Lee Won Sing v. Cottone

• Decision Date: 03 November 1941
• Docket Number: No. 7947.,7947.
• Citation: 74 App. DC 374,123 F.2d 169
• Parties: LEE WON SING v. COTTONE, Agent of the State of New York.
• Court: U.S. Court of Appeals — District of Columbia Circuit

74 App. DC 374, 123 F.2d 169 (1941)

LEE WON SING v. COTTONE, Agent of the State of New York.

No. 7947.

United States Court of Appeals for the District of Columbia.

Decided November 3, 1941.

William H. Collins, of Washington, D. C., for appellant.

Bernard Margolius, Asst. U. S. Atty., of Washington, D. C. (Edward M. Curran, U. S. Atty., and John H. Mitchell and Charles B. Murray, Asst. U. S. Attys., all of Washington, D. C., on the brief), for appellee.

Before GRONER, Chief Justice, and STEPHENS and RUTLEDGE, Associate Justices.

STEPHENS, Associate Justice.

This is an appeal from an order of the District Court of the United States for the District of Columbia dismissing a petition for a writ of habeas corpus and a writ issued thereunder, and remanding the appellant to the custody of the appellee.

The appellee, as an agent of the state of New York in an extradition proceeding, had presented to Chief Justice Wheat of the District Court of the United States for the District of Columbia (who, under the Act of March 3, 1901, 31 Stat. 1340, c. 854, § 930, D.C.Code (1929) tit. 6, § 377, is empowered to act for the District as under the Federal statutes pertinent to interstate extradition the governor of a state may act) a requisition by the governor of New York for the surrender and return of the appellant from the District of Columbia to that state. Chief Justice Wheat, pursuant to the requisition, issued a rendition warrant committing the appellant to the appellee's custody. Thereafter, upon the petition of the appellant, the District Court issued a writ of habeas corpus commanding the appellee to produce the appellant for inquiry in respect of the legality of his detention. The appellee made return and answer and there was a hearing at which two issues raised under the petition and answer were considered, one, whether or not a New York indictment, part of the requisition papers, naming the appellant as defendant, was properly authenticated, and the other, whether or not the appellant was a fugitive from justice. Both issues were determined against the appellant, and his detention by the appellee was held lawful. By assignment of errors on this appeal the correctness of the trial court's rulings on these two issues is before us. We state below such further facts as are necessary to an understanding of each of the points raised.

1. Clause 2 of section 2 of Article IV of the Constitution of the United States provides in respect of fugitives from justice:

"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."

Rev.Stat. § 5278 (1875), 18 U.S.C.A. § 662 (1934), provides:

"Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority or any State 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 which the person so charged has fled, it shall be the duty of the executive authority of the State or Territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent or such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. . . ."

Conformably to the requirement of this statute the requisition papers of the governor of New York contained a purported copy of an indictment by the grand jury of the Court of General Sessions for the County of New York charging the appellant with having committed on August 31, September 5 and September 6, 1940, the crimes of selling and of possessing a narcotic drug. The copy was certified by the clerk of the court as a correct copy of the original, and the governor's requisition certified that the indictment was authentic and that it was duly authenticated in accordance with the laws of New York. It is without dispute that this form of authentication satisfied the requirements of Rev.Stat. § 5278. But it is contended by the appellant that it was not sufficient for the copy of the indictment to be "certified as authentic by the governor," but that there should also have been a certificate by a judge of the Court of General Sessions that the clerk's attestation of the indictment was in due form. There was no such judicial certificate in the requisition papers. The appellant's contention is based upon Rev.Stat. § 905 (1875), 28 U.S.C.A. § 687 (1934), which provides, so far as here pertinent:

". . . The records and judicial proceedings of the courts of any State or Territory . . . shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken."

The contention that this statute is applicable and the requisition papers therefore defective for lack of a judicial certificate cannot be sustained. The full faith and credit clause of the Constitution (section 1 of Article IV) provides that:

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws, prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

Rev.Stat. §§ 5278 and 905 were passed by Congress as general laws pursuant to the authorization of the second sentence of this clause. But it is obvious from the language alone of § 5278 that it was intended to apply to extradition proceedings, executive in character, and from the language of § 905 that its purpose was to provide for the method of authenticating records and judicial proceedings of the courts of one state or territory for the purpose of introducing them in to evidence in judicial proceedings in other courts. The duties of the chief justice of the District Court of the United States for the District of Columbia in extradition proceedings are executive, not judicial. Reed v. Colpoys, 1938, 69 App.D.C. 163, 99 F.2d 396. It is, moreover, settled by judicial authority that interstate extradition requisitions are sufficiently authenticated if they comply with the provisions of Rev. Stat. § 5278. Collins v. Traeger, 9 Cir., 1928, 27 F.2d 842; Chung Kin Tow v. Flynn, 1 Cir., 1914, 218 F. 64; Tiberg v. Warren, 9 Cir., 1911, 192 F. 458; Kingsbury's Case, 1870, 106 Mass. 223. Compare also Marbles v. Creecy, 1909, 215 U.S. 63, 30 S.Ct. 32, 54 L.Ed. 92; People of State of Illinois ex rel. McNichols v. Pease, 1907, 207 U.S. 100, 28 S.Ct. 58, 52 L.Ed. 121; Appleyard v. Massachusetts, 1906, 203 U.S. 222, 27 S.Ct. 122, 51 L.Ed. 161, 7 Ann.Cas. 1073; Roberts v. Reilly, 1885, 116 U.S. 80, 6 S.Ct. 291, 29 L.Ed. 544; Ex parte Reggel, 1885, 114 U.S. 642, 5 S.Ct. 1148, 29 L.Ed. 250; United States v. Meyering, 7 Cir., 1934, 75 F.2d 716. It is also expressly held that it is not necessary that extradition requisitions be authenticated in accordance with the provisions of Rev.Stat. § 905. State v. Currie, 1911, 2 Ala.App. 251, 56 So. 736; People v. Jeremiah, 1936, 364 Ill. 274, 4 N.E.2d 373; People v. Meyering, 1934, 356 Ill. 210, 190 N.E. 261; Albright v. Clinger, 1921, 290 Mo. 83, 234 S.W. 57.

2. In respect of the alleged error of the trial court in finding the appellant to be a fugitive from justice: In Barrett v. Bigger, 1927, 57 App.D.C. 81, 82, 17 F.2d 669, 670, we accepted the definition of the term fugitive from justice, as used in the Constitution and in the statutes now under discussion, given by the Supreme Court in Appleyard v. Massachusetts, supra:

". . . A person charged by indictment or by affidavit before a magistrate with the commission within a State of a crime covered by its laws, and who, after the date of the commission of such crime leaves the State — no matter for what purpose or with what motive, nor under what belief — becomes, from the time of such leaving, and within the meaning of the Constitution and the laws of the United States, a fugitive from justice, and if found in another State must be delivered up by the Governor of such State to the State whose laws are alleged to have been violated, on the production of such indictment or affidavit, certified as authentic by the Governor of the State from which the accused departed. Such is the command of the supreme law of the land, which may not be disregarded by any state. . . ." 203 U.S. at 227, 27 S.Ct. at 123, 51 L.Ed. 161, 7 Ann.Cas. 1073

Whether or not a person is, within this definition, a fugitive from justice is a question of fact. And in a habeas corpus proceeding questioning the legality of detention for extradition the fact alone that a rendition warrant has been issued by the governor of the asylum state makes a prima facie case of...