Fortier v. Frink, 3293.

• Decision Date: 03 February 1942
• Docket Number: No. 3293.,3293.
• Citation: 24 A.2d 604
• Parties: FORTIER v. FRINK.
• Court: New Hampshire Supreme Court

24 A.2d 604

FORTIER

v. FRINK.

No. 3293.

Supreme Court of New Hampshire. Rockingham.

Feb. 3, 1942.

Exceptions from Superior Court, Rockingham County; Young, Judge.

Habeas corpus proceeding by Robert J. Fortier against Simes Frink. Judgment of dismissal, and the plaintiff brings exceptions.

Exceptions overruled.

Petition, for a writ of habeas corpus. The plaintiff, an alleged fugitive from justice, was delivered into the custody of the defendant, Sheriff of Rockingham County, under a warrant from the Governor of this state issued on the requisition of the Governor of Maryland. The demand was accompanied by an authenticated copy of the indictment returned by the grand jurors of Montgomery County, Maryland, charging the plaintiff with the offense of obtaining money "by a certain false pretense." Trial before Young, C. J., who dismissed the petition subject to the plaintiff's exception. The plaintiff also excepted to the exclusion of certain evidence.

McLane, Davis & Carleton, of Manchester, for plaintiff.

Frank R. Kenison, Atty. Gen., and Stephen M. Wheeler, Co. Sol., of Exeter, for defendant.

MARBLE, Justice.

Plaintiff's counsel contend that the demand for extradition is invalid because it fails to allege that the plaintiff "was present in the demanding state at the time of the commission of the alleged crime." Laws 1937, c. 70 § 3. This contention is without merit. An allegation that the plaintiff was present in Maryland when the offense was committed is necessarily implied from the allegations of the indictment, which is referred to in the demand and annexed thereto. An express allegation in the demand itself that he was present there at that time is not essential. In re Harris, 309 Mass. 180, 34 N.E.2d 504, 806, 135 A.L.R. 969; People ex rel. Higley v. Millspaw, 281 N.Y. 441, 446, 24 N.E.2d 117.

At the hearing in the Superior Court the plaintiff denied that he was present in Maryland on October 1, 1939, the date stated in the indictment, but admitted he was there on October 2, 1939, when he received and deposited in a Maryland bank a check representing the money alleged to have been unlawfully obtained. It is true that if he was not in Maryland on the day of the alleged crime, he is not a fugitive from justice. But the Court when he admitted the evidence expressed the opinion that a date need not be accurately stated when it is not a part of the crime. This is a correct statement of the law of Maryland. Ann. Code Md. art. 27, § 649; Allen v. State, 128 Md. 265, 267, 97 A. 362; Brunner v. State, 154 Md. 655, 141 A. 346; Whittington v. State, 173 Md. 387, 392, 196 A. 314. Furthermore, in a proceeding of this kind the technical sufficiency of the indictment is not open to attack. Bracco v. Wooster, N.H., 20 A.2d 640, 641.

Plaintiff's counsel further contend that the procedure followed in the Superior Court was illegal. Their contention is thus stated: "The writ of habeas corpus should issue when the application sets forth facts which, if proved, will entitle the prisoner to be freed. The writ issues against the custodian of the prisoner who produces the body in court. On the hearing which then follows the court hears evidence on the legality or illegality of the...