Ennist v. Baden
| Decision Date | 26 November 1946 |
| Citation | 158 Fla. 141,28 So.2d 160 |
| Parties | ENNIST v. BADEN, Sheriff. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Manatee County; W. T Harrison, judge.
Alvan B Rowe, of Bradenton, for appellant.
J. Tom Watson, Atty. Gen., Reeves Bowen, Asst. Atty. Gen., and Ernest W. Welch, Sp. Asst. Atty. Gen., for appellee.
John R Schwartz, of Poughkeepsie, N. Y., for People of New York.
The record here shows that appellant, William Ennist, married Phoebe M Ennist on December 12, 1943, in Duchess County, New York. At that time William Ennist was in the U. S. Army. He went overseas in August, 1944, and has not been in the State of New York since about August 23, 1944. When he came back from overseas he landed in New Jersey and was discharged from the Army there. This appears to have occurred in December, 1945.
In December, 1944, a child was born to appellant and his wife. Immediately after his discharge he telephoned to his wife and advised her that he was going to Florida, which he did, and he has been in this State since about January 1, 1946.
On February 27, 1946, appellant was arrested by the Sheriff of Manatee County, Florida, on authority of a telegram from New York and on February 28th appellant filed his petition for habeas corpus in the Circuit Court of the Twelfth Judicial Circuit in and for Manatee County, Florida. On February 28th appellant was indicted in Duchess County, New York, which indictment was filed on March 8, 1946, and in which it was charged that: 'The said William Ennist, late of the Town of LaGrange, in the County of Duchess and State of New York, on or about the 1st day of January, 1946, at the Town of LaGrange in the County and State aforesaid, he, the said William Ennist, being then and there the father and the parent of Wayne Robert Ennist, an infant under the age of sixteen years, to-wit of the age of one year, and he, the said William Ennist, being then and there charged with his care and custody for nurture and education, with force and arms, feloniously and criminally did unlawfully, wilfully and knowingly abandon him, the said Wayne Robert Ennist, in destitute circumstances, and on each and every day continuously from the said 1st day of January 1946, down to and including the date of this indictment, feloniously and criminally did unlawfully, wilfully and knowingly, omit to furnish necessary and proper food, clothing and shelter for him, the said Wayne Robert Ennist, he being then and there the child of him, the said William Ennist, and an infant under the age of sixteen years, to-wit of the age aforesaid, and he, the said Wayne Robert Ennist, being then and there in destitute circumstances and in need of necessary and proper food, clothing and shelter and without money, property or means to purchase, procure or obtain the same, against the form of the statute in such case made and provided and against the peace of the people of the State of New York and their dignity.'
In the return of the sheriff made on April 4, 1946, it is shown that the sheriff held appellant under a warrant of extradition issued by the Governor of Florida upon the requisition of the Governor of New York. The indictment above quoted was referred to as the basis of the extradition to which was attached the certificate of the District Attorney of Duchess County, New York, together with an affidavit of Phoebe M. Ennist in support of the allegations of the indictment.
The record shows also that the Attorney General's Office held the first requisition to be insufficient and an amended requisition dated March 25, 1946, was filed, though no change had been made in the indictment or in the affidavit made by Phoebe M. Ennist. The change made in the requisition was as follows: 'The accused, on the date said crime was committed, committed an act in a state other than the State of New York intentionally resulting in the commission of said crime in the state of New York, or that the accused was present in this State at the time of the commission of the crime and that he had thereafter fled from the justice of this state and may now be found in the State of Florida.'
On final hearing the Circuit Judge remanded appellant to the custody of the Sheriff for delivery and surrender to the authorities of the State of New York in accordance with the extradition warrant. From this order, appellant appealed.
It is the contention of the appellee that under the facts of this case the court below correctly determined the issues and that the Governor's warrant was properly issued because of the provisions of Section 3 and 6 of Chapter 20460 and now being sections 941.03 and 941.06 of Fla. Statutes 1941, same F.S.A.
It is clearly shown that appellant was not within the State of New York at any time near the time that the offense is alleged to have been committed. Therefore, he is not a fugitive from justice from the State of New York and is not subject to extradition as such. This question has been so many times determined that it is hardly necessary to cite authorities. However, in this connection, see People ex rel. Corkran v. Hyatt, 172 N.Y. 176, 64 N.E. 825, 60 L.R.A. 774, 92 Am.St.Rep. 706; Hyatt v. People of State of New York, 188 U.S. 691, 23 S.Ct. 456, 47 L.Ed. 657; Kuney v. State, 88 Fla. 354, 102 So. 547. Since these cases were decided, however, the legislature of Florida enacted Chapter 20460, Acts of 1941, and thereafter it was not necessary to show that one was, or is, a fugitive from justice to warrant extradition. In 22 Am.Jurisprudence 250 it is said: 'A state may also, in the exercise of its reserved soverign powers and as an act of comity to a sister state, provide by statute for the surrender, on requisition, of persons who are indictable for a crime committed through their constructive presence in such sister state, even though they have never been corporally within such state and have never fled therefrom to escape arrest and punishment since, in the absence of such statute, such persons are not subject to extradition by the latter state.' and again it is said: 'While it has been declared that state laws cannot make any requirements further that those made by the Act of Congress, yet the laws of a state may require the Governor to surrender a fugitive on terms less exacting then those imposed by the Act of Congress, and also that the states may provide for cases not provided for by the United States.' Numerous authorities are cited in support of the text. To the same effect see 19 Cyc....
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