Ex parte Peairs, 27384

• Decision Date: 09 February 1955
• Docket Number: No. 27384,27384
• Citation: 283 S.W.2d 755,162 Tex.Crim. 243
• Parties: Ex parte Allen M. PEAIRS.
• Court: Texas Court of Criminal Appeals

Page 755

283 S.W.2d 755

162 Tex.Crim. 243

Ex parte Allen M. PEAIRS.

No. 27384.

Court of Criminal Appeals of Texas.

Feb. 9, 1955.

Rehearing Denied April 20, 1955.

Gene Lary, Rafael De Haro, Dallas, (Charles W. Tessmer, Dallas, on motion for rehearing only) for appellant.

Henry Wade, Crim. Dist. Atty., J. J. Fagan, Charles S. Potts, Asst. Dist. Attys., Dallas, Leon Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

This is an extradition case.

Appellant is charged in the State of Arkansas with an offense defined in the statutes of that State as the crime of failing to discharge a materialman's lien. Arkansas Statutes, § 51-601.

The Governor of Arkansas, in his requisition, certified that appellant was charged in that state 'by affidavit, information and warrant' with said offense. Copies of the affidavit, information and warrant, certified as authentic by the Governor, accompanied the requisition.

It was stipulated that appellant was the person charged in the State of Arkansas and named in the extradition warrant.

The record shows that the Constitution of the State of Arkansas now provides that all offenses may be prosecuted either by indictment by a grand jury, or information filed by the prosecuting attorney. Const.Ark.Amend No. 21.

It is appellant's contention that, notwithstanding the amendment of the Arkansas Constitution permitting prosecution by information, under Sec. 3 of Art. 1008a, V.A.C.C.P., there must still be an indictment or an information supported by affidavit in order to extradite a fugitive.

The information was filed on February 4, 1954. Unlike the information known to the Texas Code, it is made under oath, and itself constitutes an affidavit to the effect that appellant on December 14, 1951, as a principal contractor and after having been paid the contract price, unlawfully, wilfully and feloniously failed to discharge a materialman's lien for materials furnished to him and installed on the property of a certain corporation, and by virtue of his failure said corporation was forced to pay the $29,060 lien after having previously paid appellant the contract price.

This the Governor of Arkansas certifies to be a crime under the laws of Arkansas, from which state appellant fled to Texas.

If this information is not in itself sufficient without an affidavit of some person other than the prosecuting attorney, previously or contemporaneously made and filed, another affidavit made by the prosecuting attorney more fully setting out the facts upon which the state relies was filed on the same day the requisition was issued by the Governor of Arkansas. Also on that day an affidavit was made by E. N. Kimes, plant manager for the named corporation, setting forth fully the facts and the failure of appellant which constitutes the crime in question under Arkansas law.

These affidavits dated February 10, 1954, as well as the information filed February 4, 1954, were attached to the request of the prosecuting attorney for requisition, and were made a part of such requisition.

The cases cited by appellant are to the effect that where there is no showing that the laws of the demanding state are different to those of Texas, and where there is no affidavit to support the information, or where the extradition papers show that the demand is supported by information alone and not by complaint or indictment, the extradition is invalid. See Ex parte Cherry, 155 Tex.Cr.R. 324, 234 S.W.2d 1011; Ex parte Chittenden, 124 Tex.Cr.R. 228, 61 S.W.2d 1008, and cases cited, and Ex parte Gardner, Tex.Cr.App., 264 S.W.2d 125. The fact that the laws of Arkansas authorize prosecution by information alone; that the information is in itself an affidavit; that another affidavit of the prosecuting attorney was on file and these and the affidavit of Kimes were before the Governor when he issued the requisition certifying that appellant stood charged by 'affidavit, information and warrant' distinguish this case from the decisions cited.

Appellant vigorously insists that the Arkansas statute is unconstitutional and void, and that the extradition papers show on their face that this is an attempt to enforce a private claim and to imprison him for not paying a money debt.

The Governor of this State, in his warrant, declares that the Governor of Arkansas, in pursuance of the Constitution and laws of the United States, had demanded the arrest and delivery to the agent of the State of Arkansas of this appellant, who stands charged with the crime of failing to discharge a materialman's lien committed in the State, and that said demand was accompanied by a copy of the affidavit, information and warrant under which he was so charged, duly certified as authentic by the Governor of Arkansas.

The requisition of the Governor of Arkansas certifies the offense charged against appellant to be a crime in that state, and that appellant is fugitive from justice.

In the light of these recitations, we cannot agree that the record shows that the prosecution is not in good faith but was for the collection of a debt and not for the purpose of prosecuting appellant for a crime.

The constitutionality of the Arkansas statutes is not for this Court to decide. That question must be reserved for the Arkansas Courts and the Supreme Court of the United States.

We hold that appellant is not illegally restrained and that the trial court did not err in remanding him to be returned to Arkansas.

The judgment is affirmed.

On Motion for Rehearing

MORRISON, Presiding Judge.

Appellant attacks, in one of the most scholarly briefs to be filed in this Court in some time, the soundness of our original opinion herein and points out that the affidavit of Kimes was sworn to before a notary public and before a magistrate. This fact, he says, prevents its use for the purpose of extradition.

According to Section 3 of Article 1008a, V.A.C.C.P., no demand shall be recognized unless accompanied by

1. Copy of indictment, or

2. Information supported by affidavit, or

3. Copy of an affidavit made before a magistrate, together with a copy of warrant which was issued thereupon, or

4. Copy of a judgment of conviction.

We have concluded that the demand in the instant case falls within category (2) above and that the Act does not require the affidavit mentioned in that category to be made before a magistrate.

He further calls attention to the fact that Title 18, Section 3182, U.S.C.A., provides, in part, that the demand must be accompanied by 'an affidavit made before a magistrate' and contends that any order of extradition based upon the affidavit before us would be invalid and in violation of such Act. This contention requires more study.

The negislature of this State enacted Article 1008a, V.A.C.C.P., Uniform Criminal Extradition Act, in 1951. Forty of our States, including Arkansas, have now adopted such an Act.

Following such adoption, the Federal rendition statute, Title 18, Section 3182, ceased to be the exclusive method of extradition between States who have adopted the Uniform Act. Gulley v. Apple, 213 Ark. 350, 210 S.W.2d 514; Ex parte Tenner, 20 Cal.2d 670, 128 P.2d 338, Id., 314 U.S. 585, 62 S.Ct. 409, 86 L.Ed. 473, Id., 317 U.S. 597, 63 S.Ct. 151, 87 L.Ed. 488.

A State on the subject of extradition is unconstitutional only when it seeks to abridge or lessen the duty placed by tghe Constitution on the part of the chief executive of the asylum State. It follows that any State which facilitates the rendition of persons charged with crime is not in conflict with the Federal Constitution and rests rather upon the comity between States and not upon the Federal Constitution. Culbertson v. Sweeney, 70 Ohio App. 344, 44 N.E.2d 807, 8098 and Cassis v. Fair, 126 W.Va. 557, 29 S.E.2d 245, 151 A.L.R. 233, at page 237.

A State statute which makes lees strenuous requirements than those set forth in the Federal rendition statute is valid and does not conflict with the Federal statute.

Prior to the enactment of Article 1008a in 1951, there was no statute in this State which set forth the requirements of a demand, and so naturally the Federal Statute was looked to in order to determine its requisites. Such reference is no longer necessary if the statute meets the test set forth above.

Appellant scites many cases decided in this and other Courts and prior to the adoption of the State Uniform Criminal Extradition Acts. Such cases ceased to be authority following this basic change in our law relating to extradition and need not be here discussed.

Appellant's last contention is that the affidavit of Kimes is insufficient to support the information because it was made charge laid by a public prosecuting officer, or at least that the information, rarely ever made upon personal knowledge, is not unfounded. As such, the date of the supporting affidavits has no bearing upon their sufficiency to meet the requirements of the New York statute.'

In opposition to this holding, we are cited Ex parte Gardner, Tex.Cr.App., 264 S.W.2d 125, 126. There we said:

'There is no showing in the record that the laws of Arkansas are any different from those of this State. In the absence of such a showing, we are bound to assume that they are the same. Ex parte Cherry, 155 Tex.Cr.R. 324, 234 S.W.2d 1011.

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'8it is apparent that the affidavit was made after the execution of the information. This Court has always required that an information be based upon a complaint then in existence.'

In the instant case, the laws of Arkansas are shown, and we learn therefrom that prosecution in that State may be instituted upon information alone. It therefore follows that the affidavit of Kimes was not necessary in order to institute prosecution. Its sole function was to meet the requirements of our extradition statute. When considered in that light, the holding...