In re Murphy

• Court: Supreme Judicial Court of Massachusetts
• Citation: In re Murphy, 321 Mass. 206, 72 N.E.2d 413 (Mass. 1947)
• Decision Date: 05 April 1947
• Parties: EDWARD MURPHY, petitioner (and a companion case [1]).

321 Mass. 206

72 N.E.2d 413

EDWARD MURPHY, petitioner (and a companion case ^[1]).

Supreme Judicial Court of Massachusetts, Suffolk.

April 5, 1947

March 3, 1947.

Present: FIELD, C.

J., QUA, DOLAN WILKINS, & SPALDING, JJ.

Extradition and Rendition. Governor. Evidence, Competency, Attorney General's report. Constitutional Law, Extradition. Habeas Corpus. Affidavit. Words, "Before."

No error appeared in the exclusion, at the hearing in a habeas corpus proceeding seeking release from custody under an interstate rendition warrant issued by the Governor, of a report made by the Attorney General to the Governor under G. L. (Ter. Ed.) c. 276, Section 15, as appearing in St. 1937, c. 304, Section 1.

In dealing with a requisition for interstate rendition, investigated by the

Attorney General at the request of the Governor under G. L. (Ter. Ed.)

c. 276, Section 15, as appearing in St.

1937, c. 304 Section 1, the

Governor is not bound to follow advice set forth in the report of the Attorney General.

One named in a requisition for his interstate rendition has no constitutional right to a hearing by the Governor before the issuance of a rendition warrant.

One seeking by habeas corpus release from custody under an interstate rendition warrant is not entitled to try in that proceeding the issue of his guilt or innocence of the crime charged. The fact that an interstate rendition warrant had been issued by the

Governor was prima facie evidence that all necessary legal prerequisites had been complied with and was sufficient to justify the denial of requests for rulings, made in a habeas corpus proceeding seeking release of the petitioner from custody after arrest under the warrant, that the petitioner was entitled to be released on the ground that there was no evidence that he was a fugitive from justice from the State seeking rendition or that he was present in that State at the time of the commission of the alleged crime.

Absence of an indictment or information from the papers accompanying a requisition for interstate rendition did not make the requisition invalid under U. S. C. (1940 ed.) Title 18 Section 662, and G. L. (Ter.

Ed.) c. 276, Section 14, as appearing in St. 1937, c. 304, Section 1, where such papers included "an affidavit made before a magistrate of" the State seeking rendition.

Upon facts presented at a hearing in a habeas corpus proceeding seeking release from custody under an interstate rendition warrant issued on requisition by the Governor of Maine, it was presumed that the oath to a complaint administered by the clerk of a municipal court in Maine to whom the complaint was addressed was, under the relevant statutes of

Maine, taken in the court and hence "before" the judge as a "magistrate" within U. S. C. (1940 ed.) Title 18, Section 662, and G. L. (Ter. Ed.)

c. 276, Section 14, as appearing in St.

1937, c. 304, Section 1.

A complaint for crime duly sworn to before an officer authorized to administer oaths may constitute "an affidavit made before a magistrate" within U. S. C. (1940 ed.) Title 18, Section 662, and G. L. (Ter. Ed.)

c. 276, Section 14, as appearing in St.

1937, c. 304, Section 1.

TWO PETITIONS, filed in the Superior Court on September 9, 1946. The cases were heard by Donnelly, J.

W. H. Lewis, for the petitioners. W. S. Kinney, Assistant Attorney General, for the respondents.

WILKINS, J. 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. Harris, petitioner, 309 Mass. 180 , 184. Baker, petitioner, 310 Mass. 724 , 727.

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

(a) Pursuant to G. L. (Ter. Ed.) c. 276, Section 15, as appearing in St. 1937, c. 304, Section 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. 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 Section 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, Section 12, as appearing in St. 1937, c. 304, Section 1. U.S. Rev. Sts. Section 5278 (U. S. C. [1940 ed.] Title 18, Section 662). Germain, petitioner, 258 Mass. 289 , 293. 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. Pettibone v. Nichols, 203 U.S. 192, 204. People v. Pease, 207 U.S. 100, 109. Reed v. United States, 224 F. 378, 380-381 (C. C. A. 9). Raftery v. Bligh, 55 F.2d 189, 193 (C. C. A. 1). Lee Won Sing v. Cottone, 123 F.2d 169, 173-174 (C. A. D. C.). 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 oaths 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. Germain, petitioner, 258 Mass. 289 , 296-297. Harris, petitioner, 309 Mass. 180 , 184. Baker, petitioner, 310 Mass. 724 , 732-733. G. L. (Ter. Ed.) c. 276, Section 20H, as inserted by St. 1937, c. 304, Section 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. Hyatt v. People, 188 U.S. 691, 710. Munsey v. Clough, 196 U.S. 364, 372. Hogan v. O'Neill, 255 U.S. 52, 56. Strict common law evidence was not necessary before the Governor or before the court reviewing his decision. Germain, petitioner, 258 Mass. 289 , 295.

The petitioners contend that, even if the testimony of the petitioner Murphy and of the two other witnesses was ...