Cockburn v. Willman

• Decision Date: 17 December 1923
• Citation: 257 S.W. 458,301 Mo. 575
• Parties: COCKBURN v. WILLMAN, Sheriff.
• Court: Missouri Supreme Court

257 S.W. 458

301 Mo. 575

COCKBURN v. WILLMAN, Sheriff.

Supreme Court of Missouri, en Banc.

December 17, 1923.

Application by Russell Cockburn for writ of habeas corpus, directed to John F. Willman, Sheriff of St. Louis County. Application denied, and petitioner ordered remanded.

Charles J. Riley, of St. Louis, for petitioner.

Geo. F. Heege, of Clayton, for defendant Willman.

Vernon R. Seeburger, of Des Moines, Iowa, for defendant Findley.

WALKER, J.

The petitioner alleges that he is unlawfully deprived of his liberty by John F. Willman, sheriff of St. Louis county, Mo., and Park Findley, sheriff of Polk county, Iowa. The formal issuance of the writ and the production of the body of the petitioner before this court having been waived, the returns a the respondents to the allegations of the petitioner's application are considered as though they were made to the writ under the recognized formalities of our procedure in cases of this character.

The petitioner was indicted by the grand jury of Polk county, Iowa, for obtaining money under false pretenses. Subsequently, being entitled so to do by reason of former service in the United States army, he made application, while in Des Moines, Iowa, to the Veterans' Bureau for a permit to enter a government hospital to receive treatment for diabetes. This permit was granted and he was assigned to the hospital at Jefferson Barracks in this state, and his transportation and the other expenses of his journey thereto having been paid by the government he was admitted as a patient therein. While there undergoing treatment, application for a requisition was made by the acting Governor of Iowa upon the Governor of Missouri for petitioner's return to the state of Iowa, upon the allegation that he was charged in Iowa with a felony and was a fugitive from justice. Upon the filing of the application with the Governor of this state and a consideration of same, he granted a requisition and directed the issuance of a warrant for the arrest of the petitioner which was executed by the sheriff of St. Louis county, preparatory to the delivery of the petitioner to the sheriff of Polk county, Iowa, as the agent or messenger named to convey the petitioner to that state to answer the charge preferred against him. Thereupon the application for the petitioner's discharge was filed in this court. The returns thereto of the officers who have the legal custody of the petitioner and who are named as respondents, are, as to the sheriff of St. Louis county, that his detention of the petitioner is under the writ of extradiction and the warrant based thereon issued by the Governor of this state; and as to the sheriff of Polk county, Iowa, that his detention of the prisoner is under the same writ and warrant and arises out of the authority delegated to him by the Governor of the demanding state.

The illegality of the petitioner's detention is alleged to consist in the facts: (1) That the application for the requisition and the return of the petitioner to Iowa was made by the acting Governor, rather than the actual Governor of that state and that the laws of same do not confer power upon an acting Governor to apply for requisitions for the return of persons charged with crime who are in another state; and that the granting of the requisition by the Governor of Missouri and his issuance of the warrant for the arrest of the petitioner was unauthorized and hence futile to effect his legal removal to Iowa; (2) that the petitioner is not a fugitive from justice but a patient in a United States hospital on a government reservation which he left the state of Iowa to enter and where he had been for a number of months prior to and at the time of the service of the warrant upon him; (3) that the warrant issued by the Governor of the state of Missouri is illegal for the reason that it was executed n)on a reservation of the national government where the petitioner was at the time in a hospital undergoing treatment as a patient.

I. The supreme executive power in Iowa, as in other states, is vested in the Governor. The Constitution of the United States (section 2, art. 4) and the statutes (U. S. Comp. Stat. § 10126), while not constituting a grant of power, are in express recognition of the authority theretofore existing in the Governor of a state to demand of the executive of another state the extradition of a fugitive from justice. Holmes v. Jennison, 14 Pet. loc. cit. 597, 614, 10 L. Ed. 579; In re Fetter, 23 N. J. Law, 311, 57 Am. Dec. 382; Kentucky v. Dennison, 24 How. 66, 16 L. Ed. 717. An illustration of the exercise of this power in the state of Iowa appears in State v. Kealey, 89 Iowa, 94, 56 N. W. 283, which is but a type of other cases of like effect. Under the Iowa Code, 1919 (section 9141, title 34, chapter 9), the Governor in any case authorized by the Constitution and laws of the United States may appoint an agent to demand of the executive of another state or government the return of a fugitive from justice charged with treason or felony. In the event of the disability of the Governor, his powers and duties may be performed by the Lieutenant Governor (section 17, article 4, Coast. Kowa). The disability of the Governor in this case is shown by the record in that he notified the Lieutenant Governor of such disability and called him to discharge the duties of the office. It also appears that the acting Governor who made the demand upon the Governor of Missouri was the Lieutenant Governor of Iowa, whose authority under the circumstances was, as before shown, that of the Governor. State ex rel. Arnold v. Justus, 84 Minn. 237, 87 N. W. 770, 55 L. R. A. 325; 11 R. C. L. § 18, p. 728. Moreover the contention is not made that the Lieutenant Governor, as such, was not authorized to perform the duties of the Governor in the demand made herein, hut that the same is insufficient because it appears upon the face of the application that the demand is made simply by the "acting Governor." in other words the implication is clear that the defect complained of is in the omission of the words "Lieutenant Governor," preceding those of "acting Governor." The signature of the acting Governor without more was sufficient to sustain the presumption that he was authorized to act as such. This is especially true in view of the attestation of his signature as acting Governor by the Secretary of State. In addition, it is a general rule that if objection be made to the sufficiency of requisition papers, the ground of the objection thereto must be alleged and proved or it will not be considered upon a review of the proceedings by habeas corpus, the presumption being, in the absence of words of negation accompanied by proof, that the person making the demand for" the writ was at the time authorized so to do. Kemper v. Metzger, 189 Ind. 112, loc. cit. 124, 81 N. E. 663; 11 R. C. L. § 18, p. 726; Armstrong v. Van De Vanter, 21 Wash. 682, 59 Pac. 510; Ex parte Dawson, 83 Fed. 306, 28 C. C. A. 354; Ex parte Stanley, 25 Tex. App. 372, 8 S. W. 645, 8 Am. St. Rep. 440; Katyuga v. Cosgrove, 67 N. J. Law, 213, 50 Atl. 679.

II. The second contention is that the petitioner is not a fugitive from justice within the meaning the the federal Constitution and statutes. Judicial literature is replete with discussions upon this subject. The weight of these opinions is to the effect that the...