Rehearing Denied October 11, 1907.
From
Marion Circuit Court (15,439); Henry Clay Allen, Judge.
Habeas
corpus by Ethelbert T. Kemper against Robert Metzger, as
Superintendent of Police of the City of Indianapolis. From a
judgment for defendant, plaintiff appeals.
Affirmed.
OPINION
Hadley, C. J.
Habeas
corpus. Appellant was arrested by appellee on a warrant
issued by the Governor of this State based upon a requisition
by the Governor of Tennessee for a return of appellant to the
latter state as a fugitive from justice. Appellant, in his
petition, alleges that he is now, and has been continuously
since July, 1904, a resident of Indiana, and that on November
3, 1906, he was unlawfully arrested, and is now unlawfully
restrained of his liberty, and imprisoned in Indianapolis by
appellee, as superintendent of the police of said city, on a
pretended charge of embezzlement in Tennessee; that he has
not committed, nor been charged by anyone with committing,
any crime in this State; that he has been arrested and
imprisoned on a pretended indictment presented by the grand
jury of Shelby county, Tennessee, at the September term,
1906, wherein E. T. Kemper is charged with having, in July,
1904, embezzled the sum of $ 1,500 belonging to certain
persons; that said indictment charges no crime against the
petitioner under the laws of this State, or of Tennessee;
that said indictment purports to be authenticated by John L. Cox, as Governor of Tennessee, but in fact
Cox was elected Lieutenant Governor, and his term of office
as such has not expired; that the agent of Tennessee is
threatening to take him back to that state, and he prays to
be brought before the court and discharged. To the writ of
habeas corpus appellee made return in three
paragraphs, the third of which, being more elaborate and
furnishing foundation for all the questions arising in the
case, is set out in full.
"For a third and further paragraph of answer and return
to said writ, Robert Metzger, the defendant, and the person
to whom the writ of habeas corpus herein was
directed, says: That he is now and was at the time said writ
was issued, superintendent of police of the city of
Indianapolis, Marion county, Indiana, and for his answer and
return thereof, upon oath, says: That said Ethelbert T.
Kemper therein named was, at the time of the service of said
writ upon the defendant, confined and restrained of his
liberty by him as such superintendent of police, and that
this defendant, since the service of said writ as aforesaid,
to wit, on November 5, 1906, transferred said Ethelbert T.
Kemper to the care and custody of Edward G. Sourbier, sheriff
of Marion county, Indiana, to be safely and securely kept by
him, said Sourbier, in the jail of said county, and that said
Ethelbert T. Kemper is now being confined and restrained of
his liberty by said sheriff of said county, lawfully and by
virtue of a warrant of arrest issued by the Governor of
Indiana upon a requisition from the Governor of Tennessee,
and directed to any sheriff or constable in this State,
commanding the arrest of said Kemper, a copy of said order of
arrest being filed with this answer and made a part thereof,
and the original of which this defendant herewith produces,
and upon the authority of which he made the arrest of said
Kemper, and by virtue of which he is held, restrained
and imprisoned. As further return to said writ said Robert
Metzger would show that he now has the body of said Ethelbert
T. Kemper in said court, together with said writ as herein
commanded.
Robert Metzger."
"Order of Arrest.
In the
name and by authority of the State of Indiana.
Executive
Department.
To any sheriff or constable of any county of Indiana,
greeting: Whereas, the executive authority of the state of
Tennessee has, by requisition of his excellency, John L. Cox,
Governor thereof, dated Nashville, November 30, 1906,
directed to the Governor of this State, and deposited in the
office of the Secretary of State, demanded that E. T. Kemper
be arrested as a fugitive from the justice of the state of
Tennessee aforesaid, and delivered to T. J. Hunn, the agent
of said authority, appointed to receive him, and has,
moreover, produced therewith a copy of an indictment charging
the person so demanded with having committed a crime within
the jurisdiction of said state, which copy is certified as
authentic by the Governor aforesaid; and whereas, the
commission of said crime is charged in manner and form as
follows, namely:
State of Tennessee, Criminal Court of Shelby county,
September term, 1906.
The grand jurors of the state of Tennessee, duly elected,
impaneled, sworn and charged to inquire in and for the body
of the county of Shelby, in the state aforesaid, upon their
oaths present that E. T. Kemper, late of the county
aforesaid, on the day of July, 1904, before the finding of
this indictment in the county aforesaid, not being then and
there an apprentice or a person under the age of eighteen
years, and being in the employ of Drewry & Ralston, a
firm composed of L. D. Drewry and E. H. Ralston, as their
agent and representative in Memphis, Shelby county,
Tennessee, and by virtue of said employment, did collect and
receive into his care, custody and possession from divers and
sundry persons, to the grand jurors aforesaid unknown, the
sum and value of $ 1,500, good and lawful money of the United
States, a more particular description of which is to the
grand jurors aforesaid unknown, all of the value of $ 1,500,
the proper goods and chattels of Drewry & Ralston
aforesaid, which sum aforesaid said E. T. Kemper, by virtue
of his employment aforesaid, was required to turn over,
deliver and account for to said Drewry & Ralston
aforesaid, all of which he failed and refused
to do, but did unlawfully, feloniously and fraudulently
embezzle and convert the amount of $ 1,500 to his own use
with intent unlawfully and feloniously to deprive the true
owner thereof. Against the peace and dignity of the state.
George S. Yerger,
Attorney-General, Criminal Court of Shelby County, Tennessee.
A true copy from the record.
[Seal.] Jerome E. Richards, Clerk.
J. E. Richards, Jr., D. C.
It is therefore ordered, by the executive authority of the
State of Indiana, in accordance with the Constitution and
laws of the United States, and of an act of the General
Assembly, approved February 3, 1897, that you do arrest and
secure said E. T. Kemper wherever found within this State,
and forthwith bring him before a circuit or criminal judge of
this State, or other proper authority, who may be nearest, or
most convenient of access, to the place at which the arrest
may be made, to the end that such judge may, by the
examination of witnesses, be satisfied of the identity of the
person so arrested, before ordering his delivery to the agent
of the authority demanding him, and that he be then delivered
to said agent for transportation to the state from which he
fled. And for your doings in the premises this shall be your
sufficient warrant when duly returned and filed in the office
of the Secretary of State.
Given under the seal of the State, and the hand of the
Governor, at Indianapolis, this third day of November, 1906.
[Seal.] J. Frank Hanly, Governor of Indiana.
By the Governor.
Fred A. Sims, Secretary of State."
To the
third paragraph of return appellant filed his exception in
the following terms:
"The petitioner herein, for exception to the third
paragraph of the respondent's return, herein says that
said paragraph does not state facts sufficient to constitute
a defense to petitioner's writ."
The
exception was overruled, whereupon the petitioner refused to plead further, and judgment was rendered
against him, from which he appeals.
A
person charged in any state with a 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. Constitution U.S., Art. 4, § 2.
There
is no doubt that appellant, as he contends, has the right to
challenge the particular process employed against him, as not
being "due process" within the meaning of the
federal Constitution. Pursuant to the constitutional
provision above cited, congress enacted a statute, approved
February 12, 1793, concerning fugitives from justice (1
Stat., p. 302, U.S. Comp. Stat. 1901, p. 3597, § 5278)
which is still in force, and, so far as material here, reads
as follows: "That whenever the executive authority of
any state * * * shall demand any person as a fugitive from
justice, of the executive authority of any such state * * *
to which such person shall have fled, and shall moreover
produce the copy of an indictment * * * charging the person
so demanded, with having committed * * * crime, certified as
authentic by the governor * * * of the state * * * from
whence the person so charged fled, it shall be the duty of
the executive authority of the state * * * to which such
person shall have fled, to cause him * * * to be arrested and
secured * * *
and cause the fugitive to be delivered to such agent when he
shall appear." Responsive to these provisions our own
legislature has enacted the following statute: "Upon the
demand of the executive authority of any state or territory
of the United States upon the Governor of this State, to
surrender any fugitive from justice from such state or
territory, pursuant to the Constitution and laws of the
United States, he shall issue his warrant, reciting the fact...
