Ex parte Edwards

• Decision Date: 04 November 1907
• Citation: 44 So. 827,91 Miss. 621
• Court: Mississippi Supreme Court
• Parties: EX PARTE THOMAS W. EDWARDS

44 So. 827

91 Miss. 621

EX PARTE THOMAS W. EDWARDS

Supreme Court of Mississippi

November 4, 1907

October 1907

FROM the habeas corpus judgment of HON. EUGENE O. SYKES, Circuit Judge, sitting in vocation at Aberdeen, Monroe county.

The relator was remanded to custody and appealed to the supreme court.

The facts are stated in the opinion of the court.

Affirmed.

Leftwich & Tubb, for appellant.

When a citizen of the state of Mississippi is in the custody of the sheriff under a warrant for extradition from the governor and brings the matter to the attention of the courts by habeas corpus, what showing must the state authorities make in order to detain the prisoner and turn him over to the authorities of another state for transportation thereto?

The courts seem to differ as to the proper procedure in this state of the case, and our own courts seem to have never passed directly on the question. It should be remembered that extradition can only be made by virtue of the statutes of the United States and only then for a fugitive from justice. U S. Rev. Stat., § 5278.

We contend that when a citizen is detained in custody under the circumstances here shown in this record, that a full showing of all the prerequisites ought to be required by the prosecuting authorities before the courts themselves. It must be remembered that the hearing before the governor is usually formal and ex parte, no notice is given to the alleged fugitive. The governor only acts as an executive and not as a judicial officer, and when his acts are challenged, the state authorities detaining the alleged fugitive should exhibit to him, not only a transcript showing the offense with which he is charged and the time and place of the alleged commission duly certified, but the proper demand from the extraditing state so that the entire matter can be looked into by the judge or chancellor in a proceeding calculated to try the facts, test the good faith of the demanding authorities and determine whether or not the right to extradite the citizen exists.

The supreme court of Indiana said: "It seems to us that a citizen ought not to be arrested and surrendered to the authorities of another state or territory, as a fugitive from justice, without some better foundation for his arrest and surrender than a recital in a governor's requisition," citing Ex parte Joseph Smith, 3 McLean 121. Hartman v. Abeline, 30 Am. Rep., 223.

The care and investigation which courts of the most enlightened character make of this class of cases may be illustrated by cases from the supreme court of Alabama, the demanding state in the instant case: Compton v. State, 44 So. 685; Barriere v. State, 39 So. 55.

To require the relator himself to produce this evidence is too rigid a rule, for it is necessarily in the hands of the state authorities -- these documents are themselves under the dominion of the state authorities. Under the sacred writ of habeas corpus, the authority of the state to transport a citizen to a foreign state, there should be allowed an inspection of all documents filed before the governor, that the court may test the regularity of the proceedings. The writ of habeas corpus is a most cherished and sacred asylum, to which the citizen may always flee when unlawfully restrained of his liberty. The courts in passing upon the efficiency of such a writ to take a citizen from his home and state to foreign shores should certainly have all the light that was furnished to the executive and any additional light that can be reflected on the case. In Ex parte Devine, 74 Miss. 715, our court has already decided that relator in a writ of habeas corpus may show that the proper authenticated affidavit or indictment was not in the hands of the governor when the warrant of extradition was issued. We think the rule should be enlarged to the extent of requiring the prosecution, when the right of the state authorities to hold a prisoner is challenged, to produce first a copy of the demand from the governor of the demanding state; second, a certified copy of the affidavit or indictment, all duly authenticated by the governor of the demanding state; third, the extradition warrant; thus only can the citizen's rights be thoroughly safeguarded. We submit that the proper practice is followed by many states that require all of these documents to be exemplified and attached to the warrant itself. It will be observed that the extradition warrant of Governor Vardaman fails to show that any of the statutory requirements were met by the demanding state, except that the demand was made upon him by the governor of the state of Alabama. It does not show or allege on its face that a certified copy of the affidavit or indictment, duly authenticated by the governor of Alabama, was before him when he issued the extradition warrant or mandate for the arrest of detention of relator. 8 Ency. Pl. & Pr., 820, and notes.

Certainly the governor's rendition warrant cannot be prima facie evidence of what is not alleged in it.

It will be further observed that pending appeal the court refused bail to relator. It seems that this was done under the authority of Ex parte Wall, 84 Miss. 783. It will be observed that in Ex parte Wall the crime in which relator is charged was not bailable in the state of Louisiana, but we apprehend that it will not be denied that bail is allowable in both Mississippi and Alabama to a defendant charged with burglary and larceny; therefore, a different rule ought to be applied in this case.

We hardly think it will be denied that the court on habeas corpus has the right to look into the regularity of the extradition warrant granted by the governor of a state. Cases supra; Ex parte Riggell, 29 Lawyers' Ed. U. S. Rep., 250; Hyatt v. New York, 47 L. R. A., 657; 19 Cyc. 86 and 87.

No rule of comity can over-ride the statutory conditions imposed by Congress whereby only a fugitive from justice can be extradited, and no man is a fugitive from justice who was not in the demanding state when the alleged crime was committed. State of Tennessee v. Jackson, 1 L. R. A., 370, and note; Ex parte Riggell, 29 Law Ed. U. S. Rep., 250; Ex parte Hart, 28 L. R. A., 801; State v. Hall, 28 L. R. A., 289.

We submit to the court that the refusal of the circuit judge to hear the evidence offered which was to show that Edwards had never fled the state of Alabama, was palpable error; this evidence was competent by the decisions of all the courts.

"When it is conceded, or when it is conclusively proved that no question can be made that the person was not in the demanding state when the crime is said to have been committed, and his arrest is sought on the ground only of a constructive presence at that time, in the demanding state, then the court will discharge the defendant. Hyatt v. New York, 188 U.S. 691; 47 L.Ed. 657; 23 S.Ct. 456; affirming the judgment of the New York Court of Appeals, 172 N.Y. 176; 60 L. R. A., 774; 92 Am. St. Rep., 706; 64 N.E. 825.

D. W. Houston, contra.

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