In re Gundy

• Citation: 236 P. 440,30 Okla.Crim. 390
• Decision Date: 28 May 1925
• Docket Number: A-5597.
• Parties: In re GUNDY.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

236 P. 440

30 Okla.Crim. 390

In re GUNDY.

No. A-5597.

Court of Criminal Appeals of Oklahoma

May 28, 1925

Syllabus by the Court.

A complaint or information, duly verified, may form the basis of an extradition proceeding, where it is a proper method of charging crime in the state where committed.

Under the statute requiring that the Governor certify the authenticity of the complaint on which he demands extradition, without specifying how the Governor is to be satisfied that the complaint on which he acts is authentic the question of the authenticity of the complaint is for his own determination, and his certificate to the fact alone is required.

The determination by the executive of the surrendering state that the sworn evidence accompanying the requisition is sufficient to establish the facts upon which the requisition is based is not conclusive, but is a prima facie showing, which may be rebutted on habeas corpus proceeding by admissions or other conclusive evidence.

It is proper for a person arrested on a requisition warrant to have tried on habeas corpus the issue of fact whether he is a fugitive from justice.

The responsibility in the first instance of determining whether accused is a fugitive from the justice of the demanding state rests upon the executive of the state in which accused is found.

The proceedings being regular in form, it is incumbent upon the petitioner for habeas corpus, seeking to defeat extradition to establish that he is not a fugitive from justice.

A person may be a "fugitive from justice" within the meaning of the provisions of the federal Constitution and laws concerning extradition, though at the time he left the demanding state he had no belief that he had violated its criminal laws, and though he did not consciously flee from justice in order to avoid prosecution for the crime with which he is charged.

Petition by B. R. Gundy for writ of habeas corpus to be directed to the Sheriff of Tulsa County. Writ denied.

Bailey E. Bell, of Tulsa, and Wyley E. Crabtree, of Okmulgee, for petitioner.

The Attorney General, and G. B. Fulton, Asst. Atty. Gen., for respondent.

DOYLE J.

The case of restraint as alleged is by virtue of an executive warrant issued by the Acting Governor of Oklahoma on a requisition made by the Governor of Kansas.

It appears that petitioner was originally charged by complaint verified by Drucilla Gundy, his wife, filed in the city court of Wichita, Sedgwick county, Kan., with the crime of wife desertion and child abandonment, and, being found in Tulsa Okl., was arrested as a fugitive from the justice of the state of Kansas; that petitioner made application to Edwin R McNeill, judge of the district court within and for Tulsa county, for a writ of habeas corpus, and that, upon hearing thereof, said writ was denied and petitioner, B. R. Gundy, remanded to the custody of respondent by authority of said executive warrant with directions to hold said petitioner for a period of 48 hours to enable said petitioner to file an application for a writ of habeas corpus in this court.

It is contended the papers taken as a whole show that no crime has been committed, and also that the petitioner is shown not to be a fugitive from justice.

Section 5278 of the Revised Statutes of the United States (U. S. Comp. St. § 10126) provides that-

"Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state or territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the Governor or

chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured," etc.

To what extent is the action of the executive in issuing the warrant of rendition open to review? It will be observed that the statute confers no authority upon the courts. Such authority as we exercise must be derived from our general power to protect the individual citizen from unlawful arrest. Clearly, we may not in the exercise of this restricted power enter upon a trial of the alleged offender. We cannot try the question of his guilt or innocence.

The rule appears to be that the courts may look into the papers before the Governor and determine whether upon their face a crime is charged; but beyond this the court cannot go in determining the fact of the petitioner's guilt or innocence. Hurd, Habeas Corpus, § 621, Moore, Extradition, § 632.

In Ex parte Offutt, 21 Okl. Cr. --- 234 P. 222, it was held:

"The question as to whether the person demanded and detained on an extradition warrant is substantially charged with a crime is a question of law, which on the face of the papers is open to inquiry on writ of habeas corpus."

And further that-

"Unless the affidavit, complaint, or information charges the person sought with the commission of a crime, it is fatally defective, and a warrant for his extradition is unauthorized." Ex parte Wildman, 14 Okl. Cr. 150, 168 P. 246.

Upon a careful examination we are satisfied that the papers...