McClendon v. Callahan

• Decision Date: 02 June 1955
• Docket Number: No. 32963,32963
• Citation: 46 Wn.2d 733,284 P.2d 323
• Court: Washington Supreme Court
• Parties: Gerald McCLENDON, Respondent, v. Harian S. CALLAHAN, Sheriff of King County, Appellant.

Page 733

46 Wn.2d 733

284 P.2d 323

Gerald McCLENDON, Respondent, v. Harian S. CALLAHAN, Sheriff of King County, Appellant.

No. 32963.

Supreme Court of Washington, Department 1.

June 2, 1955.

Charles O. Carroll, Lawrence K. McDonell, Seattle, for appellant.

Koenigsberg & Roberts, Seattle, for respondent.

FINLEY, Justice.

Type of Proceeding:

This is a habeas corpus proceeding. It was initiated by a resident citizen of the state of Washington, who is the subject of an application for interstate extradition, instituted by the state of Oregon.

The Facts:

On December 13, 1953, Gerald McClendon was driving his automobile on a state highway between Florence and Eugene in Lane county, Oregon. At a point about forty miles from Eugene, a fire occurred in the car. McGlendon returned to his home in Seattle, Washington, on December 14, 1953, and on the following day filed a claim with his insurance company for the loss occasioned by the fire. On December 16, 1953, he again went to Lane county, Oregon, for a few days, and then returned to Seattle. Around January 17, 1954, McClendon again visited Lane county, Oregon, for several days, and again returned to his home in Seattle. On February 18, 1954, a complaint was sworn to by Jack J. Winchester, an officer of the Oregon State Police, before Chester N. Anderson, judge of the district court for Lane county, charging McClendon as a fugitive from with the crime of destroying property (the automobile involved in the fire) with the intent to defraud. A warrant was issued for his arrest, and thereupon, the state of Oregon formally requested extradition of McClendon from the state of Washington. On February 26, 1954, a complaint was sworn to before William S. Hoar, justice of the peace of King county, Washington, charging McClendon as a futitive from justice relative to the jurisdiction of the state of Oregon. The justice of the peace issued a warrant for McClendon's arrest. He was taken into custody by the sheriff of King county, Washington. The then acting governor of the state of Washington, pursuant to the extradition application of the governor of Oregon, issued a warrant of rendition on March 12, 1954, but service of it was withheld, pending the outcome of a hearing on a petition by McClendon for a writ of habeas corpus. After this hearing in the superior court for King county, Washington, on March 15, 1954, Honorable Ward Roney, the trial judge, entered findings of fact and conclusions of law to the effect that the petitioner was not a fugitive from justice within the meaning of Art. IV, § 2, of the United States Constitution; that the complaint, signed by officer Winchester, did not effectively charge the commission of a crime, and, consequently, was insufficient to comply with the procedural requisites of 18 U.S.C. § 3182; that McClendon was being unlawfully and illegally restrained. An order was entered on March 17, 1954, making the writ of habeas corpus permanent and directing that McClendon be discharged from custody. This appeal followed.

Questions to Be Decided:

The appellant's assignments of error raise two significant questions: (1) Whether the complaint signed by Officer Winchester of the Oregon State Police effectively charged McClendon with the commission of a crime in the state of Oregon; and (2) Whether McClendon was a fugitive from justice within the meaning of Art. IV, § 2, of the United States Constitution. Stated another way, our problem is to determine whether the extradition papers of the state of Oregon were valid and appropriate to effectuate an extradition of McClendon from the state of Washington.

Discussion Of Question No. 1:

We shall now discuss the first question set out above, which relates to the complaint signed by Officer Winchester. The complaint reads as follows:

'In the District Court of the State of Oregon for Lane County

* * *

* * *

'The above named defendant, Gerald McClendon is accused by Jack J. Winchester, Oregon State Police by this Complaint of the crime of Destroying Property with Intent to Defraud committed as follows, to-wit: That the said Gerald McClendon on the 13th day of December A.D. 1953, in the County of Lane, State of Oregon, then and there being, did then and there wrongfully, unlawfully and feloniously burn a 1951 'Henry J' sedan automobile, Motor Number K3008986, bearing Washington license number A23-629, by wilfully causing the said automobile to be destroyed by fire near Blachly, in Lane County, Oregon, the said automobile being then and there insured against loss by collision, fire and theft by the Motors Insurance Corporation, an insurance company licensed and doing business in the State of Oregon, with the intent on the part of the said Gerald McClendon then and there to defraud and prejudice the said insurer; contrary to the statute in such cases made and provided, and against the peace and dignity of the State of Oregon.

'Dated this 18th day of February, A.D. 1954, at Eugene, Lane County, Oregon.

'State of Oregon

County of Lane} ss.

'I, Jack J. Winchester, State Police Officer, being first duly sworn, say that I am the person commencing within entitled action, and that the complaint therein is true, as I verily believe.

'/s/ Jack J. Winchester

'Subscribed and Sworn to before me this 18th day of February A.D. 1954

'Code Section 23-508 O.C.L.A.

'Chester N. Anderson

'District Judge.'

Respondent contends that the complaint is defective; that it does not effectively charge the commission of a crime in the state of Oregon, because (1) Officer Winchester did not state facts within his personal knowledge showing a crime had been committed; that, among other things, the phrase, 'as I verily believe,' was used in the verification of the complaint, indicating that it was not based upon personal knowledge, and (2) that, absent personal knowledge of the facts, Officer Winchester should have set out the sources of the information that led him to believe a crime had been committed. In support of the foregoing contention, respondent cites and principally relies upon: People ex rel. Cornett v. Warden, 60 Misc. 525, 112 N.Y.S. 492; Ex parte murray, 112 S.C. 342, 99 S.E. 798, 5 A.L.R. 1152; Ex parte Owen, 10 Okl.Cr. 284, 136 P. 197; Ex parte Spears, 88 Cal. 640, 26 P. 608; Ex parte Smith, Fed.Cas. No.12,968, 3 McLean 121; Rice v. Ames, 180 U.S. 371, 21 S.Ct. 406, 45 L.Ed. 577.

Appellant contends that the particularity urged by respondent respecting the complaint is not requisite; that any method used and approved by a state for charging the commission of a crime is sufficient. Appellant cites and relies upon: In re Strauss, 197 U.S. 324, 25 S.Ct. 535, 49 L.Ed. 774; Pierce v. Creecy, 210 U.S. 387, 28 S.Ct 714, 52 L.Ed. 1113; Ex parte Nash, D.C., 44 F.2d 403; Ex parte Morgan, D.C., 78 F.Supp. 756; In re Davis, 68 Cal.App.2d 798, 158 P.2d 36; Ex parte Paulson, 168 Or. 457, 124 P.2d 297; State ex rel. Webster v. Moeller, 191 Minn. 193, 253 N.W. 668; Biddinger v. Commissioner of Police, 245 U.S. 128, 38 S.Ct. 41, 62 L.Ed. 193; In re Anthony, 198 Wash. 106, 87 P.2d 302; People ex rel. MacSherry v. Enright, 112 Misc. 568, 184 N.Y.S. 248; State v. Cronin, 20 Wash. 512, 56 P. 26; Raftery ex rel. Huie Fong v. Bligh, 1 Cir., 55 F.2d 189.

In Pierce v. Creecy, supra [210 U.S. 387, 28 S.Ct. 718], the court said:

'* * * We are unable to adopt the test suggested by counsel, that an objection, good if taken on arrest of judgment, would be sufficient to show that the indictment is not a charge of crime. Not to speak of the uncertainty of such a test, in view of the varying practice in the different states, there is nothing in principle or authority which supports it. Of course, such a test would be utterly inapplicable to cases of a charge of crime by affidavit, which was held to be within the Constitution. Re Matter of Strauss, 197 U.S. 324, 25 S.Ct. 535, 49 L.Ed. 774. The only safe rule is to abandon entirely the standard to which the indictment must conform, judged as a criminal pleading, and consider only whether it shows satisfactorily that the fugitive has been in fact, however inartificially, charged with crime in the state from which he has fled. * * *'

In Biddinger v. Commissioner of Police, supra [245 U.S. 128, 38 S.Ct. 42], the court said:

'The provision of the federal Constitution quoted, with the change of only two words, first appears in the Articles of Confederation of 1781, where it was used to describe and to continue in effect the practice of the New England colonies with respect to the extradition of criminals. Com. of Kentucky v. Dennison, 24 How. 66, 16 L.Ed. 717. The language was not used to express the law of extradition as usually prevailing among independent nations but to provide a summary executive proceeding by the use of which the closely associated states of the Union could promptly aid one another in bringing to trial persons accused of crime by preventing their finding in one state an asylum against the processes of justice of another. Lascelles v. Georgia, 148 U.S. 537, 13 S.Ct. 687, 37 L.Ed. 549. Such a provision was necessary to prevent the very general requirement of the state Constitutions that persons accused of crime shall be tried in the county or district in which the crime shall have been committed from becoming a shield for the guilty rather than the defense for the innocent, which it was intended to be. Its design was and is, in effect, to eliminate, for this purpose, the boundaries of states, so that each may reach out and bring to speedy trial offenders against its laws from any part of the land.

'Such being the origin and purpose of these provisions of the Constitution and statutes, they have not been construed narrowly and technically by the courts as if they were penal laws, but liberally to effect their important purpose, with the result that one who leaves the demanding state before prosecution is anticipated or begun, or without knowledge on his part that h...