Ex parte Duddy

• Decision Date: 30 December 1914
• Citation: 107 N.E. 364,219 Mass. 548
• Parties: Ex parte DUDDY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

219 Mass. 548

107 N.E. 364

Ex parte DUDDY.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 30, 1914.

Report from Supreme Judicial Court, Suffolk County.

Application by Joseph Duddy for a writ of habeas corpus. Reported by a single justice for determination by the full court. Petition dismissed.

Samuel R. Cutler, Harry W. James, and William E. Weeks, all of Boston, for petitioner.

Thomas J. Boynton, Atty. Gen., and Leon R. Eyges, Asst. Atty. Gen., for respondent.

SHELDON, J.

[1] It is provided by R. L. c. 217, § 11, that:

‘The Governor, in any case which is authorized by the Constitution and laws of the United States, may, upon demand, deliver to the executive of any other state or territory any person charged therein with treason, felony or any other crime. * * * Such demand or application shall be accompanied by sworn evidence that the person charged is a fugitive from justice and by a duly attested copy of an indictment or complaint made before a court or magistrate authorized to receive it. Such complaint shall be accompanied by affidavits to the facts constituting the crime charged by persons who have actual knowledge thereof, and by such further evidence as the Governor may require.’

The petitioner contends that in this case the Governor had not before him ‘sworn evidence’ within the meaning of the statute, and therefore that the petitioner cannot be taken and delivered to the state of West Virginia by process issued thereon.

In determining this question, both requisitions and the papers accompanying them must be considered. The one was supplementary to the other. The first was based upon a complaint charging the petitioner and one Robinson with the crime of larceny upon the oath of the owner of the property alleged to have been stolen. It was accompanied by the affidavit of this owner to the facts of the larceny and of his identification of some of the stolen property taken from the petitioner and Robinson after their arrest in Boston, and by the affidavit of the prosecuting attorney in West Virginia that the persons charged in the complaint were fugitives from justice. The second requisition was accompanied by a duly authenticated copy of an indictment found by a grand jury in West Virginia against the petitioner for the same alleged crime and by an affidavit of the same prosecuting attorney that the person so indicted was a fugitive from justice. The petitioner was arrested on a warrant issued by the Governor of the commonwealth for his delivery to the representative of West Virginia, and now asks for a writ of habeas corpus to obtain his release.

[2] The petitioner contends that there is no sworn evidence that he is a fugitive from justice, because he claims that these affidavits of the prosecuting attorney state merely a conclusion of law from undisclosed facts, and so are insufficient.

[3] As a matter of principle, we could not sustain this contention. It is a question of fact whether one is a fugitive from justice; that is, whether, having actually and not merely constructively committed a crime within another state, he has departed therefrom and cannot be found there to answer to a prosecution for his offense. The question is not whether he has consciously and literally fled for the purpose of avoiding a trial, but whether he is a fugitive from justice in the sense that we have stated. Kingsbury's Case, 106 Mass. 223, 227; In the Matter of Voorhees, 32 N. J. Law, 141; State v. Richter, 37 Minn. 436, 35 N. W. 9; People v. Pinkerton, 17 Hun (N. Y.) 199; Roberts v. Reilly, 116 U. S. 80, 97, 6 Sup. Ct. 291, 29 L. Ed. 544;Appleyard v. Massachusetts, 203 U. S. 222, 27 Sup. Ct. 122, 51 L. Ed. 161, 7 Ann. Cas. 1073;McNichols v. Pease, 207 U. S. 100, 108, 28 Sup. Ct. 58, 52 L. Ed. 121. One may be allowed to testify to such a conclusion of fact, just as he might testify that some one was drunk, or to a question of identity, or to any other conclusion of fact such as all men are able and accustomed to draw, especially when such a conclusion depends upon...