Ex parte Arrington

• Decision Date: 19 July 1954
• Docket Number: No. 44481,44481
• Citation: 270 S.W.2d 39
• Parties: Ex parte ARRINGTON.
• Court: Missouri Supreme Court

Page 39

270 S.W.2d 39

Ex parte ARRINGTON.

No. 44481.

Supreme Court of Missouri, En Banc.

July 19, 1954.

Roy W. Brown, J. William Blackford, Kansas City, for petitioner.

Carroll C. Kennett, Sam Modica, Kansas City, for respondent.

John M. Dalton, Atty. Gen., and Samuel M. Watson, Asst. Atty. Gen., amica curiae.

CONKLING, Chief Justice.

Habeas Corpus. Harold J. Arrington, hereinafter called petitioner, filed in this Court his original petition alleging that he is now unlawfully detained and confined in jail in Jackson County, Missouri, by respondent Arvid Owsley, sheriff of that county. Seeking release from such alleged unlawful detention and confinement petitioner prayed the issuance of our writ of habeas corpus. Upon the above petition we ordered the issuance of the writ prayed. The above respondent sheriff filed here his return to the writ alleging that petitioner is lawfully detained and confined in jail. The cause was heard in this Court on June 29, 1954. Petitioner was here represented by his counsel of record. The sheriff appeared by the prosecuting attorney of Jackson County and the Attorney-General.

It appears from the petition, the return, the exhibits and the evidence that petitioner was taken into custody and is now held in jail by virtue of a certain rendition warrant issued by the Governor of the State of Missouri for the purpose of delivering petitioner to the authorized agent of the State of Idaho to convey the petitioners to that state. Attached as exhibits to the petition are certified copies of the above rendition warrant; the demand for extradition of the Governor of Idaho to the Governor of Missouri that petitioner be arrested and delivered to Idaho's agent; the application for requisition of the proper Idaho law enforcement officer to the Governor of that state requesting the issuance of the requisition demand by Idaho; the charge filed in Minidoka County, Idaho, in criminal cause No. 327, styled State of Idaho v. Harold J. Arrington, and charging petitioner with first degree burglary; and the judgment of conviction of petitioner on his plea of guilty to the charge of first degree burglary entered in the District Court of Minidoka County, Idaho, on July 31, 1942, and sentencing petitioner to imprisonment in that state from one to fifteen years. Petitioner's petition made the above papers before the Governor of Missouri a part of his petition by reference.

Petitioner here contends his detention by respondent is illegal, in that: (1) the demand for extradition of the Governor of Idaho does not allege in writing that petitioner was present in Idaho at the time of the commission of the alleged crime, and that petitioner thereafter fled from Idaho, (2) the rendition warrant of the Governor of Missouri was issued upon a legally insufficient demand for extradition of the State of Idaho, and failed to recite facts necessary to its validity.

The Missouri General Assembly enacted, and on July 8, 1953, the Governor approved the 'Uniform Criminal Extradition Act,' RSMo 1953 Supplement, Chapter 548, which added thirty new sections to Chapter 548, RSMo 1949, V.A.M.S., relating to Extradition. Section 548.021 of the 1953 Act provides that 'Subject to the provisions of this chapter, the provisions of the constitution of the United States controlling, and any and all acts of congress enacted in pursuance thereof, it is the duty of the governor of this state to have arrested and delivered up to the executive authority of any other state of the United States any person charged in that state with treason, felony or other crime, who has fled from justice and in found in this state.' See also, Section 548.010, RSMo 1949, V.A.M.S.

Section 548.031 of the 1953 Act, in part, provides that 'No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing alleging * * * that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied * * * by a copy of a judgment of conviction * * * together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole.'

From the exhibits attached to petition of petitioner, it appears that petitioner was sentenced as above in Idaho; that on August 2, 1942, he escaped from the Minidoka County, Idaho, jail, and was not thereafter returned to the custody of the Idaho authorities; and that petitioner stands charged and sentenced in Minidoka County, Idaho, with the crime of burglary in the first degree and that he fled from Idaho and is in Missouri. In the rendition warrant of the Governor of this State it is recited that: 'The Governor of the State of Idaho has demanded from the Governor of this State, Harold J. Arrington whom I find to be a fugitive from justice from said state; and whereas, the Governor of Idaho has produced to me a copy of an affidavit made before a magistrate in said state certified to be authentic, charging said fugitive with having committed the crime of burglary in the first degree,' etc. [Emphasis ours.] When the Governor of an asylum state issues his rendition warrant it is prima facie evidence of all that is therein recited. 25 Am.Juris., Habeas Corpus, page 197, Sec. 70; 35 C.J.S., Extradition, Sec. 16d, p. 346. The above finding of the Governor of Missouri that petitioner is a 'fugitive from justice' is not questioned or attacked in these proceedings.

Petitioner rests his case here solely upon his contention that Idaho's demand for extradition does not in writing allege that petitioner was present in Idaho at the time of the commission of the alleged crime, and that he thereafter fled from Idaho.

Asserting that thirty states have enacted the Uniform Criminal Extradition Act, and relying upon the above quoted portions of Section 548.031, petitioner's counsel cite Kelley v. State, 30 Ala.App. 21, 200 So. 115; Ennist v. Baden, 158 Fla. 141, 28 So.2d 160; Hattaway v. Culbreath, Fla., 57 So.2d 661; Commonwealth v. Baldi, 372 Pa. 463, 93 A.2d 458; Commonwealth ex rel. Thomas v. Superintendent Philadelphia County Prison, 372 Pa. 595, 94 A.2d 732; Ex parte Riccardi, 68 Ariz. 180, 203 P.2d 627; Ex parte Brewer, 61 Cal.App.2d 388, 143 P.2d 33, and contend that Section 548.031 should be strictly construed, and that petitioner should be discharged for the failure of the demand for extradition to allege in writing that petitioner was in Idaho at the time of the commission of the crime, and that he thereafter fled from that state.

Pointing to Article IV, Sec. 2, of the Constitution of the United States and to 18 U.S.C.A. Sec. 3182; State of South Carolina v. Bailey, 289 U.S. 412, 53 S.Ct. 667, 77 L.Ed. 1292; Ex parte Morgan, 86 Cal.App.2d 217, 194 P.2d 800; Brewer v. Goff, 10 Cir., 138 F.2d 710; Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581, 587, and other cases, respondent sheriff contends that extradition of a fugitive from justice from one state to another is a Federal matter, upon which, and under the Constitution the Congress has acted; and that while a state may legislate upon an area of extradition unprovided for by Congress or may require as much or less than the Federal statute in the area occupied by Federal legislation, that within the area occupied state legislation may not require more than does 18 U.S.C.A. Sec. 3182. See, 22 Am.Juris., Extradition, page 250; Innes v. Tobin, 240 U.S. 127, 36 S.Ct. 290, 60 L.Ed. 562; Culbertson v. Sweeney, 70 Ohio App. 344, 44 N.E.2d 807, 810, 45 N.E.2d 118; Ennist v. Baden, supra.

In 35 C.J.S., Extradition, Sec. 3, pp. 319, 320, it is said: 'Extradition being a federal and not a state matter, the federal law, and not the state law, is supreme, and any state legislation which conflicts with the federal law on the subject, as embodied in the constitution and effectuating statutes, is unconstitutional and void. However, to the extent that it aids and facilitates the operation of federal constitutional and statutory provisions, and is not inconsistent therewith, state legislation is proper, and must be followed.' And see also, State of South Carolina v. Bailey, supra; Day v. Keim, 4 Cir., 2 F.2d 966; Ex parte Brewer, 61 Cal.App.2d 388, 143 P.2d 33.

Implementing the Federal Constitutional provision, Article IV, Sec. 2, in 1793 the Congress enacted the statute which is now 18 U.S.C.A. Sec. 3182, providing that whenever the executive authority of any state demands any person as a fugitive from justice, of the executive authority of any state to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any state, charging the person demanded with having committed a crime, certified as authentic by the Governor of the state from whence the person so charged has fled, it shall be the duty of the executive authority of the state to which such person has fled to cause him to be arrested and to cause the fugitive to be delivered to the agent of the demanding state.

Upon a habeas corpus proceeding brought by a petitioner opposing extradition, the question to the decided is not whether such petitioner is guilty or innocent of the charge, but whether he is legally held under the rendition warrant of the Governor of the asylum state. Williams v. Robertson, 339 Mo. 34, 95 S.W.2d 79. The only question for decision here is whether the conceded failure of the demand for extradition issued by Idaho's Governor to in terms allege in writing that petitioner was present in Idaho at the time of the commission of the alleged crime, and that he thereafter fled from Idaho, and the conceded failure of Missouri's rendition warrant to so state, is fatal to the legality of the rendition warrant, and compels petitioner's discharge in these proceedings.

Technically, the demand for...