Boyd v. Van Cleave, 25262
| Decision Date | 05 February 1973 |
| Docket Number | No. 25262,25262 |
| Citation | 505 P.2d 1305,180 Colo. 403 |
| Parties | Otis BOYD, Petitioner-Appellant, v. Guy F. VAN CLEAVE, Sheriff, County of Adams and State of Colorado, Respondent-Appellee. |
| Court | Colorado Supreme Court |
Rollie R. Rogers, Colo. State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, Kenneth J. Russell, Lee Belstock, Deputy State Public Defenders, Denver, for petitioner-appellant.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Tennyson W. Grebenar, Asst. Atty. Gen., Denver, for respondent-appellee.
Boyd was arrested in Colorado pursuant to a warrant issued by the Governor of Colorado upon a requisition from the Governor of Kansas which sought Boyd's presence in that state to stand trial on charges for burglary and larceny. Boyd was admitted to bail and sought permanent release by a writ of habeas corpus. Upon hearing, the trial court discharged the writ and remanded Boyd to the custody of the agent of the state of Kansas. This appeal challenges the trial court's ruling.
Our examination of the rendition documents leads us to the conclusion that the proceedings were in compliance with the Uniform Criminal Extradition Act, C.R.S.1963, 60--1--1 Et seq., and that the trial court's ruling was correct.
This proceeding is Kansas' second attempt to extradite Boyd. The first attempt failed when Boyd's first petition for a writ of habeas corpus was granted on the grounds that the rendition papers alleged that Boyd was a fugitive (C.R.S.1963, 60--1--3) when, it was admitted, he was Not a fugitive.
The present request is based on C.R.S.1963, 60--1--6, which authorizes the extradition from this state to the demanding state of
'any person in this state charged in such other state . . . with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand, . . . even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom.'
Boyd maintains that Kansas requires a preliminary examination before a felony charge may be filed. Kansas Statutes Annotated, Chapter 62, section 805. The determination of this issue is for the demanding state, not the asylum state. The reasoning in Capra v. Ballarby, 158 Colo. 91, 405 P.2d 205 (1965), is applicable to the present situation. There we said:
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