Ex Parte Riccardi

• Decision Date: 07 March 1949
• Docket Number: 5023
• Citation: 68 Ariz. 180,203 P.2d 627
• Parties: Ex parte RICCARDI. v. RICCARDI STATE
• Court: Arizona Supreme Court

203 P.2d 627

68 Ariz. 180

Ex parte RICCARDI.

STATE v. RICCARDI

No. 5023

Supreme Court of Arizona

March 7, 1949

Appeal from Superior Court, Cochise County.

Proceeding in the matter of the application of Constantino Vincent Riccardi, also known as C. Vincent Riccardi, for a writ of habeas corpus. From an order discharging petitioner from custody under extradition warrant, the State of Arizona appeals.

Order reversed.

Evo DeConcini, Atty. Gen., Perry M. Ling, Chief Asst. Atty. Gen and Chas. D. McCarty, Asst. Atty. Gen., for appellant.

Nasib Karam, of Nogales, and Whitney, Ironside & Whitney, of Phoenix, for appellee.

Patterson Superior Judge. La Prade, C. J., and Udall, Stanford, and Phelps, JJ., concur. De Concini, J., being disqualified, the Honorable W. E. Patterson, Judge of the Superior Court of Yavapai County, was called to sit in his stead.

OPINION

Patterson Superior Judge.

This is an appeal by the state of Arizona from an order of the superior court of Cochise County discharging one Constantino Vincent Riccardi (appellee) after a hearing on habeas corpus. Appellee, prior to his discharge, was being held by Percy Bowden, chief of police of Douglas, Arizona, by authority of a governor's warrant on extradition, issued by the governor of Arizona at the request of the governor of New York.

The demanding state of New York had theretofore presented extradition papers for Riccardi, based upon indictment found by a New York grand jury of the county of New York, state of New York, which accused Riccardi, together with one Andrew Jackson Dougherty, on four counts of the crime of grand larceny, committed in the state of New York. A fifth count against Riccardi accused him of violating a judgment of injunction of the supreme court of the state of New York.

The extradition papers, presented to the governor of the state of Arizona, appear to be duly certified by the governor of New York as authentic. The authenticated papers contain, among other things, a copy of the indictment and an affidavit in support of the extradition proceedings, executed by one Albert F. Grilli, which was sworn to before a notary public of the state of New York. This affidavit stated that Riccardi was actually in the county and state of New York at the time stated in the indictment that the alleged offense occurred, and that Grilli had seen him in New York at the times mentioned.

After Riccardi had been arrested under the extradition warrant issued by the governor of Arizona, he filed a petition for a writ of habeas corpus, alleging among other things that he was unlawfully imprisoned, detained, and restrained of his liberty. Based upon said petition, a writ of habeas corpus was duly issued.

A return was filed setting forth that Riccardi was lawfully arrested and detained by virtue of the Arizona extradition warrant. Riccardi filed a reply to the return, setting forth among other things that he was not a fugitive from justice from the state of New York, and that the documents presented by the demanding state did not show each and every matter required to be shown as required by paragraphs 1 and 3, section 44-3608, Arizona Code Annotated, 1939. Petitioner contended also that the demanding state had not presented to the Arizona governor a warrant of arrest, or a copy thereof, issued by the New York court.

The state filed a motion to dismiss petitioner's reply, which was denied by the court.

A hearing was duly had before the superior court of Cochise County, and after considering the evidence presented, the court rendered its decision as follows:

"The Court: Gentlemen, I have come to the conclusion, very reluctantly, there is no testimony in this case whatever that Mr. Riccardi was in New York at the time of the commission of the offense. There is a bare innuendo. Furthermore, I believe that the failure of the record before -- by which I am bound -- to have a copy of a warrant is a fatal defect; and for the reasons given, for the proof he wasn't in New York and the Governor not being authorized to issue the warrant, the writ will be granted."

Appellant bases its appeal upon ten assignments of error, and sets forth eighteen propositions of law based thereon. We will consider appellant's assignments of error Nos. 5, 7, and 10, which will dispose of this appeal.

5. "The court erred in discharging petitioner from custody, restraint, imprisonment and detention by virtue of the Governor's warrant on rendition in that:

"(1) There was conflict in the evidence as to the alleged fugitive's presence or absence from the demanding state.

"(2) The petitioner's own testimony is not sufficient to overcome the prima facie case made by the Governor's warrant on extradition.

"(3) Petitioner did not prove beyond a reasonable doubt he was not within the demanding state at the time of the alleged crime."

7. "The trial court erred in holding Section 44-3606, A.C.A.1939 (Uniform Criminal Extradiction Act) requires a warrant of arrest from the demanding state as a condition precedent to the Governor of the asylum state granting a warrant of rendition."

10. "The trial court erred in requiring respondent to bear the burden of proving the presence of accused in the demanding state at the time of the alleged crimes after a prima facie case was made out by the issuance of the Governor's rendition warrant."

In determining the issues presented by this appeal, we shall first consider the fundamental law that must govern in extradition proceedings.

Clause 2, section 2, article 4 of the Constitution of the United States provides in respect of fugitives from justice:

"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 of the State from which he fled, be delivered up to be removed to the State having Jurisdiction of the Crime."

U. S. Revised Statutes, section 5278, 18 U.S.C.A. § 662 [now § 3182], provides as follows:

"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. * * *"

An applicable text statement reads:

"* * * the right of interstate extradition or rendition is founded on and controlled by the constitution of the United States and effectuating federal statutes, which have been declared constitutional. Extradition being a federal and not a state matter, the federal law, and not the state law, is supreme, and any state legislation which conflicts with the federal law on the subject, as embodied in the constitution and effectuating statutes, is unconstitutional and void. However, to the extent that it aids and facilitates the operation of federal constitutional and statutory provisions, and is not inconsistent therewith, state legislation is proper, and must be followed. * * *" 35 C.J.S., Extradition, § 3.

The legislature of the state of Arizona enacted the Uniform Criminal Extradition Act, chapter 10, Session Laws 1937, which now appears as article 36, A.C.A.1939.

Section 44-3605 in substance expressly recognizes that the provisions of the United States Constitution on extradition and acts of congress in pursuance thereof are controlling, and makes it the duty of the governor to comply therewith.

Section 44-3606 provides in substance what documents must be presented to the governor in writing and what papers must be presented to him before he can issue his extradition warrant. This provision is in harmony with the federal provisions except that it requires a copy of any warrant issued upon the affidavit made before a magistrate in the proceedings in the demanding state; also express recognition is provided for an "Information," which is one form of criminal charge used in Arizona and in a few other states, but which is not mentioned in the federal statutes.

Section 44-3607 provides that the governor of Arizona may call upon the attorney general or any prosecuting officer in the state to investigate or assist in investigating the demand, and report to him whether the fugitive ought to be surrendered.

Section 44-3608 designates what the documents presented by the demanding state must show, and requires the following:

1. The accused was present in the demanding state at the time of the commission of the alleged crime and thereafter fled from the state.

2. The accused is now in this state.

3. Is lawfully charged by indictment found or by information filed by a prosecuting officer and supported by affidavit to the facts or by affidavit made before a magistrate in that state, with having committed a crime under the laws of that state, or that he has been convicted of a crime in that state and has escaped from confinement, or broken parole.

The other provisions of article 36 (supra) are not involved in this appeal.

It is apparent that the trial court based its decision upon two grounds: (1) That there was not sufficient showing that Riccardi was in New York at the time of...