Carpenter v. Lord

• Decision Date: 19 March 1918
• Citation: 171 P. 577,88 Or. 128
• Parties: CARPENTER v. LORD, STATE AGENT, ET AL. EX PARTE CARPENTER.
• Court: Oregon Supreme Court

171 P. 577

88 Or. 128

CARPENTER v. LORD, STATE AGENT, ET AL. EX PARTE CARPENTER.

Supreme Court of Oregon

March 19, 1918

In Banc.

Appeal from Circuit Court, Multnomah County; John P. Kavanaugh Judge.

Habeas corpus proceedings by Ida Carpenter, in behalf of her husband, E. H. Carpenter, against Frank Lord, Agent of the State of California, and T. M. Word, Sheriff of Multnomah County. From a judgment denying her prayer for the discharge of her husband, and dismissing the writ, petitioner appeals. Reversed and remanded, with directions.

The plaintiff, Ida Carpenter, acting in behalf of her husband, E H. Carpenter, sued out a writ of habeas corpus in the circuit court for Multnomah county against the sheriff of that county and one Frank Lord, the latter of whom avers that he is the agent of the state of California, commissioned to return Carpenter to that state on extradition process. The defendant sheriff first stated that he held Carpenter by virtue of a commitment from the municipal court of the city of Portland charging him with being a fugitive from the justice of the state of California. He afterwards amended his return to show that he had delivered the custody of Carpenter to Lord as agent of the state of California. The latter alleges that he holds the prisoner under an executive warrant issued by the Governor of Oregon, dated November 16, 1914, directing his arrest and delivery into the custody of Lord as such agent to be transported to the state of California. He further says that he holds Carpenter by virtue of a warrant issued out of the police court of San Francisco, Cal., commanding his arrest for the crime of forgery, pending against him in that court. These returns are controverted in material particulars by the reply of the petitioner, which, among other things avers that on November 5, 1914, Carpenter was duly and regularly convicted in the circuit court for Multnomah county, Or., of the crime of obtaining money under false pretenses, and that in pursuance of such conviction it was ordered and adjudged by said circuit court as follows:

"That said defendant, E. H. Carpenter, be imprisoned in the Oregon State Penitentiary for an indeterminate period of not less than one year nor more than five years. Defendant making application for parole, and the court consenting thereto: It is ordered that said defendant be allowed to go on parole, on condition that he will not leave the state of Oregon, and that he will not violate the laws of the state of Oregon, or any state or municipality in which he may live, and further that he will report by letter at least once a month to Judge Morrow."

The petitioner further states that her husband is now in custody in the state of Oregon upon said judgment, that the same is still in full force and effect, and that he has never been discharged therefrom. The defendant Lord demurred to this reply, on the ground that it did not state facts sufficient to constitute a defense to his return. The demurrer was sustained, and, the petitioner having refused to move or plead further, it was ordered that her prayer for the discharge of Carpenter be denied, the writ dismissed, and that he be remanded to the custody of the defendant Lord, to be transported to the state of California. The petitioner appealed.

McCamant and Moore, JJ., dissenting.

J. J Fitzgerald, of Portland (Logan & Smith and J. P. Hannon, all of Portland, on the brief), for appellant. George Mowry, of Portland (Walter H. Evans, Dist. Atty., and Arthur A. Murphy, both of Portland, on the brief), for respondents.

BURNETT, J. (after stating the facts as above).

The scope of this opinion will be limited to the consideration of the value to be given to the judgment of the circuit court of Multnomah county convicting and sentencing the defendant Carpenter to imprisonment in the penitentiary and paroling him. It is said in section 756, L. O. L.:

"The effect of a judgment, decree, or final order in an action, suit, or proceeding before a court or a judge thereof of this state or of the United States, having jurisdiction to pronounce the same, is as follows:

"1. In case of a judgment, decree, or order against a specific thing, or in respect to the probate of a will or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or relation of a particular person, the judgment, decree, or order is conclusive upon the title to the thing, the will or administration, or the condition or relation of the person. * * *"

The following sections of the same compilation are also here set down:

Section 1873: "A person charged in any state or territory of the United States with treason,

felony, or other crime, who shall flee from justice and be found in this state, must, on demand of the executive authority of the state or territory from which he fled, be delivered up by the Governor of this state, to be removed to the state or territory making the demand."

Section 1874: "When the person demanded is in custody in this state, either upon a criminal charge, an indictment for a crime, or a judgment upon a conviction thereof, he cannot be delivered up until he is legally discharged from such custody; but if he be in custody upon civil process only, the governor may deliver him up or not before the termination of such custody, as he may deem most conducive to the public good."

At the outset, the warrant issued by the municipal court of the city of San Francisco may be laid aside without further consideration, because it is universally held that no process of any state court has any effect or efficiency beyond the boundaries of the state under whose laws it was issued. It is well settled that there is no power to compel the executive of any state to surrender an alleged fugitive from justice. The legislative branch of the government of this state has gone further in limiting the authority of the executive in such matters by the precept in section 1874 that, if the demanded person is in custody in this state upon a judgment of conviction of crime, he cannot be delivered up until he is legally discharged therefrom. This is mandatory language, and completely removes any discretion which the executive might otherwise exercise in such a case.

It is contended, however, that this cannot be urged by or on behalf of the petitioner. In support of this contention we are cited to the following cases: Ex parte Marrin (D. C.) 164 F. 631; In re Fox (D. C.) 51 F. 427; People v. Hagan, 34 Misc. 85, 69 N.Y.S. 475; Cozart v. Wolf (Ind.) 112 N.E. 241; Mackin v. People (Ill.) 8 N. E. 178. In all those decisions, without exception, the prisoner who sought relief by habeas corpus was at large on bail at the time he was taken into the custody from which he sought to escape. For instance, in the Marrin Case, he had been convicted in the United States District Court for the Eastern District of Pennsylvania for a violation of the postal laws, and had been admitted to bail pending appeal. While he was thus at large he went into the state of New York, and was there apprehended under state process to answer indictments pending in the courts of that state. He sought relief from the custody of the state of New York by habeas corpus issued by the United States court of the Eastern district of New York. As appears by the report of the case, it turned upon section 753 of the Revised Statutes of the United States (U. S. Comp. St. 1916, § 1281):

"The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof, or is in custody for an act done or omitted in pursuance of a law96 of the United States, or of an order, process, or decree of a court or judge thereof, or is in custody in violation of the Constitution or of a law or treaty of the United States."

The court determined, in concluding the discussion in the case, that:

"Frank C. Marrin, therefore, does not seem to be held contrary to any law of the United States, nor in violation of any of his constitutional rights, and the writ of habeas corpus must be dismissed."

In the course of the opinion, however, the court likewise said:

"It has also become well settled that if a party is on trial or in duress--that is, in actual custody--under the authority of a state court, no other state court, and no United States court, should, except in an urgent case, take the defendant from that custody, prior to an actual release or relinquishment of the right to the custody on the part of the court before which the matter is pending."

The principle underlying all the cases last above cited is that, when an individual is allowed to go on bail pending a charge against him, the court admitting him to bail has released him from its authority for the time being, which, for the purpose of being answerable to another tribunal, relegates him to his previous situation, making applicable the doctrine that, if a defendant is simultaneously accused in different forums, it does not lie in his mouth to select the charge upon which he will first be tried. Thus far there has been no final adjudication of his status upon which he can rely. The case in hand has passed that stage. A court of this state having original jurisdiction has not only assumed control of Carpenter, but is in fact executing its judgment upon him, and under the very doctrine laid down in the Marrin Case ought not to be disturbed in that exercise of its authority. This is in accord with the rule enunciated by Mr. Justice Swayne in Taylor v. Taintor, 16 Wall. 366, 370, 21 L.Ed. 287, thus:

"Where a state court and a court of the United States may each take jurisdiction, the

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