Ex parte Cockburn
| Decision Date | 17 December 1923 |
| Citation | 257 S.W. 458,301 Mo. 575 |
| Parties | EX PARTE RUSSELL COCKBURN, Petitioner |
| Court | Missouri Supreme Court |
Writ denied.
Charles J. Riley for petitioner.
(1) The right to extradite a person is based upon Section 2 of Article IV of the Constitution of the United States. This article provides that the demand shall be made by the executive authority of the State. By the Act of Congress, the indictment upon which the requisition is based, must be certified by the governor or chief magistrate as authentic. The law upon which extradition is based is one in restraint of liberty, and, therefore, must be strictly construed and strictly pursued. The Act of Congress provides for a method that is summary in its effect, and it must therefore be strictly complied with. The failure to properly certify gives the Governor of Missouri no jurisdiction, as there is no comity between states on this matter, and the writ of extradition is governed solely by the Constitution and laws of the United States. A strict compliance with the Constitution and statutes is essential to give validity to a warrant issued upon extradition. Ex parte Powell, 20 F. 806; Kentucky v. Dennison, 24 How. 104; Ex parte Morgan 20 F. 289. (2) If the indictment is not authenticated in accordance with the Act of Congress by the executive of the demanding state, the governor of the asylum state has no legal authority to issue his warrant for the arrest of the accused. 1 Abbott's Prac. Rep. (N. S.) 347. (3) Where the petitioner questions and denies the authority of the party who makes the demand as Governor of the demanding state there is no presumption that the party was signing as the governor. Kemper v. Metzger, 169 Ind. 112. (4) The governor is not clothed with judicial powers and there is no law of the United States or of this State that provides that his determination is final in an extradition case. The court may go behind the executive warrant and examine into the sufficiency of the papers upon which it is based. Jones v. Leonard, 50 Iowa 110; In re Terrill, 51 F 213; In re Corning, 51 F. 205; Church on Habeas Corpus, 821; Hyatt v. New York, 188 U.S. 691. (5) The question as to who is the chief executive or who has the executive authority in the State of Iowa will be determined by the Constitution and the statutes of that state. Section 1 of Article IV of the Constitution of Iowa provides: "The supreme executive power of this State shall be vested in a chief magistrate, who shall be styled the Governor of Iowa." Section 17 provides that "in case of death impeachment, resignation, removal from office or other disability of the Governor, the powers and duties of the office for the residue of the term or until he shall be acquitted or the disability removed, shall devolve upon the Lieutenant Governor." The Iowa Constitution is unusual in that it makes no provision that anyone shall act for the governor in his absence from the State. From the face of the record, interpreted in the light of the Iowa Constitution and laws, there can be no presumption that the party signing this demand and authentication is the Governor of Iowa. The record on its face even shows that the party signing makes no pretense to the governorship, as he refers to himself as "Acting Governor," and signs as "Acting Governor," thus honestly and fairly giving us his true status, and allowing his name to be affixed to the instrument for its worth, if it has any worth in extradition proceedings. Since there was no legal demand, there can be no legal warrant issued by the Governor of Missouri, and since there was no authentication by the Governor or Chief Magistrate of Iowa of the indictment as provided in the statutes of the United States, the very foundation upon which the warrant of the Governor of Missouri is based, is illegal and will not sustain the issuance of a warrant. The Constitution of Iowa makes no provision for an Acting Governor to exercise the executive power of the State. It does not provide that the Lieutenant-Governor shall be one of the executives of the State of Iowa. (6) The question as to whether or not a person has been substantially charged with a crime and whether the Constitution and Statutes of the United States have been complied with, is a question of law, and is always open to judicial inquiry on an application for a discharge on a writ of habeas corpus. Roberts v. Reilly, 116 U.S. 80; Hyatt v. New York, 188 U.S. 691; People v. Brady, 56 N.Y. 182; Ex parte Morgan, 20 F. 298; Ex parte Owen, 136 P. 197. the liberal rule as laid down by the Supreme Court of the United States in determining the fact as to whether a person is a fugitive from justice in Roberts v. Reilly, 116 U.S. 80, in no way prevents a court in which a habeas corpus proceeding is pending to determine for itself whether a prisoner is a fugitive from justice within the Constitution and laws of the United States. One arrested and held as a fugitive from justice is entitled to writ of habeas corpus to question the lawfulness of his arrest and imprisonment, showing by competent evidence as a ground for his release, that he was not within the meaning of the Constitution and laws of the United States a fugitive from the justice of the demanding state, and thereby overcoming the presumption to the contrary arising from the face of an extradition warrant. McNichols v. Pease, 207 U.S. 100. Whether or not a person is a fugitive from justice is a question of fact to be determined by the court upon a writ of habeas corpus. Ex parte Todd, 47 L. R. A. 566; Ex parte Weinhaus, 216 S.W. 548; Hyatt v. Cockran, 188 U.S. 691. (7) The petitioner is in Missouri upon the order of the United States administrative officer, whose authority to direct the movements of the petitioner is given to him by the same authority that gives the State of Iowa the right to attempt to remove the petitioner from this State by a writ of extradition. Secs. 9, 11 and 13, War Risk Insurance Act. Where the Federal Government acquires land for a certain purpose, the State cannot interfere with the full, free and perfect use for which it was acquired, or in any way embarrass that use. Leavenworth v. Lowe, 114 U.S. 525; Ohio v. Thomas, 173 U.S. 276. The answer of the respondent to the petition does not deny the facts set forth as to the petitioner being a patient in the United States hospital and that he was ordered to the State of Missouri by the officers of the United States government.
Vernon R. Seeburger for respondents.
(1) In an extradition hearing but two question are presented to the Governor: (a) Is the person demanded substantially charged with the crime against the laws of the state from whose justice it is alleged that he had fled by an indictment or affidavit properly certified? (b) Is he fugitive from justice from the state demanding him? 25 C. J. 265; Seely v Beardsley, 194 Iowa 863; Leonard v. Zweifel, 171 Iowa 522; Munsey v. Clough, 196 U.S. 364, 47 L.Ed. 515; Roberts v. Reilly, 116 U.S. 80, 29 L.Ed. 544. (2) The executive has no authority to act upon a requisition which on its face appears to be defective. Where, however, the statutory prerequisites appear, it is the duty of the executive to whom the demand is presented to cause the arrest of the alleged fugitive from justice. This duty is ministerial, and not discretionary, and has been described as imperative, although in the absence of statute there is no power to compel the executive to act. The power to determine whether upon the showing made the accused is extraditable cannot be delegated by the executive. 25 C. J. 265; Biddinger v. New York City Police Comr., 245 U.S. 128, 62 L.Ed. 193; Marbles v. Creecy, 215 U.S. 63, 54 L.Ed. 92; Drew v. Thaw, 235 U.S. 432, 59 L.Ed. 302; Ex parte Hart, 63 F. 249; Illinois v. Pease, 207 U.S. 100, 52 L.Ed. 121. (3) The old rule that, to constitute one a fugitive from justice, he must actually flee from the state in order to avoid prosecution, has long ago been abandoned. A "fugitive from justice," within the meaning of Federal law, is one who commits a crime within one state jurisdiction and, when called upon to answer therein, is not there -- that is, has removed, it matters not in what manner or for what purpose, to another state jurisdiction. Leonard v. Zweifel, 171 Iowa 522; Taylor v. Wise, 172 Iowa 1; Roberts v. Reilly, 116 U.S. 80, 29 L.Ed. 544; Appleyard v. Massachusetts, 203 U.S. 222, 51 L.Ed. 161. (4) The motives behind the prosecution have no bearing on the question whether extradition should be granted. For example -- the fact that the prosecution might be prosecuting to collect a debt is a fact not to be considered by the executive hearing the proceedings. Leonard v. Zweifel, 171 Iowa 522; 25 C. J. 267, sec. 32, note 18; Drew v. Thaw, 235 U.S. 432. (5) In a habeas corpus proceeding, the governor's warrant is prima-facie evidence that accused is a fugitive, and the burden of overcoming the prima-facie case made by the warrant is upon accused. 29 C. J. 76, 77. (6) The motive which induced the departure of the accused person from the demanding state is immaterial. 25 Corpus Juris, 258; Drew v. Thaw, 245 U.S. 432; Appleyard v. Massachusetts, 203 U.S. 222, 51 L.Ed. 161; State v. Richter, 37 Minn. 436; Leonard v. Zweifel, 171 Iowa 522. Therefore accused coming to Missouri for medical treatment does not alter his status as a fugitive. (7) The extradition proceedings are sufficient if certified to by governor or chief magistrate and are founded on an indictment. U.S. Compiled Statutes (1918) secs. 10126, 10127; 25 Corpus Juris, 261. (8) The duties of the governor of Iowa may be performed by others acting in his stead. Presumptively, party acting as governor acted with authority. Iowa Constitution, sec. 17, art. 4; 25 Corpus Juris, 265, 269. (9) The...
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