Kelley v. State, 4 Div. 644.

• Decision Date: 21 January 1941
• Docket Number: 4 Div. 644.
• Parties: KELLEY v. STATE.
• Court: Alabama Court of Appeals

200 So. 115

30 Ala.App. 21

KELLEY v. STATE.

4 Div. 644.

Court of Appeals of Alabama

January 21, 1941

Appeal from Circuit Court, Covington County; Robt. S. Reid, Judge.

Petition of C. D. Kelley for habeas corpus. From a judgment or order denying the writ, petitioner appeals.

Reversed and rendered.

Robt. B. Albritton and Powell, Albritton & Albritton, all of Andalusia, for appellant.

Thos S. Lawson, Atty. Gen., and Jas. F. Matthews, Asst. Atty Gen., for the State.

RICE Judge.

Petitioner was in the custody of the Sheriff of Covington County, under and by virtue of an arrest under a Governor's warrant issued by the Governor of Alabama upon the request of the Governor of Florida. Uniform Criminal Extradition Act Gen.Acts Ala.1931, p. 559.

He filed this petition for the writ of habeas corpus with the circuit judge of Covington, seeking to obtain his discharge from the custody of said Sheriff, and, from an adverse order, he brings this appeal, under the Statute. Act approved June 16, 1927, Gen.Acts Ala.1927, p. 76.

The warrant issued by the Governor of this State on the requisition of the Governor of the State of Florida is attached to and made a part of the return to the writ of habeas corpus, and recites that: "Whereas, His Excellency, Fred P. Cone, Governor of the State of Florida, by requisition dated the 6th day of August, 1940, has demanded of me, as Governor of the State of Alabama, the surrender of C. D. Kelley who, it appears, is charged by affidavit in the County of St. Lucie, in said State, with the crime of forgery (a duly certified copy of which affidavit accompanies said requisition) and it appearing that said C. D. Kelley has fled from justice in said State and taken refuge in the State of Alabama."

According to the opinion written for this court by the then Presiding Judge Brown,--who is now, by the way, an Associate Justice of our Supreme Court--in the case of Pool v. State, 16 Ala.App. 410, 78 So. 407, "these are the jurisdictional facts which the law required the Governor to find before issuing the warrant, and to this end it was within the province of the Governor to require the production of satisfactory evidence of the existence of these facts. This being a matter of official duty, the presumption will be indulged, in the absence of countervailing evidence, that this duty was performed, and the recitals in the warrant are prima facie evidence of these facts."

We say "according to the opinion * * * in the case of Pool v. State," supra, the just quoted utterances are true, because the recitals in the Governor's warrant in the said Pool case are exactly the same, mutatis mutandis, and in essence, as those in the instant case. And the opinion, and decision, in the said Pool case, while originally promulgated by this court, have since that time (by citation) been approved by our Supreme Court, and are hence certainly now binding upon us. Ex parte Paulk, 225 Ala. 420, 143 So. 585.

We need hardly remark that the offense of forgery, mentioned in the Governor's warrant in this case, is an offense at common law, which, in the absence of evidence to the contrary, is presumed to prevail in the State of Florida. Ex parte Paulk, supra.

Now it is very true that "treating the recitals of the [Governor's] warrant as prima facie evidence of the facts therein stated," the said warrant was sufficient, and properly admitted into the evidence on the trial of this case below. Pool v. State, supra. And, without more, the introduction of said warrant into the evidence would have operated to cause the issues in the case to resolve themselves into two, and two only, viz: (1) Was petitioner a fugitive from justice?;...