Morgan v. Horrall, 12021.

• Decision Date: 20 June 1949
• Docket Number: No. 12021.,12021.
• Citation: 175 F.2d 404
• Parties: MORGAN v. HORRALL, Chief of Police.
• Court: U.S. Court of Appeals — Ninth Circuit

175 F.2d 404 (1949)

MORGAN v. HORRALL, Chief of Police.

No. 12021.

United States Court of Appeals Ninth Circuit.

June 20, 1949.

Richard A. Haley, Los Angeles, Cal., for appellant.

Ray L. Chesebro, City Attorney, Donald M. Redwine, Assistant City Attorney, Philip E. Grey, Deputy City Attorney, Los Angeles, Cal., for appellee.

Before MATHEWS, HEALY and BONE, Circuit Judges.

BONE, Circuit Judge.

Appellant was arrested in the City of Los Angeles, California and held by its Chief of Police upon a warrant issued by the Governor of the State of California authorizing the removal of appellant to the State of Colorado for trial upon criminal charges filed against him in the courts of Colorado. The said warrant was issued by the Governor of California upon a demand by the Governor of Colorado for surrender of appellant for the purpose of criminal prosecution in Colorado.

When the Governor of California issued the warrant for the arrest of appellant, the Governor had before him the following papers:

1. Requisition or demand by the Governor of Colorado.

2. Application for Requisition.

3. Copy of complaint and information, subscribed and sworn to before a magistrate.¹

4. Warrant issued out of the Justice Court.

5. Affidavit of Emma Hoelzle, sworn to before a magistrate.

6. Affidavit of Margaret M. Phillips, sworn to before a magistrate.

7. Affidavit of Ross L. Hennerman, sworn to before a magistrate.

8. Affidavit of Fred Staab, sworn to before a magistrate.

Also attached were copies of statements by one Singer and one Aylesworth. These were not submitted as independent affidavits, but were exhibits made part of an affidavit executed before a magistrate.

It also appears that in the demand on file in the office of the Governor of California, the Governor of Colorado certified to the correctness of certain necessary documents.

Section 1549.1 of the California Penal Code appears to be a part of the Uniform Criminal Extradition Act which has been adopted in many states. It reads as follows:

"Sec. 1549.1. Surrender of person not in other state when committing act resulting in crime therein. The Governor of this State may also surrender, on demand of the executive authority of any other State, any person in this State charged in such other State in the manner provided in section 1548.2 of this code with committing an act in this State, or in a third State, intentionally resulting in a crime in the State whose executive authority is making the demand. The provisions of this chapter, not otherwise inconsistent, shall apply to such cases, even though the accused was not in the demanding State at the time of the commission of the crime, and has not fled therefrom. Neither the demand, the oath, nor any proceedings under this chapter pursuant to this section need state or show that the accused has fled from justice from, or at the time of the commission of the crime was in, the demanding or other State."

Section 1548.2 of the Penal Code of California provides that demand may be accompanied by a copy of an indictment, by a copy of an information, or by a copy of an affidavit made before a magistrate, together with a copy of a warrant issued thereon, duly certified. These provisions would appear to be applicable as a description of the necessary accompanying papers and their certification, although certain provisions in Section 1548.2 obviously do not apply to the demand under Section 1549.1. We are satisfied that under California law the sufficiency of the record depends upon whether there are in the record certified copies of documents necessary to confer jurisdiction upon the Governor of California and that in this instance there were sufficient papers in the extradition record file to confer such jurisdiction.

The finding of the lower court that the papers submitted to the Governor of California were sufficient is in accordance with the opinion of the lower court and in accordance with the holding of the California courts of last resort. (See cases cited in opinion referred to in footnote 2.)

After the arrest of appellant an application for a writ of habeas corpus was filed in the District Court of Appeal in and for the Second District of the State of California, Division 2. This intermediate appellate court rendered an opinion on June 15, 1948, discharging the writ and remanding appellant to custody.²

Thereafter, on June 16, 1948, appellant filed a petition for the issuance of a writ of habeas corpus in the Supreme Court of the State of California, which petition was denied on June 21, 1948, without hearing. In legal effect this denial made the decision of the District Court of Appeal a final decision on the merits of appellant's case under California law. See Gordon v. Scudder, 9 Cir., 163 F.2d 518, and Ex parte Adamson, 9 Cir., 167 F.2d 996.

Thereafter, appellant filed a petition for a writ of habeas corpus in the District Court of the United States. That court issued the writ and held a hearing thereon as a result of which the judge discharged the writ and remanded appellant to the custody of the Los Angeles Chief of Police. This appeal followed. The opinion of the District Judge is reported in 78 F.Supp. at page 756.

In epitome, the errors here asserted by appellant and relied upon by him as requiring a reversal, are as follows: (1) Section 1549.1 of the Penal Code of the State of California, supra, is invalid because it conflicts with or is repugnant to the United States Constitution, and to the provisions of Title 18 U.S.C.A. § 3182 enacted under authority of Section 2, Clause 2 of Article IV of the Constitution;³ (2) It is admitted that appellant was never in the State of Colorado and never "fled" from Colorado. The warrant of arrest is void because appellant is not a fugitive from justice. (3) The complaint issued by the Magistrate's Court in the State of Colorado does not charge a crime against the laws of that State. (4) The Complaint upon which demand for requisition was made is copied directly from said Section 1549.1 of the California Penal Code and not from any of the laws of Colorado; that while it may be conceded that appellant violated the laws of the State of Colorado, he is not in the present Complaint so charged, but is charged with having committed a crime against the laws of California.⁴

The lower court made and entered Findings of Fact and Conclusions of Law in which it rejected all of the material contentions of appellant. The record also discloses that the same material and controlling issues were submitted to the California Supreme Court and to the California District Court of Appeal, and the decision of both courts was adverse to appellant's contentions. As clearly indicated in the reported decision of the California District Court of Appeal, 86 Cal.App.2d 217, 194 P.2d 800, that court gave full consideration to the effect of California and Federal law and to the Federal Constitutional issue presented. With this record before it the Supreme Court of California refused a review of the decision of the District Court of Appeal. The interpretation by these State courts of the meaning and applicability of California statutes, as related to the facts of this case, is not to be disturbed in the absence of a clear and convincing showing of a violation of appellant's rights under the Federal Constitution. We are persuaded that such a showing has not been made in this case. See Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 543, 61...