Justice v. Lockett, s. 38957

• Decision Date: 06 July 1953
• Docket Number: 38958,Nos. 38957,38956,s. 38957
• Citation: 175 Kan. 25,259 P.2d 152
• Parties: JUSTICE v. LOCKETT, Sheriff. HUNT v. LOCKETT, Sheriff. MILLER v. LOCKETT, Sheriff.
• Court: Kansas Supreme Court

Page 152

259 P.2d 152

175 Kan. 25

JUSTICE v. LOCKETT, Sheriff.

HUNT v. LOCKETT, Sheriff.

MILLER v. LOCKETT, Sheriff.

Nos. 38957, 38958, 38956.

Supreme Court of Kansas.

July 6, 1953.

Syllabus by the Court

1. Examining the record in a habeas corpus proceeding brought by a person accused of felony in California and taken into custody under a governor's warrant in extradition proceedings, it is held the trial court erred: (1) In holding that the first count of the information did not charge a crime, and (2) in holding that the petitioner in the habeas corpus proceeding was not a figitive from justice.

2. In such a case it is further held: (1) That the state had such an interest in the habeas corpus proceeding that it could appeal from an order allowing a writ and discharging the petitioner; (2) that the court's order discharging the petitioner was an appealable order, and (3) that a motion for a new trial was not necessary.

Manford Holly, Dep. Co. Atty., of Wichita, Harold R. Fatzer, Atty. Gen., Paul E. Wilson, Asst. Atty. Gen., and H. L. Arterberry, Dep. Dist. Atty., of Los Angeles, Cal., and Warner Moore, County Atty., and William C. Farmer, both of Wichita, on the briefs, for appellant.

E. Lael Alkire, of Wichita, Clark V. Owens, of Wichita, on the briefs, for appellees.

HARVEY, Chief Justice.

These three habeas corpus cases were consolidated for trial in the district court and on appeal here for the reason that they are governed by the same legal principles.

The facts may be stated briefly as follows: On May 20, 1952, the grand jury of the superior court, sitting in and for the county of Los Angeles in the state of California, returned an indictment charging the petitioners in these proceedings, William R. Justice, Richard V. Hunt, Chris J. Miller, and one Raymond E. Chamberlain, in count 1, with the crime of criminal conspiracy to violate the corporate Security Act of the state of California, and in counts 2 through 11, being substantive counts charging violations of the act in that they sold and issued and caused to be sold and issued for value in Los Angeles county, California, fractional interests in oil and gas leases located in McPherson and Ellis counties, Kansas, without first having applied for and received a permit to do so from the commissioner of corporations of the state of California. Each of the counts charged a felony under California law. Bench warrants were issued and served upon Chamberlain, who is a resident of Los Angeles, and which could not be served upon Justice, Hunt and Miller. On June 13 the district attorney of Los Angeles county made application to the governor of California for a requisition upon the governor of Kansas for the arrest and rendition of Justice, Hunt and Miller, who are residents of Wichita, Kansas. The governor of California issued a requisition on June 17, 1952, and at the same time appointed three agents to take and receive from the proper authorities in Kansas the three named defendants. Thereafter, and on July 14, 1952, a hearing was had before the Honorable Edward F. Arn, governor of Kansas, who, after a full hearing, issued executive warrants for the arrest of the defendants Justice, Hunt and Miller and delivered them to the agents of the state of California named in the warrant. These warrants were taken to and served by the sheriff of Sedgwick county, Kansas, who took the persons named therein into custody. Thereupon each of them went into district court and filed a petition for habeas corpus. William C. Farmer, a deputy county attorney of Sedgwick county, on behalf of the sheriff, filed returns to the respective writs, setting out in detail the indictments and all of the proceedings leading to the issuance of the warrants under which defendants had been taken into custody. A response to the return of the writs in each case was filed by the petitioner and a hearing was had before the Honorable Howard C. Kline, judge of the district court, division No. 2, of Sedgwick county, Kansas. The material portions of the journal entry of the court in the habeas corpus proceedings of Richard v. Hunt, after stating the appearance of the parties, reads:

'Wherefore, the parties hereto announce themselves ready for trial, introduce their evidence, and the Court, after considering the evidence, the arguments, statements, and admissions of counsel, made the following findings, rulings, and orders, to-wit: That the petitioner, Richard V. Hunt, should be and is hereby discharged, and the Writ of Habeas Corpus is herewith granted, and the warrant issued by the Governor of the State of Kansas is found to be illegally issued, and of no force and effect.

'The Court further specifically finds that the petitioner, Richard V. Hunt, was not charged with a crime in Count No. 1 of the Indictment presented to the Governor of the State of Kansas on behalf of the State of California, and that the petitioner is not a fugitive from justice of the State of California, under Counts No. 2 through No. 11, nor is he a fugitive from justice were Count No. 1 to have stated an offense.

'It Is Therefore by the Court Ordered that the Sheriff of Sedgwick County, Kansas, Ty Lockett, forthwith discharge Petitioner Richard V. Hunt from his custody, and that the petitioner be likewise discharged from the custody of the agents of the State of California.'

The appeal is from the above findings and judgment. A similar judgment and the same procedure followed in the other two cases.

Counsel for the appellants contend that the trial court was not justified in holding that the respective petitioners were 'not charged with a crime in Count No. 1 of the Indictment,' and also contend that the court erred in holding that the petitioners are not fugitives from justice in any of the counts. We think these points are well taken.

Our controlling law on the extradition of persons charged with a crime begins with our Federal Constitution, the pertinent portion of which, Art. IV, § 2, 2d par. reads:

'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 present Federal statute, 18 U.S.C.A. § 3182, slightly amending earlier ones, reads:

'Whenever the executive authority of any State or 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 or 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.'

In conformity with the Federal Constitution and statutes and to facilitate their operation, most or all of the states have adopted the Uniform Criminal Extradition Act. Kansas did so in 1937 (Ch. 273, Laws 1937), which is now embodied in the part of our criminal procedure as sections 62-727 to 62-757 of the General Statutes of 1949. Likewise California, in the same year, adopted the Uniform Criminal Extradition Act, which is found in its Penal Code, §§ 1547 to 1558.

Allegations in Count I of the indictment are as follows:

'The said William R. Justice, Raymond E. Chamberlain, Chris J. Miller and Richard V. Hunt are accused by the Grand Jury of the County of Los Angeles, State of California, by this indictment, of the crime of Criminal Conspiracy to violate the Corporate Securities Act of the State of California, a felony, committed prior to the finding of this indictment, as follows:

'That continuously throughout the period of time from about June 1st, 1949 to about January 1st, 1950, in the County of Los Angeles, and elsewhere, and within the jurisdiction of this court, the said William R. Justice, Raymond E. Chamberlain, Chris J. Miller and Richard V. Hunt knowingly, willfully, unlawfully and feloniously, conspired, combined, confederated and agreed together, and with each other, and with divers other persons, to the Grand Jury unknown, that they would violate the Corporate Securities Act of the State of California, a felony, as follows:'

These allegations are followed by the allegations of eleven overt acts, the first of which reads:

'In pursuance of such conspiracy and to effect the object of the same, the said defendant Raymond E. Chamberlain induced one Richard Hruda on or about July 20, 1949 in Los Angeles County to invest $350.00 for a 1/96 interest in each of two oil and gas leases in the State of Kansas, and that he later received said two oil and gas lease assignments signed by the defendant William R. Justice. The bank money order in payment therefor which he gave to the defendant Raymond E. Chamberlain bears the endorsement of the defendants Hunt and Justice.'

The next ten overt acts charge other specific sales to named parties which were handled by the defendants Hunt and Justice, or by Miller, Hunt and Justice, or by Miller and Justice.

Count II of the indictment reads:

'For a further and separate cause of action, being a different offense of the same class of crimes and offenses as the charge set forth in Count I hereof, the said William R. Justice, Raymond E. Chamberlain, Richard V. Hunt and Chris J. Miller are accused by the Grand Jury of the County of Los Angeles, ...