Grubbs v. State

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: BOWEN
• Citation: Grubbs v. State, 363 So.2d 121 (Ala. Crim. App. 1978)
• Decision Date: 03 October 1978
• Docket Number: 6 Div. 799
• Parties: Robert GRUBBS, Jr. v. STATE.

Page 121

363 So.2d 121

Robert GRUBBS, Jr. v. STATE.

6 Div. 799.

Court of Criminal Appeals of Alabama.

Oct. 3, 1978.

Hiram Dodd, Jr., Birmingham, for appellant.

William J. Baxley, Atty. Gen. and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State, appellee.

BOWEN, Judge.

This is an appeal from the judgment of the Circuit Court of Jefferson County denying the appellant's petition for writ of habeas corpus. The appellant is in custody pursuant to a rendition warrant issued by the Governor of Alabama ordering his return to the State of Michigan. In arguing for his release the appellant contends (1) that the allied papers accompanying the requisition warrant are insufficient and do not support the issuance of the rendition warrant and (2) that the appellant proved at his hearing that he was not a fugitive from justice.

The rendition warrant issued by the Governor of this State does not establish a prima facie case of legal detention for it states that the appellant "is charged by complaint and warrant" in the State of Michigan with the crimes of murder in the first degree and armed robbery. Hagamaker v. State, 354 So.2d 851 (Ala.Cr.App.1978); Lofton v. State, 46 Ala.App. 229, 239 So.2d 901 (1970).

When the rendition warrant is defective, as here, and there are allied papers in evidence, we look to them to determine their legal sufficiency to justify the issuance of the rendition warrant. Harris v. State, 257 Ala. 3, 60 So.2d 266 (1951); Aldio v. State, 44 Ala.App. 303, 208 So.2d 212 (1965).

There is no indictment or information in the supporting papers. The appellant was charged by a complaint made by Neil Schwartz, a Sergeant attached to the Homicide Division of the Detroit City Police Department. The complaint is made on "information and belief" before a judge of the Recorder's Court. The substance of the complaint states that the appellant and two other named individuals

"COUNT I

while in the perpetration or attempted perpetration of a robbery did kill and murder one CLIFFORD WILLIAMS, a/k/a 'Snowball', contrary to Sec. 750.316, M.C.L.A.

"COUNT II

did assault CLIFFORD WILLIAMS, aka 'Snowball' while armed with a dangerous weapon or an article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, towit: a baseball bat, knife, pliers and hypodermic needle and did then and there feloniously rob, steal and take from the person of said CLIFFORD WILLIAMS, aka 'Snowball' or in his presence, United States Currency, contrary to Sec. 750.529, M.C.L.A."

The warrant of arrest issued upon this complaint recites that

"AND WHEREAS on examination on oath of said COMPLAINING WITNESS by me, it appears to me that said crime has been committed and there is just cause to suspect that said Defendant(s) are guilty thereof; THEREFORE IN THE NAME OF THE PEOPLE OF THE STATE OF MICHIGAN, you and each of you are hereby commanded forthwith to arrest said Defendant(s) and bring them before this Court, to be dealt with according to law.

S/ Arthur J. Koscinski

Judge (or Acting Judge)

of the Recorder's Court

of the City of Detroit"

The supporting papers also contain the statement of Sergeant Schwartz sworn to before the same judge of the Recorder's Court. It recites that Ronald Wade Smith told Sergeant Schwartz, who is in charge of the murder investigation of Clifford Williams, alias Snowball or Junior, that the appellant, Willie B. Washington, and Devery Grubbs robbed and killed Williams and hid his body. The statement recites the facts surrounding the robbery and murder which reveal that the informer, Smith, was present during both the robbery and the actual killing.

I

The appellant alleges that the complaint is insufficient to support the rendition warrant (1) because it is made by an investigating officer stating information not within his personal knowledge and (2) because there is no affidavit supporting the "information" based on the personal knowledge of the affiant.

A "complaint" in the form of an "affidavit" properly sworn to is sufficient compliance with the Alabama statutes authorizing extradition upon the production of a copy of an affidavit made before a magistrate. Dinkelman v. State, 43 Ala.App. 177, 184 So.2d 845 (1966). We have gone to the record in Dinkelman. The complaint in that case is set forth below.

"STATE COMPLAINT )

"THE STATE OF NEBRASKA )

For REMOVAL OF

Plaintiff )

MORTGAGED PROPERTY

vs. )

Sec. 69-110

DAROLD DINKELMAN )

ss.

Defendant )

THE STATE OF NEBRASKA, )

COUNTY OF BUFFALO )

"Complaint made in the name of the State of Nebraska before Harvey M.

Wilson, County Judge in and for said County this 13th day of May A.D., 1965,

by the undersigned, Duane Hubbard, Deputy County Attorney, of said County,

who being duly sworn on his oath, says that Darold Dinkelman late of said

County, did on or about the 30th day of June 1964 in said County of Buffalo

then and there being, the said Darold Dinkelman of Buffalo County, Nebraska,

on or about the 15th day of June, 1964, in due form of law did mortgage, in

writing to Midstate Finance Co. of Kearney, Nebraska, certain personal

property, to-wit: household furnishings and 1 1957 Buick automobile; and

above described mortgaged personal property being situated and kept in

Buffalo County, Nebraska, and on or about the 30th day of June, 1964. during

the existence of the lien created by said above described mortgage, then and

there being, then and there in said Buffalo County, Nebraska, unlawfully,

wrongfully, knowingly, and feloniously did remove and cause to be removed a

part of the above described mortgaged personal property, to-wit: household

furnishings and 1 1957 Buick automobile, out of and away from the said County

of Buffalo, State of Nebraska; that the above described mortgaged personal

property was situated and kept in the County of Buffalo, State of Nebraska,

at the time said above described mortgage was given, and the said illegal and

unlawful removal of a part of the above described mortgaged personal property

from Buffalo County, Nebraska, was done by the said Darold Dinkelman with the

intent to deprive Midstate Finance Co., owner of said above described

mortgage, of their security, and to defraud them thereby, contrary to the

form of the Statutes in such case made and provided, and against the peace

and dignity of the people of the State of Nebraska.

Duane Hubbard

"Subscribed in my presence and sworn to before me, this 13th day of May A.D.,

1965.

Harvey M. Wilson

---------------------------

--

In and for Buffalo County,

Nebraska"

The present complaint does not contain a statement of facts but alleges only conclusions of law. The affidavit complaint in Dinkelman recited facts. "Complaint and affidavit are not convertible terms. But if the complaint sufficiently states the criminal charge and constitutes an examination so as to authorize the issuance of a warrant of arrest, and a jurat be attached, and it is properly certified by the magistrate, it will be essentially an affidavit in the meaning of the law."

II J. Moore, A Treatise on Extradition and Interstate Rendition, § 553 (1891).

However the affidavit filed by Sergeant Schwartz does contain facts and does state the source of his information and grounds for his belief which were the subject of the complaint. Therefore the supporting papers properly show that the appellant was substantially charged with having committed a crime in the demanding state.

"Generally, an affidavit based on information and belief is insufficient where it does not give the source of the information or the grounds for the belief; but it has been held that an affidavit on information and belief is sufficient where it states the sources of information and the grounds of belief."

35 C.J.S. Extradition § 14(8) (1960).

To the same effect see 31 Am.Jur.2d Extradition § 38 (1967).

The propriety of a warrant issued upon an affidavit based on hearsay has been established. Jones...