Glass v. Becker

• Decision Date: 21 May 1928
• Docket Number: No. 5295.,5295.
• Citation: 25 F.2d 929
• Parties: GLASS v. BECKER, Sheriff et al.
• Court: U.S. Court of Appeals — Ninth Circuit

25 F.2d 929 (1928)

GLASS v. BECKER, Sheriff et al.

No. 5295.

Circuit Court of Appeals, Ninth Circuit.

April 16, 1928.

Rehearing Denied May 21, 1928.

W. A. Gordon and H. L. Richardson, both of Oakland, Cal., for appellant.

Earle Warren, Dist. Atty., and J. Paul St. Sure, Asst. Dist. Atty., both of Oakland, Cal., for appellees.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

DIETRICH, Circuit Judge.

The appellant, a negro, is held in custody under a warrant of rendition issued by the Governor of California upon a requisition from the Governor of Oklahoma. Sustaining a demurrer to his petition for a writ of habeas corpus, the court, below dismissed the proceeding, and he appeals.

If we resort to statements made by both sides in the course of the argument, it would seem that in a tumult of some character occurring in the town of Sapulpa, Okl., on the night of January 2, 1923, two persons were killed; one being an officer named Brumley. Appellant was wounded, and the building in which he was conducting business was burned. Fearing mob violence, so he contends, he fled from Oklahoma and came to Oakland, Cal., where he was residing at the time of his arrest. The charge upon which his extradition is sought is that he feloniously killed Brumley.

There is no merit in the contention that, because he fled out of fear of mob violence, he is not a fugitive from justice in contemplation of law. Motive is not material, and the essential facts that he was in Sapulpa when the alleged offense was committed, and in California when wanted for prosecution, are conceded. Hogan v. O'Neill, 255 U. S. 52, 41 S. Ct. 222, 65 L. Ed. 497.

The petition charges: "That said requisition papers and forms of law have not been instituted to prosecute said Edward Glass according to law, but to deliver him to a convenient place to kill him in the exercise of individual vengeance." But, were we to assume that a case is conceivable where it would be competent for the courts to inquire into the motives of requisition officers, or the probable consequences of rendition, clearly we think this general averment is wholly inadequate to warrant such an inquiry. Marbles v. Creecy, 215 U. S. 63, 69, 30 S. Ct. 32, 54 L. Ed. 92; Pettibone v. Nichols, 203 U. S. 192, 27 S. Ct. 111, 51 L. Ed. 148, 7 Ann. Cas. 1047.

The more serious question is of the formal sufficiency of the requisition papers. Under section 5278, R. S. U. S. (18 USCA § 662), the demand must be supported by a copy of an "indictment found or an affidavit made before a magistrate" of the demanding state charging the person demanded with a crime, "certified as authentic" by the Governor of such state. The only pertinent recital in the requisition here is that, "whereas, it appears by the annexed complaint, which I certify to be authentic and duly authenticated in accordance with the laws of this state (Oklahoma), that Edward Glass stands charged with the crime of murder, committed in the county of Creek, in this state, and it has been represented and satisfactorily shown to me that he has fled from the justice of this state, and has taken refuge in the state of California," etc.

Upon reference to the annexed complaint it is found to be entitled: "In Justice Court. State of Oklahoma, Creek County — ss. Before A. L. McCaskey, Sapulpa City District. State of Oklahoma, Plaintiff, v. Ed Glass." The opening language of the body of the instrument is: "Before me, the undersigned officer, within and for Creek county, on this day personally appeared Emmett Marshall, and, being by me first duly sworn, says," etc. Thereupon follows a brief statement of ultimate facts, probably sufficient to constitute a charge of the murder of Brumley by Glass. After the signature, "Emmett Marshall," is a...