McLarnan v. Hasson

• Decision Date: 13 November 1951
• Docket Number: No. 47891,47891
• Citation: 49 N.W.2d 887,243 Iowa 379
• Parties: McLARNAN v. HASSON et al.
• Court: Iowa Supreme Court

Page 887

49 N.W.2d 887

243 Iowa 379

McLARNAN v. HASSON et al.

No. 47891.

Supreme Court of Iowa.

Nov. 13, 1951.

Theodore F. Mantz, Edmund Scarpino, Des Moines, for appellant.

Robert L. Larson, Atty. Gen. of Iowa, Glenn L. Gray, Asst. Atty. Gen., Clyde E. Herring, Polk County Attorney, Des Moines, for appellees.

HAYS, Justice.

This appeal involves Chapter 759, Code 1950, I.C.A., cited as the 'Uniform Criminal Extradition Act', and, more specifically, Section 759.6 thereof. Plaintiff, being held under a fugitive warrant, issued by the Governor of this State, petitioned for a writ of habeas corpus which was, after a hearing, denied and he appeals.

Appellant, while residing in Lancaster County, Nebraska, was divorced by his wife and ordered to pay to her the sum of $100 per month for the support of their minor children. In October 1950, a complaint was filed in Lancaster County, Nebraska, charging him with the crime of failing to pay alimony for the support of minor children and a warrant was issued for his arrest. Appellant was at that time residing in Polk County, Iowa. While the requisition from the Governor of Nebraska is not before us, the Nebraska warrant and an affidavit made before a magistrate in that state are part of the record, as is also the fugitive warrant under which appellant is being held. Both the warrant and affidavit, from Nebraska, allege that appellant, while in Iowa, refused to make alimony payments, as ordered by the divorce decree, for the support of his children. That he thereby committed an act in Iowa intentionally resulting in the commission of the crime, as alleged, contrary to Nebraska statutes. The fugitive warrant also contains a similar statement. I. Appellant's chief complaint is that it appears conclusive that if any crime was committed, it was committed in the state of Iowa. That he, not being a fugitive from justice, is not subject to extradition, citing Section 2, Article IV, U. S. Constitution and Section 759.2 and 759.3, Code 1950 I.C.A.; also, Jones v. Leonard, 50 Iowa 106; and Seely v. Beardsley, 194 Iowa 863, 190 N.W. 498.

Section 2, Article IV, U. S. Constitution, provides in part: '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'. Prior to the enactment of Chapter 759, Code 1950, I.C.A., being Chapter 244, Acts 53rd G. A., the statutes of this state, dealing with extradition, conformed with and were limited to the provisions of the constitutional provision, above quoted. The rule that one charged with a crime in another state, to be subject to extradition to that state, must be shown to have been physically present in that state at the time of the commission of the crime, prevailed. Jones v. Leonard, 50 Iowa 106; Seely v. Beardsley, 194 Iowa 863, 190 N.W. 498. Under this rule, the judgment appealed from would clearly be erroneous.

Appellant in his reply brief and argument states 'When the U. S. Constitution was adopted the states surrendered certain of the rights of the states to the U. S. Government and this right of extradition was not reserved by the states but given to the U. S. Government'. While no instance has been called to our attention where this Court has spoken upon this question, it has been generally held, where the question has arisen, that Section 2, Article IV, U. S. Constitution, is exclusive, not inclusive, of the right of a state to enact laws under which extradition may be granted upon the request of a sister state, so long as they do not abridge said Section. Innes v. Tobin, 240 U.S. 127, 36 S.Ct. 290, 60 L.Ed. 562; Culbertson v. Sweeney, 140 Ohio St. 426, 45 N.E.2d 118; Ex parte Campbell, 147 Neb. 820, 25 N.W.2d 419; 35 C.J.S., Extradition, § 3; Annotations, 135 A.L.R. 973 and 151 A.L.R. 239.

Section 759.2 is in substance a statement of the provisions of Section 2, Article IV, supra, and deals with cases where the party is charged with fleeing from the state where the crime was committed. Section 759.3 sets forth the documentary proof to be made by the requesting state, in order to authorize the issuance of a fugitive warrant by the...