Ex parte Foster

• Decision Date: 18 September 1936
• Docket Number: A-9197.
• Citation: 61 P.2d 37,60 Okla.Crim. 50
• Parties: Ex parte FOSTER.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

61 P.2d 37

60 Okla.Crim. 50

Ex parte FOSTER.

No. A-9197.

Court of Criminal Appeals of Oklahoma

September 18, 1936

Syllabus by the Court.

1. A "parole," as the term is used in criminal law, may be defined as the release of a convict from imprisonment upon certain conditions to be observed by him, and a suspension of his sentence during his liberty thus granted.

2. An executive order revoking a parole for violating a condition thereof, and directing the rearrest and return to custody of the convict, is not violative of the constitutional guaranty "that no person shall be deprived of his liberty without due process of law," and "that no warrant shall issue but upon probable cause, supported by oath or affirmation," since being a convict at large by executive clemency, which he has accepted on conditions included therein, the convict, upon violation of such conditions, is merely an escaped convict, and not entitled to invoke such constitutional guaranty.

3. In extradition the proceedings being regular in form, the burden of proof is upon alleged fugitive to establish that he is not a fugitive from justice.

4. To be a "fugitive from justice," within Const.U.S art. 4, § 2, cl. 2, and Rev.St.U.S. § 5278 (18 U.S.C.A. § 662), it is only necessary that the alleged fugitive was physically present in demanding state at time when he was charged with committing crime, and that he subsequently departed therefrom and is found in another state.

5. When a prosecution is initiated and pursued to judgment of conviction, accused before expiration of his sentence is still "charged" within the meaning of the provisions of the United States Constitution and laws relating to extradition.

6. In extradition the legality of the revocation of a parole of the prisoner is a question for the courts of the demanding state.

7. A paroled convict who came to Oklahoma, having been paroled to the custody of a citizen of this state by the authorities of state granting the parole, held extraditable as a "fugitive from justice" within United States constitutional provisions and laws relating to fugitives from justice, after parole was revoked by Governor of demanding state.

Proceeding on the application of John Foster for a writ of habeas corpus to secure his release from custody under an extradition warrant.

Writ denied.

Elmore Pinnick, of Oklahoma City, for petitioner.

Mac Q Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen for respondent.

DOYLE Judge.

This is an application for writ of habeas corpus by John Foster, who alleges that he is illegally restrained of his liberty and unlawfully imprisoned by John Watt, chief of police of the city of Oklahoma City, Okl., as follows:

"The petitioner alleges the facts to be, that on the 10th day of December, 1928, he was duly sentenced to serve from one year to life in the penitentiary of the state of Illinois, by the Judge of the District Court of Franklin County, State of Illinois, and that on the 30th day of December, 1928 was committed to said Prison at Menard, Ill.

That on the 18th day of July, 1935 said petitioner was regularly paroled to the custody of Fred J. Tunnard, of Oklahoma City, Oklahoma County, State of Oklahoma, and has since said time been within the said state of Oklahoma, that at no time has your petitioner violated the terms or conditions of said parole.

That your petitioner is not now charged with the commission of any crime in the State of Illinois or any other state, that no warrant of arrest has been issued by any magistrate of the state of Oklahoma for the arrest and detention of your petitioner as by law required;

Your petitioner further states that he is not a fugitive from justice, but is in the State of Oklahoma under and by virtue of the provisions of the parole issued him, a copy of said parole is hereto attached, filed herewith and made a part hereof;

That all of the acts of unlawful imprisonment and illegal restraint as above set forth are in violation of the Constitution of the Laws of the United States, and in violation of the Constitution and laws of the State of Oklahoma."

The respondent in his return to the writ of habeas corpus set up that the petitioner is held in custody by the extradition agent of the state of Illinois under a warrant of extradition issued by the Governor of this state. A copy of the extradition warrant is attached thereto.

It is contended on the part of petitioner that he having been paroled in accordance with the laws of the state of Illinois to the custody of a citizen of the state of Oklahoma, he left the state of Illinois with the consent of the proper authorities; that he has not violated the conditions of his parole and for the reasons stated is not a fugitive from justice.

From the record before us it appears that the requisition issued by the Governor of the demanding state and the documents thereunto attached and certified to by him were properly authenticated, as was also the extradition warrant issued by the Governor of this state.

The United States Constitution, article 4, § 1, provides: "Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

Article 4, § 2, cl. 2, provides: "A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the Executive Authority of the State from which he fled, be delivered up to be removed to the State having Jurisdiction of the Crime."

Section 5278, U.S., Rev.St. (18 U.S.C.A. § 662), prescribes the procedure necessary to put into effect the power conferred by the Constitution, relating to extradition proceedings. It reads: "Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, it shall be the duty of the executive authority of the State or Territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the State or Territory making such demand, shall be paid by such State or Territory."

In Ex parte Ridley, 3 Okl.Cr. 350, 351, 106 P. 549, 26 L.R.A. (N.S.) 110, this court held: "A 'parole,' as the term is used in criminal law, may be defined as the release of a convict from imprisonment upon certain conditions to be observed by him, and a suspension of his sentence during his liberty thus granted."

Held further: "An executive order, revoking a parole for violating a condition thereof, and directing the rearrest and return...