Ex parte Middaugh
| Decision Date | 16 June 1928 |
| Docket Number | A-7059. |
| Citation | 268 P. 321,40 Okla.Crim. 280 |
| Parties | Ex parte MIDDAUGH. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
If, at the time a requisition of the Governor of one state is made the fugitive is in custody of the courts of the asylum state under a charge of offense against its laws, the Governor thereof is not required to surrender such fugitive until after the judgment of the court of that state is satisfied.
The Governor of the asylum state, upon whom a demand is made by the Governor of another state for the surrender of a fugitive who has been convicted and sentenced in the asylum state for the violation of the laws of such state, but who is at liberty by judicial parole or suspended sentence, may waive the jurisdiction of the state, and in such case the concurrence of the judicial branch of the government is not necessary.
Original proceeding by Marvin Middaugh for a writ of habeas corpus to be directed to the Sheriff of Tulsa County and another. Writ denied.
Wm Blake and Ed Crossland, both of Tulsa, for petitioner.
Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen for the State.
This is an original proceeding in habeas corpus. The petitioner by verified petition alleges that he is restrained of his liberty and unlawfully imprisoned in the county jail of Tulsa county by the sheriff and by an agent for the state of Oregon on a requisition warrant of the Governor of this state honoring a requisition of the Governor of the state of Oregon to surrender said petitioner to the agent of the state of Oregon as a fugitive from justice; further alleging that the Governor of this state is without authority to issue said requisition warrant or to authorize a conveyance of petitioner from the state of Oklahoma, for the reason that on November 15, 1927, petitioner, under the name of Jerry Callahan, was sentenced to serve a term of two and one-half years in the state reformatory at Granite, Okl., for a felony; that he was, by an order of the court sentencing him, paroled, and by said parole required to make monthly reports and to remain within the jurisdiction of the court. Section 2803, C. O. S. 1921. To this petition a demurrer was interposed by the state. The offense charged in the state of Oregon for which a requisition is sought was committed prior to the offense for which petitioner was sentenced in this state.
It is the contention of petitioner that, since he has been sentenced to imprisonment in the state reformatory, and such sentence suspended by judicial parole, he is within the custody of the court, and the Governor is without authority to waive the jurisdiction and custody of the state except by pardon; that the attempted removal of petitioner from the state is without authority of law. It is the contention of the state that the act of the Governor in issuing the requisition warrant waives the jurisdiction and custody of the state, and authorizes his removal from the state.
There are few cases directly in point on the question here presented, but analogous questions have been before the courts in numerous instances. There is a division in the authorities. The weight of authority is decidedly to this effect, that, where a fugitive from one state takes asylum in another, and the law of the state in which asylum has been sought is violated by the fugitive, and he is convicted there, and is undergoing sentence, the demands of the law...
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