McCullough v. Darr, 47930
Decision Date | 10 April 1976 |
Docket Number | No. 47930,47930 |
Citation | 219 Kan. 477,548 P.2d 1245 |
Parties | Application of Charles R. McCULLOUGH, Appellee, v. Johnnie DARR, Sheriff of Sedgwick County, Kansas, Appellant. |
Court | Kansas Supreme Court |
Syllabus by the Court
1. Extradition proceedings are controlled by the Uniform Criminal Extradition Act, K.S.A. 22-2701, et seq. Before the Governor may issue a warrant, he must apply the standards set out in K.S.A. 22-2703 to the documents supporting the demand for extradition. Under that statute '(t)he indictment, information affidavit or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state.'
2. The Constitution does not require, as an indispensable prerequisite to interstate extradition, that there should be a good indictment, or even an indictment of any kind. It requires nothing more than a charge of crime.
3. Where an accused challenges extradition in a habeas corpus proceeding brought under the Uniform Criminal Extradition Act, the Governor's warrant issued in the extradition proceedings is presumed valid and regular in all respects, thus casting the burden of proof upon the petitioner to overcome the prima facie case mady by the Governor's warrant.
4. So long as the charge made against one whose extradition is sought legally constitutes a crime, technical defects in the extradition papers cannot prevent extradition.
5. Under K.S.A. 22-2706 the Governor of Kansas may surrender, on demand of the executive authority of another state, any person in Kansas charged in such other state with committing an act in Kansas intentionally resulting in a crime in the state whose executive is making the demand, even though the accused was not in that state at the time of the commission of the crime.
6. A discharge because of insufficient process or lack of evidence does not bar a subsequent extradition proceeding and is not res judicata in a subsequent Habeas corpus proceeding where the process is corrected or additional evidence is presented.
Stephen M. Joseph, Asst. Dist. Atty., argued the cause and Keith Sanborn, Dist. Atty., was with him on the brief for appellant.
Russell Shultz, Wichita, argued the cause, and was on the brief for appellee.
This is an appeal by the Sedgwick County Sheriff from an order of the Sedgwick County District Court granting Charles R. McCullough's petition for a writ of haveas corpus. The petition stems from extradition proceedings initiated by the Governor of Colorado who made demand upon the Governor of Kansas for the extradition of McCullough.
Charles Raymond McCullough (petitioner-appellee) was married to Littie P. McCullough. On March 29, 1973, a decree in dissolution of marriage giving Lillie custody of the McCulloughs' three minor children was entered in Colorado. On December 10, 1973, Charles McCullough, with the permission of his ex-wife Lillie, picked up the three minor children in Colorado Springs, Colorado, and took them to his Wichita, Kansas, home for a Christmas visit. On January 5, 1974, Lille McCullough telephoned Charles who allegedly refused to return the children and has since enrolled the children in school in Wichita.
On January 15, 1974, an information was filed in the El Paso District Court in Colorado charging the appellee with violation of custody orders 'on or about the 5th day of January, 1974.' (Colo.Rev.Stat. 40-3-304(2) (1963, 1971 Perm.Supp.), now 18-3-304(2) (1973).) The information was supported by Lillie McCullough's affidavit. Thereafter, a warrant for arrest was issued. It is conceded the appellee was not in Colorado on January 5, 1974.
On April 11, 1974, an 'APPLICATION FOR REQUISITION OF CHARLES RAYMOND McCULLOUGH, JR.' (emphasis added) addressed to the Governor of Colorado was filed. On May 28, 1974, the Governor of Colorado made written demand upon the Governor of Kansas to arrest and deliver the appellee. On July 30, 1974, Governor Robert Docking issued a warrant for the appellee's arrest. The appellant executed this warrant.
On August 5, 1974, a petition for a writ of habeas corpus in extradition was filed in the Sedgwick County District Court in the case McCullough v. Darr, Case No. C-31220. The appellant answered. On August 22, 1974, after a hearing, the appellee was discharged because: (a) the papers on which the Kansas Governor's warrant was issued were insufficient in law to support the extradition of Charles R. McCullough, and (b) the petitioner was not, in fact, present in Colorado on January 5, 1974, when the crime alleged was alleged to have been committed. No appeal was taken from this discharge.
The Colorado authorities amended and refiled their proceedings. On December 11, 1974, an amended information was filed in the El Paso District Court. This information deleted 'JR.' in the appellee's name (apparently because the appellee has a son named Charles Raymond McCullough, Jr.), but otherwise the information was identical to the first information for it alleged '(t)hat on or about the 5th day of January, 1974' the appellee unlawfully and feloniously violated a custody order with the intent to deprive the lawful custodian of custody. The affidavit of Lillie McCullough in support of the amended information contained the same allegations of fact; that the appellee took the children with her permission on December 10, 1973, but refused to return them on January 5, 1974. However, the 'APPLICATION FOR REQUISITION OF CHARLES RAYMOND McCULLOUGH' addressed to the Governor of Colorado and filed December 11, 1974 was changed. It alleged in part:
'That on or about the 10th day of December 1974, the said CHARLES RAYMOND McCULLOUGH took said children from the County of El Paso, State of Colorado, and ever since that time has refused to return them to Lillie Pearl McCullough, their lawful custodian, in violation of Colorado Revised Statutes 40-3-304(2).' (Emphasis added.)
It is conceded the year 1974 is erroneous and should be 1973.
On December 17, 1974, the Governor of Colorado made a second written demand upon the Governor of Kansas to arrest and deliver the appellee. On January 9, 1975, Governor Robert Docking issued a second warrant for the appellee's arrest using the same language as in the first arrest warrant. This second warrant was also executed by the appellant.
On January 15, 1975, the appellee filed a petition for writ of habeas corpus in the Sedgwick County District Court in McCullough v. Darr, Case No. C-32501. The appellant answered and alleged the appellee was in lawful custody by virtue of the extradition warrant.
The district court hearing the matter noted the application for requisition alleged the appellee took the children on December 10, 1974, not December 10, 1973. The appellant admitted the date was incorrect but argued this was only a typographical error. The appellee argued his ex-wife voluntarily surrendered custody of the children on December 10, 1973, hence the Colorado courts had no jurisdiction. On January 30, 1975, the district court discharged the appellee. The reason for the discharge is found in the court's oral ruling where it held:
'THE COURT: Well, I am concerned by several matters contained in these extradition papers.
'Firstly, the affidavit of Mrs. McCullough states that she voluntarily relinquished custody of these children to Mr. McCullough, and he left the state with her blessing.
'There is nothing contained in any of the extradition papers that indicate that she did or did not have the authority of a court in allowing Mr. McCullough to have custody of the children.
'He did not remove the children from the State of Colorado without the permission of Mrs. McCullough, as stated in her own affidavit.
'And in addition, the extradition papers show on their face that there was no violation of the laws of the State of Colorado.
Appeal from the foregoing decision has been duly perfected to this court.
Extradition proceedings are controlled by the Uniform Criminal Extradition Act, K.S.A. 22-2701, et seq. Before the Governor may issue a warrant, he must apply the standards set out in K.S.A. 22-2703 to the documents supporting the demand for extradition. Under that statute '(t)he indictment, information affidavit or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state.' (Emphasis added.) (See, Smith v. Nye, 176 Kan. 679, 680, 272 P.2d 1079.) This is in accord with Pierce v. Creecy, 210 U.S. 387, 28 S.Ct. 714, 52 L.Ed. 1113, where the constitutional standard of scrutiny was stated as follows:
Here the Governor found the information substantially charged the appellee with having committed a crime. Where an accused challenges extradition in a habeas corpus proceeding brought under the Uniform Criminal Extradition Act, the Governor's warrant issued in the extradition proceedings is presumed valid and regular in all respects, thus casting the burden of proof upon the petitioner to overcome the prima facie case made by the Governor's warrant. (Woody v....
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