Boothe v. State

• Decision Date: 16 November 1965
• Docket Number: 1 Div. 965
• Citation: 43 Ala.App. 119,180 So.2d 450
• Parties: Theodore R. BOOTHE v. STATE.
• Court: Alabama Court of Appeals

Page 450

180 So.2d 450

43 Ala.App. 119

Theodore R. BOOTHE v. STATE.

1 Div. 965.

Court of Appeals of Alabama.

Nov. 16, 1965.

Thos. M. Haas, Mobile, for appellant.

Richmond M. Flowers, Atty. Gen., and W. Mark Anderson, III, Asst. Atty. Gen., for the State.

CATES, Judge.

This habeas corpus appeal was argued and submtted on November 15, 1963. It has been assigned and reassigned.

The conference at which this opinion was adopted is the first at which unanimity, let alone affirmance, has come about. Delay in this court arose principally because the extraditing authorities (1) took apparently inconsistent grounds for wanting to return Boothe, and (2) failing to prove Georgia decisional and statutory law under the Alabama rules of evidence as was done in Compton v. State, 152 Ala. 68, 44 So. 685, affirmed sub nom. Compton v. State of Alabama, 214 U.S. 1, 29 S.Ct. 605, 53 L.Ed. 885. Restatement, Conflict of Laws, § 622. ¹

I.

Boothe appeals from a judgment of Hon.Mw. C. Taylor, remanding Boothe to the Chief of Police of the City of Mobile for delivery to the extradition agents of the State of Georgia.

The petition for the writ alleges Boothe was detained by the Mobile police as an escaped parole violator from the Fulton County Criminal Court.

The State's return succinctly alleges detention on a warrant of the Governor of Alabama for delivery to the custody of the Nevertheless, on the taking of testimony, the warrants of both governors together with supporting papers came in evidence without dispute or objection.

agent of the State of Georgia. The return by reference incorporates the rendition warrant 'together with the extradition papers in this cause.' However, neither the Alabama Governor's warrant nor the papers were filed physically in the office of the Clerk of the Circuit Court.

II.

On March 20, 1962, Boothe gave Austin Abbott Used Cars, Atlanta, a check for $1,135.55. It was not paid on presentment to the bank.

Georgia classifies doing this, if with intent to defraud, as a misdemeanor with the appellation of 'Fraud Check.' At least the requisition is our authority for this mongrelization of a noun employed as an adjective.

The asylum state is only concerned that the charge is a crime against the laws of the demanding state: of this we are satisfied.

Of more serious concern is the discrepancy in the backup papers revealing--contrary to the requisition warrant's terms--that Boothe was in fact wanted for a hearing to show cause why his probation should not be revoked.

The papers to show the original conviction would, under the standards of review in this state, neither support a judgment on appeal nor detention on habeas corpus. This because the original accusing affidavit is made only before a commercial notary public who presumptively has no power to issue a warrant of arrest. We pretermit consideration of the complaining oath being 'from the best of his knowledge and belief.'

The May 8, 1962, judgment entry in the Criminal Court of Fulton County fails to show any appearance either for the State or the defendant. The court's adjudication seems based only on a prosecutor's complaint and affidavit, the latter document not reciting that the complaining witness executed it before the court or its clerk. The solicitor affixed his signature to the foot of the 'accusation.' See Harris v. State, 257 Ala. 3, 60 So.2d 266.

Another defect of his judgment is its failure to show that any plea was entered by or for the defendant except an entry:

'The Defendant in the within Accusation waives arraignment, list of witnesses, copy of accusation and pleas [sic] * * * Guilty. This 8 day of May, 1962

/s/ Frank A. Bowes

Solicitor.'

To offset the effect of such a terse record, there was put in evidence a probation agreement subscribed by Boothe, the Judge of the Fulton County Criminal Court, and the probation officer. The premise recites that Boothe has pleaded guilty 'and is hereby sentenced * * * in the Public Works Camp * * * for twelve (12) months and six (6) months in Jail, fine of $100 and to make restitution * * *.'

This document dated May 29, 1962, takes the form of a court order (1) suspending sentence for 18 months, (2) prescribing conditions, (3) modifying original sentence and (4) warns of possible modification or revocation of probation.

The effect of these documents as at May 29, 1962, was to show Boothe to be a probationer of the court for 18 months. Hence, even if he had fled Georgia the need to extradite him to face a charge of check fraud was nonexistent at that point of time.

III.

However, the Georgia papers also show the following:

III.

"AFFIDAVIT AND WARRANT FOR ARREST OF PROBATIONER

'STATE OF GEORGIA

VS.

THEODORE R. BOOTHE

FULTON COUNTY CRIMINAL COURT NO: 19727

CHARGE: FRAUD CHECK

'GEORGIA, FULTON COUNTY

'Personally appeared D. W. Austin, Jr., who, being duly sworn on oath deposes and says that he is a Probation Officer of Fulton County, Georgia, and that THEODORE R. BOOTHE was placed on probation by this Court on the 8th day of May, 1962, upon the charge of Fraud Check and that to the best of affiant's knowledge and belief said defendant has since violated the terms of (his or her) probation in the following manner: Failure to report and pay as directed

'That affiant makes this affidavit for the purpose of obtaining a warrant for the arrest of said probationer in order that (he xxx) may be returned to this Court to answer this charge of violation of probation.

'/s/ D. W. AUSTIN, JR.

D. W. AUSTIN, JR

'Sowrn to and subscribed before me this 20th day of June 1962.

'/s/ Billie F. Davis

Notary Public

'Notary Public, Georgia State at Large

My commission expires Nov. 18, 19__

GEORGIA, FULTON COUNTY

'TO ALL AND SINGULAR, THE SHERIFES, DEPUTY SHERIFES, AND ALL OTHER DULY CONSTITUTED ARRESTING OFFICERS.

'Affidavit having been made that the above named defendant has violated the terms of (his xxx) probation, you are hereby commanded to arrest said defendant, Theodore R. Boothe and to safely keep (him xxx) until he may be brought before this Court to answer the charge of violation of probation as set forth in the foregoing affidavit.

'This the 20th day of June 1962

'/s/ Charles A. Wofford

CHARLES A. WOFFORD

JUDGE,

CRIMINAL COURT OF FULTON

COUNTY"

We note here that these papers appear to be connected in that (1) the caption describes it as 'Affidavit and Warrant For Arrest of Probationer'; (2) opposite the names of the parties, we find the name of the court, case number, and the offense charged; (3) the last paragraph of the affidavit expressly prays for a warrant to have Boothe brought to court for a revocation hearing; (4) the affiant is an officer of the court; (5) the judge's capias ad audiendum judicium refers to a certain 'affidavit,' and the probation officer's written and sworn charge quoted above fits this description; and (6) both affidavit and warrant bear the same date.

In our analysis of the totality of the evidence, this last warrant is the only one which will support the rendition warrant.

IV.

As a preliminary enquiry, we need to explain away the apparent lack of an affidavit made before a magistrate.

Here were two critical affidavits purporting to be subscribed and sworn to before notaries public, neither of whom styled his office with any further indication such as 'ex officio justice of the peace.'

Our law of conflicts requires us, as to Georgia, one of the thirteen original colonies, to presume, in the absence of evidence, that the common law prevails. In Mahone v. Haddock, 44 Ala. 92, the court said:

'* * * There is no proof showing what the laws of Georgia are which govern such a state of facts. In such case, if no statute law is shown, the court presumes that the common law prevails in that State and governs the relations of the parties. * * *'

A notary was an office known anciently to the Common Law. Moreover, it was distinctly commercial and entirely civil. Carroll v. State, 58 Ala. 396. Hence, without evidentiary proof such as was adduced in Compton, supra, we cannot assume that a notary public in Georgia is an officer with power to issue warrants of arrest.

We think that Title 18 U.S.C. § 3182, which requires the Governor of Georgia to produce 'a copy of an affidavit made before a magistrate' does not embrace in the word 'magistrate' an ordinary commercial notary not explicitly shown to have criminal authority. Ex parte Powell, 20 Fla. 806; Deering v. Mount, 194 Ga. 833, 22 S.E.2d 828; Denny v. Foster, 204 Ga. 827, 52 S.E.2d 596; People ex rel. LaRue v. Meyering, 357 Ill. 166, 191 N.E. 318; People ex rel. Lipshitz v. Bessenger, 273 App.Div. 19, 75 N.Y.S.2d 392; Ex parte Owen, 10 Okl.Cr. 284, 136 P. 197.

Moreover, the wisdom of requiring proof of foreign law has been borne out by a brief foray into the Georgia statutes since the Compton case, supra, wherein the extraditing authorities showed as a fact that notaries in Georgia were by law then (1907) ex officio justices of the peace.

In 1912 Georgia seems to have amended its Constitution to permit in certain areas the abolition of notaries ex officio justices of the peace. See Georgia Const.1945, § 2-4201. Thus Act No. 276, Georgia Laws 1913, p. 145, abolished such inferior courts in the City of Atlanta. Cooney v. Foote, 142 Ga. 647, 83 S.E. 537, upheld the amendment.

V.

Title 18, U.S.C. § 3182, does not in express terms provide for extradition for breach of probation or parole. Our statute, Code 1940, T. 15, § 50, makes no mention of a convict fleeing before the expiration of his sentence.

Nevertheless, T. 15, § 52, catchilned 'What papers must show,' calls for, inter alia, 'affidavit made before a magistrate in that [demanding] state, * * * that he has been convicted of crime in that state and has escaped from confinement or broken his parole.'

In this context we have no difficulty, for extradition purposes, in equating probation by a sentencing court with parole by an executive authority....