Day v. Keim

• Decision Date: 17 November 1924
• Docket Number: No. 2305.,2305.
• Citation: 2 F.2d 966
• Parties: DAY v. KEIM, Sheriff, et al.
• Court: U.S. Court of Appeals — Fourth Circuit

2 F.2d 966 (1924)

DAY v. KEIM, Sheriff, et al.

No. 2305.

Circuit Court of Appeals, Fourth Circuit.

November 17, 1924.

A. M. Cunningham, of Elkins, W. Va., for appellant.

Before WOODS, WADDILL, and ROSE, Circuit Judges.

ROSE, Circuit Judge.

The appellant has appealed from the discharge of the writ of habeas corpus he had applied for below and his remand to the custody of the respondents, the sheriff and jailer of Randolph county, W. Va. He will be referred to as the petitioner. His original petition was sworn to on August 20th last, and was filed on the next day. In it he alleged that he was arrested on the 19th upon a telegram from the chief of police of Cleveland, Ohio, asking that he be arrested and held because he had in Cleveland given a check for $15 to a hotel when he had no funds in the bank on which he had drawn it. When arrested he was asked whether he was willing to go to Ohio to answer the charge, and at first he said, "Yes," but after having obtained the advice of counsel he said he would not go unless he was properly extradited. Nevertheless he averred that some Ohio officer was then on his way to get and take him to Ohio without any extradition warrant from the Governor of West Virginia. The writ duly issued. The return of the respondents was filed on the 23d and set up that the petitioner was held by them in virtue of a committment directed to the respondents by a justice of the county, committing him for further hearing upon the charge of having on June 13, 1924, unlawfully, knowingly, and falsely delivered to the Hotel Cleveland, Cleveland, Ohio, a check signed by him and drawn upon the Davis Trust Company, of Elkins, W. Va. After a hearing, the learned judge below declined to discharge the petitioner, dismissed his petition, and remanded him to the custody of the respondents. Thereupon the petitioner took this appeal and was admitted to bail pending the action of this court.

The contention of the petitioner that he could not lawfully be arrested without a warrant by a peace officer of West Virginia for detention for the reasonable time necessary to enable a requisition for him to be regularly made cannot be sustained. Burton v. New York Central & Hudson River Railroad Co., 245 U. S. 315, 38 S. Ct. 108, 62 L. Ed. 314; Kurtz v. Moffitt, 115 U. S. 487, 504, 6 S. Ct. 148, 29 L. Ed. 458. Nor is there any better foundation for his claim that the learned court below was not justified in considering the warrant granted in the interval between the filing of his petition and the respondents' return to the writ of habeas corpus. Nishimura Ekiu v. United States, 142 U. S. 651, 12 S. Ct. 336, 35 L. Ed. 1146; Iasigi v. Van De Carr, 166 U. S. 391, 17 S. Ct. 595, 41 L. Ed. 1045; Kelly v. Griffin, 241 U. S. 6, 36 S. Ct. 487, 60 L. Ed. 861. Whether the court was right in dismissing his petition depends upon other considerations. The intention of the framers of article 4 of the Constitution was to embrace fully the subject of the rendition between the states of fugitives from justice and to confer authority upon Congress to deal with that subject. Innes v. Tobin, 240 U. S. 127, 36 S. Ct. 290, 60 L. Ed. 562. The act now codified as section 5278 of the Revised Statutes (Comp. St. § 10126) was enacted for the purpose of controlling the subject of interstate rendition, and its provisions were intended to be dominant and as far as they operated controlling and exclusive of state power. Id.

One who is held in custody contrary to the provisions of that statute is therefore detained in violation of the Constitution and laws of the United States, and the District Court has jurisdiction to inquire into the cause of his detention and, if it be found insufficient, to discharge him. The proceedings for extradition are executive functions. In re Leary, 15 Fed. Cas. 106, No. 8162. The reasons given in Ex parte Royall, 117 U. S. 241, 6 S. Ct. 734, 29 L. Ed. 868, and the many cases which have followed it, why the federal courts may and in their discretion frequently should decline to take a petitioner out of the custody of state courts so long as there is any probability that he will be able successfully to assert his constitutional rights before those tribunals, do not apply to petitions for habeas corpus by persons held for interstate extradition. For at least...