Cozart v. Wolf

• Decision Date: 20 April 1916
• Docket Number: 22,795
• Parties: Cozart v. Wolf et al
• Court: Indiana Supreme Court

112 N.E. 241

185 Ind. 505

Cozart v. Wolf et al

No. 22,795

Supreme Court of Indiana

April 20, 1916

Rehearing Denied November 10, 1916.

From Knox Circuit Court; B. M. Willoughby, Judge.

Extradition proceeding by John Wolf and others against Morgan W. Cozart in which one Wade sought to intervene. From the judgment rendered, Cozart appeals.

Affirmed.

Leroy M. Wade and A. J. Padgett, for appellant.

W. M Alsop and W. H. Hill, for appellees.

OPINION

Lairy, J.

This is an appeal from a final order of the judge of the Knox Circuit Court ordering that appellant be turned over to appellee Davis, as the agent of the state of Georgia, to be returned to that state under a requisition issued by the Governor of Georgia on the Governor of Indiana. Appellant was arrested by appellee Wolf, as sheriff of Knox county, and by him taken before the judge of the circuit court of that county for identification. Appellant filed several objections which were stricken out on motion. Appellee Wade appeared and offered to file a petition to be admitted as a party, in which petition his alleged interest was shown, and also his objections to an order being made directing that appellant be delivered up to the agent of the state of Georgia. On motion of appellees Davis and Wolf, the court rejected the petition and motion of appellee Wade and refused to permit it to be filed or to consider it, to which ruling Wade excepted.

The errors assigned and presented are based upon the rulings of the court referred to, and as the same facts are before the court and the same questions of law raised by each of the errors presented, the court will, for convenience, consider only the action of the trial court in sustaining the motion of appellees Davis and Wolf to strike out the second paragraph of objections of appellant. Omitting the the formal parts, this paragraph is as follows: "Comes now the said Morgan W. Cozart and for a second and further paragraph of objections to the application of John Wolf and W. M. Davis to have said Cozart ordered delivered over to the said W. M Davis to be taken to the State of Georgia to answer an indictment for misdemeanor, and says that heretofore, to wit, on the day of October, 1914, he was apprehended while in the state of Indiana, the place of his domicile, and arrested by an United States Marshal for the Eastern Division of the United States District Court in the State of Mississippi upon a capias issued out of said court upon an indictment theretofore returned by the Grand Jury in said District Court of the United States for said Eastern Division of the state of Mississippi charging the defendant with a felony by a fraudulent use of the United States mail.

"That said Marshal took this defendant to said state of Mississippi and delivered him in said court and into the custody thereof. That said court required the defendant to execute his bond in the penal sum of five thousand dollars conditioned for his appearance in said court to answer said charge on the 5th day of April, 1915, and thereupon he executed said bond with LeRoy M. Wade as surety thereon and said court thereupon turned over the custody of said defendant to the said Wade to have and to hold until said 5th day of April, 1915, when he was required by the terms of his said recognizance to deliver said Cozart to said court for trial. That ever since said day of October, 1914, he has been in the custody of the said District Court of the United States upon said process and that his trial is set for said 5th day of April, 1915, in said court and that it will be necessary for him to start for the city of Aberdeen in said state of Mississippi where said court will sit to hear said cause within the next two days and that on the 28th day of March, 1915, while he was in the custody of said bondsman and of said District Court and making preparations for his said trial and his return to said court he was arrested by the said W. M. Davis and John Wolf who have unlawfully and without right held him in custody ever since and by this proceeding are attempting to take him to the state of Georgia to a point more than four hundred miles from said city of Aberdeen and there to cast him in prison and thereby prevent his appearance in said United States District Court at said time and place. That said defendant is a stranger in said state of Georgia and at the place where it is proposed to take him and that it will be impossible for him to give bail in said state of Georgia and to secure his release so as to be able to be in said District Court at Aberdeen at the time set for his trial and that he will be on account thereof unable to prepare his defense to said cause in said District Court. Defendant further says that the actions of the said Davis and Wolf already taken and the actions they are attempting to take by removing this defendant out of the custody of said bondsman and court will hinder, delay and obstruct the process of said United States District Court, which now has prior jurisdiction over this defendant and be an indirect contempt of said Court.

"Defendant further says that he will be in the custody of said District Court until his cause is disposed of and that, as soon as the proceedings are ended against him in said District Court, the state of Georgia can without inconvenience or delay obtain the arrest of this defendant. Defendant says that the proceedings herein are interfering with his lawful rights as a prisoner of the United States of America. Wherefore he asks that the...