BRICKEN
Presiding Judge.
The
transcript in this proceeding as first submitted here was
defective as pointed out in brief of appellee, and upon
motion of appellant the submission as of December 18, 1941
was set aside and certiorari granted to Clerk of the original
court, on January 5, 1942, directing said Clerk to forward to
this court a certified and corrected transcript of these
proceedings. In response to said writ a strict compliance was
had and the cause was again submitted in this court on
January 22, 1942.
This
transcript discloses that the appellant seeks to review the
proceedings had before the Honorable John C. Morrow, one of
the Circuit Judges of the Tenth Judicial Circuit, wherein
upon appellant's petition for a writ of habeas corpus,
the following order or judgment was made and entered:
"Nov.
1st, 1941 this cause coming on to be heard by the Court on
the Petition and Writ, and the Answer filed thereto, together
with the evidence introduced, and the Court being of the
opinion that said Petition should be denied, it is therefore
ordered by the Court, and it is the judgment of the Court,
that said Petition be and the same is hereby denied, and that
said Petitioner be delivered to the custody of the Chief of
Police of the City of Birmingham, Alabama; It is further
ordered and adjudged by the Court that the Chief of Police of
the City of Birmingham, Alabama, deliver said Petitioner to
the Agent of the State of Michigan.
"The
petitioner thereupon, in open Court, gave notice of Appeal to
the Court of Appeals of Alabama, and said judgment is hereby
suspended, pending action of said Court of Appeals of
Alabama. It is further ordered by the Court that the Appeal
Bond in this cause be and the same is
hereby fixed at $500.00, conditioned as required by
law."
The
proceedings as shown by the record and upon which the
foregoing "Judgment of the Court," was predicated,
consists (1) of the "Petition for writ of Habeas
Corpus," which, omitting formal parts, is in words and
figures as follows:
"Your
petitioner, G. J. Prosch, respectfully represents that Leburn
D. Mitchell, in whose behalf this application is made, is
being detained in the City Jail, Birmingham, Jefferson
County, Alabama, and held there by Chief of Police, T. A.
Riley and his agents.
"Petitioner
further avers that such detention of Leburn D. Mitchell is
illegal, unlawful and without his consent.
"Wherefore,
your Petitioner prays that a writ of habeas corpus be issued
immediately and directed to Chief T. A. Riley, his agents or
whosoever has the custody of the said Leburn D. Mitchell,
commanding him or his agents to bring the said body of Leburn
D. Mitchell before your Honor at a time and place by you
appointed together with the cause for the detention of the
said Leburn D. Mitchell.
"Your
petitioner further avers that the statements herein contained
are true to the best of his knowledge, information and
belief.
"J.
G. Prosch, Atty.
"for
Mitchell
"Subscribed
and sworn to before me this the 28 day of Oct. 1941
"G.
C. Boner
"Notary
Public."
(2) The
"writ of Habeas Corpus," in words and figures, is
as follows:
"To
the Chief of Police, City of Birmingham, Jefferson County,
Alabama:
"You
are hereby commanded to have the body of Leburn D. Mitchell,
alleged to be detained by you, by whatever name said Leburn
D. Mitchell, is called or charged, with the cause of such
detention before John C. Morrow, Judge of the Circuit Court,
on Oct. 30, 1941 at 10 A. M. to do and receive what shall be
then and there considered concerning the said Leburn D.
Mitchell.
"Dated,
this the 28 day of Oct. 1941.
"John
C. Morrow
"Judge
of the Circuit Court of the Tenth Judicial Circuit of
Alabama."
(3)
Return in response to said writ, as follows:
"Comes
T. A. Riley, as Chief of Police of the City of Birmingham and
in response to the writ issued herein produces in court the
body of Liebrun Mitchell, together with the cause of his
detention, which is, to-wit: a warrant issued by the Governor
of the State of Alabama directing the arrest of the said
Liebrun Mitchell and his delivery to Joseph Devriendt, duly
authorized agent of the State of Michigan, on a charge of
removing and concealing contract property, a copy of which
Governor's Warrant is attached hereto and made a part
thereof.
"The
premises considered, Respondent, T. A. Riley, as Chief of
Police of the City of Birmingham, moves the Court to dismiss
the petition and writ issued herein and return the said
Liebrun Mitchell to his custody as Chief of Police to be
delivered to the Agent of the State of Michigan.
"In
witness whereof I have hereunto set my hand, this the 31st
day of October, 1941.
"Trion
A. Riley
"Chief
of Police of the City of Birmingham."
(4)
Warrant of the Governor of the State of Alabama, as follows:
"In
the Name and by the Authority of the State of Alabama
"I,
Frank M. Dixon, Governor of the State
"To
any Sheriff, Coroner, Constable or other Officer authorized
by Law to make Arrests send Greeting:
"Whereas,
His Excellency, Frank Murphy, Lieutenant Governor and Acting
Governor in the Absence of the Governor, Governor of the
State of Michigan, by requisition dated the 28th day of
October 1941 has demanded of me as Governor of the State of
Alabama, the surrender of Liebrun Mitchell who, it appears,
is charged by Complaint and Warrant, in the county of Oakland
in said State, with the crime of Removing and Concealing
Contract Property (a duly certified copy of which Complaint
and Warrant accompanies said requisition) and it appearing
that said Liebrun Mitchell has fled from justice in said
State and taken refuge in the State of Alabama.
"Now,
therefore, I, Frank M. Dixon, Governor of the State of
Alabama, in obedience to the Constitution
and Laws of the
United States and the Laws of the State of Alabama, do
command you to arrest the said Liebrun Mitchell if He be
found within the limits of this State, and to deliver Him
into the custody of Joseph Devriendt, the duly authorized
Agent of the State of Michigan.
"And
of the execution of this warrant you will make due return to
me.
"In
testimony whereof, I have hereunto set my hand and caused the
great Seal of the State to be affixed at the Capitol, in the
City of Montgomery, this Thirty-First day of October in the
year of our Lord, One Thousand Nine Hundred and Forty-One and
in the One Hundred and Sixty-Sixth year of American
Independence.
{ALABAMA
GREAT SEAL}
"Frank
M. Dixon
"Governor
of Alabama
"By
the Governor
"John
Brandon
"Secretary
of State".
Upon
the hearing of this proceeding the transcript shows, that the
State offered in evidence, the foregoing warrant of the
Governor of the State of Alabama, authorizing the arrest of
the petitioner, and "rested its case."
Thereupon
the petitioner offered in evidence (1) the requisition of the
Governor of the State of Michigan, which is in words and
figures as follows:
"To
the Governor of the State of Alabama.
"Whereas
It appears by Complaint and Warrant which are hereunto
annexed, and which I certify to be authentic and duly
authenticated, in accordance with the Laws of this State,
that Liebrun Mitchell stands charged with the crime of
Removing and Concealing Contract Property which I certify to
be a crime under the Laws of this State, committed in the
County of Oakland in this State, and it having been
represented to me that he has fled from the justice of this
State and may have taken refuge in the State of Alabama.
"Now
Therefore, Pursuant to the Provisions of the Constitution and
the Laws of the United States, in such case made and
provided, I do hereby require that the said Liebrun Mitchell
be apprehended and delivered to Joseph Devriendt who is
hereby authorized to receive and convey him to the State of
Michigan, there to be dealt with according to law. The State
to be liable for no expense incurred in the pursuit and
arrest of said fugitive-
"In
Witness Whereof, I have hereunto set my hand and caused the
Great Seal of the State to be affixed at Lansing, this...
