Ex parte Thornton

• Decision Date: 01 January 1853
• Citation: 9 Tex. 635
• Parties: EX PARTE THORNTON.
• Court: Texas Supreme Court

9 Tex. 635

EX PARTE THORNTON.

Supreme Court of Texas.

1853.

A warrant issued by the Governor of this State for the apprehension of a fugitive from justice from another State should show on its face, by recital at least, that it was issued upon a requisition from such other State, accompanied by an indictment found or affidavit made, charging the alleged fugitive with having committed the crime. Quere? Whether the indictment or affidavit should not be fully set forth in the warrant, so as to enable the court, on habeas corpus, to determine whether it is sufficient or not.

Where, on habeas corpus, the warrant for the arrest of an alleged fugitive from justice from another State is found to be defective, this court has no power to detain the prisoner in order that another warrant may be obtained.

Habeas corpus. This was an application to “one of the justices of the Supreme Court, sitting in the city of Galveston,” for a habeas corpus; the writ was made returnable “before the judges of our said Supreme Court, now in session, forthwith.” The return was that the relator was detained by virtue of the following writ:

STATE OF TEXAS.

To all and singular the sheriffs, constables, and other civil officers of said State, greeting:

Whereas it has been represented and made known to me by his Excellency Elias N. Conway, Governor of the State of Arkansas, that Abner E. Thornton, late of the county of Pulaski, in said State of Arkansas, stands charged therein with the crime of forgery, and that the said Abner E. Thornton has fled from justice in said State, and taken refuge in the State of Texas;

And whereas the said Elias N. Conway, Governor of said State of Arkansas, has, in pursuance of the Constitution and laws of the United States, demanded of the Executive of this State the surrender of said Abner E. Thornton, and that he be delivered to Benjamin F. Danley, who is duly authorized to receive him:

Now, therefore, know ye that I, P. Hansborough Bell, Governor of the State of Texas, do, by virtue of the power and authority in me vested by the Constitution and laws of said State, and in obedience to the Constitution and laws of the United States, issue this my warrant, commanding all sheriffs, constables, and other civil officers of said State to arrest and to aid and assist in arresting the said Abner E. Thornton, and to deliver him, when arrested, to the said Benjamin F. Danley, agent of said State of Arkansas, in order that he may be taken back to said State, to be dealt with according to law. In testimony, &c., (signed and sealed with the great seal of the State.)

Before the prisoner was discharged (same day) a motion was made to detain him for a reasonable time, to be fixed by the court, in order that the Governor of Texas might issue a regular and legal warrant for his arrest, &c. In support of the motion the following affidavit was filed:

Benjamin F. Danley, being duly sworn, says that at the time this affiant, as the agent of the State of Arkansas, presented and delivered to P. Hansborough Bell, Governor of the State of Texas, the requisition and demand from the Governor of the State of Arkansas for Abner E. Thornton, he also presented and delivered to said Governor of the State of Texas a copy of an indictment found by the grand jury of the county of Pulaski, in said State of Arkansas, at the December Term of the Circuit Court of said county, in the year 1849 or 1850; that said copy of said indictment was duly certified by the Governor of the State of Arkansas as authentic; that said copy, so certified, together with the demand or requisition, was left by affiant, and now remains, as he believes, in the possession of the Governor of Texas, or in the office of the Secretary of State at Austin. Affiant further says that he (affiant) was sheriff of said county of Pulaski at the time said indictment was so found by said grand jury, and has seen it since it was so found and returned by said grand jury into said court. Affiant further says that the person now under arrest is the same person against whom said indictment was found; that said indictment is still pending in said Circuit Court of said Pulaski county, in which said county the forgery charged in said indictment was committed.

R. Hughes, for relator. I. To give jurisdiction to the Governor, three things are requisite: 1st, A demand by the Executive of the State from where the fugitive has fled; 2d, A copy of the indictment found, or an affidavit made before a magistrate, charging the fugitive with the crime; 3d, Such copy of indictment or affidavit must be certified as authentic by the Executive. If the prerequisites are complied with, the warrant is legal, and not otherwise; and to ascertain them, the return to the habeas corpus is to be examined.

1. We admit that the return shows that the relator has been demanded by the Executive of Arkansas.

2. But the return does not recite that a copy of the indictment or affidavit charging the relator was produced, certified as authentic by the Governor, and consequently the rule prescribed by the Constitution and act of Congress has not been complied with. It is clear that the power of the Governor to act upon a requisition from another State is a special authority, and must be strictly pursued. The facts which will give the authority must not only exist, but the warrant must show them to exist. (Bracy's Case, 1 Salkeld, 348; 1 Ld. Raym., 99; Matter of John L. Clark, 9 Wend. R., 212.)

We have not the demand or the indictment or affidavit; but the warrant being brought before the court, does it show that the relator is charged? We have the recital of Governor Bell that it has been represented and made known to him that the relator stands charged. The act of Congress requires of the Executive making the demand to furnish evidence of the charge; not to make the charge, and on that to make the demand. The Executive here is not only to see that a charge has been made, as required by the act of Congress, but he is to show that the evidence has been furnished him, and this evidence is to be of such character as to satisfy the mind that the party has been charged in the State whence he fled with the crime for which it is sought to apprehend him. ( Ex parte Smith, Law Rep., 57.)

Instead of these facts appearing, we have the information of the Executive here that it has been made known to him by Governor Conway that the relator stands charged, when he should have said “that a demand having been made, and it appearing by the copy of an indictment or affidavit properly authenticated by the Governor of Arkansas that he there stands charged.”

In the Smith case the warrant of itself, perhaps, might have been good, but it having been accompanied in the return by the affidavit, the affidavit was examined and was said to be insufficient, because it did not show the commission of an offense by Smith in the State of Missouri. So here, upon the return, which embraces the warrant, there being no evidence, as required by the act of Congress, that the relator had been charged with a crime in the State whence he is said to have fled, the Executive has shown no authority to act in the premises, and the warrant is void and the relator ought to be discharged. We do not insist that the warrant should state that the party has committed an offense, for with this the authorities here have nothing to do, but it must state that he was charged and the manner in which the Executive was informed of the charge. ( Ex parte Clark, 9 Wend. R., 222.) The Governor is a ministerial officer, (Western Law Journal, 525,) and he should comply with his authority by showing a charge expressly made of some offense. (Law Reporter, 318.)

II. But it may be thought that it is competent for this court to hold the relator in custody until it can be ascertained whether the Governor has the proper information. To this we say--

1. It must be presumed that the Governor, who is the highest executive officer in the State, recited all the information he has. He says it “has been represented and made known to him” by Governor Conway. He must have had the documents before him; and if the requisite fact was otherwise made known, it would have been so stated; and not being so stated, this court must presume that he had it not. But this is not all.

2. This State, except for the purposes embraced in the Federal Constitution, is as much a State foreign to Arkansas as is Mexico or any other foreign State. (Buckner v. Finley et al., 2 Peters, 586.) And as a consequence but for the article referred to in the Constitution of the United States, and the act of Congress of 1793 referred to, it would not only not be the duty of the several States to attempt the surrender of fugitives from justice, but they would have no power. (Holmes ex parte, 12 Verm., 631; Case of Jose Ferreira dos Santos, 2 Brock., 493; in matter of Short, 10 S. & R., 125; Holmes v. Jennison, 14 Peters, 540;contra matter of Washbourn ex parte, 4 Johns. Ch. R., 106.)

But the Constitution and act of Congress having provided for the surrender of fugitives, they are to be surrendered as required. But how is this to be done? By the Executive. To him the power only is given. This court can have no such power, because it is only by virtue of the municipal law of the State that this or any other of the State courts can act, and in that respect the States are foreign to each other. (Warder v. Abell, 2 Wash. Va. R., 359, 380.) And it being a universal principle that the courts in one State or nation have no authority to enforce the criminal laws of another, it must follow that they have not power to arrest for offenses committed against the laws of another State. (Case of Jose Ferreira dos Santos, 2 Brock., 574.)

What power on this subject is given by law to this court? As to offenses committed against the laws of the State the court may examine the evidence, though the warrant is quashed; and if an offense is...