Pelley v. Colpoys, 7734.

• Decision Date: 14 April 1941
• Docket Number: No. 7734.,7734.
• Citation: 122 F.2d 12
• Parties: PELLEY v. COLPOYS, U. S. Marshal.
• Court: U.S. Court of Appeals — District of Columbia Circuit

122 F.2d 12 (1941)

PELLEY v. COLPOYS, U. S. Marshal.

No. 7734.

United States Court of Appeals for the District of Columbia.

Argued February 18, 1941.

Decided April 14, 1941.

Writ of Certiorari Denied October 13, 1941.

T. Edward O'Connell, of Washington, D. C., for appellant.

Edward M. Curran, U. S. Atty., and Bernard Margolius and John Conliff, Jr., Asst. U. S. Attys., all of Washington, D. C., for appellee.

Before GRONER, C. J., and MILLER and RUTLEDGE, JJ.

Writ of Certiorari Denied October 13, 1941. See 62 S.Ct. 70, 86 L.Ed. ___.

GRONER, C. J.

This is an appeal from an order of the United States District Court discharging a writ of habeas corpus and remanding petitioner to the custody of the marshal for delivery to the agent of the State of North Carolina.

Petitioner, William D. Pelley, was convicted on January 22, 1935, in the Superior Court of Buncombe County, North Carolina, on the first and second counts of a 16-count indictment. The first count charged petitioner with selling and causing to be sold securities without registering as a dealer or salesman as provided by law; the second, unlawfully making false representations for the purpose of selling securities and stocks in North Carolina. On the 17th of February, 1935, petitioner was sentenced on the first count to confinement in the state prison for a period of not less than one nor more than two years. On the second, "prayer for judgment was continued for five years". The prison sentence was suspended, on condition that petitioner pay a fine of a thousand dollars and costs and remain continuously of good behavior. Petitioner paid the fine and costs and was released. On October 19, 1939, the North Carolina court issued a capias for the arrest of petitioner, who was then outside the State of North Carolina. On March 8, 1940, the Governor of North Carolina forwarded to the Chief Judge of the United States District Court in the District of Columbia¹ an application for extradition to the end that petitioner be surrendered to the North Carolina court for sentence and judgment on the second count of the indictment and for the revocation of the suspended sentence imposed on the first count. After hearing, Judge Wheat issued an order surrendering petitioner to the agent of North Carolina as a fugitive from her justice.

This petition for habeas corpus followed. The stated grounds for relief are:

(1) The requisition papers contained no statement of any crime committed in North Carolina; and did not specify any offense committed by petitioner which would justify the issuance of a capias by the court; (2) petitioner was not under indictment or charged with crime in North Carolina; (3) the affidavits in support of the requisition show on their face that they were based upon information and belief; (4) petitioner was not a fugitive from the State of North Carolina; (5) extradition was sought not to prosecute petitioner in good faith, but to serve a private purpose; and upon return to North Carolina petitioner would be subjected to violence, physical abuse, and detained at a prohibitive bond which petitioner would be unable to give; and (6) that the suspended sentence under the North Carolina laws was limited to five years and that this period expired February 17, 1940, prior to the request of the Governor for extradition; and that the request, if complied with, will violate the Fourteenth Amendment, the Eighth Amendment, and Section 2, Article IV, of the Constitution of the United States.

There was a trial below, and the writ of habeas corpus was discharged and petitioner remanded to custody, but admitted to bail. The lower court found that petitioner was the identical person named in the application for extradition; that he was a fugitive from the justice of the State of North Carolina; and that the requisition papers substantially charge him with the commission of crime in North Carolina and substantially state facts which require his return to that State as a fugitive from justice.

This appeal followed.

We have no manner of doubt that the proceedings in the North Carolina court following petitioner's conviction in 1935 were in all respects regular and according to the North Carolina practice. For nearly half a century prior to 1937, the trial judges in North Carolina operated a system of probation on their own initiative, permitted convicted criminals to go at large on specified conditions, and arrested them upon bench warrants if the terms of probation were violated. The system is described in an article in 15 N.C.Law Review, pp. 321, 345, 346. Either the sentence of imprisonment would be formally entered and execution suspended on conditions, or prayer for judgment would be continued in like manner. Both procedures are approved in State v. Ray, 212 N.C. 748, 194 S.E. 472, 473.² Since 1937 this power has been expressly continued by statute as a part of the State's probation system. N.C.Code (Michie 1939), § 4665(1) et seq. Section 4665 (1) provides in part as follows: "Suspension of sentence and probation. — After conviction or plea of guilty or nolo contendere for any offense, except a crime punishable by death or life imprisonment, the judge of any court of record with criminal jurisdiction may suspend the imposition or the execution of a sentence and place the defendant on probation or may impose a fine and also place the defendant on probation."

Likewise under the North Carolina law the trial court had authority to issue its capias for petitioner's arrest on the suspended sentence either under the common-law system which prevailed in 1935 or under the 1937 statute which expressly authorizes the court to issue a warrant and cause the defendant to be arrested for violating any of the conditions of probation or suspension of sentence.³

In the instant case, capias for petitioner's arrest was admittedly issued within the period of suspension. In similar circumstances we have held that a fugitive from justice found in the District of Columbia may be extradited to the demanding State. Reed...