Ex parte Thompson

• Decision Date: 05 November 1915
• Docket Number: No. 40/6.,40/6.
• Citation: 85 N.J.Eq. 221,96 A. 102
• Parties: Ex parte THOMPSON.
• Court: New Jersey Court of Chancery

96 A. 102

85 N.J.Eq. 221

Ex parte THOMPSON.

No. 40/6.

Court of Chancery of New Jersey.

Nov. 5, 1915.

(Syllabus by the Court.)

[Copyrighted material omitted.]

(Additional Syllabus by Editorial Staff.)

24. WORDS AND PHRASES — "PREROGATIVE WRIT."

A "prerogative writ" is one which does not issue as of right, but in the sound discretion of the court or judge.

Original proceedings in habeas corpus by Frank Thompson, a prisoner in custody by virtue of an executive warrant of extradition. Prisoner remanded to custody.

Robert H. Ingersoll, of Atlantic City, for prisoner. Herbert Boggs, Asst. Atty. Gen., and Louis Fabricant, Deputy Asst. Dist. Atty., of New York City, for State of New York.

WALKER, Ch. A petition was presented to the chancellor by Frank Thompson, of Ventnor, Atlantic county, showing that he was in the custody of William F. Boyle, an agent of the state of New York, by virtue of a certain extradition warrant made and issued by Hon. Walter E. Edge, president of the senate, acting governor of the state of New Jersey, during the temporary absence of Governor Fielder from the state (Const. art. 5, par. 13; P. L. 1898, p. 11, a copy of which warrant was annexed to the petition, which petition alleged that Thompson's imprisonment was unlawful, because he was not under indictment in the state of New York, nor was he a fugitive from the justice of that state; therefore he prayed that he might be brought before the chancellor on a writ of habeas corpus to be issued pursuant to the statute in such case made and provided, to the end that he might be discharged out of custody.

A writ of habeas corpus was thereupon issued under the seal of the court of chancery, directed to Mr. Boyle, commanding him to have the body of Thompson before the chancellor at the statehouse in Trenton on June 1, 1915, to do and receive what should then and there be considered concerning him. Pursuant to the command of the writ, Boyle produced the body of Thompson at the time and place specified, and returned in writing that he was designated by the governor of New York, as his agent, to take the body of Thompson, for whom the governor of that state had issued a requisition upon the governor of New Jersey, for the rendition of Thompson by the latter to the proper authorities of New York as a fugitive from justice, stating that Thompson was in his custody by virtue of a warrant issued by the acting governor of New Jersey, agreeably to the demand of the executive of New York, a copy of which warrant was annexed to and made part of the return.

On the hearing a certified copy of an indictment found against Thompson by the grand jury of the county of New York, in the state of New York, charging him with the crime of keeping a room to be used for gambling, and of being a common gambler, in that city and state, on April 12, 1915, against the law of that state, and an affidavit made by an officer of New York that Thompson was in that city on the date mentioned, were offered in evidence. Because Thompson alleged, as one of the reasons why his imprisonment was unlawful, that he was not under indictment in the state of New York, it is pertinent to remark that there need be no indictment, but only an affidavit charging the person demanded with having committed crime in the foreign state. Rev. Stat. U. S. § 5278 (U. S. Comp. St. 1913, § 10,126), infra.

Nine witnesses, including Thompson, swore that he was in Ventnor, Atlantic county, during all of the day of April 12, 1915; and two witnesses, a detective officer of New York and a bell boy of the Murray Hill Hotel, New York City, testified that Thompson was in that hostelry on the date mentioned. The clear preponderance of the testimony was in favor of the alibi set up by Thompson; and the question for solution was whether or not a judge, on habeas corpus, has the right to decide that question and discharge the prisoner from arrest under the governor's extradition warrant, if the disputed fact be decided in his favor.

At the close of the hearing I adjourned the matter until June 8th, at the statehouse, for the purpose of considering the briefs and arguments of counsel, and took bail for the appearance of the prisoner at the day and place mentioned. On the adjourned day he appeared according to the condition of the bail bond.

As to Extradition.

Extradition is of two kinds, international and interstate. There is no obligation upon a government, under the law of nations, to surrender fugitive criminals to a foreign power in the absence of treaty or statutory provisions. 19 Cyc. 52. The United States has treaties of extradition with upwards of 30 foreign governments. Id. 53, and note 9. With this we are not here concerned.

The right of a state to demand the extradition from another state of persons who have committed offenses against its laws, but who flee to such other state, is founded upon the Constitution of the United States, and is not dependent on interstate comity, courtesy, or contract. The provision of the federal Constitution is general, and not self-executing, and the Congress of the United States and the legislature of this state have passed statutes which define the course of action to be pursued in the execution of this constitutional provision.

The federal Constitution (article 4, § 2) provides that:

"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."

The federal statute for carrying into execution the abovementioned provision of the Constitution of the United States is section 5278 of the United States Revised Statutes, and reads 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. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the state or territory making such demand, shall be paid by such state or territory."

Our Supreme Court, speaking by the late Chief Justice Beasley, in the Matter of Peter Voorhees, 32 N. J. Law, 141, at page 145, held that one of the purposes of the provision of the United States Constitution was:

"To impose an absolute obligation on each state to surrender criminals fleeing from the justice of another state."

And at page 146:

"If the demand be made in due form, and the requisite documents exhibited, showing that the fugitive is charged with crime, the duty to surrender becomes merely a ministerial one. Under such circumstances, to refuse to authorize the extradition is a clear infraction of the rule prescribed in the constitutional clause above quoted. I think it, therefore, indisputable that the Constitution has made the surrender of a fugitive from justice, which by the law of nations depended on the concessions of comity, a rule of law of perfect obligation and entirely imperative in its character."

The Supreme Court of the United States, in Roberts v. Reilly, 116 U. S. 80, at page 94, 6 Sup. Ct 297, 29 L. Ed. 544, 548, quoted with approval Chief Justice Taney in Kentucky T. Dennison, 24 How. 66, 104, 16 L. Ed. 717, who there held that the duty of the governor of a state, where a fugitive was found, is merely ministerial, without the right to exercise executive or judicial discretion, and that this lack of executive power is recognized as the right of a person, arrested by virtue of an executive warrant in interstate extradition, to invoke the judgment of judicial tribunals, state or federal, by virtue of habeas corpus to inquire into the lawfulness of his arrest and imprisonment.

Acting Governor Edge, after giving Thompson a hearing, rightly conceived it to be his duty to comply with the demand of the governor of New York, and he made and issued his executive warrant, which is the justification pleaded by Mr. Boyle, the agent of the governor of New York, who (Boyle) had the defendant in his custody ready to transport him to that state. However, the governor upon whom requisition is made for a fugitive from justice is not obliged to hear the accused before ordering his removal. The person demanded has no constitutional right to be heard before the Governor. Munsey v. Clough, 196 U. S. 364, 25 Sup. Ct 282, 49 L. Ed. 515.

It was held in People ex rel. Corkran v. Hyatt, 172 N. Y. 176, at page 193, 64 N. E. 825, 60 L. R. A. 774, 92 Am. St. Rep. 706, that no law gives a person sought to be extradited the right to a hearing before the governor or to submit evidence in his behalf; that whatever in that respect may be accorded by the governor to the accused is a matter of favor, not of right; and that, therefore, unless the accused may review his extradition on habeas corpus, he may be transported as a prisoner without any hearing. But, as held by the United States Supreme Court in Hyatt v. State of New York, 188 U. S. 691, 23 Sup. Ct 456, 47 L. Ed. 657, the executive warrant of a Governor of a state is but prima facie...