In re Foye

• Decision Date: 19 June 1899
• Court: Washington Supreme Court
• Parties: In re FOYE.

57 P. 825

21 Wash. 250

In re FOYE.

Supreme Court of Washington

June 19, 1899

Appeal from superior court, King county; Orange Jacobs, Judge.

Application by John E. Foye for a writ of habeas corpus. From a judgment remanding petitioner to custody, he appeals. Affirmed.

John F. Dore, Charles K. Jenner, and Solon T Williams, for appellant.

Donworth & Howe, John B. Hart, and James F. McElroy, for respondent.

ANDERS J.

The appellant, John E. Foye, applied to the superior court of King county for a writ of habeas corpus, alleging that he was illegally restrained of his liberty by one Michael Morrissey a police officer of the city of Boston, commonwealth of Massachusetts, and setting forth the pretense and cause of such restraint. The writ was issued and served on the respondent, Michael Morrissey, who thereupon made return thereto that the appellant, Foye, was in his custody, at the time the writ of habeas corpus was served upon him, by virtue of a warrant issued by his excellency, the governor of this state, on a requisition of the governor of the commonwealth of Massachusetts; that the appellant was, on the first Monday of March, 1899, indicted by a grand jury, duly impaneled and sworn in the county of Suffolk, in the commonwealth of Massachusetts, for the crime of corrupting a juror in the trial of a certain cause before the superior court of said commonwealth in said county, wherein the commonwealth was plaintiff and one Mulray and one Scollins were defendants; that, immediately after the return of said indictment, the petitioner left the commonwealth of Massachusetts, and fled to the state of Washington; that a warrant was issued on said indictment, and that the sheriff to whom it was directed made return thereon that he was unable to find the petitioner in said county; that petitioner is a fugitive from justice, and has taken refuge in the state of Washington; that the respondent was duly appointed by the governor of Massachusetts as agent to receive and convey the petitioner to that commonwealth for trial upon said indictment; that the governor of Massachusetts duly made a requisition upon the governor of the state of Washington for the rendition of the petitioner as a fugitive from justice which requisition was accompanied by a copy of the indictment and of the warrant aforesaid, duly certified as authentic by the said governor of Massachusetts; that, in compliance with said demand and requisition, the governor of the state of Washington issued his warrant, pursuant to law, authorizing the respondent to take and transport the petitioner from the state of Washington. A copy of the warrant of extradition, together with copies of the requisition of the governor of Massachusetts, and all proceedings in the courts of that commonwealth in the premises, were attached to, and made a part of, the return. The petitioner traversed the return by a reply in which he alleged that he did not leave the state of Massachusetts and take refuge in the state of Washington; that he has resided in the state of Washington for the period of one year last past, and during that time has been engaged in business in the state, and is a citizen thereof; that he denies having any connection, either directly or indirectly, with the bribing of a juror in the commonwealth of Massachusetts; that he is not acquainted with Charles H. Milliken, of Chelsea, in the county of Suffolk, who acted as a juror in the case of the commonwealth against Richard Mulray and Thomas Scollins; that the return of Michael J. Morrissey does not allege that the acts complained of were done before a court of competent jurisdiction, nor is there any showing that the grand jury who indicted petitioner were legally drawn and impaneled to find said indictment, nor does it show that the grand jury who returned the indictment were sworn to perform their duties as grand jurors; that the indictment made a part of the return of said Morrissey does not state an offense punishable under the laws of Massachusetts or the laws of Washington, nor does it allege facts sufficient to constitute a crime; that said indictment is not properly certified to by the court; that there is no allegation in the said return showing that the petitioner herein fled from justice; that petitioner was not in the commonwealth of Massachusetts at the conclusion of the trial of the case of the commonwealth against Mulray and Scollins, and that no indictment was returned against him previous to his departure from the commonwealth of Massachusetts, nor had any complaint been filed against him; that the alleged prosecution of his case is founded on the statement made by one David C. Sullivan, who was charged with the crime of perjury in connection with the case of the commonwealth against Mulray and Scollins; that the testimony of said Sullivan at the trial of Milliken is annexed hereto and marked as an exhibit, as is also the testimony of said Milliken, who is referred to in the indictment found against petitioner, and that the return of Morrissey does not show that any sworn evidence was produced to his excellency, the governor of Washington, as required by the laws of Massachusetts. Upon the issues presented by the return, and traverse thereto, a hearing was had before the Honorable Orange Jacobs, one of the judges of the superior court of King county, in which judgment was rendered remanding the petitioner to the custody of the respondent, as agent of the commonwealth of Massachusetts. From this judgment the petitioner has appealed to this court.

The learned counsel for the respondent moves to dismiss the appeal on the ground that this court has no jurisdiction to entertain this proceeding. It is claimed by counsel that inasmuch as the statute relating to habeas corpus does not specially provide for appeals from judgments rendered therein, such judgments are not subject to review by this court. Several authorities are cited in support of counsel's contention, among which is Church on Habeas Corpus, in which it is said that the prevailing doctrine in the state courts, in the absence of statutory provisions, is that a judgment remanding a prisoner on habeas corpus is not appealable or subject to review, and that the doctrine of...