Mason v. Warden, Baltimore City Jail, s. 13

• Decision Date: 05 November 1953
• Docket Number: 14,Nos. 13,s. 13
• Parties: MASON v. WARDEN, BALTIMORE CITY JAIL. SLOWE v. WARDEN, BALTIMORE CITY JAIL.
• Court: Maryland Court of Appeals

Page 659

203 Md. 659

99 A.2d 739

MASON v. WARDEN, BALTIMORE CITY JAIL.

SLOWE v. WARDEN, BALTIMORE CITY JAIL.

Nos. 13, 14.

Court of Appeals of Maryland.

Nov. 5, 1953.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

COLLINS, Judge.

Hobert Mason, alias Ellis Johnson, and Walter Slowe here apply for leave to prosecute appeals from the refusal of writs of habeas corpus. These were filed for release from custody under warrants of rendition issued by the Governor of Maryland upon extradition warrants from the State of North Carolina. Both are charged with the commission of the crime of burglary in Enfield, Halifax County, North Carolina, on December 16, 1952.

Walter Slowe refused to waive extradition and requested a hearing before the Governor. Robert Mason was serving a sixty day sentence, beginning on April 7, 1953, for carrying a concealed weapon when notified by the prison guard that he was wanted by the North Carolina authorities for burglary. Mason's counsel states that Mason was not informed of the extradition. However, he was brought with Slowe to the extradition hearing which was held before Assistant Attorney General Joseph Buscher on May 25, 1953. As a result of these hearings Governor McKeldin issued warrants of rendition for Slowe and Mason. Both then petitioned for the writs of habeas corpus as provided by Code 1951, art. 41, Sec. 24.

Judge Joseph L. Carter, of the Supreme Bench of Baltimore, after a joint hearing, refused to grant the writs and remanded the petitioners to custody. They apply for leave to prosecute appeals from the refusal of the writs. They contend that at the extradition hearing they produced conclusive and overwhelming evidence showing that they were in the State of Maryland on December 16, 1952, and not in the State of North Carolina and further that there has been no identification of the petitioners as the alleged robbers. Code 1951, art. 41, Sec. 33. The court may conduct an inquiry into petitioner's allegation that he was not present in the demanding State at the time the alleged crime was committed. Code 1951, art. 41, Sec. 24, supra; Audler v. Kriss, 197 Md. 362, 79 A.2d 391; Willin v. Sheriff of Wicomico County, Md., 95 A.2d 87; State ex rel. Channell v. Murphy, Md., 96 A.2d 473. When a warrant is issued by the Governor of the State to which the accused has allegedly fled, a presumption is raised that the accused is the wanted fugitive. This presumption is sufficient, if not rebutted, to justify his arrest and detention and his delivery to the demanding State, unless he shows beyond a reasonable doubt that he is not the fugitive wanted. If he makes such a showing he is entitled to be released. State ex rel. Zack v. Kriss, 195 Md. 559, 74 A.2d 25; Audler v. Kriss, supra; State ex rel. Channell v. Murphy, supra; Young v. Matthews, 84 U.S.App.D.C. 345, 174 F.2d 35.

A conflict in the evidence is not sufficient to overcome this presumption. The evidence to overcome such presumption must be overwhelming. State ex rel. Zack v. Kriss, supra; State ex rel. Channell v. Murphy, supra. The judge below heard conflicting evidence on behalf of petitioners and the State. The record before us in this application contains no transcript of the testimony. Of course, it is the duty of the petitioners to include in the record whatever they desire this Court to consider. Sunshine Laundry Corp. v. White, 197 Md. 582, 80 A.2d 1. However, in petitioners' brief is recited their interpretation of the testimony. This brief, which accompanied petitioners' application for leave to appeal, states that a Mr. Hartman testified that on December 16, 1952, Walter Slowe brought his car to Berger Motors in Baltimore for repairs. Mr. George Branch, the proprietor of a confectionary store in Baltimore, testified that Slowe was in his place of business from about 9 p. m. until 12 p. m. on December 16, 1952. However, Mr. Branch fixed the date as December 16th because Slowe told him that he had left his car at Berger Motors 'that day'. Petitioner Slowe contends that it would have been impossible for him to have left Baltimore after 2 p. m., when he contends he was at Berger Motors, journeyed to Enfield, Halifax County, North Carolina, participated in a robbery at 7:45 p. m. and be back in Baltimore at 9:00 or 10 o'clock that same evening. According to petitioners'...