Fitzpatrick v. Williams, 6064.

• Decision Date: 10 January 1931
• Docket Number: No. 6064.,6064.
• Citation: 46 F.2d 40
• Parties: FITZPATRICK v. WILLIAMS, Criminal Sheriff, et al.
• Court: U.S. Court of Appeals — Fifth Circuit

46 F.2d 40 (1931)

FITZPATRICK v. WILLIAMS, Criminal Sheriff, et al.

No. 6064.

Circuit Court of Appeals, Fifth Circuit.

January 10, 1931.

Hugh M. Wilkinson, of New Orleans, La. (Fred W. Oser, of New Orleans, La., on the brief), for appellant.

Purnell M. Milner and William A. Porteous, Jr., both of New Orleans, La. (Milner & Porteous, of New Orleans, La., on the brief), for appellees.

Before FOSTER and WALKER, Circuit Judges, and GRUBB, District Judge.

GRUBB, District Judge.

This is an appeal from a judgment of the District Court of the United States for the Eastern District of Louisiana, denying the application of the appellant for a writ of habeas corpus.

Appellant was arrested by the police of the city of New Orleans on July 21, 1930, on affidavits charging him with having committed an offense in the state of Washington, and with being a fugitive from justice. The charges against him were dismissed. While the appellant was still in custody of the appellee Williams, as criminal sheriff of the parish of Orleans, the appellee the American Bonding Company intervened in the habeas corpus proceedings, alleging that it was bail on a $1,500 bail bond furnished by appellant in the state of Washington; that he had fled from that state, and intervener claimed the right to his custody for the purpose of removing him from the state of Louisiana to the state of Washington, there to surrender him, and praying for a writ of habeas corpus, directed to the criminal sheriff, ordering him to deliver appellant to the agent of the intervener, one Nichols, for that purpose. The district court denied the application of appellant, and ordered the criminal sheriff to surrender the appellant to Nichols, as agent of the intervener, and from this judgment the appeal is taken.

The single question presented by the appeal is whether or not bail has the right to pursue the principal, who has fled into a state different from that in which the offense was committed and the bail bond executed, and detain him for the purpose of taking him back to the state from which he fled, and surrendering him under his bond in that state.

The right of the surety to recapture his principal is not a matter of criminal procedure, but arises from the private undertaking implied in the furnishing of the bond. In re Von Der Ahe (C. C.) 85 F. 959. It is not a right of the state but of the surety. If the state desires to reclaim a fugitive from its justice, in another jurisdiction, it must proceed by way of extradition in default of a voluntary return. It cannot invoke the right of a surety to seize and surrender his principal, for this is a private and not a governmental remedy. It is equally true that the surety, if he has the right, is not required to resort to legal process to detain his principal for the purpose of making surrender. There is no conflict between the two rights. Extradition can only be exercised by a government at the request of a government. Surrender by bail can be exercised only by the individual, who is bail. The remedies are separate and distinct. As long as the principal remains within the jurisdiction, the right of bail to arrest and surrender him without process is conceded. As this right is a private one and not accomplished through governmental procedure, there would seem to be no obstacle to its exercise whereever the surety finds the principal. Needing no process, judicial or administrative, to seize his principal, jurisdiction does not enter into the question. In re Von Der Ahe (C. C.) 85 F. 959, 960.

The Supreme Court in the case of Taylor v. Taintor, 16 Wall. 366, 371, 21 L. Ed. 287, said: "When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into...