Mitchell v. Stoutamire

• Decision Date: 27 January 1934
• Citation: 152 So. 629,113 Fla. 822
• Parties: MITCHELL v. STOUTAMIRE, Sheriff, et al.
• Court: Florida Supreme Court

152 So. 629

113 Fla. 822

MITCHELL v. STOUTAMIRE, Sheriff, et al.

Florida Supreme Court

January 27, 1934

En Banc.

Original habeas corpus proceeding by Howard D. Mitchell against Frank Stoutamire, as sheriff of Leon county, Fla., and others.

Petitioner remanded to custody of respondents.

COUNSEL

Lambdin & Ramseur, of St. Petersburg, and Waller &amp Pepper, of Tallahassee, for petitioner.

Cary D Landis, Atty. Gen., Roy Campbell, Asst. Atty. Gen., and Wm C. Hodges, of Tallahassee, for respondents.

OPINION

BROWN Justice.

The petitioner in this case alleges that he is unlawfully detained in the custody of the respondents and deprived of his liberty by them under a warrant of rendition issued by the Governor of the state of Florida, directed to the said Frank Stoutamire, as sheriff of Leon county, Fla., and to the said F. M. Dean, agent of the state of California, by virtue of a requisition from the Governor of the latter state, demanding the extradition of the petitioner as a fugitive from justice.The original petition alleges that the requisition from the Governor of California had attached to it a certified copy of an information filed against the petitioner by the county prosecuting attorney of Orange county, Cal., in the superior court of that county, charging the petitioner with the offense of 'grand theft,' which is made the basis of the requisition, and the extradition proceedings aforesaid.The petition alleges that the information is not of such a character as would authorize the Governor of the state of Florida to issue a warrant of extradition thereon, because, under the controlling federal statute, the only basis upon which the Governor of this state could act must be a requisition showing either a copy of an indictment found or an affidavit made before a magistrate, charging the person demanded with having committed treason, felony, or other crime, which indictment or affidavit must be certified as authentic by the Governor of the demanding state; that said information is neither an indictment nor an affidavit made before a magistrate, and hence insufficient to authorize the Governor of this state to issue said warrant of rendition.

The return of the respondents, the sheriff of Leon county and the agent of the state of California, alleges that they hold the petitioner in custody by virtue and upon the authority of a rendition warrant of extradition issued by the Governor of this state under his hand and seal and attested by the secretary of state, which was issued pursuant to an authenticated requisition from the Governor of the state of California, which requisition was predicated upon an affidavit made before a magistrate of Orange county, Cal., charging a felony under the laws of that state, also by an information signed by the district attorney of said Orange county, likewise charging the petitioner with the commission of a felony, copies of which affidavit and information are attached to and made a part of the return, likewise a copy of the Governor's warrant of rendition.

The Governor's warrant of rendition is regular and valid on its face, in full compliance with section 2 of article 4 of the Constitution of the United States, and the Act of Congress adopted in 1793, pursuant thereto, section 5278, U.S. Rev. Stats.(18 USCA § 662), the applicable portions of which are quoted in State ex rel. Peck v. Chase,91 Fla. 413, 107 So. 541.No reference is made in the executive warrant to the information referred to in the petition, which warrant recites, among other things, that the executive authority of the state of California has produced and filed with the executive authority of the state of Florida a copy of 'an affidavit made before a California magistrate,' charging the said person so demanded with having committed in said state of California against the laws of said state, the crime of 'grand theft,' and which is certified as authentic by the executive of said state of California.This recital is borne out by the copy of the affidavit set forth in respondents' return, which appears to have been sworn to before a California justice of the peace by one W. M. Smith on June 26, 1930, charging the defendant with the same crime and in the same language as that contained in the information filed by the district attorney of Orange county, Cal., by his deputy on February 19, 1932.

The information was not sworn to, nor has it been made to appear that this was necessary under the California statutes, so far as its sufficiency as a basis for a prosecution in that state is concerned.

Petitioner was allowed to file an amendment to his petition, which sets forth a copy of the request of the district attorney to the Governor of California for the issuance of a requisition upon the Governor of Florida and the accompanying authenticated copies of the information and certain other papers.The amendment to the petition called attention to the fact that the information was not sworn to by the district attorney and does not purport to bear his signature but was filed by a deputy district attorney.It is further alleged that the Governor's warrant is void and without authority of law because it recites that it was made upon 'a copy of affidavit made before a California magistrate,' whereas the only appropriate authority for the issuance of said warrant appearing in said district attorney's request for the requisition and the documents accompanying same is the information purporting to have been filed by the deputy district attorney for Orange county, Cal.; that there is therefore a variance between the warrant issued by the Governor of Florida and the request of the district attorney addressed to the Governor of California for the issuance of a requisition.It is also alleged that the later affidavit of W. M. Smith, made January 8, 1934, subsequent to the filing of the information, which goes into some detail as to the facts upon which the petitioner is charged, shows that the petitioner had not committed any criminal offense.We might observe that this later affidavit was made before a notary public, and is evidently not the affidavit referred to in the Governor's warrant.Whether the facts alleged therein would be sufficient to prove the commission of a crime under the statutes and decisions of California, we are not called upon to decide, as the original affidavit does charge a felony under the California statute.

A copy of the requisition of the Governor of the state of California, addressed to the Governor of this state, is not set forth in either the original or amended petitions, nor in the return of the respondents, but such return does allege that the requisition of the California Governor 'is predicated upon an affidavit made before a magistrate of Orange County, California, charging a felony under the laws of said State, also by an information signed by the District Attorney of Orange County, California, which likewise charged the petitioner, Howard D. Mitchell, with the commission of a felony under the laws of said State.The Governor of the State of Florida had before him said affidavit and information before he issued his rendition warrant.'

Counsel for petitioner contends that the subsequent filing of the information rendered the previous affidavit before a magistrate functus officio, as thereafter the prosecution would proceed upon the information alone, and that therefore the affidavit could not be deemed sufficient as a basis for extradition.We are inclined to think, however, that inasmuch as the affidavit and the information charged the same crime against the same person and in practically the same language, the subsequent filing of the information might be deemed a continuation of the prosecution which was begun by the making of the affidavit before the justice of the peace, and that such subsequent filing of an information did not deprive the affidavit before the magistrate of its efficacy as a basis for extradition proceedings.

It is also contended in behalf of petitioner that inasmuch as more than three years have elapsed since the making of the affidavit, prosecution thereunder would be barred by the statute of limitations of California, which is three years (Pen. CodeCal. § 800).We are referred on this point to section 69, par. 7, California Jurisprudence.It seems therefrom, that under the California statutes'an indictment for any other felony than murder, the embezzlement of public money, or the falsification of public records, must be found, or an information filed, within three years after its commission.'This means that, regardless of the making of this affidavit, the information must have been filed within three years after the commission of the offense charged, which appears in this case to have been done, and that any further prosecution of the petitioner must be based upon the information, but we cannot see that this deprives the affidavit before the magistrate of its efficacy as a basis for extradition proceedings, as this efficacy is conferred upon such an affidavit by the act of Congress above referred to.

The proposition most earnestly contended for by counsel for petitioner in their able arguments and briefs in this case is that an unverified information cannot be made the basis for the issuance of a requisition by the Governor of the demanding state or the granting of a warrant of rendition by the Governor of the asylum state.The weight of authority seems to support this contention.The Act of Congress under which such proceedings are authorized requires that the executive authority of the demanding state shall produce a copy of 'an indictment found or an affidavit made before a magistrate * * * charging the person demanded with having committed treason,...