Matthews v. People, 18040

• Decision Date: 26 August 1957
• Docket Number: No. 18040,18040
• Citation: 314 P.2d 906
• Parties: Alfred E. MATTHEWS, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 906

314 P.2d 906

136 Colo. 102

Alfred E. MATTHEWS, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.

No. 18040.

Supreme Court of Colorado, En Banc.

Aug. 26, 1957.

Ben Klein, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John W. Patterson, Asst. Atty. Gen., for defendant in error.

HALL, Justice.

Plaintiff in error, herein referred to as Matthews, was arrested in Denver, Colorado, pursuant to a warrant issued by the Governor of Colorado. The warrant for arrest had been issued upon demand from the Governor of Nebraska seeking the return of Matthews to that state. Upon his arrest Matthews gave fugitive bail and applied to the district court for a writ of habeas corpus. Hearing was had, the application for the writ denied and Matthews was remanded to the custody of the officer of the State of Nebraska. From this final judgment Matthews brings the case here on writ of error.

On April 10, 1956, a criminal complaint was filed in the County Court of Cheyenne County, Nebraska, charging Matthews with failure to support his wife and children--a felony under Nebraska law. On the same day the County Attorney of said Cheyenne County filed with the Governor of the State of Nebraska his verified petition requesting said Governor to issue his requisition requiring the Governor of the State of Colorado to apprehend and deliver Matthews for return to Nebraska. The petition, the prayer thereof and the verification contain the following language:

'* * *; that on or about the 15th day of September, 1955, the said Alfred E. Matthews * * * left the State of Nebraska and is now as your petitioner verily believes in the County of Denver, State of Colorado. * * * Wherefore: Your petitioner prays * * * that W. W. Schulz of Cheyenne County * * * pursue, receive and return * * * Matthews to Cheyenne County * * * the ends of justice require * * * the return of the accused * * * that the ends of public justice require that said fugitive be brought to * * * Nebraska * * * I believe I have sufficient evidence to secure the conviction of said fugitive * * *. (Above emphasis and all emphasis to follow supplied.)

On April 11, 1956, the Governor of Nebraska appointed W. W. Schulz agent to take Matthews to Nebraska, the order appointing contains the following 'And, whereas, agreeably to a provision of the Constitution and an Act of Congress passed on the twelfth day of February, in the year of our Lord, one thousand seven hundred and ninety-three, I have made application to His Excellency, the Governor of the State of Colorado, for the delivery of the said Alfred E. Matthews as a fugitive from justice. * * * Therefore * * * W. W. Schulz * * * being hereby commanded the said fugitive to hold in safe custody until delivered by due course of law.'

On April 11, 1956, the Governor of Nebraska issued his requisition directed to the Governor of Colorado and attached thereto as supporting documents the aforementioned criminal complaint, verified petition and order appointing. The requisition contains the following language:

'Now, therefore, pursuant to the provisions of the constitution and laws of the United States in such case made and provided, I do hereby require the said Alfred E. Matthews be apprehended and delivered to W. W. Schulz * * * to receive and convey him to the State of Nebraska, * * *'.

On April 13, 1956, the Governor of Colorado purporting to act under authority granted by C.R.S. '53, 60-1-7:

'Issue of governor's warrant.--If the governor decides that the demand should be complied with, he shall sign a warrant of arrest, which shall be sealed with the state seal, and be directed to any peace officer or other person whom he may think fit to entrust with the execution thereof. The warrant must substantially recite the facts necessary to the validity of its issuance.'

issued his warrants for the arrest and delivery of Matthews, which warrants contain the following language:

'Whereas it has been represented to me by the Governor of the State of Nebraska that Alfred E. Matthews a person subject to extradition from the State of Colorado under Section 60-1-6 of Colorado Revised Statutes 1953 stands charged with * * * a felonious crime * * * and the said governor * * * has in pursuance of the laws of the State of Colorado demanded * * * that * * * Matthews * * * be arrested and delivered to * * * the state of Nebraska.'

'We hereby command you to deliver * * * Matthews * * * in order that the said Alfred E. Matthews may be conveyed out of this state, pursuant to the laws of Colorado and the requisition of * * * the governor of Nebraska * * *.'

Evidence presented in support of the application for a writ habeas corpus established without contradiction, and without an effort to contradict the same, that Matthews was born in Colorado, that he was living in Denver with his wife and children until late in 1954 when his wife left him and took their children to Nebraska. Matthews remained in Denver; he had never lived in Nebraska, in fact had never been in the State of Nebraska until February 1956, and then only stopped off on his way to Detroit to report to the County Attorney, consequently could not be extradicted as a fugitive. When evidence of these facts was presented in the habeas corpus proceedings the trial judge should have granted the writ and discharged Matthews from custody.

Statutes providing for the arrest and extradition of fugitives are in derogation of constitutional guaranties of immunity from arrest and must be strictly construed. Henry v. McArthur, 122 Colo. 474, 223 P.2d 621. A fortiori our statute C.R.S. '53, 60-1-6 providing for extradition of non-fugitives must be strictly construed and strictly complied with in proceedings thereunder.

'Only by faithfully following the provisions of the statute may a person be lawfully deprived of his liberty and extradited from an asylum state to another state, there to be tried for the commission of a crime.' United States ex rel. McCline v. Meyering, 7 Cir., 75 F.2d 716, 717.

'The provisions * * * authorizing the issuance of warrants of extradition in cases where the accused is not a fugitive, may deprive petitioner of his liberty and must therefore, be strictly interpreted.' Commonwealth ex rel. Spivak v. Heinz, 141 Pa.Super. 158, 14 A.2d 875, 877.

The Governor of Colorado has no inherent powers of arrest and surrender. His rights and duties are clearly defined; he cannot proceed as a volunteer but is limited to acting pursuant to a demand or a request from a sister state and then only in strict conformity with law.

A sister state may proceed in either of two ways; (1) make a demand upon any state for return of a fugitive. On receipt of such lawful demand it is the duty of the governor under the constitution and laws of the United States and our enabling statute C.R.S. '53, 60-1-2 to have 'arrested and delivered' the fugitive. In such case the demanding state does not appear on bended knee seeking a favor, but appears as a sovereign state demanding rights granted to it by the Constitution and laws of the United States. In making the arrest and delivery under such demand the governor of the asylum state finds his duty, authority and protection under the Constitution and laws of the United States and C.R.S. '53, 60-1-2 and not elsewhere. (2) Make demand upon the Governor of Colorado for surrender under 60-1-6 of 'Any person in this state (Colorado) charged in such other state in the manner provided in Section 60-1-3 with...