Ex parte Foskett

• Decision Date: 31 March 1965
• Docket Number: No. 37970,37970
• Citation: 390 S.W.2d 273
• Parties: Ex parte Almond G. FOSKETT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 273

390 S.W.2d 273

Ex parte Almond G. FOSKETT, Appellant, v. The STATE of Texas, Appellee.

No. 37970.

Court of Criminal Appeals of Texas.

March 31, 1965.

Rehearing Denied May 12, 1965.

Robert A. (Bob) Heath, Henry Sanchez, Houston, for appellant.

Frank Briscoe, Dist. Atty., Carl E. F. Dally and Ripley E. Woodard, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

This is an appeal from an order issued a habeas corpus proceeding remanding appellant to custody for extradition to the State of Michigan.

On the hearing of the writ the state introduced in evidence the executive warrant issued by the Governor of Texas which appears regular on its face. It made out a prima facie case authorizing the remand of appellant to custody for extradition. Ex parte Hoover, 164 Tex.Cr.R. 251, 298 S.W.2d 579.

Appellant contends that the trial court erred in refusing his offer in evidence of the authenticated copies of the supporting papers accompanying the governor's warrant, and again erred in refusing his request for a continuance in order to obtain authenticated copies of such papers for his use in rebutting the prima facie presumption that he was subject to extradition. Further, he contends that the trial court erred in remanding him because his testimony, the testimony of his witnesses, and the complaint upon which the governor's warrant is based defeats the prima facie case by showing that he was not in the demanding state at the time of the commission of the crime, or that he thereafter fled from the state.

In his brief it is insisted by the appellant 'that the Trial Court erred in remanding the Appellant for extradition to the State of Michigan, since the State was never able to establish a prima facie case, as the testimony of Appellant and of his witnesses plus the record clearly and uncontradictedly show that the Appellant was not a fugitive from justice and the subject of extradition.'

In support of his contention, appellant points out in Relator's Exhibit D-17, page 112, the pertinent part of the complaint upon which this proceeding is based, which pertinent part reads as follows:

'The Complaint, on oath and in writing of Donovan Neville taken and made before Basil F. Baker, a Municipal Judge of the City of Flint, in said County, upon the 3rd day of June, A. D., 1964, who being duly sworn, says that heretofore, to wit, on the 9th day of January, A. D. 1946, at the city of Flint, and in the County aforesaid Almon Foskett, having been charged with the offense of leaving the State while in arrears in child support, a felony, and the case of the People of the State of Michigan versus Almon Foskett, Case No. 17996 charging the said Almon Foskett with leaving the State while in arrears in child support, a felony, having been set for trial on January 9, 1962, before Donn D. Parker, Circuit Judge, for Genesee County, Michigan, the said Almon Foskett did unlawfully and feloniously abscond from the County of Genesee and from the State of Michigan, and as a result the bail bond in the amount of Two Thousand ($2,000.00) Dollars insuring the appearance of said Almon Foskett at the said trial was forfeited by the said Judge Donn D. Parker, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the People of the State of Michigan, wherefore the said Donovan Neville prays that the said Almon Foskett may be apprehended, and held to answer this complaint, and further dealt with in relation to the same as law and justice may require.'

'* * * Further, the Appellant points out that the uncontradicted testimony of the Appellant and his witnesses clearly and unequivocally shows that the Appellant was not in the demanding state at the time alleged in the complaint, and clearly and unequivocally show that he did not thereafter flee from the demanding state. The Appellant here is not inquiring into his guilt or innocence, but merely whether or not he is a fugitive from justice.'

The statute of the State of Michigan defining the offense here charged is as follows:

'Section 28396 (1) ABSCONDING ON OR FORFEITING BOND WHERE FELONY CHARGED; PENALTY, Sec. 199a. Any person who shall abscond on or forfeit a bond given in any criminal proceedings wherein a felony is charged shall be deemed guilty of a felony. (CL '48, 750.199a [Pub.Acts 1949, No. 94].)'

The governor's warrant recites that appellant is charged in the State of Michigan with the crime of absconding and forfeiting bond where a felony is charged.

On cross-examination the appellant testified as follows:

'Q: How long has it been since you left the State of Michigan, Mr. Foskett?

'A: I left there the first of November, 1961.

* * *

* * *

'Q: And were you under a bail bond, released under a bail bond at that time?

'A: Yes, sir.

'Q: What was the amount of that bond?

'A: It was my understanding it was $2000.

* * *

* * *

'Q: You were under bail bond when you left Michigan to appear in a non-support case and you knew it, is that correct?

'A: Yes.

* * *

* * *

'Q: Did you ever go back to Michigan to make your appearance on that bail?

'A: No, sir, I haven't.

* * *

* * *

'Q: And you knew that your bond would be forfeited, is that correct?

'A: Yes.

'Q: Why didn't you go back anyway later?

'A: I couldn't tell you.

'Q: Instead of going back to Michigan you changed your mind and went elsewhere?

'A: Yes, sir, I wound up in Texas.

'Q: And it is your contention since you arrived in Texas in December of 1961 and you have been here ever since is that what you are claiming?

'A: That is right.

'Q: You don't deny you are the man who is wanted in this case in Michigan, do you?

'A: Well, as I understand it now I am the same man.

'Q: You do have the same name and you do have such a charge against you?

'A: Yes, sir.'

The...