Kemper v. Metzger

• Decision Date: 20 June 1907
• Docket Number: No. 20,958.,20,958.
• Citation: 169 Ind. 112,81 N.E. 663
• Parties: KEMPER v. METZGER, Superintendent of Police.
• Court: Indiana Supreme Court

169 Ind. 112

81 N.E. 663

KEMPER

v.METZGER, Superintendent of Police.

No. 20,958.¹

Supreme Court of Indiana.

June 20, 1907.

Appeal from Circuit Court, Marion County; Henry C. Allen, Judge.

Habeas corpus by Ethelbert T. Kemper against Robert Metzger, superintendent of police, etc. From a judgment for defendant, petitioner appeals. Affirmed.T. J. Moll, Martin Hugg, and F. R. Bonifield, for appellant. Jameson, Joss & Hay, for appellee.

HADLEY, C. J.

Habeas corpus. Appellant was arrested by appellee on a warrant issued by the Governor of this state based upon a requisition of the Governor of the state 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 continuously since July, 1904, been, a resident of the state 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 the state of Tennessee. That he has not committed nor been charged by any one of 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, Tenn., at the September term, 1906, wherein one E. T. Kemper is charged with having embezzled the sum of $1,500 in July, 1904, belonging to certain persons. That said indictment charges no crime against the petitioner under the laws of this or the state of Tennessee. 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 the state 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, Ind., and for his answer and return thereof, upon oath says: That the 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 the 5th day of November, 1906, transferred the said Ethelbert T. Kemper to the care and custody of Edward G. Sourbier, sheriff of the county of Marion, Ind., to be safely and securely kept by him, said Sourbier, in the jail of said county, and that the 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.

“[Signed] 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, on the last day of November, 1906, directed to the Governor of this state, and deposited in the office of the Secretary of State, demanded 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, A. D. 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 oath, present that E. T. Kemper, late of the county aforesaid, on the day of July, A. D. 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, Tenn., 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 fifteen hundred dollars ($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 fifteen hundred dollars, the proper goods and chattels of Drewry & Ralston aforesaid, which sum aforesaid, the said E. T. Kemper by virtue of his employment aforesaid, was required to turn over, deliver and account for said money 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. Jerome E. Richards, Clerk. J. E. Richards, Jr., D. C. [Seal.]” 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 the said E. T. Kemper wherever found within this state, and forthwith bring him before the 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 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 Sims, Secretary of State.”’

To the third paragraph of return appellant filed his exception in the following terms: “The petitioner herein, for exceptions 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. Const. 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 being “due process,” within the meaning of the federal Constitution. Pursuant to the constitutional provision, above cited, Congress, in 1793, enacted a statute concerning fugitives from justice (1 Stat. 302) which is still in force, and so far as material here reads as follows: “Whenever the executive authority of any state *** demands any person as a fugitive from justice, of the executive authority of any state *** to which such person has fled, and produces a copy of an indictment *** charging the person demanded with having committed *** a crime, certified as authentic by the Governor *** of the state *** from whence the person so charged has fled, it shall be the duty of the executive authority of the state to which the fugitive has fled to cause him to be arrested and secured *** and cause such fugitive to be delivered to such agent when he shall appear. ***” Act Feb. 12, 1793, c. 7, § 1, 1 Stat. 302 [U. S. Comp. St. 1901, p. 3597]. Responsive to these provisions our own Legislature has enacted the following statute: “Upon the demand of the executive authority of any state of the United States upon the Governor of this state to surrender any fugitive from such state, pursuant to the laws and Constitution of the United States, he shall issue his warrant reciting the fact of such demand, and the charge upon which it is based, with the time and...