Johnson v. Burke

• Decision Date: 10 March 1958
• Docket Number: No. 29483,29483
• Citation: 148 N.E.2d 413,238 Ind. 1
• Parties: Edmond JOHNSON, Appellant, v. Tom R. BURKE, Deputy Sheriff for Pima County, State of Arizona, Appellee.
• Court: Indiana Supreme Court

Page 413

148 N.E.2d 413

238 Ind. 1

Edmond JOHNSON, Appellant, v. Tom R. BURKE, Deputy Sheriff for Pima County, State of Arizona, Appellee.

No. 29483.

Supreme Court of Indiana.

March 10, 1958.

John G. Bunner, Evansville, for appellant.

William D. Stephens, Evansville, for appellee.

LANDIS, Judge.

This case involves the constitutionality of the Uniform Criminal Extradition Act which is ch. 49, §§ 1-30 of the Acts of 1935. ¹

In the lower court appellant filed petition for writ of habeas corpus. Return was filed by appellee-sheriff alleging appellant was arrested pursuant to a warrant of the Governor of the State of Indiana issued in extradition proceedings initiated by the State of Arizona, the demanding state. Appellant filed affirmative answer to the return to the writ.

At the hearing of said cause appellant attempted to show by his testimony that he was not in the State of Arizona on the date the offense was allegedly committed, to-wit: February 15, 1955, and that he had not been in Arizona since the year 1951; that he had not fled from the State of Arizona or any other state, and that at the time of the alleged offense was in the State of Indiana. Appellee objected to the introduction of this evidence and the objection was sustained.

The court denied the petition for writ of habeas corpus and overruled appellant's motion for new trial.

The question on this appeal according to appellant's brief is whether, in a habeas corpus proceeding to test the validity of an arrest and detention made by virtue of a Governor's extradition warrant, the petitioner may offer evidence to prove that he was not in the demanding state at the time of the alleged offense.

Appellee relies on § 20 of the Uniform Extradition Act (Acts of 1935, ch. 49, § 20, being Burns' § 9-438, 1956 Replacement) which provides in substance:

'The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal from as above provided shall have been presented to the governor, except as it may be involved in identifying the person held as the person charged with the crime.'

Appellant concedes that this court in Taylor v. Smith, 1939, 213 Ind. 640, 13 N.E.2d 954, 955, construed the quoted portion of the above statute to limit the evidence in habeas corpus brought thereunder to the question of identity only.

Appellant does not urge that the Taylor case, which limited the evidence to the question of appellant's identity, is too broad a construction of the statute, ² but contends solely that the construction of the Uniform Extradition Act by the Taylor case violates the Federal (Art. 4, § 2, cl. 2, and 14th Amendment) and State (Art. 1, § 12, and Art. 1, § 27) Constitutions. We shall now consider these contentions.

Art. 4, § 2, cl. 2, of the U. S. Constitution provides:

'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.'

The Act of Congress (1948), ch. 645, 62 Stat. 822 (Title 18, U.S.C.A. § 3182), implementing such constitutional provision provides:

'Whenever the executive authority of any State of Territory demands any person as a fugitive from justice, of the executive authority of any State, District 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, the executive authority of the State, District on Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged.'

Appellant has cited decisions of the U. S. Supreme Court to the effect that under the above quoted federal constitutional provision and statute, a person held by extradition proceedings may in habeas corpus show that he was not in the demanding state when the alleged offense was committed, and that if he so proves, he is entitled to be discharged. See: Hyatt v. People ex rel. Corkran, 1903, 188 U.S. 691, 23 S.Ct. 456, 47 L.Ed. 657; State of South Carolina v. Bailey, 1933, 289 U.S. 412, 53 S.Ct. 667, 77 L.Ed. 1292; Innes v. Tobin, 1916, 240 U.S. 127, 36 S.Ct. 290, 60 L.Ed. 562; Robb v. Connolly, 1884, 111 U.S. 624, 4 S.Ct. 544, 28 L.Ed. 542; 22 Am.Jur. (Extradition), § 54, p. 293.

Are these decisions decisive of the question before us in the case at bar? An examination of these cases reveals that they involved solely the application of Art. 4, § 2, of the U. S. Constitution and the implementing statute, and did not attempt to consider the question of whether a state may by appropriate legislation enlarge the scope of extradition beyond that provided for under federal law. ³ It is therefore not surprising in these federal decisions where the demanding state based its sole right to the custody of the prisoner upon the Federal Constitution and statute, that extradition should have been denied. Nor can there be any question as to the correctness of the statement of the U. S. Supreme Court in State of South Carolina v. Bailey, 1933, supra, (289 U.S. at page 420, 53 S.Ct. at page 670, 77 L.Ed. at page 1296) that 'it was the duty of [the state] court to administer the law prescribed by the Constitution and statue of the United States, as construed by this court.' In the case before us, however, the extradition warrant of the Governor of Indiana recites that the proceeding is 'in accordance with the requirements of the Constitution and laws of the United States and of the State of Indiana.' (Emphasis supplied.) And it is therefore apparent that if the extradition proceedings are authorized under state law and do not offend federal law, such proceedings will be sustained. ⁴

The case of Innes v. Tobin (1916), supra, relied on by appellant, while recognizing that a person extradited within the purview of Art. 4, § 2 of the U. S. Constitution and the implementing federal statute, must have been a fugitive from the demanding state, nevertheless held that the failure of the implementing federal statute to provide for the extradition of fugitives who did not flee into the asylum state, was not fatal to extradition from such asylum state. (Here the fugitive had fled from Georgia to Oregon, and after being extradited from Oregon to Texas for a charge of murder, resulting in an acquittal, was being extradited from Texas to Georgia.) The U. S. Supreme Court in an opinion by Chief Justice White dismissed the argument that the federal statute which had failed to make provision for extradition in such circumstances was exclusive and prohibited state action, by saying (240 U.S. at page 134, 36 S.Ct. at page 292, 60 L.Ed. at page 566):

'* * * while it is undoubtedly true that in the decided cases relied upon (Commonwealth of Kentucky v. Dennison, supra [24 How. 66, 16 L.Ed. 717]; Roberts v. Reilly, 116 U.S. 80, 6 S.Ct. 291, 29 L.Ed. 544; Hyatt v. People of New York ex rel. Corkran, 188 U.S. 691, 23 S.Ct. 456, 47 L.Ed. 657, 12 Am.Crim.Rep. 311) the exclusive character of the legislation embodied in the statute was recognized, those cases, when rightly considered, go no further than to establish the exclusion by the statute of all state action from the matters for which the statute expressly or by necessary implication provided.

'No reason is suggested nor have we been able to discover any, to sustain the assumption that the framers of the statute, in not making its provisions exactly coterminous with the power granted by the Constitution, did so for the purpose of leaving the subject, so far as unprovided for, beyond the operation of any legal authority whatever, state or national. On the contrary, when the situation with which the statute dealt is contemplated, the reasonable assumption is that by the omission to extend the statute to the full limits of constitutional power it must have been intended to leave the subjects unprovided for not beyond the pale of all law, but subject to the power which then controlled them,--state authority until it was deemed essential by further legislation to govern them exclusively by national authority. In fact, such conclusion is essential to give effect to the act of Congress, since to hold to the contrary would render inefficatious the regulations provided concerning the subjects with which it dealt. This becomes manifest when it is considered that, if the proposition now insisted upon were accepted, it would follow that the delivery of a criminal who was a fugitive from justice by one state on a requisition by another would exhaust the power, and the criminal, therefore, whatever might be the extent and character of the crimes committed in other states, would remain in the state into which he had been removed without any authority to deliver him to other states from whose justice he had fled.' (Emphasis supplied.)

And, a fortiori, if a case of extradition falling within the express provisions of the U. S. Constitution but not embraced in an implementing federal statute, is, nevertheless, a matter proper to be dealt with by state action, certainly a case of extradition beyond the scope of the U. S. Constitution which is sought to be dealt with by state law in accordance with the spirit and purpose of federal law cannot be said to violate federal...