Bailey v. Cox

• Decision Date: 24 May 1973
• Docket Number: No. 1172S152,1172S152
• Citation: 296 N.E.2d 422,260 Ind. 448
• Parties: John Lee BAILEY, Appellant, v. William M. COX, Appellee.
• Court: Indiana Supreme Court

Page 422

296 N.E.2d 422

260 Ind. 448

John Lee BAILEY, Appellant, v. William M. COX, Appellee.

No. 1172S152.

Supreme Court of Indiana.

May 24, 1973.

Ronald Warrum, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

This appeal is from a denial by the Posey Circuit Court of a petition for a writ of habeas corpus. The Appellant originally was arrested by the Appellee, Sheriff Cox, in Mt. Vernon, Indiana, on May 22, 1971, on the basis of a warrant for arrest from the Lima Municipal Court, Lima, Ohio. Said warrant existed in the sheriff's files when he took office.

Under the Uniform Criminal Extradition Act, IC 1971, 35--4--3--15 (Burns' Ind.Stat.Ann. § 9--432 (1956 Repl.)), a procedure is established for the arrest of a person sought by the authorities of a sister state:

The arrest of a person may be lawfully made also by an officer or a private citizen without a warrant upon reasonable information that the accused stands charged in the courts of another state with a crime punishable by death or imprisonment for a term exceeding one year; but when so arrested the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against him under oath setting forth the ground for the arrest . . .

The sheriff did not take the Appellant before a judge or a magistrate with all practicable speed after the arrest; however, about three weeks later he accepted a bond for Appellant's release in the amount of three thousand dollars ($3000). The Appellant contends that his original arrest and detention was illegal and invalidates the present right of the sheriff to detain him. However, in our opinion what took place with reference to the original arrest has no significance or relevancy for the reason that thereafter the Governor of the state of Indiana issued a warrant for the arrest of the Appellant pursuant to a valid request for extradition by the Governor of Ohio. The validity of the arrest made under that warrant cannot be impeached by any acts of the sheriff prior thereto. We need not, therefore, determine the legality or illegality of the act of the sheriff prior to the time the warrant was issued by the Governor to extradite the Appellant. An illegal arrest does not vitiate the jurisdiction of a criminal court. Bryant v. State (1972), Ind., 278 N.E.2d 576; Holguin v. State (1971), Ind., 269 N.E.2d 159; Smith v. State (1957), 237 Ind. 244, 143 N.E.2d 408; 22 C.J.S. Criminal Law § 144 at 382--384 (1961).

Appellant contends that there is no probable cause demonstrated for the issuance of the Governor's warrant for his arrest. We are controlled by the statute in that respect, IC 1971, 34--4--3--3 (Burns' Ind.Stat.Anno. § 9--421 (1956 Repl.)) which reads as follows:

No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing and accompanied by a copy of an indictment found or by an information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy must be authenticated by the executive authority making the demand, which shall be prima facie evidence of its truth.

This statute requires the production of certain papers and the certification thereof which, when produced, make out a prima facie case of probable cause.

Since it is the detention, resulting from the Governor's warrant that is the issue in this case inquiry must be made as to whether the documents filed with the Governor of the State of Indiana were sufficient to give that office probable cause to issue a warrant for the arrest of John Bailey. In our view the above quoted statute was satisfied in that the requisition papers sent to Indiana by the Ohio authorities included:

1. A properly authenticated charging affidavit which was made before the judge of the Lima Municipal Court.

2. A clerk's certificate authenticating the affidavit and warrant.

3. A Judge's certificate attesting to the authority of the clerk.

4. A clerk's certificate attesting to the authority of the judge.

5. The warrant to arrest.

6. Affidavits made by the prosecuting attorney in Lima, Ohio, stating facts known to him which were reasons for the seeking of interest rendition.

In addition, the Ohio Governor certified that the extradition papers were duly authenticated and appointed an agent to convey the fugitive to the state of Ohio. We think that these documents were sufficient to establish probable cause for the Indiana Governor's arrest warrant. The Appellant fails to point out in what way the Governor's arrest warrant is defective and does not specify how the Governor failed to comply with the applicable statute, that being: IC 1971, 35--4--3--8 (Burns' Ind.Stat.Ann. § 9--425 (1956 Repl.)) which states:

If the governor shall decide that the demand should be complied with, he shall sign a warrant of arrest, which shall be sealed with the state seal, and be directed to a sheriff, marshall, coroner, or other person whom he may think fit to entrust with the execution thereof; and the warrant must substantially recite the facts necessary to the validity of its issue.

We note that the United States Constitution, Art. 4, § 2, 2 makes it mandatory, upon the demand of the governor of one state, to deliver up a fugitive in another state without any reference to a determination by the governor of the asylum state of probable cause for the demand. This constitutional provision states:

A person charged in any state with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the state from which he fled, be delivered up, to be removed to the state having Jurisdiction of the Crime.

However, the Uniform Criminal Extradition Act does provide certain safeguards in the procedure by requiring the presentation of certain certified papers as to the existence of a valid charge against the fugitive in the demanding state. We may ask what right has the governor of the asylum state to review the issue of probable cause in the demanding state? In accordance with the Uniform Criminal Extradition Act and principles of comity, we must leave the resolution of that issue to the judiciary of the demanding state. We note that the demanding governor's warrant is signed, sealed, and contains a recital of the facts together with a certified copy of the charge against the fugitive. We find that the procedures employed here are in compliance with applicable constitutional provisions. It must be remembered that under the Uniform Criminal Extradition Act, the only issue for the governor of the asylum state is the identity of the fugitive. No inquiry may be made into the merits of the criminal charge or whether there is probable cause for the initiation of criminal proceedings in the demanding state. Those are all evidentiary issues to be heard and tried in the demanding state, not in a foreign jurisdiction. We are not impressed with the reasoning of Kirkland v. Preston (1967), 128 U.S.App.D.C. 148, 385 F.2d 670 cited by the Appellant which states that the asylum state may review the judgment or finding of probable cause in the demanding state.

The Appellant next contends that he was not sufficiently identified as 'John Bailey Jr.,' the person charged with the crime of auto theft, named in the warrant and extradition papers in Ohio. Appellant contends that his name is John Lee Bailey and that he is not John Bailey, Jr. The record reveals that the defendant-sheriff had known John Lee Bailey for several years and so testified. Additionally, he testified that a Mr. Robison, the prosecuting party in Ohio in his presence and in the presence of the plaintiff, identified John Lee Bailey as the person also known to him as John Bailey Jr. and as the party wanted in Ohio. In our view these facts clearly established a prima facie case of identity of the plaintiff as being the fugitive from Ohio. In Indiana, it is well settled that once the state establishes a prima facie case of identity the person so identified must bring forward affirmative evidence to overcome the presumption of identification.

It is generally held that the burden of going forward with evidence as to identity shifts to the prisoner where the prima facie case of identity is made out as by a presumption which arises from the identity of the names used. There is no question of an alias or assumed name in this case. . . .

Notter v. Beasley (1960), 240 Ind. 631, 640, 166 N.E.2d 643, 648.

Appellant, however, further contends that it was error to admit the testimony of the sheriff that Robison identified Appellant Bailey in the presence of Appellant Bailey. The record shows that the Appellant placed sheriff Cox, the defendant, on the witness stand and interrogated him with reference to the arrest of John Lee Bailey whom he said he knew, and the warrants and papers that he served upon Bailey at the time of his arrest. The purpose of this examination evidently was to show that John Lee Bailey was not named in the warrant and that the Appellant was not the same person as named in the warrant, John Bailey, Jr. On cross-examination the sheriff stated that in the presence of John Lee Bailey, the Appellant herein, one Mr. Robison, the complaining witness from Ohio, identified John Lee Bailey as also being John Bailey, Jr., the person wanted in Ohio. The Appellant objects to this testimony on the ground that it was hearsay. Reliable hearsay is competent and admissible evidence to establish porbable cause. The same principle applies in extradition...