Ex parte Rudebeck

• Citation: 163 P. 930,95 Wash. 433
• Decision Date: 28 March 1917
• Docket Number: 14026.
• Court: United States State Supreme Court of Washington
• Parties: Ex parte RUDEBECK.

163 P. 930

95 Wash. 433

Ex parte RUDEBECK.

No. 14026.

Supreme Court of Washington, En Banc.

March 28, 1917

Appeal from Superior Court, Thurston County; D. F. Wright, Judge.

Petition by Nicholas Rudebeck for habeas corpus to secure his discharge from custody. From a judgment of the superior court denying the petition, relator appeals. Affirmed.

Howard Hathaway, of Everett, Thomas M. Vance, of Olympia, and E. H. Guie, of Seattle, for appellant.

Carkeek & McDonald, of Seattle, and Parr & Marts, of Olympia, for respondent.

WEBSTER J.

This is an appeal from a judgment of the superior court of Thurston county, denying the petition of relator to be released from custody on habeas corpus.

On September 1, 1916, the Governor of the state of Iowa issued a requisition in the usual form, directed to the Governor of the state of Washington, setting forth that relator stands charged by indictment in the former state with the commission of the crime of cheating by false pretenses; that this offense is a crime under the laws of that state; and that relator had fled from the justice of the state of Iowa and had taken refuge in the state of Washington. A demand was duly made that the relator be delivered to the agent representing the state of Iowa, to be returned to that state to answer the charge there pending against him. After a hearing, this requisition was honored by the Governor of Washington, and a warrant of extradition in due form was issued, under the command of which relator was surrendered to Henry Terrell, Esq., the agent of the demanding state. Immediately relator applied to the superior court of Thurston county for a writ of habeas corpus. The writ was issued, but after a hearing before the court, relator was remanded to the custody of the agent of the state of Iowa and the proceeding was dismissed. From this judgment, relator appeals.

Counsel for relator insist that the indictment upon which the warrant of extradition is based does not charge a crime under the laws of the state of Iowa. The first question presented by this appeal is: To what extent may the courts of this state inquire by habeas corpus into the legality and sufficiency of the indictment upon which a warrant of extradition is based? In the case of Armstrong v. Van De Vanter 21 Wash. 682, 59 P. 510 this question was carefully considered by this court, and, after a somewhat extended examination of the authorities, it was held that the basis of the right of a sister state to demand the rendition of a fugitive from the justice of that state who had taken refuge in the state of Washington is an affirmative showing upon the part of the demanding state that its laws have been violated by the alleged fugitive. It was said that the party demanded may be, and frequently is, a bona fide resident and citizen of the state upon which the requisition is made, and to hold that such parties should be discriminated against in the administration of the criminal law and should be deprived of rights and privileges which are accorded to other citizens charged with crime would not be in keeping with the spirit of our laws or the genius of our institutions, and would unnecessarily tend to a subversion of personal liberty; that it was therefore a pertinent question in habeas corpus proceedings to ascertain whether the criminal pleading upon which the requisition is based substantially charges a crime against the laws of the demanding state. In the case of In re Baker, 21 Wash. 259, 57 P. 827, it was held that it was the province of the courts of the asylum state to determine whether a crime against the laws of the demanding state is substantially charged in the indictment upon which the warrant of extradition is based, but that the investigation is limited in its scope; that the courts of the state upon which the requisition is made should not undertake to determine whether the indictment conforms to the technical rules of pleading prescribed by the laws of the demanding state.

We have again carefully examined the question in the light of cases decided since the opinions in the Van De Vanter and Baker Cases were written. As the result of our investigation, we are convinced that the overwhelming weight of authority is to the effect that, where the complaint, information, or indictment upon which the warrant of extradition has been granted is before the court of the asylum state, it is not only the right, but the duty, of the court to examine it and determine whether the accused is substantially charged with the commission of a crime against the laws of the state to which he is sought to be returned. The courts of the asylum state, however, will not go into the merits of the case in an effort to determine the guilt or innocence of the accused, nor will they concern themselves with the technical sufficiency of the pleading. Their right of legitimate inquiry extends no further than to ascertain whether the pleading in question substantially charges the alleged fugitive with the commission of an offense against the laws of the demanding state. If the pleading under inspection meets this test and the proceedings are in other respects regular, the courts of the asylum state should not interfere even though the charge in the indictment does not conform to the technical rules of criminal pleading. Our former holdings are in keeping with this doctrine, and we are satisfied with them.

In the recent case of Drew v. Thaw, 235 U.S. 432, 35 S.Ct. 137, 59 L.Ed. 302, the Supreme Court of the United States, speaking through Mr. Justice Holmes, said:

'When, as here, the identity of the person, the fact that he is a fugitive from justice, the demand in due form, the indictment by a grand jury for what it and the Governor of New York allege to be a crime in that state, and the reasonable possibility that it may be such, all appear, the constitutionally required surrender is not to be interfered with by the summary process of habeas corpus upon speculations as to what ought to be the result of a trial in the place where the Constitution provides for its taking place.'

This holding is clearly to the effect that the courts of the asylum state possess the power to examine the indictment upon which the extradition proceeding is based for the purpose of ascertaining whether it contains a charge of crime against the laws of the state issuing the requisition. The language, 'the indictment by a grand jury for what it and the Governor of New York allege to be a crime in that state, and the reasonable possibility that it may be such,' is but the expression in a new formula of words of the settled principle that the courts of the asylum state must be clearly satisfied that the indictment or information does not charge a crime before they will interfere.

We shall not undertake to cite the vast array of cases both state and federal sustaining the doctrine to which we have adverted. In the copious note to the case of In re Waterman, 11 L. R. A. (N. S.) 424, the authorities are collected, and a number of them are analyzed and discussed.

Our conclusion that it is the duty of the court to examine the indictment brings us to a consideration of the question of whether it contains a substantial charge of crime as defined by the laws of the state of Iowa, and in making this inquiry manifestly we are confined to the allegations of the indictment and the laws of that state. The specific objection urged against the indictment is that it does not contain an allegation that the person alleged to have been defrauded did, in fact, suffer an actual pecuniary loss; that is to say, it is not alleged that the Florence-Rae Lumber, Land & Development Company is insolvent, and consequently it does not negative the idea that the owner may be able to recover his money. The indictment is as follows:

'The grand jury of the county of Dubuque, in the name and by the authority of the state of Iowa, accuse Nicholas Rudebeck of the crime of cheating by false pretenses committed as follows:

'The said Nicholas Rudebeck on or about the 18th day of January, in the year of our Lord one thousand nine hundred and thirteen, in the county aforesaid, willfully, unlawfully, designedly, falsely, feloniously, and by false token and false pretenses, and with the intent to defraud one Otto L. Groff, did, then and there, designedly, unlawfully, falsely, feloniously, and fraudulently, pretend and represent to the said Otto L. Groff, that the Florence-Rae Lumber, Land & Development Company, a corporation of Seattle, Wash., was the owner of fourteen hundred acres of timber land with the standing timber thereon, in Snohomish county, state of Washington, and that said fourteen hundred acres of standing timber belonged to said Florence-Rae Lumber, Land & Development Company aforesaid, and consisted of many million feet of timber and was worth many hundreds of thousands of dollars, and did, then and there, unlawfully, feloniously, designedly, and falsely pretend and represent that said standing timber so owned by the Florence-Rae Lumber, Land & Development Company was worth from nine to twelve dollars per thousand feet on the stump, and that the statement then contained in the book which the said Nicholas Rudebeck had in his possession which gave the standing timber owned by the Florence-Rae Lumber, Land & Development Company at one hundred and twenty-five million feet worth three hundred and seventy-five thousand dollars was true and correct, and did, falsely, unlawfully, feloniously, and designedly represent and pretend that said Florence-Rae Lumber, Land & Development Company did own said timber; and did, then and there falsely, unlawfully, feloniously and designedly pretend and represent that the timber shown by Nicholas Rudebeck to E. A. Fengler

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