Pearce v. State

• Decision Date: 23 June 1893
• Citation: 23 S.W. 15
• Parties: PEARCE v. STATE.
• Court: Texas Court of Criminal Appeals

23 S.W. 15

PEARCE v. STATE.

Court of Criminal Appeals of Texas.

June 23, 1893.

Appeal from district court, Taylor county; T. H. Connor, Judge.

Petition in habeas corpus by George A. Pearce for release from custody. The petition was denied, and petitioner appeals. Affirmed.

Lockett & Joiner, Kirby, McKinzie & Kirby, and Leggett & Hardwicke, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

SIMKINS, J.

Relator was arrested on an executive warrant issued the 22d day of April, 1893, by the governor of this state, upon the requisition of the governor of Alabama, charging relator with embezzlement and theft. Upon the 28th day of April, he presented his application to the Honorable T. H. Connor, judge of the forty-second judicial district, for a writ of habeas corpus, praying for reason therein stated to be discharged from custody. Upon hearing the court refused the prayer of the relator, remanding him to the custody of the agent of Alabama who had him in custody at the institution of these proceedings. Pending this appeal, relator was placed in the custody of the sheriff of Taylor county.

Relator attached as Exhibit A to his petition a copy of the executive warrant, which recites that George A. Pearce stands charged by indictment with the crime of embezzlement and grand larceny committed in Alabama, and the defendant had taken refuge in the state of Texas, and that the governor of Alabama, in pursuance of the constitution and laws of the United States, had demanded that he, the governor of Texas, cause said fugitive to be arrested and delivered to P. D. Dorlan, who was duly authorized to receive him, etc. Petitioner further attached as Exhibits B and C copies of the indictments presented to the governor of Texas by the said executive of Alabama, duly certified to by the clerk. In the return of the writ of habeas corpus by the said agent and by the sheriff of Taylor county the same exhibits are made; also the requisition of the governor of Alabama, stating that it appeared by the annexed copy of the indictment, duly authenticated in accordance with the laws of the state, that George A. Pearce stands charged with the crime of embezzlement and grand larceny committed in the county of Mobile, and it had been represented to him that he had fled from the justice of that state, and taken refuge in the state of Texas. Also as exhibits to the return the authorization of said Dorlan as agent. There were two indictments so certified, each beginning as follows: "State of Alabama, Mobile county. City court of Mobile, February term, 1889. The grand jury of said county charge that before the finding of this indictment, George A. Pearce, an officer or agent of the Planter's and Merchant's Insurance Company," etc., and concluding, "against the peace and dignity of the state of Alabama." The first indictment contains 3 counts, charging embezzlement and grand larceny of $30,000, the property of said company. The second indictment contains 15 counts, charging embezzlement and grand larceny of 18 state bonds of the denomination of $1,000 each, the property of said company. But outside of the marginal statement of venue, and the allegation of the crime being committed before the finding of the indictment, there was no time nor venue laid in the indictment.

The relator insists on being discharged, because there was no indictment pending against him in Alabama or elsewhere which would authorize his extradition; (1) that the so-called "indictments" were insufficient to authorize such a proceeding, because it was not alleged therein that said offenses were committed in the state of Alabama, and in violation of her laws; (2) that said indictments were wholly void, in that no time or place were laid therein, and it did not appear where said offenses were committed, nor that the said offenses were not long since barred. Relator further showed he had been a citizen of Texas for more than three years, and his whereabouts were known to interested parties in Alabama, and he asked leave to make proof under the statute of limitation, presumably of Texas.

It may be considered as the settled doctrine of the courts that a prima facie case is made out against the relator where the returns of the writ of the habeas corpus or the exhibits filed with the petition show (1) a demand or requisition for the prisoner made by the executive of another state, from which he is alleged to have fled; (2) a copy of the indictment found, certified as authentic by the executive of the demanding state; (3) the warrant of the governor of the asylum state authorizing the arrest. When these facts are made to appear by papers regular on their face, the prisoner is prima facie under legal restraint. Spear, Extr. 208-303; In re Clark, 9 Wend. 212; Schlemn's Case, 4 Har. (Del.) 577; In re Hooper, 52 Wis. 699, appendix; People v. Brady, 56 N. Y. 182; Johnston v. Riley, 13 Ga. 97; Ex parte Stanley, 25 Tex. App. 378, 8 S. W. Rep. 645. This is practically conceded by relator, who does not deny he is a fugitive from justice, or raise any issue thereon, as he had a right to do. Ex parte Mohe, 2 Ala. Law J. 457; Wilcox v. Nolze, 34 Ohio St. 520; Whart. Crim. Pl. & Pr. 31, 34, 35. Relator relies entirely upon the invalidity of the indictments for his discharge, for it is not shown how long the offenses were committed prior to the February term, 1889, when said indictments were found, nor what is the statute of limitation in Alabama, if any, for embezzlement and theft. Now, admitting that the indictments in this case, if tested by the laws and constitution of Texas, are wholly insufficient to be made the basis of a conviction, does it follow that they cannot sustain the requisition of the governor of Alabama for relator?

In considering the first objection of relator to the indictment, that it does not allege that the crimes therein mentioned were committed in Alabama, and against her laws, we may say that the right and duty of the executive of this state to order the arrest and delivery of relator to the governor of Alabama is derived wholly from the federal constitution and acts of congress. As said in Hibler's Case, 43 Tex. 203, this provision of the constitution is equally binding on each state as though it was a part of its own constitution, or whether congress had passed laws relating thereto or not. Now, although the extradition law, as understood by the authorities, can only be invoked by the state within whose limits the crime is committed, yet no specific form of indictment is required by the federal constitution or laws. On the contrary, the matter seems to have been left to the due course of legal proceedings in each state.

Article 4, § 2, subd. 2, of the constitution of the United States declares that 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 by the executive of the state from which he fled, be delivered up. Rev. St. U. S. § 5278, reads: "Whenever the executive authority of any state demands any person as a fugitive from justice of the executive of another state * * * to which such person has fled, and produces a copy of an indictment found, * * * charging the person demanded with having committed treason, felony, or other crimes, certified as authentic by the governor of the state from whence the person so charged has fled, it shall be the duty," etc.

An examination of the constitution shows that where a person is charged — that is, in due course of legal procedure of the particular state, or, to use the language of the statute, where there is an indictment found charging a person — with having committed a crime, and he is a fugitive from...