In re Baker

• Decision Date: 28 January 1942
• Parties: In re BAKER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

310 Mass. 724

39 N.E.2d 762

In re BAKER.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 28, 1942.

Exceptions from Superior Court, Suffolk County; Fosdick, Judge.

Proceeding in the matter of the petition of Henry D. Baker for a writ of habeas corpus to be released from the custody of an officer of the state police. The petition was denied after a hearing, and petitioner excepts to the order denying his petition and to denial of his requests for rulings.

Petitioner ordered remanded to custody.

Before FIELD, C. J., and QUA, DOLAN, and RONAN, JJ.

J. S. Hurley, of Manchester, for petitioner.

T. Leboeuf, Asst. Atty. Gen., and J. J. Kelleher, of Boston, for respondent.

RONAN, Justice.

The petitioner, by this petition for habeas corpus, seeks his release from the custody of an officer of the State police who has arrested him upon a rendition warrant, issued by the Governor of the Commonwealth in compliance with the requisition of the Governor of New Hampshire, which stated that Baker had been indicted for the crime of robbery in that State and had fled into this Commonwealth. This requisition was accompanied by a duly authenticated copy of the indictment for this offence returned against Baker. There was also attached to the requisition an affidavit of one Caswell, stating that Baker was in the city where the alleged robbery occurred at the time of its commission and that he thereafter fled to this Commonwealth, and a copy of an application for extradition of Baker, made to the Governor of New Hampshire by the county solicitor of the county where the alleged robbery was committed, which stated that he was of the opinion that the evidence was sufficient to secure a conviction of the fugitive. The petition was denied after a hearing in the Superior Court. The petitioner excepted to the order denying his petition and to the denial of his requests for rulings.

We assume in favor of the petitioner that the case may be properly brought here by exceptions. In re Harris, Petitioner, 309 Mass. 180, 34 N.E.2d 504, 135 A.L.R. 969.

The Constitution of the United States, Art. 4, § 2, provides that ‘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,’ and the method and manner in which this constitutional requirement shall be enforced and executed are regulated by an Act of Congress, U.S.Rev.Sts. § 5278, U.S.C.Title 18, § 662, 18 U.S.C.A. § 662, which imposes upon the executive authority of the State in which the fugitive has taken refuge the duty of causing him to be apprehended and delivered to the agent of the demanding State whenever the executive authority of the latter State makes such demand and produces a properly certified copy of an indictment charging the fugitive with the commission of a crime. Our statute, G.L. c. 276, § 14, as appearing in St.1937, c. 304, § 1, provides that the demand for interstate rendition of a person charged with crime in another State shall be in writing and shall allege ‘that the person demanded was present in the demanding state at the time of the commission of the alleged crime,’ or that the person demanded did an act either in this Commonwealth or in a third State which resulted in the commission of the alleged crime in the demanding State. It is true that the demand of the Governor of New Hampshire does not expressly state that Baker was in that State at the time of the crime, but it plainly appears from the demand that Baker was charged with a crime, the nature of which required his presence at the time and place where the offence occurred, and that thereafter he fled to this Commonwealth. That such a demand is sufficient has been recently decided in Re Harris, Petitioner, 309 Mass. 180, 34 N.E.2d 504, 135 A.L.R. 969. The indictment charged the commission of a robbery which the demand itself shows was a crime in that State, and the indictment was properly certified by the Governor of New Hampshire. Neither the Federal statute nor our present G.L. (Ter.Ed.) c. 276, § 14, as amended by St.1937, c. 304, § 1, requires sworn evidence in addition to the demand and a properly authenticated copy of the indictment. It is clear that the demand and the accompanying documents complied with the applicable statutes and authorized the Governor of this Commonwealth to honor the requisition if he found upon such evidence as he deemed satisfactory that the person demanded was a fugitive from the justice of New Hampshire. Roberts v. Reilly, 116 U.S. 80, 6 S.Ct. 291, 29 L.Ed. 544; Munsey v. Clough, 196 U.S. 364, 25 S.Ct. 282, 49 L.Ed. 515;Pettibone v. Nichols, 203 U.S. 192, 27 S.Ct. 111, 51 L.Ed. 148,7 Ann.Cas. 1047;Appleyard v. Massachusetts, 203 U.S. 222, 27 S.Ct. 122, 51 L.Ed. 161,7 Ann.Cas. 1073;People v. Pease, 207 U.S. 100, 28 S.Ct. 58, 52 L.Ed. 121;Marbles v. Creecy, 215 U.S. 63, 30 S.Ct. 32, 54 L.Ed. 92.

The effect to be given to the issuance of a rendition warrant by the Governor has been settled by our decisions. Such a warrant is prima facie evidence, ‘at least, that all necessary legal prerequisites have been complied with, and, if the previous proceedings appear to be regular, is conclusive evidence of the right to remove the prisoner to the state from which he fled.’ Davis' Case, 122 Mass. 324, 328; Kingsbury's Case, 106 Mass. 223; Petition of Germain, 258 Mass. 289, 155 N.E. 12, 51 A.L.R. 789;In re Harris, Petitioner, 309 Mass. 180, 34 N.E.2d 504, 135 A.L.R. 969. The only oral evidence introduced at the hearing of the petition in the Superior Court was the testimony of one Caswell, who had made the affidavit which was attached to the requisition. His testimony was to the effect that he was unable to find any witness who identified the petitioner at the time of the robbery. There was nothing in this testimony which affected his statements in the affidavit that Baker was in the city where the robbery was committed at the time of its occurrence and that he afterwards fled to this Commonwealth. Duddy's Case, 219 Mass. 548, 107 N.E. 364;Marbles v. Creecy, 215 U.S. 63, 30 S.Ct. 32, 54 L.Ed. 92. The only other evidence before the Superior Court was to the effect that the victim of the robbery had stated at a hearing before an assistant attorney general that he was robbed by two men; that he closely observed one of the men but he did not have ‘a good look at the other’; and that Baker was not the man whom he had closely observed. There was no error if the judge refused to find that this evidence outweighed the effect that ought to be given to the rendition warrant and refused to find that Baker was not a fugitive from justice. Petition of Germain, 258 Mass. 289, 155 N.E. 12, 51 A.L.R. 789; Ex parte Wallace, Petitioner, 265 Mass. 101, 163 N.E. 870;South Carolina v. Bailey, 289 U.S. 412, 53 S.Ct. 667, 77 L.Ed. 1292. What has been said disposes of the first, second, third, fourth, sixth, seventh, eighth, eleventh and thirteenth exceptions attacking the sufficiency of the requisition and the indictment and the sufficiency of the evidence that Baker was a fugitive from justice.

The petitioner contends that there was error in the denial of his tenth request that ‘The burden of proof in this proceeding where the alleged fugitive has denied identity is upon the respondent.’ We understand this request to mean that a petitioner for a writ of habeas corpus, by merely alleging that he is not the person named in the rendition warrant, throws the burden of proof of the entire case upon the respondent. It is plain that the judge so construed this request for he granted the ninth request, that the accused must be the person charged with the crime and named in the demand and warrant, and the sixteenth request, that before the petitioner could be extradited ‘the papers must name or describe him so that he may be identified as a fugitive from justice.’ The tenth request was not a correct statement of the law. A petitioner for a writ of habeas corpus who is held as a fugitive from justice has the burden of making it ‘clearly and satisfactorily to appear that he is not a fugitive from justice within the meaning of the Constitution and laws of the United States.’ People v. Pease, 207 U.S. 100, 112, 28 S.Ct. 58, 62, 52 L.Ed. 121; Duddy's Case, 219 Mass. 548, 107 N.E. 364; Petition of Germain, 258 Mass. 289, 155 N.E. 12, 51 A.L.R. 789;Roberts v. Reilly, 116 U.S. 80, 6 S.Ct. 291, 29 L.Ed. 544;Munsey v. Clough, 195 U.S. 364, 25 S.Ct. 282, 49 L.Ed. 515;Pettibone v. Nichols, 203 U.S. 192, 27 S.Ct. 111, 51 L.Ed. 148,7 Ann.Cas. 1047;Bassing v. Cady, 208 U.S. 386, 28 S.Ct. 392, 52 L.Ed. 540,13 Ann.Cas. 905;Hogan v. O'Neill, 255 U.S. 52, 41 S.Ct. 222, 65 L.Ed. 497;South Carolina v. Bailey, 289 U.S. 412, 53 S.Ct. 667, 77 L.Ed. 1292;Ellison v. Splain, 49 App.D.C. 99, 261 F. 247.Levy v. Splain, 50 App.D.C. 31, 267 F. 333.People v. Brown, 237 N.Y. 483, 143 N.E. 653, 32 A.L.R. 1164.

We prefer to deal with this contention upon a broader ground and assume, in favor of the petitioner, that the point that he intended to raise by the tenth request was that the burden of proving that the petitioner was the person charged with the crime and was the one intended to be extradited to New Hampshire for the trial of the offence of which he was accused is upon the respondent. The identity of the petitioner with the...