Clayton v. Wichael

• Decision Date: 05 April 1966
• Docket Number: No. 51978,51978
• Citation: 258 Iowa 1037,141 N.W.2d 538
• Parties: Gaylan George CLAYTON, Appellant, v. Roy O. WICHAEL, Sheriff of Pottawattamie County, Appellee.
• Court: Iowa Supreme Court

Page 538

141 N.W.2d 538

258 Iowa 1037

Gaylan George CLAYTON, Appellant, v. Roy O. WICHAEL, Sheriff of Pottawattamie County, Appellee.

No. 51978.

Supreme Court of Iowa.

April 5, 1966.

Hess, Peters & Sulhoff, Council Bluffs, for appellant.

F. J. Kraschel, County Atty., and David F. McCann, Asst. County Atty., for appellee.

MOORE, Justice.

Plaintiff-appellant, Gaylan George Clayton, was arrested by defendant-appellee, sheriff of Pottawattamie County, under an extradition warrant issued by the Governor of Iowa at the request of the Governor of Oregon. He was charged in that state with the crime of non-support under section 167.605 of the Oregon statutes. Upon his arrest Clayton filed a petition for a writ of habeas corpus which after hearing was denied. He has appealed and will be referred to as plaintiff. The sheriff will be referred to as defendant.

Plaintiff contends his restraint is illegal for lack of compliance with the jurisdictional prerequisites of Chapter 759, Code of Iowa, 1962; section 759.6 is unconstitutional; the requisition and supporting documents from Oregon to the Iowa Governor are fatally defective and that plaintiff was not a fugitive from justice within the provisions of United States Constitution, Art. IV, section 2.

No real factual dispute exists in this case. By stipulation all instruments and documents received or issued by the Governor of Iowa as incident to this matter and the issuance of the warrant resulting in plaintiff's arrest were taken as evidence without objections. On October 27, 1964 an information was filed against plaintiff in the district court of Clackamas County, Oregon charging him with the crime of non-support committed on or about October 26, 1964 in said jurisdiction in violation of section 167.605 of Oregon Revised Statutes. A warrant of arrest was issued pursuant to that information and subsequently the Clackamas County district attorney made an application for requisition to the Governor of Oregon. In accordance therewith the Oregon Governor directed a requisition to the Governor of Iowa for delivery of plaintiff to the designated Oregon agent.

On February 26, 1965 the Governor of this state issued an extradition warrant and plaintiff was taken into custody for delivery to the named Oregon agent. This action was then brought.

Plaintiff testified he last resided in Oregon in May 1962, he had not been in Oregon since May or June 1964 and at that time he became a resident of Council Bluffs, Iowa. The testimony of plaintiff, his mother and present wife is undenied he was not in the state of Oregon on October 26, 1964.

I. Section 2, Article IV, of the United States Constitution states in part: 'A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.'

To constitute a fugitive from justice under this constitutional provision these two essentials are required: (1) The accused having been in the demanding state at the time charged has left it and is within the jurisdiction of another and declines to return voluntarily and (2) He incurred guilt before he left the former state, and while he was bodily present in that state. Seely v. Beardsley, 194 Iowa 863, 190 N.W. 498, and citations; Drumm v. Pederson, 219 Iowa 642, 259 N.W. 208, and citations.

Defendant virtually concedes under the undisputed evidence plaintiff would be entitled to release if extradition were asked under the federal law but points out extradition is requested under the Uniform Criminal Extradition Act which Iowa adopted in 1949 and is now contained in Chapter 759, Code, 1962.

II. Section 759.3 provides no demand for extradition of a person charged with crime in another state shall be recognized by the governor unless it is alleged in writing the accused was present in the demanding state at the time of the alleged offense and that he thereafter fled from the state but expressly excepts cases arising under section 759.6. Section 759.3 also sets out the documents which must accompany a demand for extradition. A careful study of the documents which accompanied the Oregon Governor's demand convinces us the requirements of section 759.3 were met.

Section 759.6 provides: 'Criminal acts committed in third state. The governor of this state may also surrender, on demand of the executive authority of any other state, any person in this state charged in such other state in the manner provided in section 759.3 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, and the provisions of this chapter not otherwise inconsistent, shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom.'

Plaintiff contends section 759.6 means the information or indictment filed in the demanding state must contain specific allegations the act was committed in some other state and intentionally resulted in the crime charged. He also argues a governor's extradition warrant under section 759.6 is fatally defective unless it contains such findings. We do not agree.

The Oregon information sworn to by plaintiff's former wife states: 'Be It Remembered, that on this day there personally appeared before me, Judge of the District Court for Clackamas County, Oregon, and a Committing Magistrate, Pollyanna B. Clayton Morse who being first duly sworn as a witness concerning the fact, upon his oath deposed and said that the crime of NON-SUPPORT has been committed by Gaylan George Clayton as follows, to wit:

'The said Gaylan George Clayton on or about the 26th day of October, A.D., 1964, in the County of Clackamas, State of Oregon, then and there being, and then and there being the father of the following minor child, to wit: Colleen Clida Clayton, of the age of three years, did then and there wilfully, unlawfully and feloniously, without just or sufficient cause, fail and neglect to support his said minor child, said minor child having been an actual resident of said county and state for more than 60 days. While such failure and neglect to support has continued, said act of defendant being contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.

'Dated this 26th day of October, A.D., 1964.'

The Oregon statute on which this charge was filed provides: '167.605 Failure to provide for wife or child. Any person who, without just or sufficient cause, deserts or abandons his wife, or who deserts or abandons any of his or her minor children, born in or out of...