In re Van Sceiver

• Decision Date: 20 November 1894
• Citation: 60 N.W. 1037,42 Neb. 772
• Parties: IN RE VAN SCEIVER.
• Court: Nebraska Supreme Court

42 Neb. 772

60 N.W. 1037

IN RE VAN SCEIVER.

Supreme Court of Nebraska.

Nov. 20, 1894.

Syllabus by the Court.

1. Where a requisition is made upon the governor of one state by the governor of another state for the return of an alleged fugitive from justice, and the requisition is accompanied by a copy of the complaint filed in the court to which the party whose return is demanded was held to appear by the examining magistrate,and also a copy of the evidence adduced at the preliminary hearing before the magistrate, and, on being arrested under a warrant issued by the governor in compliance with the request of such requisition, the party sues out a writ of habeas corpus in the district court, or before a judge thereof, and, to reverse the order of the district court or judge denying the relief prayed for, brings the case to this court by petition in error, the evidence taken at the preliminary hearing will not be examined for the purpose of ascertaining whether it sustains a charge of a crime alleged in the information, nor to determine whether it supports the finding of the examining court that there was probable cause to believe the party had committed the crime with which he was charged.

2. Where a requisition is accompanied by a copy of an indictment found by a grand jury, the fact that an indictment has been found is at least prima facie evidence that the act charged is a crime, and is so regarded in the state where the act was done, and where the policy of prosecution by information has been established by law, and it appears from the record accompanying the requisition that the party whose rendition is asked has been accorded a preliminary examination, as a result of which he was held to appear and answer to the charge in a higher court, and has been duly charged with the crime in the higher court, in an information filed therein, a copy of which is attached to the papers presented with the requisition to the governor, such information is of as high a grade, as a criminal pleading, as an indictment, and entitled to the same weight as evidence, and will be so considered.

3. The proceedings in a hearing on habeas corpus may be reviewed on error, but, being in its nature a civil proceeding, such review must be by petition in error.

4. Section 902 of the Code (page 966, Comp. St. 1893), wherein it states, “Until the legislature shall otherwise provide this Code shall not affect proceedings on habeas corpus,” etc., held to apply to the proceedings relating to the application for the writ of habeas corpus, and its hearing, and not to the manner of their review, or the removal of the case for such purpose.

5. Where there is a trial in a habeas corpus case, and it is sought to review alleged errors occurring during the trial, a motion for a new trial must be made, embodying the errors of which complaint is made, and presented to the trial court or judge, and a ruling obtained thereon, to entitle the complaining party to such review.

Error to district court, Lancaster county; Tibbets, Judge.

Application of Thomas W. Van Sceiver for a writ of habeas corpus to obtain his discharge from imprisonment upon a warrant issued on a requisition of the governor of California. From an order refusing to discharge him, petitioner brings error. Affirmed.

Pound & Burr, for plaintiff in error.

Stearns & Strode, for defendant in error.

HARRISON, J.

On October 20, 1894, H. H. Markham, governor of the state of California, issued a requisition, directed to the governor of this state, in which it was stated in substance that the plaintiff in error stands charged with the crime of embezzlement, committed in the county of Los Angeles, state of California, and has fled from justice and taken refuge in the state of Nebraska, and requested and demanded that he be apprehended and delivered to a party named, to be conveyed to the state of California to be dealt with according to law. With the requisition were an affidavit, a copy of a complaint or information filed in the superior court of the county of Los Angeles, purporting to charge plaintiff in error with the crime of embezzlement, and copies of other papers, from which it appears that he had been arrested in the state of California and taken before a magistrate, and given a preliminary examination, and in due course of the proceedings the information filed in the superior court, to which, upon arraignment, he had entered a plea of not guilty, and pending trial been admitted to bail. His excellency, Gov. Crounse, issued his warrant for the apprehension of plaintiff in error, who was arrested, after which he filed a petition in the district court of Lancaster county, and sued out a writ of habeas corpus, under which he was produced before the court, or one of the judges thereof, and a hearing had, which resulted in a finding that he was not unlawfully detained or restrained of his liberty; and after an application to be admitted to bail, which was refused, error has been prosecuted in his behalf to this court.

The first point argued by counsel for plaintiff in error in his behalf is that the testimony introduced in the preliminary examination in the magistrate's court in California is attached to the papers accompanying the requisition of the governor of that state, and that a consideration of the testimony will convince that the plaintiff in error has not committed the crime with which it is claimed he is charged in the information. We think it is without our province in this, a proceeding in error to review the action of the district court in the habeas corpus case, to enter into an examination of this evidence with a view to determining the question of whether the plaintiff in error should have been charged with a crime, the answer to such question to depend upon a decision of the sufficiency or insufficiency of the testimony to sustain the charge; and we cannot agree with counsel that, inasmuch as this evidence is sent with and attached to the governor's requisition, it becomes our duty to examine it for the purpose of ascertaining whether the plaintiff in error stands charged with a crime. It would, in effect, be a review of the action of the justice of the peace in California in holding from this testimony that a crime had been committed, and there was probable cause for believing that plaintiff in error committed it. This would be passing back beyond the superior court, in which information has been filed against him, and reviewing the case as made upon the evidence in the court of the examining magistrate. We are convinced that this cannot be done.

Another and the main point insisted upon by counsel for plaintiff in error is that the information is insufficient in that it does not state a crime, and as a portion of the argument on this point it is claimed that inasmuch as the law of California relating to embezzlement was not introduced in evidence on the hearing of the habeas corpus, and that in order to be considered it must have been proved as any other fact, or in the absence of such proof the court must presume that the law of California in regard to the crime charged is the same as the law of this state, and if the complaint is insufficient under the provisions of our Criminal Code in relation to embezzlement the plaintiff in error is entitled to be discharged under the habeas corpus. In Hawley, Interst. Extrad. pp. 29, 30, is the following statement in reference to the rule that courts of one state do not take judicial notice of the laws of another state: “One of the difficulties which is found in determining whether or not the act charged is a crime in the demanding state, and what evidence of this shall be deemed conclusive, grows out of the rule that the courts of one state cannot take judicial knowledge of the laws of another state. They must be proved before them as matters of fact. It is not too much to say that it is a foolish rule, more honored in the breach than in the observance, and many cases can now be found in the books in which no pretense is made of observing it. But there are other cases in which the highest courts have obstinately shut their eyes to the most indubitable evidence of the law in another state.” The law of California on the subject of embezzlement, it is claimed by counsel for defendant in error, was used or read during the hearing in the district court; and the attempt was made to incorporate it in the bill of exceptions as an amendment thereto, but...