Ex Parte Gugenhine v. Gerk.

• Decision Date: 20 September 1930
• Docket Number: No. 30655.,30655.
• Citation: 31 S.W.2d 1
• Parties: EX PARTE CHARLES B. GUGENHINE, Petitioner, v. JOSEPH A. GERK, Chief of Police.
• Court: Missouri Supreme Court

31 S.W.2d 1

EX PARTE CHARLES B. GUGENHINE, Petitioner, v. JOSEPH A. GERK, Chief of Police.

No. 30655.

Supreme Court of Missouri.

Court en Banc, September 20, 1930.

Habeas Corpus.

WRIT QUASHED AND PETITIONER REMANDED.

Freeman L. Martin, S.E. Garner, Henry D. Espy and S.R. Redmond for petitioner.

(1) "It is imperative that the Governor of the asylum or surrendering State shall have before him an indictment found or an affidavit made before a magistrate filed by the Governor of the demanding State; he must have either one or the other." In re Hagan, 295 Mo. 435, 245 S.W. 336; Sec. 5278, U.S. Comp. Stat. 1901, p. 3597; Roberts v. Reilly, 116 U.S. 80, 29 L. Ed. 544. (2) "The affidavit must be sworn before a magistrate." Davis v. State, 73 Tex. Cr. 49, 163 S.W. 442. (3) "An affidavit before a notary public is sufficient if he is by the laws of the demanding state clothed with the duties, powers and functions of a magistrate." Compton v. Alabama, 214 U.S. 1, 53 L. Ed. 885, 16 Ann. Cas. 1098. (4) The clerk of court of 18th Judicial District of Louisiana in and for the Parish of Pointe Coupee, and ex-officio notary public for said Parish does not come within the purview or meaning of the federal statute by virtue of any law or statute of the State of Louisiana. (5) There is no reference, provision or designation in said statutes which clothe said clerk of the court of 18th Judicial District of Louisiana, and ex-officio notary public with the duties, authority and functions of a magistrate or justice of the peace, and therefore the said clerk does not come within the purview and meaning of the Act of Congress designating before whom an affidavit shall be made for the purpose of interstate rendition cases; and by reason thereof, the said executive warrant issued by the Governor of Missouri, is void and of no effect, and should be quashed.

Stratton Shartel, Attorney-General, and Ray Weightman, Assistant Attorney-General, for respondent.

(1) Respondent's return is responsive to the writ. Such a return is proper. Ex parte Bryan, 76 Mo. 253; Ex parte Durbin, 102 Mo. 100. (2) Said return pleads facts which must be treated as true because no reply has been filed. In the absence of such a pleading denying the allegations set out in the return, such allegations become conclusive, regardless of the allegations set out in the petition. In re Tartar, 278 Mo. 365; State v. Skinker (Mo. Sup.), 25 S.W. (2d) 476. Unless the executive warrant issued by the Governor of Missouri is defective on its face, the petitioner's writ must be denied. The warrant is aided by the presumption of official regularity and under that presumption it is prima-facie valid. Ex parte Ellis, 9 S.W. (2d) 224. (3) The affidavit is sufficient, because the clerk of the court of the 18th Judicial District of Louisiana in and for the Parish of Pointe Coupee is a magistrate. The foregoing affidavit was not only made before J.P. Jewell, clerk of the court, but it is also signed by William C. Carruth, Judge of the 18th Judicial District of the State of Louisiana. Keller case, 36 Fed. 684. The signature of the judge is affixed to the affidavit on the same date, showing that it was in reality done in the court, so it isn't incumbent upon this court to determine whether or not a district clerk in the State of Louisiana is a magistrate as that term is used in the United States Revised Statutes No. 5278 (Extradition Proceedings), because of the signature and statement of the judge of the Judicial District being appended to the affidavit.

GANTT, J.

Original proceeding in habeas corpus. On petition our writ issued. Petitioner is restrained of his liberty by Joseph A. Gerk, Chief of Police of St. Louis, Missouri. On respondent Gerk making return, the cause was submitted. Thereupon respondent moved for judgment on the pleadings for the reason there was neither denial nor avoidance of the averments of the return. Thereafter petitioner filed a motion to set aside the submission and grant him leave to file answer. The motion was sustained. Petitioner filed answer, and the cause was again submitted. The answer is verified by the oath of petitioner's attorney on information and belief. The petition may be verified by the petitioner or some other competent person (Sec. 1877, R.S. 1919); but the denial or avoidance of averments of the return must be verified by oath of the party brought before the court by virtue of the writ. [Sec. 1903, R.S. 1919.]

It follows that the averments of the return are neither denied nor avoided. In this situation said averments must be taken as true. [In re Breck, 252 Mo. 302, l.c. 319, 158 S.W. 843; In re Tartar, 278 Mo. 356, l.c. 366, 213 S.W. 94; State ex rel. v. Buckner, 198 Mo. App. 230, l.c. 234, 200 S.W. 94; Ex parte Thornberry, 254 S.W. 1087, l.c. 1088.] A copy of the return (omitting caption and signature) follows:

"Comes Now Joseph A. Gerk, Chief of Police, Metropolitan Police Force, Police Department of the City of St. Louis, a sworn public officer in his official capacity, in obedience to the writ of habeas corpus heretofore issued by this court in the above entitled cause and for his return to said writ respectfully states and shows to the court as follows:

"That on the 22nd day of July, 1930, he had in his custody and under his power and restraint, the said Charles Gugenbeine, alias Charles Allen; that said Charles Gugenheine, alias Charles Allen was so held at the time upon an executive warrant issued by the Governor of the State of Missouri by virtue of a requisition made upon him by the Governor of the State of Louisiana and that he is the identical person named in said Governor's warrant of rendition and is now held in my custody by the authority of said process which is attached herewith and made a part of this my return.

"Having made full return this respondent awaits such other and further orders in the premises as to the court may seem just and proper."

A duly certified copy of an affidavit in which the petitioner is charged with the crime of murder was presented to the Governor of this State. A copy of said affidavit follows:

"State of Louisiana, "Parish of Pointe Coupee.

"Before me, the undersigned authority personally came and appeared Donat J. Porche, a resident of the Parish of Pointed Coupee, State of Louisiana; and the said appearer after having been by me, first duly sworn, deposes and says, that one, Charles Allen, late of the Parish of Pointe Coupee, State of Louisiana, did on the twenty-seventh day of the month of November, in the year eighteen hundred and ninety-seven, wilfully and feloniously and of his malice aforethought kill and murder one, Dr. James A. Rigney, in the Parish of Pointe Coupee, State of Louisiana.

"Affiant further deposes and says that on the day of the...