Harris v. State

• Decision Date: 23 November 1951
• Docket Number: 5 Div. 515
• Citation: 257 Ala. 3,60 So.2d 266
• Parties: HARRIS v. STATE.
• Court: Alabama Supreme Court

Page 266

60 So.2d 266

257 Ala. 3

HARRIS v. STATE.

5 Div. 515.

Supreme Court of Alabama.

Nov. 23, 1951.

Rehearing Denied Jan. 10, 1952.

Si Garrett, Atty. Gen., and Bernard F. Sykes, Asst. Atty. Gen., for the petition.

Geo. P. Howard, Wetumpka, opposed.

SIMPSON, Justice.

Certiorari to the Court of Appeals. The writ was granted in view of a claimed conflict in the Alabama decisions relative to whether or not on habeas corpus, when the rendition warrant in extradition fails to show affirmatively the several statutory prerequisites for its issuance, the same may be aided by proof (documents before the Governor) which would show that all of the requisite jurisdictional matters did obtain when the warrant was issued by the executive department of the sanctuary state.

Section 54, Title 15, Code of Alabama, 1940, reads as follows. 'If the governor shall decide that the demand should be complied with, he shall sign a warrant of arrest, which shall be sealed with the state seal, and be directed to a sheriff, marshal, coroner, or other person whom he may think fit to entrust with the execution thereof; and the warrant must substantially recite the facts necessary to the validity of its issue.' (Emphasis ours.)

It is the emphasized part of this section which is here to be considered.

The portion of the rendition warrant pertinent to this appeal is as follows: 'Whereas, His Excellency, Herman E. Talmadge, Governor of the State of Georgia, by requisition dated the 11th day of May, 1950 has demanded of me, as Governor of the State of Alabama, the surrender of Velt Harris who, it appears, is charged by Accusation, in the County of Fulton in said State, with the crime of Abandonment of his Minor Children (a duly certified copy of which Accusation accompanies said requisition) and it appearing that said Velt Harris has fled from justice in said State and taken refuge in the State of Alabama.' (Emphasis ours.)

The Court of Appeals held that the warrant was void in containing the word 'accusation' rather than reciting that the accused was 'lawfully charged by indictment or by an information' etc., 'or by affidavit' etc., § 52, Title 15, with having committed the crime. And, interpreting our opinion in Russell v. State, 251 Ala. 268, 37 So.2d 233, as holding that if the rendition warrant was deficient it could not be aided by reference to the allied papers accompanying the requisition warrant, that court ordered the petitioner discharged. We take it from the opinion of the Court of Appeals that the 'allied papers' referred to would show that all the jurisdictional requirements did obtain by being made to appear from the documents accompanying the requisition warrant from the demanding state to justify the chief executive of this state to issue the warrant, but that that court thought that under the ruling of the Russell Case such evidence could not be tendered either on the return of the sheriff or on the hearing in habeas corpus as justification for the prisoner's detention. We regard the theory as unsound. It is against the weight of authority. And as we will later show, the broad language in Russell's Case is not to be so construed, although concededly it might have been susceptible to that interpretation.

Laying aside for the moment the strict legal question, we will observe that here the warrant contains the word 'accusation.' It also states that the 'accusation' is properly certified. Are we to construe our statute so strictly as to presume that the 'accusation' is not in the form of an indictment or an affidavit sworn to before a magistrate or an information filed by a prosecuting officer and supported by affidavit as to the facts. To so hold, where allied papers are included in the return to the writ of habeas corpus or introduced on the trial, which do so show, would be to presume that the governor had not performed his duties in regard to the matter Public officials are presumed to perform their duties. This rule is so well founded, has been a part of our jurisprudence for so long, and is so universally recognized as to need to citation of authority.

Prior to Russell v. State, supra, the Court of Appeals in Watson v. State, 30 Ala.App. 184, 2 So.2d 470, 472 (authored by the writer here while a judge of that court), stated that 'unless it is made to appear either in the warrant of the Governor or elsewhere in the proceedings that he [petitioner] is so lawfully charged, the State fails to prove its case and the prisoner is entitled to the writ.' The recitals in the Governor's warrant in that case were obviously deficient, alone and of themselves, to show prima facie the legality of petitioner's detention. But the clear intent of that holding was to allow the court in habeas corpus proceedings to look to the allied papers in aid of the warrant to show the validity of the detention. We think the principle to be sound.

The issue in this proceeding of habeas corpus is whether or not the prisoner is illegally restrained of his liberty. As an initial inquiry, the question of the sufficiency of the rendition warrant, prima facie, to justify the detention is brought under consideration and if no more be shown, the prisoner is subject to be discharged unless the warrant does substantially comply with the provisions of the statute. But that is not to say that evidence may not be introduced to show that all the necessary documents were before the Governor as predicate for the issuance of the rendition warrant. An enlightening annotation on the question appears in 89 A.L.R. 595 et seq., and on page 599 the majority rule is thus stated: '* * * the failure of the rendition warrant to show affirmatively that the Governor, in issuing it, had before him a copy of an indictment or an affidavit made before a magistrate of the demanding state charging the alleged fugitive with crime, may be cured, when such recitals are required, upon habeas corpus proceedings for the discharge of the fugitive, by including with the return of the sheriff, or producing on the hearing, the papers on which the warrant was issued which show on their face that they are in due and legal form, and that the warrant was justified * * *.'

This rule is well supported by the authorities. In re Romaine, 23 Cal. 585; Ex parte Dawson, 8 Cir., 83 F. 306, certiorari denied, 170 U.S. 705, 18 S.Ct. 941, 42 L.Ed. 1218; Lacondra v. Hermann, 343 Ill. 608, 175 N.E. 820; State ex rel. Stundahl v. Richardson, 34 Minn. 115, 24 N.W. 354; State ex rel. Grande v. Bates, 101 Minn. 303, 112 N.W. 260; People ex rel. Jourdan v. Donohue, 84 N.Y. 438; State ex rel. Sivley v. Hackett, 161 Tenn. 602, 33 S.W.2d 422. Cf. United States ex rel. Silver v. O'Brien, 7 Cir., 138 F.2d 217, certiorari denied, 321 U.S. 766, 64 S.Ct. 522, 88 L.Ed. 1062; Collins v. Traeger, 9 Cir. 27 F.2d 842; Schriver v. Tucker, Fla., 42 So.2d 707.

One of the earliest cases sustaining the majority view is the case of In re Romaine, 23 Cal. 585, where the warrant stated that petitioners were 'charged with crime of murder and highway robbery.' The return of the officer having custody set forth, however, certified copies of the original affidavit. The California court held that these allied papers supplied the facts omitted in the warrant and 'substantially' showed that the warrant was issued in a case within the provisions of the law of the rendering state.

In Lacondra v. Hermann, 343 Ill. 608, 175 N.E. 820, 823, the rendition warrant recited the production of a 'complaint and warrant' certified as authentic, and it appeared upon the officer's return that the 'complaint' was in the form of an affidavit properly sworn to before a magistrate of the demanding state, and the holding was that the warrant together with the return to the writ, when considered together, were sufficient.

To like effect is State ex rel. Stundahl v. Richardson, 34 Minn. 115, 24 N.W. 354, 355, where the rendition warrant recited that the alleged fugitive stands charged 'by complaint.' The court observed that 'It ought to have appeared in this case by the return to the writ of habeas corpus that the executive was furnished with the required copy of the...