Cooper, In re

• Decision Date: 04 March 1960
• Docket Number: Cr. 6570-6575
• Citation: 349 P.2d 956,53 Cal.2d 772,3 Cal.Rptr. 140
• Court: California Supreme Court
• Parties: , 349 P.2d 956 In re George COOPER on Habeas Corpus. In re Abe S. TOBEROFF on Habeas Corpus. In re Edwin D. RICH on Habeas Corpus. In re Albert G. JEFFERIES on Habeas Corpus. In re Floyd L. CLEMENS on Habeas Corpus. In re Ralph LEVERSON on Habeas Corpus.

Page 140

3 Cal.Rptr. 140

53 Cal.2d 772, 349 P.2d 956

In re George COOPER on Habeas Corpus.

In re Abe S. TOBEROFF on Habeas Corpus.

In re Edwin D. RICH on Habeas Corpus.

In re Albert G. JEFFERIES on Habeas Corpus.

In re Floyd L. CLEMENS on Habeas Corpus.

In re Ralph LEVERSON on Habeas Corpus.

Cr. 6570-6575.

Supreme Court of California, In Bank.

March 4, 1960.

Rehearing, Denied March 30, 1960.

Milton Wichner, Los Angeles, Brock, Fleishman & Rykoff, Stanley Fleishman, Hollywood, Prentiss Moore, George E. Lindelof, Jr., William A. Munnell, Leonard S. Sands, Los Angeles, Herbert S. Nusbaum, Beverly Hills and Edwin M. Rosendahl, Los Angeles, for petitioners.

William B. McKesson, Dist. Atty., Jere J. Sullivan and Harry Wood, Deputy Dist. Attys., Los Angeles, for respondent.

TRAYNOR, Justice.

By petitions for writs of habeas corpus petitioners challenge the validity of proceedings to extradite them to Pennsylvania to stand trial for the distribution of obscene literature and related offenses. We issued orders to show cause directed to the sheriff of Los Angeles County and ordered petitioners released on bail. In his return the sheriff alleges that he took custody of petitioners pursuant to extradition warrants issued by the Governor of California. Copies of the warrants were filed with the return, and the original supporting papers from the Governor of Pennsylvania to the Governor of California were lodged with the court and a motion made that they be filed. These documents disclose that petitioners were indicted for crimes committed in Philadelphia County, Pennsylvania. Three petitioners were indicted for distributing and advertising obscene literature, and three for distributing and conspiring to distribute such literature. The crimes were allegedly committed in one case in 1956, in two cases in 1957, and in three cases in 1958.

Pennsylvania seeks extradition, not under federal law on the ground that petitioners committed crimes in Pennsylvania and then fled from that state (see, U.S.Const. art. IV, § 2, clause 2; 18 U.S.C.A. § 3182; Pen.Code, §§ 1548.1-1548.2), but under section 6 of the Uniform Criminal Extradition Act (Pen.Code, § 1549.1) on the ground that in mailing obscene literature in California to Pennsylvania each petitioner committed 'an act in this State * * * intentionally resulting in a crime in' Pennsylvania. Pen.Code, § 1549.1. Petitioners contend that since such extradition is not authorized by the United States Constitution or by federal statute, section 1549.1 is invalid. It is settled, however, that the federal constitutional and statutory provisions are not exclusive and that the states are free to cooperate with one another by extending interstate rendition beyond that required by federal law. People of State of New York v. O'Neill, 359 U.S. 1, 79 S.Ct. 564, 568, 570, 3 L.Ed.2d 585; In re Tenner, 20 Cal.2d 670, 677, 128 P.2d 338; In re Davis, 68 Cal.App.2d 798, 802-807, 158 P.2d 36. In re Morgan, 86 Cal.App.2d 217, 223, 194 P.2d 800; Ex parte Morgan, D.C., 78 F.Supp. 756, 761, affirmed Morgan v. Horrall, 9 Cir., 175 F.2d 404, 407; see 9 Uniform Laws Annotated 299. The United States Supreme Court approved such cooperation in sustaining a Florida statute (Fla.Stat.1957, §§ 942.01-942.06, F.S.A.) based on the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. 9 Uniform Laws Annotated 91. 'The Constitution did not purport to exhaust imagination and resourcefulness in devising fruitful interstate relationships. It is not to be construed to limit the variety of arrangements which are possible through the voluntary and cooperative actions of individual States with a view to increasing harmony within the federalism created by the Constitution. Far from being divisive, this legislation is a catalyst of cohesion. It is within the unrestricted area left to the States by the Constitution.' People of the State of New York v. O'Neill, supra, 79 S.Ct. 564, 568.

Modern communication and transportation facilitate the commission of crimes across state lines. A criminal who acts in one state to commit crimes in another may pose a far more serious problem to the latter state than one who commits a crime there and then flees from justice. When the criminal who commits his crime entirely in one state flees, he ordinarily poses no threat of additional crimes therein; if extradition fails, there is only frustration of that state's interest in punishing him. In contrast, the criminal who operates from without the state's borders poses a continuing threat. Since his conduct may be undetected or apparently harmless in the state where he acts, the only effective impetus for prosecution may come from the state that suffers the harm. Far more divisive than a state's refusal to extradite a fugitive for a past offense would be its unwitting provision not only of a base of operation but of an asylum for those who commit crimes without being personally present at the place where their crimes are consummated. The Legislature validly enacted section 1549.1 to prevent that result.

Section 1549.1 provides that '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 1548.2 of this code 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 * * *.' Section 1548.2 provides that the demand 'shall be accompanied by a copy of an indictment found or by information or by a copy of an affidavit made before a magistrate in the demanding State together with a copy of any warrant which was issued thereon * * *.' In the present cases, each demand is accompanied by an indictment charging the defendant named therein with committing crimes in Pennsylvania and an affidavit made before a magistrate by an investigator of the district attorney's office. The affidavits are titled 'Criminal Complaint for Warrant of Arrest' and the facts stated are set forth as 'true and correct according to the best of (the affiant's) knowledge, information and belief.' They describe petitioners' distribution of obscene literature in Pennsylvania by mail from California and each contains a paragraph in substantially the following form: 'Deponent further avers that, by reason of the said act and acts of deposition the said literature and written and printed matter in the United States Mail for delivery and distribution to the said private citizens in and about the said City and County of Philadelphia, and well knowing and intending that the said literature would be so delivered and distributed, the said Floyd Clemmens did do such act and acts in the said State of California which intentionally resulted in the commission of the crime of Distributing Obscene Literature in the said City and County of Philadelphia as prohibited by the Act of the General Assembly of this Commonwealth, and which is against the peace and dignity of this Commonwealth.' Since section 1548.2 provides that the essential facts may be charged either by an indictment, an information, or by an affidavit made before a magistrate, it is immaterial that the indictments did not allege the commission of acts in this state intentionally resulting in crimes in Pennsylvania. Such allegations were expressly set forth in the affidavits.

It is contended, however, that the affidavits are insufficient on the ground that the magistrate did not act on them by issuing warrants. Since the purpose of affidavtis to support extradition is not to secure immediate arrests but to convince the respective Governors that extradition is justified, it is immaterial that the magistrate did not act on the affidavits. People ex rel. Gates v. Mulcahy, 392 Ill. 498, 65 N.E.2d 21, 22; see, People ex rel. Moore v. Skinner, 284 App.Div. 770, 135 N.Y.S.2d 107, 109; Ex parte Peairs, 162 Tex.Cr.R. 243, 283 S.W.2d 755, 756-757. Thus, section 1548.2 does not require that a warrant accompany a demand based upon an affidavit but only that 'any warrant which was issued thereon' shall be included. Cf., In re Murphy, 321 Mass. 206, 72 N.E.2d 413, 417, applying Massachusetts statute requiring that warrant accompany the affidavit.

It is further contended that affidavits made on information and belief are insufficient to support extradition unless the sources of information and reasons for belief are stated so that the Governors involved and the court in habeas corpus proceedings may determine whether extradition is warranted. See, Rice v. Ames, 180 U.S. 371, 374-376, 21 S.Ct. 406, 45 L.Ed. 577; Stark v. Livermore, 3 N.J.Super. 94, 65 A.2d 625, 627; People ex rel. MacSherry v. Enright, 112 Misc. 568, 184 N.Y.S. 248, 252; State ex rel. Philips v. Garren, 186 S.C. 333, 195 S.E. 834, 835; Ex parte Murray, 112 S.C. 342, 99 S.E. 798, , 800, 5 A.L.R. 1152; cf., State ex rel. Webster v. Moeller, 191 Minn. 193, 253 N.W. 668, 669; People ex rel. Gates v. Mulcahy, supra, 392 Ill. 498, 65 N.E.2d 21, 22; Ex parte Paulson, 168 Or. 457, 124 P.2d 297, 302-303; People ex rel. De Martini v. McLaughlin, 243 N.Y. 417, 153 N.E. 853, 854; Ex parte Cooper, 163 Tex.Cr.R. 642, 295 S.W.2d 906, 907; Ex parte Logan, 151 Tex.Cr.R. 129, 205 S.W.2d 994, 995; United States ex rel. McCline v. Meyering, 7 Cir., 75 F.2d 716, 718; Raftery ex rel. Huie Fong v. Bligh, 1 Cir., 55 F.2d 189, 194; Ex parte Hart, 4 Cir., 63 F. 249, 259-260, 28 L.R.A. 801; Ex parte Morgan, D.C., 20 F. 298, 307. The affidavits do not set forth the affiants' sources of information or reasons for belief that petitioners had committed the offenses charged, but the purpose of the requirement that they do so is fully met when as in these cases the indictments establish reasonable cause to believe petitioners guilty of the offenses charged and the affidavits demonstrate that the indictments are based on petitioners'...