In re John A. Flack

• Decision Date: 11 January 1913
• Docket Number: 18,456
• Citation: 88 Kan. 616,129 P. 541
• Parties: In re JOHN A. FLACK, Petitioner
• Court: Kansas Supreme Court

129 P. 541

88 Kan. 616

In re JOHN A. FLACK, Petitioner

No. 18,456

Supreme Court of Kansas

January 11, 1913

Decided January, 1913.

Original proceeding in habeas corpus.

Petitioner remanded to custody of sheriff of Dickinson county.

SYLLABUS

SYLLABUS BY THE COURT.

1. FUGITIVE FROM JUSTICE--Interstate Rendition--Prosecution for Other Crimes. A person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, and who, on the demand of the executive authority of the state from which he fled, shall be delivered up and removed to the state having jurisdiction of the crime, may there be prosecuted for crimes other than the one specified in the demand for his delivery without first giving him a reasonable opportunity to return to the state which surrendered him.

2. FUGITIVE FROM JUSTICE--Same. The case of The State v. Hall, 40 Kan. 338, 19 P. 918, is overruled.

C. S. Crawford, of Abilene, for the petitioner.

John S. Dawson, attorney-general, for the state.

OPINION

BURCH, J.:

The petitioner, John A. Flack, was cashier of the Abilene State Bank. On or about September 1, 1910, he absconded. Soon afterwards a complaint was filed before a justice of the peace of Dickinson county charging him with forging the name of James A. Strachan to a note for two thousand dollars with intent to defraud Strachan and the Abilene State Bank. A warrant of arrest was issued and placed in the hands of the sheriff for service. In August, 1912, Flack was discovered in the state of New York and was arrested there upon a fugitive warrant and held pending further rendition proceedings. Such proceedings followed, resulting in his return to Dickinson county for trial upon the forgery charge. A preliminary examination was waived and he gave bond for his appearance at the ensuing term of the district court. While awaiting trial eleven other prosecutions were instituted against him for false and fraudulent alterations of entries upon the books of the bank. Motions to quash the informations in these cases and to stay proceedings in them until after the original case should be disposed of were overruled, and in default of bail he was committed to the county jail. This proceeding is brought to discharge him from custody in the eleven cases instituted against him for crimes not embraced in the rendition proceedings.

The question involved is not new and has provoked great argument about and about. It has been decided favorably to the petitioner by this court in the case of The State v. Hall, 40 Kan. 338, 19 P. 918. The syllabus of that case reads as follows:

"An alleged fugitive from justice, extradited from one state to another, can be prosecuted in the state to which he has been extradited, only for the offense for which he was extradited, until after he has had a reasonable time and opportunity afforded him to return to the place from which he was extradited."

Similar views have been expressed by the supreme court of Ohio. ( Ex parte, McKnight, 48 Ohio St. 588, 28 N.E. 1034.) The courts of other states which have considered the question and the supreme court of the United States hold to the contrary. (Carr v. The State, 104 Ala. 43, 16 So. 155; Williams v. Weber, 1 Colo.App. 191, 28 P. 21; Lascelles v. The State, 90 Ga. 347, 16 S.E. 945; Knox v. State, 164 Ind. 226, 73 N.E. 255; State v. Kealy, 89 Iowa 94, 56 N.W. 283; Taylor v. Commonwealth, [Ky. 1906] 29 Ky. L. Rep. 714, 96 S.W. 440; Commonwealth v. Wright, 158 Mass. 149, 33 N.E. 82; In re Little, 129 Mich. 454, 89 N.W. 38; State v. Patterson, 116 Mo. 505, 22 S.W. 696; State v. Leidigh, 47 Neb. 126, 66 N.W. 308; Rutledge v. Krauss, 73 N.J.L. 397, 63 A. 988; People, ex rel. Post, v. Cross, 135 N.Y. 536, 32 N.E. 246; State v. Glover, 112 N.C. 896, 17 S.E. 525; State v. Wine, 7 N.D. 18, 30, 72 N.W. 905; Dows' Case, 18 Pa. 37; Ham v. The State, 4 Tex. Ct. App. 645; The State, ex rel. Brown, v. Stewart, Circuit Judge, etc., 60 Wis. 587, 19 N.W. 429; Lascelles v. Georgia, 148 U.S. 537, 37 L.Ed. 549, 13 S.Ct. 687.)

Text-writers are divided in opinion. Spear on The Law of Extradition (2d ed., ch. 12) favors the rule stated in the syllabus of Hall's case. The following authorities take the opposite view: 2 Moore on Extradition, ch. VIII; Hawley, Interstate Rendition, p. 78 et seq.; Rorer on Interstate Law, p. 307; 2 Wharton on The Conflict of Laws, 3d ed., p. 1696; 1 Bishop's Criminal Procedure, § 224b.

The written law on the subject is contained in the constitution of the United States and an act of Congress passed pursuant thereto. The constitution reads as follows:

"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." (Art 4, § 2.)

In the constitutional convention this provision first appeared in the report of the committee of detail as follows:

"Any person charged with treason, felony or high misdemeanor in any State, who shall flee from justice, and shall be found in any other State, shall, on demand of the Executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of the offence." (3 Documentary History of the Constitution, p. 456.)

Afterwards the words "high misdemeanor" were stricken out and the words "other crime" were inserted in order to comprehend all proper cases, it being considered doubtful whether the term "high misdemeanor" did not have a technical meaning too limited. (Id. p. 634.) The section was given its final form by the committee of "Stile & arrangement."

The act of Congress referred to reads as follows:

"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, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing and transmitting such fugitive to the State or Territory making such demand, shall be paid by such State or Territory.

"Any agent so appointed who receives the fugitive into his custody, shall be empowered to transport him to the state or territory from which he has fled. And every person who, by force, sets at liberty or rescues the fugitive from such agent while so transporting him, shall be fined not more than five hundred dollars or imprisoned not more than one year." (U.S. Rev. Stat., §§ 5278, 5279.)

The primary question for consideration is, of course, the meaning of the constitution of the United States, of which the supreme court of the United States is the final interpreter.

When this court approached the subject in Hall's case the supreme court of the United States had not spoken upon the precise question under consideration. Among other eminent authorities, Judge Cooley (Princeton Review, Jan., 1879, p. 76) and Doctor Spear (The Law of Extradition, 2d ed., ch. 12) had expressed opinions to the effect that in cases of interstate rendition it would be a violation of the constitution to put the fugitive on trial for any other offense than the one specified in the rendition proceedings without first giving him an opportunity to depart from the jurisdiction to which he had been returned. These opinions coincided with the right of asylum as understood in international law, with the practice of independent sovereignties in extradition cases under treaties and with the rules of the common law exempting suitors and witnesses from abuse of judicial process. Reasoning by analogy, the court reached the conclusion that the principles governing extradition between independent sovereignties under treaties and rendition between separate states under the constitution of the United States were the same. This conclusion accorded with that of some other courts and was believed to be fortified by the then very recent decision of the supreme court of the United States in the case of United States v. Rauscher, 119 U.S. 407, 30 L.Ed. 425, 7 S.Ct. 234.

The Rauscher case arose under the Webster-Ashburton treaty with Great Britain, the preamble of which, so far as pertinent, reads as follows:

"And whereas it is found expedient for the better administration of justice and the prevention of crime within the territories and jurisdiction of the two Parties respectively, that persons committing the crimes hereinafter enumerated, and being fugitives from justice, should, under certain circumstances, be reciprocally delivered up: The United States of America and Her Britannic Majesty, having resolved to treat on these several subjects, have for that purpose appointed their respective Plenipotentiaries to negotiate and conclude a treaty." (Compilation of Treaties Under Act of 1898, p. 226.)

Article 10 specified seven extraditable offenses and reads as follows:

"It is agreed that the United...