. Q. You are positively sure it was Huie Fon who shot you? A. Yes. Q. Did they drive away in a car or walk away? A. He got out of car, shot and ran back to car again and drove away. Q. Was anything said after he shot? A. Nothing. Q. There is no question in your mind but what it was Huie Fon who shot you? A. There is no question in my mind but that was Huei Fun. Q. Did any of the other fellows get out of the car when the shooting took place? A. Only Huei Fun. Q. Do you know that you are going to die? A. Yes. Q. This is a true statement of facts that you have given us? A. Yes. Q. Are you willing to sign this after it has transcribed into typewritten form and you have had a chance to read it? A. Yes."

The demand of the Governor of Minnesota was also accompanied by and had attached thereto two further affidavits; one subscribed and sworn to by Ark Sing, before the judge of said municipal court, in which the affiant stated that he had been a resident of the city of Minneapolis for five years; that for over four years he had been the owner of and conducted a laundry at 702 Sixth Avenue North in that city; that he had known Huie Fung for five years; that on the 3rd day of June, 1930, he saw Huie Fung walking on the sidewalk opposite his laundry in the city of Minneapolis and watched him walk up the street. There is a picture attached to the affidavit, taken in two postures,...