Ex Parte Nabors.

• Decision Date: 13 April 1928
• Docket Number: No. 3354.,3354.
• Citation: 33 N.M. 324,267 P. 58
• Parties: Ex parte NABORS.
• Court: New Mexico Supreme Court

33 N.M. 324

267 P. 58

Ex parte NABORS.

No. 3354.

Supreme Court of New Mexico.

April 13, 1928.

Syllabus by the Court.

In the absence of controlling necessity, the concurrent jurisdiction of this court in habeas corpus will not be exercised, and the petitioner will be relegated to an application in the district court of the county where he is restrained.

An order of a district court remanding one seeking release by habeas corpus is not a bar to, nor res adjudicata in, a similar proceeding in this court on the same facts.

One who was paroled from confinement after conviction in the demanding state may be a fugitive from justice, though he is in this state by an express condition of his parole, and though the revocation of his parole was because of conduct in this state.

Petition by William J. Nabors for a writ of habeas corpus to be directed to the Sheriff of Valencia County. Writ discharged, and petitioner remanded.

An order of a district court remanding one seeking release by habeas corpus is not a bar to, nor res adjudicata in, a similar proceeding in this court on the same facts.

T. J. Mabry, of Albuquerque, for petitioner.

Fred J. Nicholas, Dist. Atty., of Magdalena, Antonio A. Sedillo, Dist. Atty., of Albuquerque, for respondent.

WATSON, J.

Upon the petition of William J. Nabors we issued a writ of habeas corpus to test the legality of his restraint by the sheriff of Valencia county, by whom the petitioner was held under an extradition warrant issued by Governor Dillon of this state, upon requisition of the Governor of California; said warrant reciting that petitioner “stands charged with the crime of assault with intent to commit murder, committed in the county of Los Angeles in the year 1923 in said state, and that said William Nabors is a fugitive from justice and has taken refuge in this state.”

We shall first dispose of a question raised by respondent as to the propriety of our issuance of this writ. A former application had been previously made, which we denied upon the ground that petitioner was restrained in Valencia county in the Seventh judicial district, and that there was no showing that the judge of said district was not in a position to entertain such application, nor any other controlling reason impelling us to entertain the application. Thereafter petitioner applied to the judge of said district, obtained the writ, and upon hearing was remanded. It is contended that in a case of this kind, where no changed conditions can be urged, such remanding order should be deemed by us res adjudicata.

It is said in 29 C. J. “Habeas Corpus,” § 203:

“By the great weight of authority, the rule is, in the absence of a statute providing otherwise, that a refusal to grant a writ of habeas corpus or a dismissal of the writ, or a remand of the relator to custody, or other refusal to discharge him, is not a bar to, or res judicata on, a subsequent application for the writ.”

Numerous authorities are cited as supporting this rule. Some of the cases dealt with insane persons and children. Such cases are not necessarily in point, since changed conditions may warrant a second application. Many of the decisions, however, are directly in point. We consider that, as a practical matter, we are committed to this doctrine by Notestine v. Rogers, 18 N. M. 462, 138 P. 207, and by legislation occurring immediately thereafter. The question in that case was whether an order discharging a petitioner was appealable. The decision itself, of course, goes no further; but it points out wherein an appeal from such an order, under the appellate practice then obtaining, would greatly impair the speedy remedy which habeas corpus is designed to afford one restrained of his liberty, and points out also that such a person himself needed no appeal, because he could “exhaust the whole judicial power of the territory, by repeated applications, until he secured his release.” Immediately thereafter the Legislature amended the Appellate Procedure Act, providing for an appeal from an order discharging one from custody, but failing to provide for an appeal from an order remanding him. Laws 1915, c. 77, § 1. It would be a one-sided system unless we hold that the right of appeal from the order of discharge is offset by the right of one remanded to custody to apply to another judge having jurisdiction.

[1][2] The jurisdiction of this court and of its members to issue writs of habeas corpus on the petition of one held in custody is given by section 3 of article 6 of the Constitution. That jurisdiction is, of course, state wide. The jurisdiction of the district court and the judges thereof is given by section 13 of article 6. The jurisdiction being concurrent, we think that, in the first instance, in the absence of a showing of controlling necessity, we properly relegated petitioner to his remedy in the district court of the county where he was restrained. To what extent, if any, the decision of that court should have influence, it is not necessary now to consider; but we hold that it is not res adjudicata.

[3] This brings us to the merits of this case. The facts are not in dispute. From the documents presented to the Governor, it appears that petitioner had been convicted upon his plea of guilty of the crime mentioned in the warrant. After serving some time in the penitentiary, he had been granted a parole, by the conditions of which, accepted by him in writing, he was to proceed directly to his place of employment at San Ysidro, N. M., to report to one Sandoval, his employer, and who, it appears, was his father-in-law, and there to remain until he might receive permission to go elsewhere; that, should he desire to change his employment or residence, or to leave the county in which employed (Sandoval), he must first obtain the written consent of the parole officer; that while on parole, and until the expiration of sentence, he should continue to be in the legal custody and control of said board of prison directors, and that, if he should fail to live up to the requirements of the board or of the parole officer, he should be returned to prison, and that he should make written report to the parole officer on the 1st day of each month. Pursuant to the conditions of this parole, petitioner, on the very day of his release, departed for, and came directly to, San Ysidro, N. M. After some time the prison board saw fit to revoke this parole; the assigned causes being that, without permission of the board, petitioner had left his employment in Sandoval county and had gone to Bernalillo county, and also to Santa Fé county, and that he had had certain firearms in his possession in New Mexico which, while not contrary to any express provision of his parole, is said to be contrary to a statute of California.

Petitioner's contentions are that all charges upon which the state of California now seeks to deal with him relate to his conduct and acts in New Mexico, and that, even if such charges render him amenable to any punishment in California, or to the revocation of his parole, the admitted facts that they were not committed in that state, and that he did not leave that state after their commission, are conclusive against the contention that he is a fugitive from the justice of California.

The underlying law controlling us in determining the authority of the Governor to honor the requisition of a Governor of a sister state, and of the demanded person to resist extradition, is found in section 2 of article 4 of the Constitution of the United States, relating to interstate extradition, and in Revised Statutes, § 5278, 18 USCA § 662, enacted in furtherance of the constitutional provision, and in the decisions of the United States Supreme Court thereunder. It is the established rule that upon habeas corpus the demanded person may question, first, whether the record presented to the Governor constitutes a substantial accusation of crime; and, second, whether the person demanded is a fugitive. The first is a question of law to be decided upon the record. The second is one of fact, of which the Governor's warrant is prima facie proof, and not to be disturbed on conflicting evidence. But where, upon admitted or undisputed facts, it appears that the demanded person is not a fugitive, he is entitled to be discharged. The doctrine of constructive presence, which in some cases is sufficient to support the indictment and conviction of one not actually present, is not sufficient under the extradition requirement that the person demanded must be a fugitive from justice. He must have been personally present in the demanding state, at least during some stage of the crime. The foregoing principles we believe to be firmly established by decisions of the United States Supreme Court. In re Reggel, 114 U. S. 642, 5 S. Ct. 1148, 29 L. Ed. 250; Roberts v. Reilly, 116 U. S. 80, 6 S. Ct. 291, 29 L. Ed. 544; Lascelles v. Georgia, 148 U. S. 537, 13 S. Ct. 687, 37 L. Ed. 549; Hyatt v. People ex rel. Corkran, 188 U. S. 691, 23 S. Ct. 456, 47 L. Ed. 657; Munsey v. Clough, 196 U. S. 364, 25 S. Ct. 282, 49 L. Ed. 515; People ex rel. McNichols v. Pease, 207 U. S. 100, 28 S. Ct. 58, 52 L. Ed. 121; Strassheim v. Daily, 221 U. S. 280, 31 S. Ct. 558, 55 L. Ed. 735; Innes v. Tobin, 240 U. S. 127, 36 S. Ct. 290, 60 L. Ed. 562; Hogan v. O'Neill, 255 U. S. 52, 41 S. Ct. 222, 65 L. Ed. 497.

In determining the two questions before us, it is important to avoid confusion as to the crime charged against petitioner for which California desires to exact punishment. Petitioner contends as if the charged offenses were the matters stated as the occasion and reason for the revocation of his parole. If we regard the accusation as involving merely the leaving of Sandoval county, or the having of firearms in his possession, it would be difficult to hold, either that there was a substantial charge of any offense under the law of California, or that petitioner is a fugitive from the...