Ex parte Campbell

• Decision Date: 20 December 1946
• Docket Number: 32144.
• Citation: 25 N.W.2d 419,147 Neb. 820
• Parties: Ex parte CAMPBELL. CAMPBELL v. MURRAY, Special Officer for Governor of Iowa, et al.
• Court: Nebraska Supreme Court

25 N.W.2d 419

147 Neb. 820

Ex parte CAMPBELL.

CAMPBELL v. MURRAY, Special Officer for Governor of Iowa, et al.

No. 32144.

Supreme Court of Nebraska

December 20, 1946

Syllabus by the Court

1. In the issuance of a warrant of extradition it will be presumed that the Governor acted in conformity with law in the absence of a showing to the contrary.

2. In a case where a prisoner who is detained under a writ of extradition regular on its face demands his freedom on the ground that the complaint against him does not charge a crime under the statute of the demanding state, the burden is on him to maintain his position by producing the statute of the demanding state.

3. In a habeas corpus action to release a prisoner detained under warrant of extradition, the fact that a complaint was filed against him in the demanding state is prima facie evidence that he was there charged with a crime.

4. Interstate extradition under the extradition provisions of the Constitution of the United States is unavailable unless the person charged with the criminal offense was corporally present in the demanding state at the time the crime, or some overt act in its furtherance, was committed and that he departed from that state.

5. Under section 29-706, R.S.1943, interstate extradition of a person charged with crime in another state is allowable in a case where it is charged in that state that such person while in this state committed an act in this state intentionally resulting in a crime in such other state.

6. The procedural method to be employed to obtain extradition under section 29-706, R.S.1943, is the same as that to be employed in extradition proceedings under federal constitutional authority.

Francis M. Casey, of Plattsmouth, for appellant.

Kelso A. Morgan, Joseph D. Houston, and Theodore L. Kowalski, all of Omaha, and Walter R. Johnson, Atty. Gen., and Homer L. Kyle, Asst. Atty. Gen., for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ., and WILSON, District Judge.

YEAGER, Justice.

This is a habeas corpus action instituted in the district court for Douglas County, Nebraska, by Phillip T. Campbell, applicant against Leonard S. Murray, Special Officer for the Governor of the State of Iowa, William H. Dorrance, Sheriff of Douglas County, Nebraska, and John Doe, keeper of the County Jail of Douglas County, Nebraska, respondents. The action was instituted by petition. The action is in resistance of an effort to remove applicant from the State of Nebraska to the State of Iowa by extradition to answer a charge of second degree murder pending against him in the municipal court of the city of Council Bluffs, County of Pottawattamie, and State of Iowa.

The petition for writ of habeas corpus contains the charge against the applicant and it is the following: 'That the defendant is hereby accused of the crime of second degree murder for that defendant on the 23rd day of April, 1946, in Kane Township Pottawattamie County, Iowa, did wilfully and feloniously and with malice aforethought, kill Marion Blythe, contrary to the statutes in such cases made and provided.'

The petition sets forth in substance that pursuant to the filing of the charge the Governor of Iowa made an executive requisition upon the Governor of Nebraska for extradition of applicant from the State of Nebraska to the State of Iowa to answer the charge of second degree murder and that the respondent Leonard S. Murray was designated in the requisition as the agent of the Governor of Iowa to receive the applicant.

The petition further sets forth that the Governor of Nebraska honored the requisition and signed a warrant for the extradition of the applicant under which he was arrested and is being detained by the respondents.

The applicant in his petition contends that his arrest and detention were and are unlawful for the following reasons: (1) that he was not in the State of Iowa on or about the 23rd day of April 1946; (2) that he never fled from the State of Iowa to avoid prosecution for the charge of second degree murder; (3) that he never committed any overt act while physically present in the State of Iowa which resulted in the death of Marion Blythe; (4) that the requisition contains no allegation sufficient to constitute a crime against the laws of the State of Iowa; (5) that it failed to show that applicant was a fugitive from justice from the State of Iowa for the crime of second degree murder; (6) that there was no sufficient proof furnished the Governor of the State of Nebraska in the affidavit attached to the requisition; and (7) that neither the requisition nor the affidavit attached showed that the applicant had committed any overt act in connection with the alleged crime.

The four last alleged grounds of illegal arrest and detention will not be discussed herein except to say this court has and the district court had no means of knowing the content of the requisition presented by the Governor of Iowa upon the Governor of Nebraska. Apparently it was not offered in evidence. Certainly it is not a part of the bill of exceptions.

The only evidence which was submitted in any wise relating to the requisition for the extradition of applicant to the State of Iowa was the information filed in Iowa and the formal appointment of Leonard S. Murray as the agent of the Governor of Iowa to return applicant to that state. The only other documentary evidence offered was the warrant of extradition issued by the Governor of Nebraska and the notice to applicant of the issuance of the warrant.

It is not contended that any of these documents is defective except that the allegations of the information are insufficient to constitute the charge of a crime against the laws of the State of Iowa. It therefore becomes necessary to disregard herein any and all contentions as to the sufficiency of the requisition except as to the sufficiency of the information under the well established rule that in the absence of proof to the contrary, it will be presumed that the Governor acted in conformity with law in the issuance of his warrant. 35 C.J.S., Extradition, § 16d, p. 345.

The question of the sufficiency of the information to constitute a charge of crime under the laws of the State of Iowa must be resolved against the applicant. In a case where a prisoner who is detained under a writ of extradition regular on its face demands his freedom on the ground that the complaint against him does not charge a crime under the statute of the demanding state, the burden is on him to maintain his position by producing the statute of the demanding state. Chandler v. Sipes, 103 Neb. 111, 170 N.W. 604. The applicant herein has failed to conform to this essential requirement.

Again, in a habeas corpus action to release a prisoner detained under warrant of extradition, the fact that a complaint was filed against him in the demanding state is prima facie evidence that he was there charged with a crime. Chandler v. Sipes, supra. There was no effort made in this case to overcome the prima facie presumption flowing from proof of the filing of the instant complaint in the State of Iowa.

As to the first ground the applicant gave evidence that he had not been in the State of Iowa within 30 days prior to April 26, 1946, whereas it is alleged that the crime was committed on April 23, 1946. This evidence is not contradicted. As to the second the evidence that applicant did not flee from the State of Iowa stands without contradition. As to the third the evidence that applicant committed no overt act while in the State of Iowa resulting in the death of Marion Blythe likewise stands without contradiction. Because of all of these things applicant contends that he has not been a fugitive from justice from the State of Iowa and therefore may not be taken to that state under the extradition warrant issued for that purpose by the Governor of Nebraska.

This contention requires an examination of the provisions of the Constitution of the United States, the acts of the United States Congress, and the statutes of this state relating to interstate extradition of persons charged with criminal offenses.

Interstate extradition is provided for by the following from section 2, article IV of the United States Constitution:

'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.'

This constitutional provision has been implemented by action of Congress so as to provide procedure to carry it into effect. It however does not become necessary to discuss this provided procedure since, on account of failure to present the requisition upon which the extradition warrant was based, no question of regularity of procedure under the Constitution and Acts of Congress is presented.

Aside from any question of procedure applicant contends that he cannot be...