English v. Matowitz

• Citation: 148 Ohio St. 39,72 N.E.2d 898
• Decision Date: 23 April 1947
• Docket Number: 30934
• Parties: ENGLISH v. MATOWITZ, Chief of Police, et al.
• Court: United States State Supreme Court of Ohio

72 N.E.2d 898

148 Ohio St. 39

ENGLISH v. MATOWITZ, Chief of Police, et al.

No. 30934,

Supreme Court of Ohio

April 23, 1947

Syllabus by the Court.

1. In order to invoke the aid of Section 662, Title 18 U.S.C.A. the person sought to be extradited thereunder must have been in the demanding state at the time of his participation in a criminal act therein and must have become a fugitive from justice of that state by fleeing therefrom.

2. Section 109-6, General Code, which authorizes the granting of a demand of a sister state for the extradition of a person from the state of Ohio, charged in such sister state with having committed an act in Ohio or a third state resulting in a crime in the demanding state, even though the person was not in the demanding state at the time of the commission of such crime and has not fled therefrom, is not in conflict with Section 2, Article IV of the U.S. Constitution, and the enactment of such statute was clearly within the reserved powers of the state.

In habeas corpus.

This a proceeding on a petition for a writ of habeas corpus instituted in this court by the petitioner, Thomas English who was arrested by the sheriff or Cuyahoga county upon a warrant of extradition issued to the sheriff by the Governor of Ohio on January 10, 1947. The warrant recites that it was issued upon the requisition of the Governor of Pennsylvania for the petitioner who is an 'alleged fugitive from justice of said state of Pennsylvania, charged with the crime of 'accessory before the fact to robbery, and robbery.''

Attached to the application for requisition is a copy of an indictment returned in Westmoreland county, Pennsylvania, which declares that on and about November 6, 1946, three men, Joseph Girard, Jr., Dallas Uhlman and Mike Troychek robbed with an offensive weapon Vincent De Carlo at Monessen, Pennsylvania, and took from him the sum of $10,143 in cash; and that Thomas English 'at the city of Cleveland, state of Ohio, did give, lend and furnish a certain deadly and offensive weapon * * * to one Joseph Girard, Jr., well knowing at the time that the said weapon was to be used by the said Joseph Girard, Jr., and others, in a hold-up and robbery' at Monessen, Pennsylvania.

Also attached to the application for requisition is an indictment returned in Westmoreland county, Pennsylvania, charging English with being a principal in such robbery.

The petitioner claims that he is illegally deprived of his liberty for the reasons that he is not a fugitive from justice; that the warrant of the Governor is insufficient; and that the Pennsylvania indictments are insufficient and do not charge him with any offense.

Louis Fernberg and Myron Stanford, both of Cleveland, for petitioner.

Frank T. Cullitan, Pros. Atty., and Gertrude M. Bauer, both of Cleveland, for respondent Sheriff.

HART Judge.

The petitioner claims that since the Pennsylvania indictments charge him with having committed the offenses in Pennsylvania while he was in the city of Cleveland, he is not a fugitive from justice of the state of Pennsylvania and, therefore, is not subject to extradition to that state. In this claim the petitioner relies on the provisions of Section 2, Article IV of the Constitution of the United States, which reads in part as follows: 'A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up to be removed to the State having Jurisdiction of the Crime.'

That constitutional provision is supplemented by a congressional enactment known as Section 662, Title 18 U.S.C.A., the pertinent parts of which are as follows:

'Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled. and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, it shall be the duty of the executive authority of the State or Territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. * * *'

Since the petitioner was not in the state of Pennsylvania when the offense was there committed and did not flee from the state of Pennsylvania, this court is of the opinion that the provisions of the U.S. Constitution and laws enacted pursuant thereto, while all-inclusive and exclusive in the field of extradition where there is actual flight from the state wherein an offense is committed, have no application to the case of the petitioner because he was not a fugitive from justice as defined by the U.S. Constitution. See Wilcox v. Nolze, 34 Ohio St. 520; Hyatt v. People of State of New York, ex rel. Corkran, 188 U.S. 691, 23 S.Ct. 456, 47 L.Ed. 657; People of State of Illinois ex rel. McNichols, v. Pease, Sheriff, 207 U.S. 100, 28 S.Ct. 58, 52 L.Ed. 121; Pierce v. Creecy, Chief of Police, 210 U.S. 387, 28 S.Ct. 714, 52 L.Ed. 1113.

But the respondent sheriff claims that Section 109-6, General Code, applies, and that the petitioner may be extradited under it.

Section 109-6, General Code, reads as follows:

'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 3 [General Code § 109-3,] with committing an act in...