In re Murphy

• Citation: 321 Mass. 206,72 N.E.2d 413
• Parties: In re MURPHY. In re PRAY.
• Decision Date: 05 April 1947
• Court: United States State Supreme Judicial Court of Massachusetts

321 Mass. 206

72 N.E.2d 413

In re MURPHY.

In re PRAY.

Supreme Judicial Court of Massachusetts, Suffolk.

April 5, 1947.

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

Separate petitions for writs of certiorari by Edward Murphy and Edward L. Pray. The petitions were denied and the petitioners bring exceptions.

Exceptions overruled, and petitioners remanded to custody.

Before FIELD, C. J., and QUA, DOLAN, WILKINS, and SPALDING, JJ.

W. H. Lewis, of Boston, for petitioners.

W. S. Kinney, Asst. Atty. Gen., for respondent.

WILKINS, Justice.

These two petitions for writs of habeas corpus are substantially identical. In each the petitioner seeks his release from the custody of two officers of the State police, of the sheriff of Suffolk County, and of an agent of the Governor of the State of Maine. It is alleged that each petitioner is unlawfully restrained of his liberty following arrest upon an extradition warrant issued by the Governor of the Commonwealth in compliance with the requisition of the Governor of the State of Maine, which certified as authentic a complaint and warrant issued in that State charging the crime of larceny, and which stated that each petitioner had fled into this Commonwealth. The petitions were denied after hearing in the Superior Court. The petitioners excepted to the exclusion of a report of the Attorney General offered in evidence and to the denial of requests for rulings.

It is assumed in favor of the petitioners that the cases properly may be brought here by exceptions. In re Harris, petitioner, 309 Mass. 180, 184, 34 N.E.2d 504, 135 A.L.R. 969;In re Baker, petitioner, 310 Mass. 724, 727, 39 N.E.2d 762.

1. We first consider questions relating to the report of the Attorney General.

(a) Pursuant to G.L.(Ter.Ed.) c. 276, § 15, as appearing in St.1937, c. 304, § 1,¹ the demands for the surrender of the petitioners were investigated by an assistant attorney general, who made a written report to the Governor which was signed in the name of the Attorney General by the same assistant attorney general. The report stated that he had examined the papers accompanying the requisitions of the Governor of the State of Maine and had ‘heard the parties appearing in opposition’; that upon those papers he was of opinion that there had been compliance with the statutes of the United States and of this Commonwealth relating to extradition; that the persons named in the warrants were sufficiently identified; but that the accused persons were not ‘properly identified as being in the demanding State at or about the time the crime was alleged to have been committed.’ The report concluded, ‘I cannot recommend that these men be extradited to stand trial on the evidence that has been submitted to me.’ There was no error in excluding the report. The statute is permissive in character and authorizes the Governor in his discretion to obtain assistance in the investigation of a requisition for extradition. See Graves's Case, 236 Mass. 493, 498, 128 N.E. 867. There is nothing in the statute itself or in any other provision of law requiring a report made under it to be admitted in evidence.

(b) The eleventh request of each petitioner was, ‘That the Governor having referred the petition to the Attorney General of Massachusetts in accordance with the provision of § 15 of c. 276 of the General Laws, the Governor is bound to follow the advice and report of the Attorney General.’ It is the Governor upon whom rests the statutory duty of determining whether a requisition shall be complied with. G.L.(Ter.Ed.) c. 276, § 12, as appearing in St.1937, c. 304, § 1. U.S.Rev.Sts. § 5278, 18 U.S.C.A. § 662. Petition of Germain, Petitioner, 258 Mass. 289, 293, 155 N.E. 12, 51 A.L.R. 789. The eleventh request stated an antithesis of the statutory requirement, and its denial was right.

2. There was no constitutional right in the petitioners to demand a hearing before the Governor, who committed no error in refusing to grant one. Munsey v. Clough, 196 U.S. 364, 372, 25 S.Ct. 282, 49 L.Ed. 515;Pettibone v. Nichols, 203 U.S. 192, 204, 27 S.Ct. 111, 51 L.Ed. 148,7 Ann.Cas. 1047;People of State of Illinois v. Pease, 207 U.S. 100, 109, 28 S.Ct. 58, 52 L.Ed. 121;Reed v. United States, 9 Cir., 224 F. 378, 380, 381;Raftery v. Bligh, 1 Cir., 55 F.2d 189, 193;Lee Won Sing v. Cottone, 74 App.D.C. 374, 123 F.2d 169, 173, 174. The thirteenth request of each petitioner was rightly denied.

3. The judge denied the following requests of each petitioner: ‘5. That upon all the evidence, he is not a fugitive from justice from the State of Maine, and is entitled to his discharge. 6. Upon all the evidence, the petitioner was not in the State of Maine on or about the 3rd day of June, 1946, and the writ of habeas corpus issue, and that he be ordered discharged thereon.’

Each requisition of the Governor of Maine stated that by the attached complaint and warrant each petitioner stood charged with the crime of larceny, each ‘having been in this State at the time of the commission of said crime.’ The attached complaints were signed by W. F. Sheffield of Lewiston, Maine, and were addressed to the clerk of the Municipal Court for the City of Lewiston, who administered the oath thereto. The complaints state that on June 3, 1946, at Lewiston the petitioners ‘feloniously did steal, take and carry away’ twenty-six trays of assorted rings, ten cards of emblems, and eighty-one wallets of the value of $11,141, the property of the Joseph Canns Company, a corporation. There was also an affidavit of A. F. Martin, the county attorney of Androscoggin County, hereinafter referred to. At the hearing in the Superior Court there was testimony from the petitioner Murphy and from two other witnesses tending to show that the petitioner Murphy was in Massachusetts on June 3, 1946, the date of the commission of the alleged crime in Maine.

It is well settled that ‘the court will not discharge a defendant arrested under the governor's warrant [in extradition proceedings] where there is merely contradictory evidence on the subject of presence in or absence from the state, as habeas corpus is not the proper proceeding to try the question of alibi, or any question as to the guilt or innocence of the accused.’ Munsey v. Clough, 196 U.S. 364, 375, 25 S.Ct. 282, 285, 49 L.Ed. 515; Petition of Germain, Petitioner, 258 Mass. 289, 296, 297, 155 N.E. 12, 51 A.L.R. 789;In re Harris, petitioner, 309 Mass. 180, 184, 34 N.E.2d 504, 135 A.L.R. 969;In re Baker, Petitioner, 310 Mass. 724, 732-733, 39 N.E.2d 762.G.L. (Ter.Ed.) c. 276, § 20H, as inserted by St.1937, c. 304, § 1. And it is undoubtedly true that whether the petitioners were fugitives from justice was a question of fact for the Governor to determine upon evidence satisfactory to him. Roberts v. Reilly, 116 U.S. 80, 95, 6 S.Ct. 291, 29 L.Ed. 544;Hyatt v. People, 188 U.S. 691, 710, 23 S.Ct. 456, 47 L.Ed. 657;Munsey v. Clough, 196 U.S. 364, 372, 25 S.Ct. 282, 49 L.Ed. 515;Hogan v. O'Neill, 255 U.S. 52, 56, 41 S.Ct. 222, 65 L.Ed. 497. Strict common law evidence was not necessary before the Governor or before the court reviewing his decision. Petition of Germain, Petitioner, 258 Mass. 289, 295, 155 N.E. 12, 51 A.L.R. 789.

The petitioners contend that, even if the testimony of the petitioner Murphy and of the two other witnesses was not believed, there was no evidence of the presence of the petitioners in Maine. This contention overlooks the effect to be given under our decisions to the issuance of a rendition warrant by the Governor. His 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's Case, 122 Mass. 324, 328;In re Baker, Petitioner, 310 Mass. 724, 729, 39 N.E.2d 762, and cases cited. Munsey v. Clough, 196 U.S. 364, 372, 373, 25 S.Ct. 282, 49 L.Ed. 515;People of State of Illinois v. Pease, 207 U.S. 100, 109, 28 S.Ct. 58, 52 L.Ed. 121;Marbles v. Creecy, 215 U.S. 63, 68, 30 S.Ct. 32, 54 L.Ed. 92;Hogan v. O'Neill, 255 U.S. 52, 56, 41 S.Ct. 222, 65 L.Ed. 497;Raftery v. Bligh, 1 Cir., 55 F.2d 189, 193. There was no error in the denial of requests numbered 5 and 6.

4. We next consider requests of the petitioners which challenge the sufficiency of the papers accompanying the requisitions of the Governor of Maine.

‘(a) Two requests² are based upon the absence of an indictment or information. But neither of these was necessary. Under U.S.Rev.Sts. § 5278, 18 U.S.C.A. § 662,³ it is required in the alternative that the executive authority of the demanding State produce a copy of an indictment found or an affidavit made before a magistrate of any state.’ Matter of Strauss, 197 U.S. 324, 329, 25 S.Ct. 535, 536, 49 L.Ed. 774;Webb v. York, 8 Cir., 79 F. 616, 620;In re Strauss, 2 Cir., 126 F. 327, 330;Riley v. Colpoys, 66 App.D.C. 116, 85 F.2d 282, 283. Under G.L. (Ter.Ed.) c. 276, § 14, as appearing in St.1937, c. 304, § 1, ⁴ it is required that the demand be ‘accompanied by a copy of an indictment found, or of an information supported by affidavit, in the demanding state, or by a copy of an affidavit made before a inagistrate of such state, and by a copy of the warrant which was issued thereon.’ There are thus provided three methods of complying with our State statute, namely, indictment, or information supported by affidavit, or affidavit made before a magistrate together with the warrant. It is the third method with which we are here concerned. The judge was correct in denying requests numbered 7 and 8, which ignored the existence of a method authorized in the Federal and the State statutes alike. See Goodale v. Splain, 42 App.D.C. 235, 239;People v. Mulcahy, 392 Ill. 290, 292, 293, 64 N.E.2d 474;State v. Moeller, 191 Minn. 193, 195, 253 N.W. 668; Ex parte Ryan, 75 Okla.Cr. 144, 148, 149, 129 P.2d 204. See also ...