Ex parte Devine

• Decision Date: 17 May 1897
• Citation: 22 So. 3,74 Miss. 715
• Court: Mississippi Supreme Court
• Parties: Ex PARTE JOHN DEVINE

22 So. 3

74 Miss. 715

Ex PARTE JOHN DEVINE

Supreme Court of Mississippi

May 17, 1897

March 1897

FROM decision of Chancellor Claude Pintard, on habeas corpus heard at Vicksburg.

The opinion states the facts.

Judgment reversed and case remanded.

Wade R Young, for appellant.

"The executive warrant, to be sufficient, should show on its face three things: (1) That it has been represented to such executive that the accused stands charged in the demanding state with a certain specified crime, and that he has fled from justice; (2) that a demand has been made upon him for the surrender of such fugitive, pursuant to the constitution and laws of the United States; (3) that said representation and demand was accompanied by an indictment or affidavit, duly certified as authentic by the demanding governor." Am. & Eng. Enc. L., vol. 7, p. 640, 648, note 2; In re Dow Worn, 18 F. 698.

The return of the writ of habeas corpus herein showed no affidavit, warrant, information or indictment emanating from the authorities of the State of Louisiana, charging the petitioner with any offense against the laws of that state, and the exception should have been sustained and the petitioner discharged. But if the return had been sufficient, the petitioner had an unquestioned right to traverse the return, and to show that there was no copy of an indictment, information, affidavit or warrant emanating from the authorities of the State of Louisiana, charging petitioner with any crime, produced to the governor of the State of Mississippi, when he granted the warrant of extradition. "It must appear, therefore, to the governor of the state to whom such demand is presented, before he can lawfully comply with it, (1) that the person demanded is substantially charged with a crime against the laws of the state from whose justice he is alleged to have fled, by an indictment or an affidavit, certified as authentic by the governor of the state making the demand." Roberts v. Reilly, 116 U.S. 80; Am. & Eng. Enc. L., vol. 7, p. 638; Robb v. Conally, 111 U.S. 625.

The petitioner offered to show that he never committed the crime, as charged in the State of Louisiana, and that the proceedings resulting in his arrest, and the warrant of extradition was instituted and prosecuted for the purpose of compelling him to pay a debt claimed to be due to a resident of Louisiana. On writ of habeas corpus the petitioner has a right to show that he has not committed the crime of embezzlement, and he has a right to show, moreover, the animus of the person who has instituted the proceeding. Ex parte Slauson, 73 F. 666.

OPINION

TERRAL, J.

John Devine, being in the custody of William Price, marshal of the city of Vicksburg, upon extradition proceedings instituted by the governor of the State of Louisiana, sued out this writ of habeas corpus before Chancellor Pintard, to be discharged therefrom. Price pleaded the executive warrant of the governor of the State of Mississippi, which is set out in his answer, and appears to be in the usual form of such warrants. At the hearing of the writ, the relator excepted to the return, upon the ground that it showed no affidavit or indictment emanating from the authorities of the State of Louisiana, charging him with any crime against the laws of that state. This exception was overruled. Thereupon, the relator offered to traverse the return and to show that the governor Of the State of Mississippi, at the time of granting the warrant of extradition, had not received from the governor of Louisiana a copy of any affidavit or indictment charging the relator with a crime. This offer was denied him. The relator then offered to show that he had never committed any crime in the State of Louisiana. This offer was refused him. The relator duly excepted to the several rulings of the chancellor, and now here assigns the same as error.

Upon an examination of a good many authorities, we are of the opinion that the third exception is not maintainable. We find no case in which the guilt or innocence of the relator has been inquired into on habeas corpus proceedings. Such practice, we think, would be inconsistent with the laws relating to the extradition of fugitives from justice, and the current of authority is opposed to such inquiry. 2 Moore on Extradition, secs. 612, 632; Matter of Fetter , 57 Am. Dec., 395, note; Work v. Corrington , 32 Am. Rep., 345 (34 Ohio St. 64); Hartman v. Aveline , 30 Am. Rep., 217 (63 Ind. 344).

We also regard the first assignment as untenable. It is a well settled principle of the common law that where acts are of an official nature or require the concurrence of official persons, a presumption arises in...