Ex Parte Germain

• Decision Date: 14 January 1927
• Citation: 258 Mass. 289,155 N.E. 12
• Parties: Ex parte GERMAIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

258 Mass. 289

155 N.E. 12

Ex parte GERMAIN.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 14, 1927.

Report from Supreme Judicial Court, Suffolk County; Henry K. Braley, Judge.

Petition for writ of habeas corpus by William Germain to be released from custody as a fugitive from justice in Missouri. Petition was denied by a single justice, and case reported. Order denying petition affirmed.

W. R. Scharton and Stanley A. Dearborn, both of Boston, for petitioner.

Jay R. Benton, Atty. Gen., and Jacob L. Wiseman, Asst. Atty Gen., for respondent.

RUGG, C. J.

This is a petition for a writ of habeas corpus, wherein it is alleged that the petitioner is unlawfully deprived of his liberty on a warrant issued by his excellency, the Governor of this commonwealth, upon a demand by the Governor of the state of Missouri on the ground that the petitioner is a fugitive from justice in that state, having been there accused of the crime of robbery committed on the thirtieth day of December, 1925. At the hearing before the single justice, the petitioner made offer of proof (1), that on the date of the alleged commission of the crime he was physically within this commonwealth and not in the state of Missouri, and (2) that the affidavit attached to the demand or warrant of the Governor of the state of Missouri was false. Both these offers of proof were excluded, the petition denied, and the case reported for the determination of the full court. King's Case, 161 Mass. 46, 49, 36 N. E. 685; Chamber's Case, 221 Mass. 178, 179, 108 N. E. 1070.

It is provided by the Constitution of the United States, art. 4, § 2, that:

‘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.’

To effectuate this constitutional mandate the Congress has enacted:

‘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. * * *’ (U. S. Comp. St. § 10126).

The General Court also has enacted statutory provisions not in conflict with the act of Congress but to aid and supplement its enforcement by regulation of the exercise of the executive powers under the federal Constitution and statute. These provisions are that the demand for rendition by the Governor of a sister state shall be accompanied by sworn evidence that the person demanded is a fugitive from justice, and by a duly certified copy of an indictment or complaint before a court or magistrate thereto duly authorized, and that such person when arrested shall be given an opportunity to apply for a writ of habeas corpus; and that the Governor may require the Attorney General or a district attorney to investigate the relevant facts and to advise him as to the legality or expediency of complying with the demand. G. L. c. 276, §§ 11, 12, 13, 14. No one of these sections is drawn in question in the present proceeding. There is no reason to doubt their validity. Commonwealth v. Tracy, 5 Metc. 536, 549, 550;Commonwealth v. Hall, 9 Gray, 262, 268, 69 Am. Dec. 285;Commonwealth v. Nickerson, 236 Mass. 281, 292, 293, 296, 301,128 N. E. 273, 10 A. L. R. 1568;Commonwealth v. Fuller, 8 Metc. 313,41 Am. Dec. 509. The provisions of the statutes of this commonwealth are significant because indicative of the care which under their terms must be exercised by the chief executive in performance of the duties of interstate rendition of those charged with being fugitives from justice in other states.

No contention is made that there has not been compliance with every requirement of the statutes of the United States and of this commonwealth.

In deciding a case of this character when the statutes of the United States and of this commonwealth were in substance the same as now touching this particular point, it was said, with respect to the force and effect of the decision of the Governor to honor the requisition in Kingsbury's Case, 106 Mass. 223, 225, that the ‘provision [of our statute] makes his decision conclusive, unless there is some defect apparent on the record.’ It was said by Chief Justice Gray in Davis' Case, 122 Mass. 324, 328:

‘The warrant of the Governor of the commonwealth is prima facie evidence, at least, that all necessary legal prerequisites have been complied with, and, if the previous proceedings appear to be regular, is conclusive evidence of the right to remove the prisoner to the state from which he fled.’

[1][2] The decision whether the requisition of the demanding Governor ought to be honored is executive in nature and is conferred upon the Governor of this commonwealth as its chief executive. There is in article 30 of the Declaration of Rights of the Constitution of Massachusetts strict separation of the powers of the executive and judicial departments of government. In Rice v. Governor, 207 Mass. 577, 580, 93 N. E. 821, 823 (32 L. R. A. [N. S.] 355), occurs this statement:

‘It seems better to hold that, for whatever he does officially, the Governor shall answer only to his own conscience, to the people who elected him, and in case of the possible commission of a high crime or misdemeanor, to a court of impeachment.’

The precise nature and extent of judicial review of a decision of the Governor in a case of this nature may be thought to be not thoroughly settled. Uncertainty as to the extent of that power was expressed in Ex parte Reggel, 114 U. S. 642, 653, 5 S. Ct. 1148, 29 L. Ed. 250. In Appleyard v. Massachusetts, 203 U. S. 222, 228, 229, 27 S. Ct. 122, 51 L. Ed. 161, 7 Ann. Cas. 1073, it was said with respect to the force of section 5278 of U. S. Rev. Sts., quoting with approval words used in Roberts v. Reilly, 116 U. S. 80, at page 95, 6. S. Ct. 291, 299 (29 L. Ed. 544):

‘It must appear, therefore, to the Governor of the state to whom such a demand is presented, before he can lawfully comply with it, first, 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; and, second, that the person demanded is a fugitive from the justice of the state the executive authority of which makes the demand. The first of these prerequisites is a question of law, and is always open upon the face of the papers to judicial inquiry, on an application for a discharge under a writ of habeas corpus. The second is a question of fact, which the Governor of the state upon whom the demand is made must decide, upon such evidence as he may deem satisfactory. How far his decision may be reviewed judiciallyin proceedings in habeas corpus, or whether it is not conclusive, are question not settled by harmonious judicial decisions, nor by any authoritative judgment of this court. It is conceded that the determination of the fact by the executive of the state in issuing his warrant of arrest, upon a demand made on that ground, whether the writ contains a recital of an express finding to that effect or not, must be regarded as sufficient to justify the removal until the presumption in its favor is overthrown by contrary proof. Ex parte Reggel, 114 U. S. 642 [5 S. Ct. 1148, 29 L. Ed. 250].’

It was said in Cook v. Hart, 146 U. S. 183, at page 193, 13 S. Ct. 40, 43 (36 L. Ed. 934), respecting this subject:

‘We have no doubt that the Governor upon whom the demand is made must determine for himself, in the first instance, at least, whether the party charged is in fact a fugitive from justice (Ex parte Reggel, 114 U. S. 642 [5 S. Ct. 1148, 29 L. ED. 250];Roberts v. Reilly, 116 U. S. 80 [6 S. Ct. 291, 29 L. Ed. 544]), but whether his decision thereon be final is a question proper to be determined by the courts of that state.’

It was said in one of the most recent authoritative pronouncements on this subject (Biddinger v. Commissioner of Police, 245 U. S. 128, at page 134, 135, 38 S. Ct. 41, 43 ):

‘The scope and limits of the hearing on habeas corpus in such cases has not been, perhaps it should not be, determined with precision. Doubt as to the jurisdiction of the courts to review at all the executive conclusion that the person accused is a fugitive from justice has more than once been stated in the decisions of this court (Ex parte Reggel, 114 U. S. 642 [5 S. Ct. 1148, 29 L. Ed. 250];Roberts v. Reilly, 116 U. S. 80 [6 S. Ct. 291, 29 L. Ed. 544];Appleyard v. Massachusetts, 203 U. S. 222 [27 S. Ct. 122, 51 L. Ed. 161, 7 Ann. Cas. 1073]), but the question not being necessary for the disposition of the cases in which it is touched upon as it is not in this, it is left undecided. This much, however, the decisions of this court make clear; that the proceeding is a summary one, to be kept within narrow bounds, not less for the protection of the liberty of the citizen than in the public interest; that when the extradition papers required by the state are in the proper form the only evidence sanctioned by this court as admissible on such a hearing is such as tends to prove that the...