Ex Parte Hubbard., 31.

• Decision Date: 14 October 1931
• Docket Number: No. 31.,31.
• Citation: 160 S.E. 569
• Court: North Carolina Supreme Court
• Parties: Ex parte HUBBARD.

160 S.E. 569

(201 N.C. 472)

Ex parte HUBBARD.

No. 31.

Supreme Court of North Carolina.

Oct. 14, 1931.

Certiorari to Superior Court, Beaufort County; Frizzelle, Judge.

Habeas corpus proceeding in behalf of Charles Edward Hubbard. To review a judgment refusing the writ to discharge petitioner from custody, petitioner brings certiorari.

Reversed.

J. S. Smith made the following affidavit in the state of Virginia:

"State of Virginia, City of Norfolk, to-wit:

"This day, J. S. Smith, of 157 Bank Street, in the City of Norfolk, State of Virginia, personally appeared before me the undersigned Justice of the Peace in and for the City of Norfolk, State of Virginia, and who having been by me first duly sworn, made oath as follows:

"I am connected with the Monticello Hotel in the capacity of House Officer. On September 18, 1930, C. E. Hubbard was a guest at the hotel where he contracted a hotel bill amounting to $74.75, and at the same time we cashed for him several checks totaling $190.00, drawn on the Farmers Bank of Belhaven, North Carolina, dated September 18th, 1930, $20.00; September 19th, 1930, $20.00; September 19th, 1930, $50.00, and on September 20th, 1930, two checks in the sum of $50.00 each, all of which said checks have been returned by the said bank for lack of sufficient funds.

"On account of knowing Lieut. Hubbard as we did we had no hesitancy in extending his credit on the promise that he had $300.00 in the aforesaid bank. Since that time we have made repeated demands for the payment of the aforesaid checks which have met with no response, and the said C. E. Hubbard has been duly notified according to the statute in such cases made and provided that the said checks were returned by the aforesaid Farmers Bank of Belhaven, North Carolina, for insufficient funds.

"And further this affiant saith not.

"[Signed] J. S. Smith.

"Subscribed and sworn to before me, Chas. H. Addison, a Justice of the Peace for the City of Norfolk and State of Virginia, this 24th day of July, 1931.

"[Signed] Chas. H. Addison, J. P."

Upon this affidavit Charles H. Addison issued the following warrant:

"Commonwealth of Virginia, City of Norfolk, to-wit:

"To any of the police officers of the City of Norfolk:

"Whereas, J. S. Smith of the Monticello Hotel, No.——, of the City of Norfolk, has this day made complaint and information on oath, before me, Chas. H. Addison, a Justice of the Peace of said City, that on the 20th day of Sept., 1930, in said City, C. E. Hubbard, hereinafter called accused, did unlawfully utter two worthless checks for the sum of $50.00 each, drawn on the Farmers Bank, Belhaven, N. C, and signed by C. E. Hubbard, there not being sufficient funds to pay same in full when presented, and whereas, I see good reason to believe that an offense has been committed:

"There are, therefore, in the name of the Commonwealth of Virginia, to command you forthwith to apprehend and take before the police justice of said City, in the police court thereof, the body of said accused to answer said complaint, and to be further dealt with according to law:

"And moreover, upon the arrest of the said accused, by virtue of this warrant, I command you in the name of the Commonwealth of Virginia, to summon to appear at the same time and place to testify as witnesses on behalf of the Commonwealth touching the matter of said complaint, the following persons: ——and have there and then this warrant with your return thereon.

"Given under my hand and seal, this 27th day of May, 1931.

"[Signed] Chas. H. Addison,

"Justice of the Peace. [Seal.]"

There were three other warrants of the same character and verbiage.

The several warrants and the affidavit upon which they were issued were certified to the Governor of Virginia, who thereupon issued a requisition demanding for the reasons therein stated the extradition of the petitioner. Acting upon this requisition, the Governor of North Carolina ordered the arrest of the petitioner; and after being taken into custody the petitioner sued out a writ of habeas corpus, which was heard on August 28, 1931. His honor held that the affidavit and the warrant charged the petitioner with a violation of the criminal law of the state of Virginia of the grade of felony and that the petitioner is a fugitive from justice, and adjudged that the petitioner be held in custody to the end that he be taken to Virginia and delivered to the proper officers of the law. The petitioner applied for a certiorari, which was granted. Pending the hearing in this court, he is in the custody of the sheriff of Beaufort county.

Ward & Grimes, of Washington, N. C, for petitioner.

Dennis G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.

ADAMS, J.

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 from which he fled be delivered up, to be removed to the state having jurisdiction of the crime. Constitution of United States, arte 4, § 2. This section includes every offense punishable by the law of the state in which itwas committed and gives the right to demand the fugitive; and the right to demand implies the correlative obligation to deliver the fugitive without regard to the nature of the crime or the policy or laws of the demanding state. Kentucky v. Dennison, 24 How. 66, 103, 16 L. Ed. 717, 728.

There is no express grant to the Congress of legislative power to execute this provision, but in the opinion delivered in the case just cited Chief Justice Taney said that upon this body devolved the duty of providing by law the regulations necessary to carry the compact into execution. These regulations embrace the several statutes pertaining to the extradition of fugitives from justice, one of which is in the following words: "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." 18 USCA § 662.

When, pursuant to this statute, the executive authority of a state demands any person as a fugitive from justice, of the executive authority of another state, the requisition may be challenged by the writ of habeas corpus issuing from a state court; the Congress not having undertaken to invest the judicial tribunals of the United States with exclusive jurisdiction to issue writs of habeas corpus in proceedings for arrest of fugitives from justice. Robb v. Connolly, 111 U. S. 624, 4 S. Ct. 544, 28 L. Ed. 542.

In the event of such challenge, it must appear...