In re Harris

• Decision Date: 27 May 1941
• Citation: 34 N.E.2d 504,309 Mass. 180
• Parties: In re HARRIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

309 Mass. 180

34 N.E.2d 504

In re HARRIS.

Supreme Judicial Court of Massachusetts, Suffolk.

May 27, 1941.

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

Habeas corpus proceeding by Joseph Harris, who excepted the denial of three requests for rulings and to the order dismissing the petition.

Exceptions overruled.

Argued before FIELD, C. J., and DONAHUE, LUMMUS, DOLAN, and RONAN, Jj.

H. F. Callahan, of Boston, for petitioner.

R. T. Bushnell, Atty. Gen., and T. Leboeuf, Asst. Atty. Gen., for respondent.

RONAN, Justice.

This petition for a writ of habeas corpus alleges that the petitioner was unlawfully arrested and imprisoned, under a warrant issued upon the request of the Governor of the State of New York, for the alleged crime of receiving stolen goods, and that the said warrant was issued contrary to the laws of the United States and to the Constitution and laws of this Commonwealth. At the hearing in the Superior Court the only evidence presented was the demand, and its accompanying papers, of the Governor of New York for the rendition of the petitioner; a statement of agreed facts that the said demand and the said papers were presented to the Governor of this Commonwealth who issued a warrant for the arrest of Harris in compliance with the said demand, that the time he issued the said warrant the Governor of this Commonwealth knew that an indictment was pending against the petitioner for the commission of a crime in this Commonwealth; an admission by the petitioner that he was in the State of New York on May 1, 1940, and May 6, 1940; and a denial by him that he had seen one Salsberg on those dates. The petitioner excepted to the denial of three requests for rulings, and to the order dismissing the petition.

There was no error in the denial of the first request that the Governor of this Commonwealth had no authority to issue a warrant for the arrest and rendition of the petitioner to the State of New York when he knew that an indictment was then pending here against the petitioner for the commission of a felony. The agreed facts showed the pendency of an indictment, but it did not show the nature of the offence charged. It might have accused the petitioner only of a misdemeanor. It is proper to refuse a request not based upon the evidence. Wood v. Skelley, 196 Mass. 114, 81 N.E. 872,124 Am.St.Rep. 516;Boston Five Cents Savings Bank v. Brooks, 309 Mass. 52, 34 N.E.2d 435.

We prefer to deal with this contention upon a broader ground. The uniform criminal interstate rendition law was adopted in this Commonwealth by St. 1937, c. 304, and now appears as G.L.(Ter.Ed.) c. 276, §§ 11-20R, inclusive. Section 20G expressly authorizes the Governor in his discretion to surrender a fugitive on the demand of the executive authority of another State, although a criminal prosecution is then pending against such person for violation of the law of this Commonwealth. The validity of this statute is challenged on the ground that it violates art. 30 of the Bill of Rights, requiring a separation between the three branches of government. The petitioner was not shown to be incarcerated or in the custody of the court on account of the pendency of the indictment mentioned in the first request for ruling, when the executive warrant was issued against him. For aught that appears on the record he might then have been at liberty under bail. The executive rendition of such a person would not constitute an interference with the judicial branch of government. Opinion of the Justices, 201 Mass. 609, 611, 89 N.E. 174, 24 L.R.A.,N.S., 799; Graves' Case, 236 Mass. 493, 128 N.E. 867. Rendition under similar circumstances has been generally upheld. Taylor v. Taintor, 16 Wall. 366, 21 L.Ed. 287;Roberts v. Reilly, 116 U.S. 80, 6 S.Ct. 291, 29 L.Ed. 544;People v. Klinger, 319 Ill. 275, 149 N.E. 799, 42 A.L.R. 581;Hansen v. Edwards, 210 Mo.App. 35, 240 S.W. 489;State v. Eberstein, 105 Neb. 833,182 N.E. 500;People v. Hagan, 34 Misc. 85, 69 N.Y.S. 475. Compare State v. Saunders, 288 Mo. 640, 232 S.W. 973.

The petitioner in his second request asked the court to rule that the Governor of this Commonwealth was without authority to issue a warrant, because the demand of the Governor of New York did not allege that the petitioner was present in the State of New York at the times of the commission of the alleged crimes. The rendition of those who commit a crime in one State and seek refuge in another is provided for in the Constitution of the United States, art. 4, § 2, clause 2, and is regulated by an Act of Congress, U.S.Rev.Stat. § 5278, U.S.C. Title 18, § 662, 18 U.S.C.A. § 662. That act, in so far as now material, provides that whenever the executive authority of a State demands any person as a fugitive from justice of the executive authority of the State to which such person has fled, and produces a properly certified copy of an indictment charging the person with the commission of crime, it shall be the duty of the executive authority of the State in which the fugitive is to apprehend and deliver him to the agent of the demanding authority. These provisions of the Constitution and of the Act of Congress must be construed in accordance with the decisions of the Supreme Court of the United States. South Carolina v. Bailey, 289 U.S. 412, 420, 53 S.Ct. 667, 77 L.Ed. 1292;In re Roberts, 186 Wash. 13, 56 P.2d 703. State legislation upon the subject of interstate rendition is justified only in so far as it aids, assists and facilitates the operation of the constitutional provision and the Federal enactment. Commonwealth v. Tracy, 5 Metc. 536;Commonwealth v. Hall, 9 Gray 262,69 Am.Dec. 285; Petition of Germain, petitioner, 258 Mass. 289, 292, 155 N.E. 12, 51 A.L.R. 789;Innes v. Tobin, 240 U.S. 127, 36 S.Ct. 290, 60 L.Ed. 562. Our own statute, G.L.(Ter.Ed.) c. 276, § 14, as amended by St.1937, c. 304, § 14, provides that no demand shall be recognized unless it shall be in writing alleging either that the person was present in the demanding State at the time of the commission of the alleged crime, or that the person in this State, or in a third State, committed an act intentionally resulting in a crime in the demanding state. It is true that the written demand of the Governor of New York does not state in direct terms that the petitioner was in that State when the alleged crimes were committed. It clearly appears therefrom that the alleged crimes were committed in New York and that it had been...