Cardigan v. Biddle

• Decision Date: 25 January 1926
• Docket Number: No. 6978.,6978.
• Citation: 10 F.2d 444
• Parties: CARDIGAN v. BIDDLE, Warden.
• Court: U.S. Court of Appeals — Eighth Circuit

10 F.2d 444 (1925)

CARDIGAN v. BIDDLE, Warden.

No. 6978.

Circuit Court of Appeals, Eighth Circuit.

December 9, 1925.

Rehearing Denied January 25, 1926.

James A. Cardigan, of Leavenworth, Kan., in pro. per.

Frank H. McFarland, Asst. U. S. Atty., of Topeka, Kan. (Al. F. Williams, U. S. Atty., and Alton H. Skinner, Asst. U. S. Atty., both of Topeka, Kan., on the brief), for appellee.

Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.

PHILLIPS, District Judge.

This is an appeal by James A. Cardigan (hereinafter called petitioner) from an order sustaining a motion to dismiss his petition for a writ of habeas corpus.

The petition set up substantially the following facts: That on September 29, 1921, an indictment, which charged the violation of section 37 of the Criminal Code (Comp. St. § 10201), was returned against petitioner in the District Court of the United States for the Eastern District of Michigan, and was docketed as cause No. 7764 on the records of that court; that petitioner was arrested in the city of St. Paul October 8, 1921; that on November 2, 1921, the District Court of the United States for the District of Minnesota issued a warrant for the removal of petitioner to the Eastern district of Michigan for trial for the offense charged in the indictment in cause No. 7764; that on November 12, 1921, petitioner was removed to the Eastern district of Michigan; that on November 22, 1921, petitioner was arraigned and pleaded not guilty to the indictment in cause No. 7764, and in default of bond was committed to jail; that on March 8, 1922, two indictments were returned against petitioner in the District Court of the United States for the Eastern District of Michigan and were docketed as causes Nos. 7971 and 7972, respectively, on the records of that court; that the indictment in cause No. 7971 charged a violation of section 37 of the Criminal Code (Comp. St. § 10201), and that the indictment in cause No. 7972 contained 11 counts and charged violations of the National Motor Vehicle Theft Act (Comp. St. Ann. Supp. 1923, §§ 10418b-10418f); that said last two mentioned indictments were consolidated for the purpose of trial; that petitioner was found guilty under the indictment in cause No. 7971, and sentenced to be confined in the United States penitentiary at Leavenworth for a period of two years; that petitioner was found guilty on counts 1, 2, 7, 8, 9, and 10 of the indictment in cause No. 7972, and sentenced to be confined in the United States penitentiary at Leavenworth for a period of five years on counts 1 and 2, and three years on counts 7, 8, 9, and 10; that the imprisonment on counts 7, 8, 9, and 10 was to commence after the expiration of the five-year sentence on counts 1 and 2; and that the sentence in cause No. 7971 was to run concurrently with the sentences in cause No. 7972.

The first contention made by the petitioner is that, having been removed for trial on the charge in the indictment in cause No. 7764, he could not be tried in the Michigan district on the other two indictments. Counsel for petitioner cite certain decisions of state courts holding that, where a fugitive from justice is surrendered by one state upon the demand of another, he may not be tried in the latter state for any offense other than that for which he was surrendered.

The rule on this question is stated in 25 C. J. p. 272, § 47, as follows:

"Although there has long been a conflict in the decisions of courts of the several states, it is now generally accepted that a fugitive from justice, surrendered by one state upon the demand of another, is not protected from prosecution for offenses other than that for which he was surrendered, but may be tried for any crimes committed in the demanding state either before or after extradition without having been given an opportunity to leave the state."

The decisions of the national courts support the above rule. Lascelles v. Georgia, 148 U. S. 537, 13 S. Ct. 687, 37 L. Ed. 549; Innes v. Tobin, Sheriff, etc., 240 U. S. 127, 36 S. Ct. 290, 60 L. Ed. 562.

In Innes v. Tobin, supra, the court approved the decision in Lascelles v. Georgia, supra, and in referring thereto said:

"In that case the issue for decision was whether a person accused who had been removed to the state of Georgia from another state on extradition proceedings for trial for a specified crime was liable in Georgia to be tried for another and different crime. Reviewing the whole subject, and calling attention to the broad lines of distinction between international extradition of fugitives from justice and interstate rendition of such fugitives under the Constitution and the provisions of the act of Congress, and the error of assuming that the doctrine of asylum applicable under international law to the one case was applicable to the other, it was held that the right to prosecute for such other offense existed. The court said (page 542): `Neither the Constitution, nor the act of Congress providing for the rendition of fugitives upon proper requisition being made, confers, either expressly or by implication, any right or privilege upon such fugitives under and by virtue of which they can assert, in the state to which they are returned, exemption from trial for any criminal act done therein. No purpose or intention is manifested to afford them any immunity or protection from trial and punishment for any offenses committed in the state from which they flee. On the contrary, the provision of both the Constitution and the statutes extends to all crimes and offenses punishable by the laws of the state where the act is done.'"

See, also, Mahon v. Justice, 127 U. S. 700, 8 S. Ct. 1204, 32 L. Ed. 283, and Ex parte Lamar (C. C. A. 2) 274 F. 160, 24 A. L. R. 864, Id., 260 U. S. 711, 43 S. Ct. 251, 67 L. Ed. 476.

In the latter case, the petitioner, while serving a sentence for a criminal offense in the United States penitentiary at Atlanta, Ga., was taken by the warden on a telegram from...