Ex parte McKnight

• Citation: 48 Ohio St. 588,28 N.E. 1034
• Parties: Ex parte McKNIGHT.
• Decision Date: 17 November 1891
• Court: United States State Supreme Court of Ohio

28 N.E. 1034

48 Ohio St. 588

Ex parte McKNIGHT.

Supreme Court of Ohio.

November 17, 1891

Habeas corpus .

Upon the application of Hiram P. McKnight, a prisoner in the Ohio penitentiary, who claims he is there unlawfully deprived of his liberty, a writ of habeas corpus was issued to inquire into the cause of such deprivation. The warden, to whom the writ was directed, in his return sets forth at large the cause of the imprisonment, and the warrant for the same. Both the petition for the writ and the officer's return refer to the record in the case of Hiram P. McKnight v State, now pending in this court, and make that record a part of the petition and return. That is a case in error to reverse the judgment of conviction and sentence under which the prisoner is held. The facts shown by the record, so far as they are material to the present inquiry, are as follows On the 3d day of December, 1890, the prisoner was indicted by the grand jury of the county of Wood for the crime of forgery. The indictment contains two counts, one for forging an indorsement on a bill of exchange, and the other for uttering and publishing the same as true and genuine, knowing it to be forged. Upon this indictment an application was made to the governor of this state for a requisition on the executive of the state of New York, where the accused then was, for his surrender, as a fugitive from justice, to the authorities of this state. The application was accompanied by a duly-attested copy of the indictment, as the statute requires, and was based upon no other charge. The requisition was accordingly made, reciting the indictment of the accused for the crime charged, and designating an agent to receive him and convey him to the county of Wood for trial thereon. The requisition was honored, and the accused was arrested and delivered into the custody of the agent appointed for that purpose, by whom he was taken to the county where the indictment was returned, and there lodged in jail to await his trial. On the 4th day of December, 1890, the same grand jury which had returned the indictment upon which the prisoner was extradited, as above stated, also indicted him for the crime of obtaining property by false pretenses. The accused has had no trial on the first indictment. It appears that when the case was called for trial, on the 9th day of March, 1891, he was ready and willing to proceed, but it was postponed on the application of the prosecuting attorney; and thereupon, at the request of the prosecuting attorney, the case upon the indictment for obtaining property by false pretenses was called for trial. Before entering upon the trial, the prisoner interposed the objection that since his extradition he had been continuously imprisoned in the county jail without opportunity to return to the state from which he had been surrendered, and therefore he could not lawfully be subjected to trial upon that indictment, it being for a crime different from that for which he was extradited. Upon the hearing of the objection the facts hereinbefore stated were established, and also the prisoner's continuous imprisonment since his extradition. The court overruled the objection, and, as the record shows, against the prisoner's protest, ‘ put him immediately on trial ’ whereupon, a plea of not guilty having been entered the trial proceeded, and resulted in the conviction and sentence under which the prisoner is now confined in the penitentiary. He claims the proceedings are void, and his imprisonment unlawful.

A person who, after being surrendered by one state to another on extradition proceedings, has been tried, found guilty, and imprisoned for an offense other than that on which his extradition was obtained, may maintain habeas corpus to obtain his release, since the court did not merely commit error in trying him for such offense, but was without jurisdiction.

Syllabus by the Court

1. A person surrendered to the authorities of this state by another state or territory on extradition proceedings cannot, while held in custody thereunder, be lawfully tried for a different crime than the one upon which his extradition was obtained, unless he voluntarily waives his privilege.

2. The privilege is not waived by failure to plead it in abatement of the indictment for such different crime, nor by entering a plea of not guilty thereto, when, before the trial, the accused asserts his privilege, and objects to the trial on that ground.

3. While the writ of habeas corpus cannot properly be employed to review and correct errors committed by courts when acting within the sphere of their authority, it is the appropriate remedy to obtain discharge from imprisonment under an order or process of a court, which it was without jurisdiction to make or issue.

Hiram P. McKnight, in pro. per.

David K. Watson, Atty. Gen., and R. S. Parker , for the State.

WILLIAMS, C. J., (after stating the facts as above.)

1. There is some conflict of authority upon the general question whether, in a case of interstate extradition, the extradited person can lawfully be tried for any offense other than the one upon which he was surrendered, until he shall have had a reasonable time and opportunity to return to the surrendering state after his trial and acquittal on the charge upon which he was extradited, or the expiration of his imprisonment under a conviction thereof; and there is also upon the same question, in cases of international extradition. It is not deemed necessary or important to enter upon an extended review or discussion here of the many cases on the subject. This court has held that a person extradited under the treaty between the United States and Great Britain, known as the ‘ Ashburton Treaty,’ cannot be prosecuted for a different crime than that specified in the warrant of extradition. State v. Vanderpool, 39 Ohio St. 273. And such has since been declared to be the law by the supreme court of the United States. U.S. v. Rauscher, 119 U.S. 407,7 S.Ct. 234. These decisions are based upon the interpretation of the treaty and the acts of congress on the subject. The only provision of the treaty which relates to the extradition of criminals is contained in the tenth article, which is as follows: ‘ It is agreed that the United States and her Britannic majesty shall, upon mutual requisitions by them, or their ministers, officers, or authorities, respectively made, deliver up to justice all persons who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asylum, or shall be found, within the territories of the other: provided that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial if the crime or offense had there been committed; and the respective judges and other magistrates of the two governments shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges or other magistrates, respectively, to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive.’

This provision of the treaty, and its effect, are discussed at some length by Mr. Justice MILLER in the opinion of the court in U.S. v. Rauscher, supra. After showing that, in the absence of treaty, it was the recognized rule of public law that the country receiving the offender against its laws from another country had no right to proceed against him for any other offense than that for which he had been delivered up, and that, under the constitution, treaties made by the United States become, like that instrument, and laws passed in pursuance thereof the supreme law of the land, governing courts in appropriate proceedings for the enforcement of the rights of persons growing out of them, the learned justice proceeds to the discussion of the rights of a person extradited under the particular treaty in question. On that subject he says: ‘ It is unreasonable to suppose that any demand for rendition framed upon a general representation to the government of the asylum (if we may use such an expression) that the party for whom the demand was made was guilty of some violation of the laws of the country which demanded him, without specifying any particular offense with which he was charged, and even without specifying an offense mentioned in the treaty, would receive any serious attention and yet such is the effect of the construction that the party is properly liable to trial for any other offense than that for which he was demanded, and which is described in the treaty. There would, under that view of the subject, seem to be no need of a description of a specific offense in making the demand. But, so far from this being admissible, the treaty not only provides that the party shall be charged with one of the crimes mentioned, to-wit, murder, assault with intent to commit murder, piracy, arson, robbery, forgery, or the utterance of forged paper, but that evidence shall be produced to the judge or magistrate of the country of which such demand is made, of the commission of such an offense, and that this would justify the apprehension and commitment for trial of the person so charged. If the proceedings under which the party is...