Audler v. Kriss, 103

• Decision Date: 15 March 1951
• Docket Number: No. 103,103
• Citation: 79 A.2d 391,197 Md. 362
• Parties: AUDLER v. KRISS.
• Court: Maryland Court of Appeals

Page 362

197 Md. 362

79 A.2d 391

AUDLER v. KRISS.

No. 103.

Court of Appeals of Maryland.

March 15, 1951.

Joel J. Hochman, Baltimore (Hyman C. Ullman, Baltimore, on the brief), for appellant.

Kenneth C. Proctor, Asst. Atty. Gen., (Hall Hammond, Atty. Gen., J. Bernard Wells, State's Atty., and James F. Price, Asst. State's Atty., Baltimore, on the brief), for appellee.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

DELAPLAINE Judge.

This habeas corpus proceeding was brought in the Baltimore City Court by Roy M. Audler, who was charged with a crime in the State of Virginia and was held under a warrant of rendition issued by the Governor of Maryland upon an extradition warrant issued by the Governor of Virginia.

Petitioner was indicted by the Grand Jury of Halifax County, Virginia, in March, 1950, for breaking and entering the store and office of E. J. Wyatt, trading as Wyatt Chevrolet, in the nighttime on January 21, 1950, and stealing $900 therefrom. An extradition hearing was held in Annapolis on May 15, 1950, before a Special Assistant Attrney General, and Governor Lane issued a warrant for the delivery of the accused to the State of Virginia. The accused thereupon applied for writ of habeas corpus, alleging that he was unlawfully deprived of his liberty by Henry J. Kriss, Captain of Detectives of Baltimore. Petitioner claimed that he was not in Halifax County on January 21, when the crime was committed, and therefore was not a fugitive from justice. Judge France, finding no reason to justify the release of petitioner, remanded him to the custody of the Warden of the Baltimore City Jail pending the result of an appeal to the Court of Appeals.

It has long been established that the Governor cannot lawfully comply with a requisition for extradition, unless it appears (1) that the person demanded is substantially charged with a crime against the laws of the demanding State by an indictment or affidavit properly certified, and (2) that he is a fugitive from the justice of that State. Roberts v. Reilly, 116 U.S. 80, 6 S.Ct. 291, 299, 29 L.Ed. 544; Appleyard v. Massachusetts, 203 U.S. 222, 27 S.Ct. 122, 124, 51 L.Ed. 161. The first prerequisite is a question of law, and the second is a question of fact. It is also established that an extradition requisition reciting that the accused was charged with a certain crime against the laws of the State, and had become a fugitive from the justice of the State, accompanied by a certified copy of the indictment or affidavit, makes a prima facie case against the accused as an alleged fugitive from justice, and the warrant issued by the Governor of the asylum State is prima facie sufficient to justify the arrest of the alleged fugitive and his delivery to the agent of the demanding State. However, the person arrested in the extradition proceeding may show that he was not in the demanding State at the time the crime was committed. The person held for extradition upon the Governor's warrant has the burden of proof on habeas corpus to show that he was not in the demanding State at the time of the crime in order to overcome the presumption raised by such warrant. Hyatt v. People of State of New York ex rel. Corkran, 188 U.S. 691, 23 S.Ct. 456, 47 L.Ed. 657; Marbles v. Creecy, 215 U.S. 63, 30 S.Ct. 32, 54 L.Ed. 92.

The Uniform Criminal Extradition Act, which was adopted by the Legislature of Maryland in 1937, provides that no person arrested upon the Governor's warrant of arrest shall be delivered over to the agent whom the Executive Authority demanding him shall have appointed to receive him unless he shall be first taken forthwith before a judge of a court of record in this State, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel. The Act further provides that if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. Laws of 1937, ch. 179, Code 1939, art. 41, sec. 22.

In the case now before the Court there was no attack upon the sufficiency of the requisition warrant. Petitioner conceded that he was substantially charged with a crime against the laws of Virginia. It was contended that he was not a fugitive from the justice of Virginia. The question of fact to be tried on habeas corpus is not whether the accused is guilty or innocent of the charge brought against him in the demanding State, but whether he is properly held in the asylum State under the Governor's warrant by virtue of Article 4, Section 2, of the Constitution of the United States and the Act of Congress, 18 U.S.C.A. § 3182, passed in furtherance thereof. Appleyard v. Massachusetts, 203 U.S. 222, 27 S.Ct. 122, 51 L.Ed. 161; Biddinger v. Commissioner of Police of City of New York, 245 U.S. 128, 38 S.Ct. 41, 43, 62 L.Ed. 193. Hence, the specific question to be determined from the evidence in this case was whether or not petitioner was in Halifax County at the time of the burglary.

Petitioner testified in the Court below that he was in Baltimore on Saturday, January 21, 1950, and helped to celebrate the 23rd birthday of his girl friend, Winifred Teague. A complete narrative of their movements was given by petitioner, supported by Miss Teague, who said that her birthday was on Friday, but since her sister had a party for her on Friday, she celebrated with petitioner on Saturday. Petitioner said that he met Miss Teague at the Johns Hopkins Hospital, where she was employed, at about 1 o'clock in the afternoon, and drove her to her home, where he stayed about two hours; then went home and dressed; met her again about 7:30 o'clock and drove her out Charles Street; then went to a restaurant; and about 9:30 o'clock went to the Spa, a cocktail bar on North Charles Street, where they stayed about an hour; then went to Bechelli's Restaurant on Preston Street, where they had a sandwich; walked down Charles Street and stopped at the Riviera Restaurant for a few minutes; then went to the Village Bar on Harrison Street, where they saw a friend named Joseph Munafo, Jr., and stayed until about 11:30 o'clock; then took his girl friend home, leaving her about 1:45 o'clock Sunday morning; then went riding with Munafo and had hamburgers and potatoes at the Toddle House; and went home about 3:30 o'clock in the morning. To substantiate his story, petitioner also called to the stand Munafo and a bartender at one of the places...