Ex parte Graham

• Decision Date: 21 August 1914
• Docket Number: 836.
• Court: U.S. District Court — Southern District of California
• Parties: Ex parte GRAHAM.

216 F. 813

Ex parte GRAHAM.

No. 836.

United States District Court, S.D. California.

August 21, 1914

Gray Barker & Bowen, Paul Schenck, and Oscar Lawler, all of Los Angeles, Cal., for petitioner.

Harry S. Stokes, of Nashville, Tenn., Earl Rogers, W. H. Dehm Thos. Lee Woolwine, and W. H. Anderson, all of Los Angeles for respondent.

ROSS Circuit Judge.

The petitioner, being held a prisoner by the representatives of the state of Tennessee under a warrant issued in extradition proceedings by the Governor of California upon the requisition of the Governor of Tennessee, seeks by habeas corpus to obtain his discharge from such imprisonment.

The Constitution of the United States provides as follows:

'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. ' Clause 2, Sec. 2, art. 4.

To give effect to this constitutional provision Congress passed an act, approved February 12, 1793, c. 7 (1 Stat. 302), the substance of which is reproduced in section 5278 of the Revised Statutes (U.S. Comp. St. 1901, p. 3597) as follows:

'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.'

Objection to the jurisdiction of this court in the premises was made, but was subsequently withdrawn, and as such jurisdiction is, I think, beyond question, nothing further on that subject need be said.

The petitioner being held under warrant issued by the Governor of California, there are but two questions open to the consideration of this court-- one a question of law, and the other a mixed question of law and fact. The former is as to the sufficiency of the indictment against the petitioner. The Supreme Court in the case of Pierce v. Creecy, 210 U.S. 387, 401, 28 Sup.Ct. 714, 718 (52 L.Ed. 1113), in considering the validity of an indictment on proceedings similar to the present, said:

'There must be objections which reach deeper into the indictment than those which would be good against it in the court where it is pending. We are unable to adopt the test suggested by counsel, that an objection, good if taken on arrest of judgment, would be sufficient to show that the indictment is not a charge of crime. Not to speak of the uncertainty of such a test, in view of the varying practice in the different states, there is nothing in principle or authority which supports it. Of course such a test would be utterly inapplicable to cases of a charge of crime by affidavit, which was held to be within the Constitution. In Matter of Strauss, 197 U.S. 324 (25 Sup.Ct. 535, 49 L.Ed. 774). The only safe rule is to abandon entirely the standard to which the indictment must conform, judged as a criminal pleading, and consider only whether it shows satisfactorily that the fugitive has been in fact, however inartificially, charged with crime in the state from which he has fled. Roberts v. Reilly, 116 U.S. 80, 95 (6 Sup.Ct. 291, 29 L.Ed. 544); Pearce v. Texas, 155 U.S. 311, 313 (15 Sup.Ct. 116, 39 L.Ed. 164); Hyatt v. Corkran, 188 U.S. 691, 709 (23 Sup.Ct. 456, 47 L.Ed. 657); Munsey v. Clough, 196 U.S. 364, 372 (25 Sup.Ct. 282, 49 L.Ed. 515); Davise's Case, 122 Mass. 324; State v. O'Connor, 38 Minn. 243; State v. Goss, 66 Minn. 291 (68 N.W. 1089); Matter of Voorhees, 32 N.J. law, 141; Ex parte Pearce, 32 Tex.Cr.R. 301 (23 S.W. 15); In re Van Sciever, 42 Neb. 772 (60 N.W. 1037, 47 Am.St.Rep. 730); State v. Clough, 71 N.H. 594 (53 A. 1086, 67 L.R.A. 946).'

And the court concluded its opinion with these words:

'This court, in the cases already cited, has said, somewhat vaguely, but with as much precision as the subject admits, that the indictment, in order to constitute a sufficient charge of crime to warrant interstate extradition, need show no more than that the accused was substantially charged with crime. This indictment meets and surpasses that standard, and is enough. If more were required, it would impose upon courts, in the trial of writs of habeas corpus, the duty of a critical examination of the laws of states with whose jurisprudence and criminal procedure they can have only a general acquaintance. Such a duty would be an intolerable burden, certain to lead to errors in decision, irritable to the just pride of the states and fruitful of miscarriages of justice. The duty ought not to be assumed unless it is plainly required by the Constitution, and, in our opinion, there is nothing in the letter or the spirit of that instrument which requires or permits its performance.'

Looking at the indictment here, it is seen that it in effect charges that the petitioner did, on the 27th day of July, 1907, at the county of Davidson, of the state of Tennessee, fraudulently obtain $3,000 of the money of one Thomas P. Ayres, in a certain specified way and by means of certain alleged fraudulent misrepresentations and pretenses. Such acts, if committed, constitute a crime under the laws of the state of Tennessee. The indictment must therefore be held sufficient.

Is the petitioner a fugitive from justice within the meaning of the above-quoted provisions of the Constitution and statutes of the United States? is the only other question that can be here considered.

In the case of McNichols v. Pease, 207 U.S. 100, 108, 109, 28 Sup.Ct. 58, 52 L.Ed. 121, the Supreme Court deduced the following principles from its previous decisions in the cases of Robb v. Connolly, 111 U.S. 624, 639, 4 Sup.Ct. 544, 28 L.Ed. 542, Ex parte Reggel, 114 U.S. 642, 652, 653, 5 Sup.Ct. 1148, 29 L.Ed. 250, Roberts v. Reilly, 116 U.S. 80, 95, 6 Sup.Ct. 291, 29 L.Ed. 544, Hyatt v. Corkran, 188 U.S. 691, 719, 23 Sup.Ct. 456, 47 L.Ed. 657, Munsey v. Clough, 196 U.S. 364, 372, 25 Sup.Ct. 282, 49 L.Ed. 515, Pettibone v. Nichols, 203 U.S. 192, 27 Sup.Ct. 111, 51 L.Ed. 148, 7 Ann.Cas. 1047, and Appleyard v. Massachusetts, 203 U.S. 222, 27 Sup.Ct. 122, 51 L.Ed. 161, 7 Ann.Cas. 1073:

'1. A person charged with crime against the laws of a state and who flees from justice, that is, after committing the crime, leaves the state, in whatever way or for whatever reason, and is found in another state, may, under the authority of the Constitution and laws of the United States, be brought back to the state in which he stands charged with the crime, to be there dealt with according to law.

'2. When the executive authority of the state whose laws have been thus violated makes such a demand upon the executive of the state in which the alleged fugitive is found as is indicated by the above section (5278) of the Revised Statutes, producing at the time of such demand a copy of the indictment, or an affidavit certified as authentic and made before a magistrate charging the person demanded with a crime against the laws of the demanding state, it becomes, under the Constitution and laws of the United States, the duty of the executive of the state where the fugitive is found to cause him to be arrested, surrendered, and delivered to the appointed agent of the demanding state, to be taken to that state.

'3. Nevertheless, the executive,

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