Brewer v. Turner

• Decision Date: 12 June 1948
• Docket Number: 37140.
• Citation: 194 P.2d 507,165 Kan. 330
• Parties: BREWER v. TURNER, Sheriff, et al.
• Court: Kansas Supreme Court

194 P.2d 507

165 Kan. 330

BREWER v. TURNER, Sheriff, et al.

No. 37140.

Supreme Court of Kansas

June 12, 1948

Appeal from District Court, Leavenworth County; J. H. Wendorff Judge. Affirmed.

Habeas corpus proceeding by Morris Elton Brewer, by Velma Overall his mother and natural guardian, against Leonard Turner Sheriff of Leavenworth County, Kan., and another. From a judgment refusing to grant a writ of habeas corpus, the petitioner appeals.

Syllabus by the Court.

1. The record in an action for a writ of habeas corpus tried in the district court disclosed that the petitioner had been tried and convicted of a felony in the State of California and had been paroled after serving a portion of his sentence. Thereafter he was tried and convicted of a felony in the State of Oklahoma during which time his California parole was revoked. Thereafter he was adjudged to be insane by a county court of Oklahoma and committed to the State Hospital from which he escaped. Thereafter he was tried and convicted of a felony in the United States District Court of Arizona and committed to the Federal Penitentiary at Leavenworth. Upon completion of his sentence he was arrested by the sheriff of Leavenworth county on a warrant issued by the Governor of Kansas in extradition proceedings instituted by the State of California. Held, that the effect of the adjudication of insanity made by the Oklahoma court subsequent to the petitioner's conviction in the State of California must be determined by the laws and courts of the State of California.

2. The record in the above action examined, and held, the district court did not err in denying the petitioner the writ of habeas corpus.

Howard F. McCue and Roy N. McCue, both of Topeka (Homer Davis, of Leavenworth, on the brief), for appellant.

Edward F. Arn, Atty. Gen. (Harold R. Fatzer, Asst. Atty. Gen., and John H. Murray, Co. Atty., of Leavenworth, on the brief), for appellees.

THIELE Justice.

This is an appeal from a judgment of the district court of Leavenworth county refusing to grant a writ of habeas corpus.

The evidence in the district court showed that Morris Elton Brewer, sometimes referred to in various records as Morris E. Brewer, was convicted in the State of California of the crime of burglary in February, 1938, and was committed to the California State Prison at San Quentin, for the term prescribed by law (it is stated in other documents that his term was fixed at seven years) and that on June 21, 1940, he was paroled when he had served half his time. While on parole he was arrested in Oklahoma on September 20, 1941, and subsequently tried and convicted of the crime of burglary and sentenced to the Oklahoma pentitentiary. On or about April 27, 1942, his California parole was revoked. His sentence in Oklahoma having been served he was discharged. Under date of November 29, 1943, a complaint was filed in the county court of Oklahoma County, Oklahoma, charging that he was insane and upon hearing he was found to be so and on November 29, 1943, he was committed to the State Hospital for the Insane at Norman, Oklahoma. He escaped from that hospital, at an undisclosed date. Later the State of California made an effort to extradite him from Oklahoma but was not successful as he was no longer in custody. Later in 1944 he was arrested, tried and convicted in the United States District Court of Arizona of the crime of unlawfully entering a post office and sentenced therefor to the Federal Penitentiary at Leavenworth, where he was committed on August 31, 1945. He was released from that institution on November 27, 1947, when he was arrested by the respondent on a warrant of the Governor of the State of Kansas, issued on a requisition of the proper officials of the State of California.

On the date last mentioned, Milton Elton Brewer by Velma Overall, his mother and natural guardian, filed his petition for the writ of habeas corpus alleging that he had been legally declared insane and had never been restored to sanity, and that he was illegally restrained of his liberty by the respondent sheriff; that petitioner was informed the State of California sought to have him removed to that State and respondent had some pretended order to deliver him over to the authorities of that State, but that the cause or pretense for his removal was unknown to him and that he was entitled to a hearing before the court to determine the right or authority to return him to California. The district court promptly ordered him to be brought before it on the following day. The sheriff filed his response to the petition for the writ alleging he held the petitioner by virtue of a governor's warrant, a copy being attached.

The hearing was held at the appointed time, evidence was received from which the facts above stated were developed, and at the conclusion of the hearing the district court found the prayer of the petition should be denied and entered judgment accordingly, and the appeal to this court followed.

We first note that this appeal was not argued orally. Prior to its submission appellant filed a brief, raising the principal contention that a person under adjudication of insanity may not be extradicted from one state to another there to serve an unexpired portion of a sentence previously imposed in that state. In that brief some complaint is made that the court erred in not granting a continuance of the hearing, although it is conceded that the matter is no longer of importance. We shall not detail the complaint, which arises solely from the fact petitioner changed her counsel. A careful examination of the abstract, which is really a transcript of the proceeding, convinces us that the trial court did not err.

After submission of the appeal without oral argument, appellant obtained additional counsel and a second brief was filed. In this brief it is contended the State of California is not in good faith asking extradition of the prisoner, a contention based solely on a provision of the California Penal Code, § 1367, that a person cannot be tried or punished for a public offense while he is insane; that California is bound by the Oklahoma adjudication of insanity; that the presumption arising from the Oklahoma adjudication of insanity continues as to petitioner's status and he is not subject to extradition, and that California's jurisdiction over the petitioner is at an end as his sentence has expired.

Although appellant devotes some space thereto and cites authorities in support thereof, we think it may be conceded for the purpose of disposing of this appeal that a judgment duly rendered in a state court that a named person is insane, is entitled to full faith and credit in another state, and that it may not be attacked collaterally, and also that the status of insanity having been shown there is a presumption the status continues. A determination of those contentions favorably to the appellant, does not, however, determine that he may not be extradited to California, there to be subject to its laws and there to have determined whether he must serve an unexpired part of a sentence following conviction of a felony and imposed upon him some years prior to an adjudication of his insanity made in Oklahoma.

Appellant contends that a person under adjudication of insanity may neither be tried, sentenced nor punished for his derelictions, nor where the adjudication occurs while on parole may he be compelled to serve the remainder of a sentence imposed while he was sane, citing among other authorities Ashley v. Pescor, 8 Cir., 147 F.2d 318, and Chaloner v. Sherman, 242 U.S. 455 37 S.Ct. 136, 61 L.Ed. 427. He also directs our attention to Brewer v. Hunter, 10 Cir., 163 F.2d 341. In that action, commenced in the United States District Court of Kansas, the present appellant...