Knox v. The State

• Decision Date: 14 February 1905
• Docket Number: 20,467
• Citation: 73 N.E. 255,164 Ind. 226
• Parties: Knox v. The State
• Court: Indiana Supreme Court

73 N.E. 255

164 Ind. 226

Knox v. The State

No. 20,467

Supreme Court of Indiana

February 14, 1905

From Jay Circuit Court; Edwin C. Vaughn, Special Judge.

Prosecution by the State of Indiana against Robert J. Knox. From a judgment of conviction, defendant appeals.

Affirmed.

Emerson E. McGriff, for appellant.

Charles W. Miller, Attorney-General, C. C. Hadley, L. G. Rothschild and W. C. Geake, for the State.

OPINION

Montgomery, J.

A criminal action was commenced against appellant and one H. B Gordon, whose true name was alleged to be unknown, by filing an affidavit with a justice of the peace of Jay county charging, in substance, that said defendants at said county on the 2d day of March, 1904, feloniously conspired and agreed feloniously to deface and alter a certain check for the payment of money, which check before such alteration was as follows: "Cashiers check. Lewisburg, W. Va., Jan. 27, 1904. 190--, No. 1079. The Bank of Greenbrier. Pay to the order of H. B. Gordon $ 15.00, Fifteen 00/100 Dollars, H. F. Hunter, Ass't Cashier. For -----." And the affidavit charged the manner of the alteration and set out a copy of the check altered calling for $ 1,500, and the alteration was made to defraud the Citizens Bank, etc. Upon this charge, on application of the State, a requisition was issued by the Governor of this State upon the governor of Ohio for the return of appellant to Jay county for trial. Appellant was arrested at Columbus, Ohio, and duly returned, and confined in the jail of the county to answer said charge. On March 22, 1904, while appellant was so confined in jail, this action was instituted by the filing of an affidavit and information in five counts in the office of the clerk of the Jay Circuit Court, and the issuance of a warrant thereon for the arrest of appellant and said Gordon.

The first count of the affidavit and information charged defendants with the forgery of the following check: "Cashiers check. Lewisburg, W. Va., Jan. 27, 1904. No. 1079. The Bank of Greenbrier. Pay to the order of H. B. Gordon $ 1,500, Fifteen Hundred 00/100 Dollars. H. F. Hunter, Ass't Cashier. For -----," and that the forgery was committed to defraud the Bank of Greenbrier. The second count charged defendants with uttering and publishing as true the above false and forged check, with intent to defraud the Citizens Bank of Portland. The third count charged defendants with conspiracy to make and forge said check, with intent to defraud the Bank of Greenbrier. The fourth count charged defendants with a conspiracy to utter and publish as true said false and forged check, with intent to defraud the Citizens Bank of Portland. The fifth count charged the same offense as the fourth, but set out in detail the alterations made in the check, and a copy of the check before as well as after such alterations were made.

Appellant, being rearrested on said warrant, appeared by counsel "specially" to said affidavit and information, and filed a plea in abatement thereto. This plea set forth with particularity the first charge preferred against him before the justice, his arrest, and extradition from the state of Ohio to answer said charge and no other; the filing of another affidavit and an information thereon charging him with a different offense from that for which he was extradited, while the first was undisposed of and before he had been afforded an opportunity to return to Ohio, "his asylum state." A demurrer to this plea, for want of facts, was sustained, and appellant excepted. Appellant's motion to quash each count of the affidavit and information was overruled, and an exception saved. At his request, appellant was tried separately, and upon the conclusion of the State's evidence he moved the court to require the State to elect upon which count it relied for a conviction, and this motion was overruled, and an exception saved to the ruling. Upon the conclusion of the evidence the court withdrew from the consideration of the jury the first, third and fifth counts of the affidavit and information, and the jury, after deliberation, returned a verdict of guilty upon the fourth count. Appellant applied for a new trial, his motion was overruled, and an exception properly saved, and judgment pronounced upon the verdict.

The assignment of errors charges: (1) That the affidavit and information, and each count thereof, does not state facts sufficient to constitute a public offense; (2) error in overruling appellant's motion to quash each count of the affidavit and information; (3) error in sustaining appellee's demurrer to the plea in abatement; (4) error in overruling the motion to require the State to elect upon which count it would rely for conviction; (5) error in overruling the motion for a new trial; (6) that the judgment is not fairly supported by the evidence; and (7) that the decision of the court is not fairly supported by the evidence.

The first question for our consideration, in logical order, is raised by the demurrer to appellant's plea in abatement, and is this: Can a fugitive from justice fleeing from this State into another state, when lawfully extradited and returned to this State to answer a specific crime, be required to answer another and different criminal charge under our laws, before being afforded an opportunity to return to the state from which he has been extradited? Appellant contends that this question must be answered in the negative, and cites in support of his contention a number of authorities, among which are the following: State v. McNaspy (1897), 58 Kan. 691, 50 P. 895, 38 L.R.A. 756; Ex parte McKnight (1891), 48 Ohio St. 588, 28 N.E. 1034, 14 L.R.A. 128; State v. Jackson (1888), 36 F. 258, 1 L.R.A. 370; State v. Hall (1888), 40 Kan. 338, 19 P. 918, 10 Am. St. Rep. 200; United States v. Watts (1882), 8 Sawy. 370, 14 F. 130; Ex parte Hibbs (1886), 11 Sawy. 452, 26 F. 421; Ex parte Coy (1887), 32 F. 911; Commonwealth v. Hawes (1878), 76 Ky. 697, 13 Bush 697, 26 Am. Rep. 242; Blandford v. State (1881), 10 Tex. Ct. App. 627; United States v. Rauscher (1886), 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425.

The cases cited above from the states of Kansas, Ohio and Tennessee support the doctrine contended for by appellant. The other cases cited involve only international, and not interstate, extradition. Appellant contends, however, that the principles governing international extradition are equally controlling in cases of interstate extradition, and the courts of Kansas, Ohio and Tennessee declare that doctrine in the cases cited above.

The right of one independent government to demand and receive from another the custody of an offender who has sought an asylum upon its soil, depends upon the existence of treaty stipulations between them, and is measured and restricted by the express terms and provisions of the treaty, and those silent provisions which are necessarily implied.

In the case of the United States v. Rauscher, supra, the court, by Mr. Justice Miller, said: "It is only in modern times that the nations of the earth have imposed upon themselves the obligation of delivering up these fugitives from justice to the states where their crimes were committed, for trial and punishment. This has been done generally by treaties made by one independent government with another. Prior to these treaties, and apart from them, it may be stated as a general result of the writers upon international law, that there was no well-defined obligation on one country to deliver up such fugitives to another, and though such delivery was often made, it was upon the principle of comity, and within the discretion of the government, whose action was invoked; and it has never been recognized as among those obligations of one government towards another which rest upon established principles of international law."

The crimes usually enumerated in such treaties, and for which extradition between nations is provided, are confined to such offenses as all mankind regard as heinous, and destructive of security of life and property; and all offenses of a political or religious character, and those growing out of intestine strife, are excluded. Applying the general rules for the construction of contracts to the interpretation of these treaties, it is plain that a nation could not demand, as a matter of right, the surrender of a fugitive from another independent government to answer for an offense not enumerated in an existing treaty between them, no matter how wicked such crime might seem. The extradition papers, therefore, must show with certainty, the particular offense with which the fugitive is charged, and on his return he can not be tried for any other offense until he has been afforded an opportunity to return to his asylum country. Any other rule would permit a prisoner to be extradited for an alleged crime of one class, and to be tried for another, which perhaps is not extraditable, and possibly merely political in character, and would result in a breach of that good faith and high honor which should characterize all dealings between nations.

The right of the person extradited to return to the country from which he has been surrendered is not a natural and inherent right of his own, but is based upon the right of his adopted sovereign to afford asylum to the fugitive, and to refuse to give him up to another except upon such terms as it is pleased to impose. The criminal himself never acquires a personal right of asylum or refuge anywhere, but all such rights as he may claim in this respect flow entirely out of the rights of the government to whose territory he has fled.

In our opinion the principles governing international extradition have no application to cases of extradition between states of the Union. This conclusion is...