Grano v. State

• Decision Date: 22 September 1969
• Citation: 257 A.2d 768
• Parties: Frank GRANO v. STATE of Delaware.
• Court: Delaware Superior Court

Page 768

257 A.2d 768

Frank GRANO v. STATE of Delaware.

Superior Court of Delaware, New Castle County.

Sept. 22, 1969.

Opinion in habeas corpus proceeding; bail fixed.

Bernard P. Balick, Wilmington, for Frank Grano.

Francis A. Reardon, State Prosecutor, State of Delaware, Wilmington, for the State.

QUILLEN, Judge.

Since the proceedings in this case have taken some time, since there has been various correspondence, since there is little Delaware case law on extradition, and since there will be further proceedings in this case, the Court feels that it would be helpful to review the proceedings to date and to review at some length the law governing extraditions. In this way, it is hoped that a more meaningful record will be made of this proceeding.

On November 6, 1967, an assistant district attorney for the Parish of Orleans filed an information in the Criminal District Court for the Parish of Orleans charging Frank Grano with simple burglary. Simple burglary is a felony. R.S. 14:2 and 14:62. On the same date, an arrest warrant was issued by the Judge of the Criminal District Court. The district attorney of the Parish of Orleans on April 14, 1969, made a sworn application to the Governor of Louisiana for requisition of Frank Grano alleging that Frank Grano was a fugitive and further alleging in his opinion that the facts stated in the information were true and that the prosecution of Frank Grano would result in his conviction. The application for requisition was further supported by a single affidavit of two police officers who attested that Grano's fingerprint was found on a metal box at the scene of the alleged burglary.

The Governor of Louisiana, pursuant to the application for requisition, on April 22, 1969, requested that Grano be extradited to the State of Louisiana. On May 19, 1969, the Governor of Delaware issued an arrest warrant for Mr. Grano. Frank Grano was arrested on the Governor's Warrant. On June 12, 1969, when he was brought before the Superior Court pursuant to 11 Del.C. § 2510, counsel for Mr. Grano appeared to contest the legality of his arrest. Habeas corpus proceedings were initiated on that date.

The defendant initially attacked the arrest on two grounds. First, he argued that the supporting documents were insufficient in that the information and related papers did not allege the crime with sufficient specificity. Second, the defendant contended that he was not in the State of Louisiana on the date the crime was allegedly committed.

As to the first ground, the Court ruled from the Bench that the supporting documents were sufficient. The technical sufficiency of the indictment or information of the demanding State is not material on habeas corpus. Scott and Roe, Habeas Corpus, p. 391. Under Louisiana Law, prosecution for a non-capital offense may be instituted by information. C.Cr.P., Art. 382. An information is a written accusation of a crime made by a district attorney or an assistant district attorney and signed by him. C.Cr.P., Arts. 8 and 384. This information charges an offense, simple burglary, R.S. 14:62. Moreover, although not material here, the information appears to be in the proper form. C.Cr.P., Art. 463. Thus, the ruling made from the Bench on June 12th is confirmed.

As to the second ground raised by the petitioner, the Court ruled that he was entitled to challenge his arrest on the ground that he was not in Louisiana on the date of the alleged crime and that the burden of proof on that issue was on the petitioner. 4 Wharton's Criminal Law and Procedure (Anderson Ed.1957) § 1674, pp. 400--401.

The defendant requested and was given time to submit evidence designed to prove that he was not in Louisiana on the date in question. The hearing was interrupted at this point solely for this purpose. The Court ruled from the Bench, that since the defendant had been arrested on a Governor's Warrant, as distinct from a bench warrant, pending completion of the habeas corpus proceeding, the defendant was not entitled to bail. 56 A.L.R.2d 675; 11 Del.C.Ch. 25.

At the request of new counsel for the defendant, the Court by letter opinion dated August 19, 1969, reconsidered the question of bail and adhered to the original decision for the following reasons.

Where a person is held as a fugitive from justice under an extradition warrant, he should not be released on bail pending a decision in a habeas corpus proceeding to test the legality of his arrest. 8 Am.Jur.2d, Bail and Recognizance, § 11, p. 790. Buchanan v. State ex rel. Weiss, 166 So.2d 596 (Fla.App.1964); Ex parte Massee, 95 S.C. 315, 79 S.E. 97 (1913).

This generally accepted view is not altered by a constitutional provision similar to our own. In re Amundson, 74 N.D. 83, 19 N.W.2d 918 (1945). Compare also appeal cases such as Waller v. Jordan, 58 Ariz. 169, 118 P.2d 450, 143 A.L.R. 1349 (1941); State v. Quigg, 91 Fla. 197, 107 So. 409 (1926); Ex Parte Campbell, 147 Neb. 382, 23 N.W.2d 698 (1946). Contra Application of Haney, 77 Idaho 166, 289 P.2d 945 (1955). The Court did not decide the question of bail pending an appeal after a denial of the writ where different procedures, including Supreme Court Rules, may be applicable. See trial record in In re Dean, 3274 C.A. 968. See Annotations at 63 A.L.R. 1460 as supplemented 143 A.L.R. 1354.

The original decision as to bail was adhered to because the Court felt that overwhelming precedent from other jurisdictions required that result. See 35 C.J.S. Extradition § 19, p. 445.

Extradition is a specialized area of the law and this Court feels that the well established principles as to bail in extradition cases should be followed. It is difficult enough to deal with an alleged fugitive from another state without running the risk that he will once again become a fugitive or without inviting frivolous habeas corpus proceedings on technicalities which are designed primarily for the purpose of delay. This State has to meet its obligations to our sister states. A man charged with a crime ordinarily should raise his objections and defenses in the state bringing the charge.

As indicated above, after the requested delay in the habeas corpus proceedings was granted to the petitioner, a substitution of counsel was effected. The Court by letter dated August 1, 1969, gave the defendant until September 8, 1969, to present the evidence he desired. At the request of petitioner's counsel, a further hearing was held on September 8, 1969. No evidence was presented by the petitioner which could not have been presented in June.

At the second hearing, the petitioner resisted extradition in two ways. First, he testified himself. On the reserved question of his presence in Louisiana on the date of the alleged crime, he denied that he was present. During his testimony, he also indicated that he thought his personal safety would be endangered if he were returned to Louisiana.

Grano's uncorroborated testimony that he was not in Louisiana on August 5, 1967 does not persuade the Court in review of the fingerprint evidence which was found on August 7, 1967. This factual claim is rejected. Nor can the Court properly consider the personal safety argument made by the petitioner. 39 C.J.S. Habeas Corpus § 39a(2)(I).

Secondly, at the September 8th hearing, the petitioner's counsel challenged the extradition on a new ground alleging the supporting documents were insufficient because they fail to show that a burglary took place by the direct personal knowledge of the affiants who signed the affidavit in support of the information. In regard to this question, the Court by letter dated September 12, 1969, said it had concluded that the question of the sufficiency of the supporting affidavit was a substantial one which should be considered notwithstanding its untimely presentation. Letter memoranda were invited and have been considered.

The law of interstate extradition in the United States begins with the Federal Constitution, Article 4, Section 2, Clause 2 which reads as follows:

'A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.'

It is interesting to note that a key word in the Federal Constitution is 'charged'. Although the Constitutional provision contains federal legislation, the provision federal legislation, the provision was held in early Attorney General's opinion not to be self-executing as to forms and procedures and Congress supplemented it by the early passage of a federal interstate 1793, 302, 18 U.S.C.A. § 3181--s 3195; 1793, 302, 18 U.S.C.Ao § 3181--s 3195; Scott on Interstate Rendition, § 83. This federal statute is Constitutional. Prigg v. Pennsylvania, 16 Pet. (U.S.) 539, 620--621, 10 L.Ed. 1060 (1842). Its standards become the standards under federal law.

Under the federal statute, it becomes the duty of the asylum state to deliver a fugitive when the statutory requirements are met. Among the requirements made of the demanding state is the production of 'a copy of an indictment found or an affidavit made before a magistrate of any state * * *, charging the person demanded with having committed treason, felony or other crime'. 18 U.S.C.A. § 3182. The Constitution and the Act of Congress must be construed together. Scott on Interstate Rendition, § 83.

It is perhaps unfortunate that the federal statute has not been adjusted to reflect the more common use of informations in modern times, but it has not been. In the absence of an indictment, the requirement of an affidavit before a magistrate would appear to be inserted to meet the traditional requirements necessary to justify an arrest. Ex parte Rubens, 73 Ariz. 101, 238 P.2d 402 (1951).

If this be the intent, it would seem to follow that an affidavit before a magistrate under federal law does not succeed...