Grace v. Dogan

• Decision Date: 11 June 1928
• Docket Number: 27294
• Citation: 151 Miss. 267,117 So. 596
• Court: Mississippi Supreme Court
• Parties: GRACE v. DOGAN, SHERIFF. [*]

117 So. 596

151 Miss. 267

GRACE v. DOGAN, SHERIFF. ^[*]

No. 27294

Supreme Court of Mississippi

June 11, 1928

Division A

Suggestion of Error Overruled July 18, 1928.

APPEAL from circuit court of Tallahatchie county, First district HON. GREEK L. RICE, Judge.

Petition by John Edwin Grace for writ of habeas corpus against H. H Dogan, sheriff. From a judgment dismissing the petition petitioner appeals. Affirmed.

Judgment affirmed.

John M. Kuykendall and Galloway & Weinstein, for appellant.

A great many cases support the proposition that one held upon a Governor's warrant for extradition to another state, may, upon habeas corpus proceeding, prove absence from the demanding state at the time of the alleged crime, as a fact defeating the jurisdiction of the asylum state to remand him to the demanding state for trial. In other words, to prove that he is not a "fugitive from justice" within the United States constitutional and statutory provisions whereby extradition is provided for. Hyatt v. N.Y. ex rel. Cockran, 188 U.S. 691, 47 Law Ed. 657.

It has been universally held that the courts have jurisdiction to interfere by writ of habeas corpus to examine the records upon which an executive warrant for the apprehension of an alleged fugitive from justice from another state is issued. People ex rel. Lawrence v. Brady, 56 N.Y. 182; State v. Currie (Ala.), 56 So. 735. Under the rule announced in the Currie case, we should have been permitted to offer the proof to show that appellant was not in the demanding state at the time of the commission of the crime, in order to show that he was not a fugitive from justice. The right of the appellant to offer the proof that was denied him by the trial judge, is well settled in Mississippi, having been decided by this court in the case of Ex parte W. C. Walters, 106 Miss. 439; See 12 R. C. L. 1247-1248; 51 A. L. R. 798.

From the record presented here, the application of the Governor of Tennessee, together with the warrant of extradition of the Governor of Mississippi, are insufficient on their face, for the lack of proper authentication, but even though the application of the Governor of Tennessee, together with the warrant of extradition of the Governor of Mississippi were properly authenticated, yet the refusal of the trial judge to permit the appellant to traverse the return and to show that there was no copy of an indictment, information, affidavit, or warrant emanating from the authorities of Tennessee, charging appellant with a crime, produced to the Governor of Mississippi when he granted the warrant of extradition, was fatal error. The appellant had the unquestioned right to traverse the return and to show that there was no copy of an indictment, information, affidavit, or warrant emanating from the authorities of the State of Tennessee, charging appellant with any crime, produced to the Governor of the state of Mississippi, authenticated by the Governor of Tennessee, as provided for in the Federal statutes, when he granted the warrant of extradition. Ex parte John Divine, 74 Miss. 719.

We desire to call the court's attention to assignment of error number six, feeling that the court will take judicial knowledge of the fact that Theodore G. Bilbo was not the Governor of the state of Mississippi on the 13th day of February, 1927, the date of the execution of the warrant of extradition in this case. The record disclosed the fact and the original warrant of extradition shows on its face that the same was executed by Theodore G. Bilbo and signed by him on the 13th day of February, 1927, at which time he was not the Governor of the state of Mississippi.

J. A. Lauderdale, Assistant Attorney-General, for the state.

When this petition was filed, the only thing necessary for the sheriff of Tallahatchie county to do was to exhibit the extradition warrant issued by the Governor of Mississippi. It was unnecessary that this warrant be accompanied by the original affidavit or indictment or copies of same certified as authentic by the Governor of Tennessee. A certified copy of the affidavit or indictment certified as authentic by the Governor of Tennessee and the application of the Governor of Tennessee are all necessary legal prerequisites to the issuance of an extradition warrant by the governor of this state. They are made so by our statute, section 2378, Code of 1906, and also by Act of Congress, section 5278, Revised Statutes United States. The Governor of this state is presumed to have performed his duty and required these legal prerequisites before issuing his warrant. The warrant is evidence that all of these prerequisites have been complied with, and it is not necessary that the certified copies and evidence heard by the Governor accompany the warrant to the arresting officer. Ex parte Devins, 74 Miss. 715. Counsel for appellant strenuously insist that, under the decision of the supreme court of Mississippi, as well as under the decision of the supreme court of the United States, the petitioner had a right to show by oral testimony, or other proof, that he was not in the state of Tennessee at the time the crime alleged was committed. It seems that this precise question has never been determined by this court, nor by the supreme court of the United States. In Hyatt v. N. Y., 47 Law Ed. 657, cited and relied upon by counsel for appellant when the trial on the petition for writ of habeas corpus was had, counsel for the state and defendant agreed on what the facts actually were. The state did not rely upon the warrant issued by the Governor. The supreme court simply held that the state was bound by the agreement of its counsel and that the warrant issued by the Governor did not control. Biddinger v. Commissioner of Police, 62 Law Ed. 193, is the latest decision of the supreme court on the question at issue. This case specifically holds that the supreme court of the United States has not found it necessary in any of the cases decided by it to determine whether or not the warrant issued by the Governor of the surrendering state is conclusive evidence of the right to have the defendant surrender. This case also reiterates and reaffirms the doctrine "that defense cannot be entertained on such a hearing."

The record in this case shows that the requisition warrant was signed by the Governor on the 13th day of February, 1927. This warrant was introduced in evidence in the court below without any objection on the part of counsel for appellant. It is clearly a clerical error in dating the instrument 1927 instead of 1928. If objection had been made in the court below, this proof could and would, no doubt, have been made, but objection in this court comes too late.

C. P. J. Mooney, for appellee, Dogan.

Notwithstanding the fact that this is a proceeding instituted for the purpose of removing a citizen of the state of Mississippi to the state of Tennessee, and is in a sense an interstate matter, on the circumstances in this case, the law of Mississippi is controlling. Ex parte Walters, 106 Miss. 442.

However, the United States Government has not taken any comprehensive action on this subject. But one statute has been passed by Congress putting into execution the brief constitutional provision for interstate rendition, and that Act was passed in 1793. Only a cursory examination of the Constitution, and the foregoing law is sufficient to convince the court that many features of the procedure are left to the Governors and the courts for decision. Scott on Interstate Rendition, page 45. We are willing to rest our whole case on the local decisions, the Edwards case, 91 Miss. 621, and the Devine case, 74 Miss. 715. See Moore on Extradition, secs. 612, 632; Matter of Fetter, 57 Am. Dec. 395, note; Work v. Carrington, 32 Am. Rep. 345; Hartman v. Aveline, 30 Am. Rep. 217. We have been unable to find any case decided by the supreme court of Mississippi which overruled the two decisions we have cited. The case of Ex parte Walters, 106 Miss. 439, does not, as appellant claims, hold that the prisoner may introduce evidence to show he was not in the state where the crime is alleged to have been committed on the date charged. The supreme court in that case merely stated that they could not release the prisoner, simply because there was contradictory evidence that he was not in the demanding state.

The second point raised by the prisoner is that the circuit court erred in not permitting him to show that there was no power, authentication of indictment, or affidavit emanating from the Governor of Tennessee to the Governor of the state of Mississippi, when he granted the warrant of extradition. The facts about this particular matter are not in the record, as in his brief counsel says they are. No effort was ever made to introduce such testimony. Counsel merely states that an exception was made to the authentication of the requisition papers offered. It is presumed in the absence of any showing to the contrary that the Governor of the state of Mississippi did his duty, and followed the law to the letter when he granted the warrant of rendition. That his warrant does not state that authenticated copies of the affidavit, indictment and other process were before him, does not effect this presumption. Nothing is said in any statute of the United States, Tennessee, or Mississippi about the manner in which the Governor is to satisfy himself of the authenticity of the instruments. However, this point is not open to debate. Devine case, 74 Miss. 715; Edwards case, 91 Miss. 621; Roberts v. Reilly, 116 U.S. 80.

Counsel's third and last point regarding the date of the warrant of removal does not merit serious consideration. They claim that the warrant was rendered nugatory by the typographical error which makes it...