Jacobsen v. State

• Decision Date: 30 March 1978
• Docket Number: No. 12425,12425
• Citation: 99 Idaho 45,577 P.2d 24
• Parties: Larry L. JACOBSEN, Petitioner-Appellant, v. The STATE of Idaho, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 24

577 P.2d 24

99 Idaho 45

Larry L. JACOBSEN, Petitioner-Appellant, v. The STATE of Idaho, Defendant-Respondent.

No. 12425.

Supreme Court of Idaho.

March 30, 1978.

William J. Brauner, Caldwell, for petitioner-appellant.

Wayne L. Kidwell, Atty. Gen., Jean R. Uranga, Asst. Atty. Gen., Boise, for defendant-respondent.

SHEPARD, Chief Justice.

This is an appeal from an order quashing a writ of habeas corpus by which appellant seeks to oppose his extradition from Idaho to the State of Wyoming. We affirm.

Appellant is charged by a criminal complaint with the commission of a crime in Wyoming; i. e., of removing mortgaged personal property from the jurisdiction of the secured party without the latter's consent. Wyo.Stat. § 6-149 (Supp.1975). That complaint was sworn to by an officer of the bank, which was the secured party, before a commissioner of the Wyoming court. The State of Wyoming seeks to extradite appellant and pursuant to that process the Governor of Idaho issued a warrant and appellant was arrested thereunder. Appellant filed a petition for habeas corpus to which the sheriff of Canyon County made a return and thereafter the district court quashed the writ. From that order this appeal is taken.

Appellant seeks reversal of the order quashing the writ of habeas corpus on a number of grounds, including, inter alia: the failure of the State to controvert the allegations in the petition for the writ; the alleged insufficiency of the extradition warrant issued by the Governor of Idaho; the alleged insufficiency of the Wyoming affidavit alleging commission of the crime; inadequate certification by the Governor of Wyoming of the authenticity of the affidavit sworn before the commissioner in Wyoming; that the district court erred in ruling appellant was a fugitive from Wyoming; that appellant had not committed the crime of removing mortgaged property from the jurisdiction of the creditor; that appellant was being extradited in violation of Wyoming law since the extradition was not sought to prosecute a crime but to collect a private debt; that the affidavits of the prosecuting attorney in Fremont County, Wyoming, and the complaining witness falsely stated that the criminal proceedings were not instituted to enforce a private debt; and that the judgment of the district court quashing the writ is not supported by sufficient evidence.

We note initially that habeas corpus, I.C. § 19-4201, is the proper vehicle by which extradition may be challenged. Roberts v. Reilly, 116 U.S. 80, 6 S.Ct. 291, 29 L.Ed. 544 (1885); Norton v. State, 93 Idaho 648, 470 P.2d 413 (1970), cert. denied, 401 U.S. 936, 91 S.Ct. 918, 28 L.Ed.2d 215 (1971); In re Martz, 83 Idaho 72, 357 P.2d 940 (1960). Here, appellant filed a petition for a writ of habeas corpus with the district court. A writ was issued to which the sheriff made a return. That return did not controvert any of the substantive claims in the petition for the writ. Appellant argues that the petition should be treated by this Court as a complaint and the return thereto as an answer, thereby requiring the application of I.R.C.P. 8(d), which provides that averments not denied are deemed admitted. Reliance on that rule is misplaced. The return was made by the sheriff to the writ issued by the court and was not a responsive pleading to the petition. See I.C. §§ 19-4208, 19-4212. A perusal of the statute makes clear that the return is not intended to be a pleading responsive to the petition and further indicates that the burden of putting issues in controversy clearly lies upon the person brought before the court. The function of the petition is to secure the issuance of the writ and once that writ has been issued the petition has served its office. Jackson v. State, 87 Idaho 267, 392 P.2d 695 (1964); State v. Olsen, 53 Idaho 546, 26 P.2d 127, 128 (1933).

It is also argued that the failure of the sheriff's return to annex a copy of the documents under which custody of the appellant was held makes that return defective. We agree with the respondent that the omission, although erroneous, was harmless and was not objected to and that the originals of those documents were submitted to the district judge at the time of hearing. That was also the time set for the return to writ and if petitioner and his counsel deemed additional time was necessary to examine said documents or had objections to setting the time for the return and the hearing simultaneously, objection should have been made at that time with request for additional time. Since none was made, we deem the same harmless as none of appellant's substantial rights were impaired. Rindlisbaker v. Wilson, 95 Idaho 752, 519 P.2d 421 (1974).

Appellant contends that the warrant of the Governor for extradition was defective for noncompliance with I.C. § 19-4505. Appellant claims he is not a fugitive and has not been so shown. The warrant of the Idaho Governor, however, itself is prima facie evidence of that status. Smith v. State, 89 Idaho 70, 403 P.2d 221 (1965). Accord, Koprivich v. Warden, 234 Md. 465, 200 A.2d 49 (1964). It is presumed that the Governor performed his duty to examine the demanding documents to ascertain if they indicated that the accused was in the demanding state at the time of the commission of the alleged crime and that he thereafter fled from that state and is found in this state. Norton v. State, supra. The documents delivered by the Governor of Wyoming sufficiently show that the appellant was in Wyoming at the time of the alleged crime, that he thereafter left Wyoming and has been and now is in Idaho. Such is sufficient to establish fugitive status under the extradition clause of the federal constitution, article IV, § 2, clause 2, and 18 U.S.C. § 3182 (1970). Roberts v. Reilly, supra. See also I.C. § 19-4505; Norton v. State, supra.

Appellant argues, however, that he is not a fugitive because he did not commit a crime. He contends he had permission from the creditor to remove the mortgaged personal property from Fremont County, Wyoming. The asylum state, however, is not authorized to inquire into the guilt or innocence of the accused as to the charged crime. I.C. § 19-4520. The argument of the appellant would, if proved, tend to establish his innocence but that is a question for the Wyoming courts, not those of Idaho. See Koprivich v. Warden, supra. "The traditional 'narrow scope' extradition habeas corpus proceeding * * * countenances four avenues of attack upon the validity of custody in the asylum state pending extradition: (1) that the extradition papers are not in order, or are without proper authentication by the demanding state's executive authority; (2) that the charge, whether by indictment or affidavit, is inadequate to support extradition, or is insubstantial; (3) that the petitioner is not the person named in the extradition papers; (4) that the petitioner is not a fugitive from the demanding state's justice because he was not within the demanding state at the time of the alleged offense."

Note, Extradition Habeas Corpus, 74 Yale L.J. 78, 91 (1964) (footnotes omitted). As contrasted with the above, the "broad scope" inquiry considers whether extradition would result in subjecting the fugitive to cruel and unusual punishment in the demanding state. Such is not in issue here. Neither the traditional "narrow scope" inquiry or any other entitles appellant to oppose extradition on the ground that he is innocent of the charged crime in the demanding state.

Appellant further opposes extradition on the ground that the pending prosecution in Wyoming is brought to enforce a private claim. We note that Wyoming law forbids the use of criminal extradition process to enforce private claims. Wyo.Stat. § 7-49 (Supp.1975). We have previously determined that courts of this state will not inquire into the motives of those prosecuting the case in the demanding state. Norton v. State, supra. Although we are asked here to overrule Norton, we decline the invitation and continue to believe it inadvisable for the asylum state to inquire into the motives of persons who are not before the courts of the asylum state. If the sworn affidavits of persons in Wyoming were made falsely, that matter is best left to the Wyoming court.

Appellant next contends that the affidavit attached to the Wyoming extradition documents is inadequate in that it does not charge him with the commission of every element essential to the crime. However, we hold that all that is necessary is that the affidavit substantially charge him with the commission of a crime. I.C. § 19-4503. See Roberts v. Reilly, supra. Appellant's argument in effect would require the affidavit to establish probable cause. Such argument is thought to follow from Gerstein v. Pugh,420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Gerstein was not an extradition case. It held, however, that a judicial determination of probable cause must be had within a reasonable time after a person is arrested on a prosecutor's information. We were cited no case of the U.S. Supreme Court holding that the fourth amendment principles requiring a determination of probable cause by a neutral detached judicial officer as a condition to pretrial detention require that determination to be made in the asylum state. See Note, Interstate Rendition in the Fourth Amendment, 24 Rutgers L.Rev. 551 (1970). See also Price v. Pitchess, 556 F.2d 926 (9th Cir.), cert. denied, 434 U.S. 965, 98 S.Ct. 504, 54 L.Ed.2d 451 (1977) (wherein dictum suggests the inapplicability of the Bill of Rights as a whole to extradition matters).

We note a lack of unanimity among those jurisdictions which have considered the question of whether there must be a probable cause determination prior to extradition either in the demanding or asylum state. Kirkland v. Preston, 128 U.S.App.D.C. 148, 385 F.2d 670 (1967), was the first case to so hold and has been followed by several other cases. See Ierardi v. Gunter, 528...