Dawson v. Beasley

• Citation: 242 Ind. 536,180 N.E.2d 367
• Decision Date: 26 February 1962
• Docket Number: No. 30064,30064
• Parties: Kenneth DAWSON, Appellant, v. Herbert BEASLEY, As Sheriff of Vigo County, Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 367

180 N.E.2d 367

242 Ind. 536

Kenneth DAWSON, Appellant, v. Herbert BEASLEY, As Sheriff of Vigo County, Indiana, Appellee.

No. 30064.

Supreme Court of Indiana.

Feb. 26, 1962.

Edward L. Hamilton, Terre Haute, for appellant.

LANDIS, Justice.

This is an appeal from a judgment denying appellant's petition for writ of habeas corpus.

Appellant filed petition for writ of habeas corpus alleging (1) he was unlawfully restrained of his liberty by appellee-sheriff and also (2) that appellee-sheriff unlawfully held appellant upon an illegal fugitive warrant issued by a Justice of the Peace of Vigo County, Indiana, to which appellee-sheriff filed a return alleging appellant was a fugitive from the State of Massachusetts where appellant was charged with a felony, that appellee arrested and detained appellant upon an extradition warrant executed by the Governor of Indiana, that said extradition warrant was duly approved by the Governor of Indiana upon the request of the Governor of Massachusetts, and that a copy of said extradition warrant issued by the Governor of Indiana was attached thereto.

Appellant states in his brief that he undertakes the Court's determination of only one asserted error, namely the sufficiency of the Governor's warrant issued by the Governor of Indiana, and to determine whether such Governor's warrant issued in this case substantially recites the facts necessary to sustain the validity of its issue.

Appellant cites the following portions of the Uniform Extradition Act. Burns' § 9-421 (1956 Repl.), is cited providing:

'Form of demand.--No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing and accompanied by a copy of an indictment found or by an information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy must be authenticated by the executive authority making the demand, which shall be prima facie evidence of its truth.' Acts 1935, ch. 49, § 3, p. 134.

Burns' § 9-423 (1956 Repl.), is cited providing:

'Contents of papers.--A warrant of extradition shall not be issued unless the documents presented by the executive authority making the demand show that:

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'3. He is lawfully charged by indictment found or by information filed by a prosecuting officer and supported by affidavit to the facts, or by affidavit made before a magistrate in that state, with having committed a crime under the laws of that state, or that he has been convicted of a crime in that state and has escaped from confinement or broken his parole.' Acts 1935, ch. 49, § 5, pp. 134, 135.

Appellant contends that the foregoing statutes contemplate that the person charged with crime in the demanding state has been lawfully charged by indictment, information, or by affidavit made before a magistrate in the demanding state with having committed a crime under the laws of that state.

The warrant of the Governor of Indiana is in part as follows:

'To Any Peace Officer, Police Officer, or State Policeman Of the State of Indiana, GREETING:

'WHEREAS, The Executive authority of THE COMMONWEALTH OF MASSACHUSETTS has, by requisition of his Excellency, FOSTER FURCOLO, Governor thereof, dated at Boston, on the 25th day of August, 1960, directed to the Governor of this State, and deposited in the office of the Secretary of State, demanded that KENNETH S. DAWSON, alias RONALD S. DAWSON, be arrested as a fugitive from the Justice of THE COMMONWEALTH OF MASSACHUSETTS aforesaid, and delivered up to ALFRED E. MARCKINI and/or JOHN F. GALLIGAN the agents of said authority appointed to receive him, and has moreover, produced therewith a copy of a Complaint charging the person so demanded with having committed a crime within the jurisdiction of said State, which copy is certified as authentic by the Governor aforesaid; and

'Whereas, The commission of said crime is charged in manner and form as follows, namely:

'LARCENY OF AUTOMOBILE

'IT IS THEREFORE ORDERED, by the Executive authority of the State of Indiana, in accordance with the requirements of the Constitution and laws of the United States, and of the State of Indiana, that you do arrest and secure the said KENNETH S. DAWSON, alias RONALD S. DAWSON wherever found within this State, and forthwith inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand legal counsel; and if he, or anyone in his behalf, shall state that he or they desire to test the legality of the arrest, you shall forthwith take him before a judge of a court of record of this State who may be nearest or most convenient of access to the place where the arrest may be made, to the end that such judge may fix a reasonable time to be allowed him within which to apply for writ of habeas corpus; and thereafterward when and if so ordered by such judge, or, after being informed as aforesaid, neither he nor anyone in his behalf, shall desire to test the legality of the arrest, you shall deliver him over to the agent whom the executive authority demanding him shall have appointed to receive him, to be transported to the State demanding him.

'And for your doings in the premises, this shall be your sufficient warrant when duly returned and filed in the office of the Secretary of State, State House, Indianapolis, Indiana.

'GIVEN UNDER THE SEAL OF THE STATE, and the hand of the Governor, at Indianapolis, this 9th day of September, 1960.

'[Signed] Harold W. Handley,

Governor of Indiana.'

Appellant argues that in the case at bar, the Governor's warrant is obviously based solely upon a complaint which appellant states does not come within the requirements of the above statutes which provide the extradition warrant shall not be...