Davis v. Rhyne, 40556

• Decision Date: 08 June 1957
• Docket Number: No. 40556,40556
• Citation: 312 P.2d 626,181 Kan. 443
• Parties: Everett Wesley DAVIS, Appellant, v. Arden RHYNE, Sheriff, Leavenworth County, Kansas; and Arthur Hoffman, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellees.
• Court: Kansas Supreme Court

Page 626

312 P.2d 626

181 Kan. 443

Everett Wesley DAVIS, Appellant, v. Arden RHYNE, Sheriff, Leavenworth County, Kansas; and Arthur Hoffman, Warden, Kansas State Penitentiary Lansing, Kansas, Appellees.

No. 40556.

Supreme Court of Kansas.

June 8, 1957.

Syllabus by the Court

1. An appeal from an order and judgment of the district court of Leavenworth County denying petitioner's application for a writ of habeas corpus, examined and held: the State of Kansas did not waive or relinquish any right to extradite petitioner from an asylum state or violate his constitutional rights under article IV, section 2 of the United States Constitution.

2. Following a long line of Kansas cases cited in this opinion, an indicted or convicted prisoner who escapes may be extradited as a fugitive from justice pursuant to the provisions of article IV, section 2 of the United States Constitution; and the same is true as to a paroled prisoner who violates his parole or whose parole has been revoked. This rule applies notwithstanding the paroled prisoner's entry into the asylum state, prior to the violation or revocation of his parole, was with the consent or knowledge of the authorities of the demanding state, and irrespective of whether his departure from the demanding state or his entry into the asylum state was voluntary or involuntary.

3. No question of extradition is involved where a prisoner in the custody of the United States government is turned over to a state for prosecution or parole violation.

4. As between the states and federal government, the question of which shall have custody of an accused is one of comity between the two governments and not a personal right of the accused and cannot be raised by him.

5. Under the practice of comity, a prisoner on parole from a state prison who is subsequently placed on parole from a federal penitentiary is constructively a prisoner of the state, subject only to such rights as the federal authorities may assert in conforming with the rule of comity existing between the federal and state sovereignties. Where a person has violated the laws of two different sovereignties, it is up to the interested sovereignties and not the criminal, to settle which is to inflict the punishment, and by the same token, where a prisoner is on parole it is for the sovereignties and not the prisoner to determine priority of jurisdiction over him.

6. In habeas corpus proceedings the burden is upon petitioner to prove the grounds upon which he relies for his release. The unsupported statements of a petitioner do not meet the requirements of proof. Records of courts are not set aside upon the unsupported statement of a defeated litigant. And neither is a proceeding in habeas corpus a substitute for appeal.

Everett Wesley Davis, pro se.

Fred N. Six, Asst. Atty. Gen., argued the cause and John Anderson, Jr., Atty. Gen., was with him on the briefs for the respondents.

HALL, Justice.

This is an appeal from an order and judgment of the district court of Leavenworth County denying petitioner's application for a writ of habeas corpus.

Petitioner was originally charged in Russell County, Kansas, with the crime of forgery in the second degree. He was represented by court appointed counsel and pled guilty to the charge. He was subsequently sentenced to the Kansas State Penitentiary for a period of not more than 10 years for the crime of forgery in the second degree as defined by G.S.1949, 21-608. Petitioner was sentenced on October 6, 1952, and served a year of time in the state penitentiary. On the 6th day of October, 1953, he was granted a parole by the Board of Penal Institutions. On April 21, 1954, he became a parole delinquent by reason of leaving his place of residence and employment without permission, whereupon the Warden of the penitentiary issued an order for his arrest.

Petitioner left the State of Kansas, went to Colorado, and later to Wyoming where he was convicted and sentenced to the United States Penitentiary at Leavenworth, Kansas, for violation of a federal statute. Upon his release from the United States Penitentiary at Leavenworth, petitioner was arrested by appellee, the Sheriff of Leavenworth County, Kansas, by authority of the Kansas State Penitentiary parole violation warrant and has been and is now in the custody of the appellee.

Petitioner made application for a writ of habeas corpus in the district court of Leavenworth County which was denied on the 17th day of September, 1956. Hence this appeal.

Petitioner contends that the failure of the State of Kansas to extradite or return petitioner from the asylum states of Colorado and Wyoming constituted a waiver of jurisdiction over him as a parole violator and also that his rights under article IV, section 2 of the United States Constitution have been violated.

Petitioner's principle complaint is that the State of Kansas knew his whereabouts at all times and did nothing to enforce its warrant for parole violation until after petitioner was apprehended for the federal offense and that such failure by the State of Kansas waived and relinquished any and all rights it had to the petitioner. For the same reason he contends the State of Kansas violated article IV, section 2 of the United States Constitution because he was a 'fugitive from justice' and the state did not extradite him.

In substantiation of these claims, petitioner includes in his brief a series of letters addressed to him from the record clerk of the Kansas Penitentiary and the pardon attorney dated in October and November of 1954, some six months after the revocation of his parole.

There is a line of cases which hold that a state which honors the requisition of another state for a prisoner in its custody for an offense waives its jurisdiction over him and thereby also waives its subsequent right to punish him for past delinquencies or to extradite him for that purpose. However, this is not the rule of the great weight of authority. The theory is that such surrender operates as a waiver of the jurisdiction of the state over the person of the prisoner and that he cannot thereafter be considered a fugitive from justice from the surrendering state. 35 C.J.S. Extradition § 21b; In re Whittington, 34 Cal.App. 344, 167 P. 404; People ex rel. Barrett v. Bartley, 383 Ill. 437, 50 N.E.2d 517, A.L.R. 935; In re Colin, 337 Mich. 491, 60 N.W.2d 431.

Petitioner cites and relies on one authority, In re Hess, 5 Kan.App. 763, 48 P. 596. This case is sometimes cited in support of the above minority rule on waiver. See In re Whittington, supra, where the court said:

'* * * Not only may it be said that he is not a fugitive, because he did not voluntarily leave that state, but because, also, the state of Texas voluntarily relinquished the jurisdiction of its courts over his person and waived its right to thereafter have him brought back from the California jurisdiction to answer for the same offense. In an argumentative way the case of In re Hess (Hess v. Grimes), 5 Kan.App. 763, 48 P. 596, is authority for the conclusion last announced.' 34 Cal.App. at page 347, 167 P. at page 405.

The Hess case involved two defendants who were surrendered to the Kansas authorities by the State of Oklahoma. They were charged for having committed an offense against both the Oklahoma Territory and the State of Kansas. The Governor of Oklahoma turned the defendants over to Kansas. At the time of appeal the defendants were in the legal custody of Kansas but contended that Oklahoma had jurisdiction over them. The court held that Oklahoma had waived its jurisdiction.

The facts of the Hess case are clearly distinguishable from the case at bar and it has no factual application to petitioner's contention on this appeal.

As a matter of law, the Hess case has never been persuasive with this court. Although it was cited in the leading case of In re Whittington, supra, this court said in In re Martin, 142 Kan. 907, 910, 912, 52 P.2d 1196, 1198, 1199:

'* * * The Kansas case cited in that opinion [the Hess case] has little, if any, application to the case before us.

'The Whittington case, although frequently cited, has rarely, if ever, been followed.

* * *

* * *

'We are not disposed to follow the reasoning and holding of In re Whittington, supra. It is against the great weight of authority * * *.'

The court cited People ex rel. Hutchings v. Mallon, 218 App.Div. 461, 218 N.Y.S 432, as illustrative of the weight of authority.

'The only case cited which holds differently from these cited hereinbefore is In re Whittington, 34 Cal.App. 344, 167 P. 404, which held the question of whether the accused had left the demanding state of his own volition, or under compulsion of legal process, could be inquired into. This holding is opposed to the uniform current of the decisions of the United States Supreme Court, which hold that there can be no inquiry into the motives which caused an alleged fugitive to depart from one state and take refuge in another; there is no discretion allowed, no inquiry into motives. Drew v. Thaw, 235 U.S. 432, 35 S.Ct. 137, 59 L.Ed. 302.' 218 N.Y.S. at page 441.

The Kansas cases follow the weight of authority. The rule stated in 35 C.J.S. Extradition § 10b(2).

'An indicted or convicted prisoner who escapes may be extradited as a fugitive from justice; and the same is true as to a paroled prisoner who violates his parole or whose parole has been revoked. This rule applies notwithstanding the paroled prisoner's entry into the asylum state, prior to the violation or revocation of his parole, was with the consent or knowledge of the authorities of the demanding state, and irrespective of whether his departure from the demanding state or his entry into the asylum state was voluntary or involuntary.'

See, also, 42 A.L.R. 585; 78 A.L.R. 420; 93 A.L.R. 931; and 147 A.L.R. 941.

For Kansas cases see In re Martin, supra; and Ohrazada v. Turner, 164 Kan. 581, Syl. 1 & 2, 190 P.2d 413, where ...